Townhall.com

By Bob Barr

No person shall be . . . deprived of . . . property, without due process of law.

— U.S. Constitution, Amend. V

No . . . ex post facto Law shall be passed.

— U.S. Constitution, Art. I, Sec. 9

Stroke of the pen, law of the land. Kinda cool.

— Paul Begala, Advisor to Former President Bill Clinton, July 5, 1998

Two bulwarks of individual liberty – that the government cannot seize a person’s property without due process of law, and that it cannot prosecute an individual for an action that was lawful when the person performed the act – are threatened by a single regulation now pending before the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a component of the United States Department of Justice.

The regulation is designed to prohibit people from possessing so-called “bump stocks,” as apparently had been used by mass murderer Stephen Paddock last October 1^st in Las Vegas. While the intent of the proposed regulation may be considered laudable by many, the procedural precedent it would set should cause serious concern for anyone who supports limited and accountable government.

This regulation would establish a precedent according to which the federal government (specifically, unelected employees of the ATF) would be empowered to seize property from any individual without affording them any compensation, and rendering anyone who fails to turn in or destroy such property subject to federal criminal penalties. All this notwithstanding that the to-be-prohibited property (“bump stocks”) had been previously deemed a lawful firearm accessory by that very same agency.

That an administration which declares itself supportive of private property and Second Amendment rights, and which endorses the principle of limited government, should propose such a precedent is worrisome; concern compounded by the manner in which the Justice Department is attempting to circumvent long-standing constitutional guarantees.

Rather than going to the Congress and ask that it pass legislation making “bump stocks” illegal (and more precisely defining the term than has been done in this regulation), the administration is seeking to have the law changed by claiming it is merely “clarifying” the current definition of a “machine gun.” Thus, by regulatory fiat, a lawful semi-automatic rifle becomes an unlawful machine gun.

It is no secret that Republican and Democratic administrations alike consistently have exhibited a marked preference for acting by regulation rather than by legislation.

Government by regulation can achieve a goal far more quickly than having to find and keep allies on Capitol Hill to carry an administration’s water. Fitting the proposal into crowded congressional agendas can be difficult. Defending the language in time-consuming hearings can be risky. And having to explain the issue to voters is burdensome. Far simpler is it to draft a bureaucratese-laden proposal, publish it in the Code of Federal Regulations (which is as alien to the vast majority of voters as are the Dead Sea Scrolls), wait a month or two as the Administrative Procedures Act requires, and Presto! You have a regulation that carries the full force of law.

In this instance, and consistent with long-standing but unwritten Washington norms, ATF declares it is simply exercising power previously delegated to it by the Congress. Specifically, the Bureau claims it is doing only what the Congress authorized it to do in the National Firearms Act of 1934 and the Gun Control Act of 1968 — protect the public from the dangers of “machine guns.” Insofar as the Bureau has now realized (in the wake of the Las Vegas mass shooting) that devices it previously had determined to be lawful (bump stocks) actually constitute machine guns, well, the Bureau has no choice but to step in, “clarify” its earlier ruling, and protect the public.

All this sounds so proper and correct; except it isn’t. What the ATF is doing is undermining important guarantees against arbitrary government action, of the sort expressly prohibited in our Constitution.

Republicans currently control both houses of Congress. Many members of this majority regularly lambasted the Clinton and Obama administrations for using executive-branch powers to circumvent the legislative process. If the GOP now allows the ATF and the Justice Department to push through this regulation, it will show itself to be not only politically hypocritical but constitutionally as well.

Townhall.com

by Bob Barr

Despite the requirement in Article I Section 8 of the Constitution that only the Congress has the power to “declare war,” the FDA (Food and Drug Administration), an agency of the Executive Branch, has been engaged for more than half a century in an all-out war on what it obviously considers the most dangerous foe on Earth – tobacco.  FDA war lords now are launching an all-out assault on “flavored” tobacco products.

If successful, this effort will drive from retail shelves across America virtually every pipe tobacco product, menthol-flavored cigarettes and flavored cigars, along with any other product that combines tobacco and flavoring agents.

And even that result will not be sufficient victory for the desk-bound generals at FDA.  These bureaucratic nannies consider e-cigarettes to be “tobacco,” notwithstanding they contain nary a scintilla of tobacco. Therefore vaping products, which come in a wide variety of flavors, would be crushed out of legal existence if a regulatory edict now under consideration by FDA is permitted to become final.

The early battles waged by the FDA against tobacco were based on legislation passed in the late 1960s and early 1970s, and targeted cigarettes as public enemy number one.  However, during the two-year window from 2009 to 2010 when Democrats controlled both houses of Congress and the White House, the agency was given what it had long coveted – legislative power to go after premium cigars, flavored tobacco products, and e-cigarettes (commonly referred to as “vaping”).

Now, armed with the regulatory power to dismantle these other industries the same way it has attacked the cigarette industry, the FDA is girding for its final battle against the scourge of products that individuals enjoy by breathing in smoke or vapor.

Unless Congress or the President step in and stop the FDA nanny warriors from their scorched-earth drive against premium cigars, flavored cigarettes and cigars, and tobacco-free flavored vaping, these products will go the way of Kinder Surprise and lawn darts– available only on the black market.

It is hardly surprising that former President Barack Obama and his cohorts who controlled the Congress for the first two years of his administration, sparked the FDA’s multi-pronged drive to rid the country of all things tobacco.  Harder to comprehend, however, is the fact that the Trump Administration, with a Congress led not by Democrats but by the GOP, appears willing to allow the FDA to continue its crusade.

At this point, it is not clear whether the somnambulant Congress and the Trump Administration actually support the FDA’s war against the vaping and flavored tobacco industries, or if they simply have too many other matters on their minds. The Administration did extend the deadline for public comment on the FDA’s draconian regulatory proposal for an extra month, to late July.  But this is but a very minor delay in what will – if not stopped – result in the death of businesses large and small that simply produce or market a lawful product.

The vaping industry, which has mushroomed into a multi-billion dollar industry in the United States and worldwide, and has been shown demonstrably to wean smokers off cigarettes, stands to be hit hard by the new regulations; as will flavored cigar manufacturers like Florida-based Swisher Sweets.

It is the “collateral damage” that would hit hundreds of small, “Mom and Pop” tobacco and vaping business in towns large and small across America, however, which makes the FDA’s actions especially appalling and heart-rending.

One very real victim of the FDA’s ire will be Uhle’s Tobacco Co. in Milwaukee, Wisconsin.  Uhle’s is a small but successful purveyor of pipe tobacco and cigars, dating back to 1939.  Its only patrons are adults who enjoy purchasing and smoking pipe tobacco and cigars from a business with an excellent reputation and knowledgeable staff. But the company’s unforgivable sin in the eyes of the FDA is selling “flavored” tobacco products.  If the FDA proposed regulation becomes final, Uhle’s dies.

President Trump has used his pardon power wisely and appropriately to correct past errors by our legal system that have victimized several individuals.  He could perform a real service to the country, and to law-abiding businesses large and small, by stopping the draconian and hateful FDA “flavored” tobacco regulations.  The Congress should wake up, realize what is going on, and cut off funding for the FDA effort.

It is time to stop this regulatory madness.

Bob Barr

Townhall.com

The swearing-in of a public official has always been a solemn event; during which extreme ideology and partisan theatrics were put aside. Even the use of a Bible was a tradition respected by conservatives and liberals alike; not always for religious reasons, but in recognition that swearing on top of our culture’s most-sacred tome was a sign of the significance of the vows and of one’s commitment thereto.

Recently, however, things have gone badly off track. The slow creep of post-modern subjectivism finally has made its way into the swearing-in process itself. Now, it seems anything goes.

Take, for instance, the recent swearing-in of 26-year-old Mariah Parker, as a Commissioner for Athens-Clarke County, Georgia. The raised fist during her vows and comically unserious theatrics were crowned when she took her oath of office by placing her left hand not on the Bible and not on the U.S. Constitution, but on a copy of The Autobiography of Malcolm X. She now undoubtedly will become the celeb-du-jour of the New Left, right alongside the foul-mouthed actor Robert De Niro.

If the new criteria for being sworn into office is to place your hand on whatever book you happen to like, here are some others:

President Trump, The Art of the Deal by Donald Trump. Sure, it may be somewhat conceited to use one’s own book to be sworn-in on, but what better representation of Trump’s first term than this? The business advice laid out in The Art clearly is the “dragon energy” (to borrow from Kanye West) underlying his Administration.

Sen. Rand Paul, Atlas Shrugged by Ayn Rand. Just like “The Destroyer” in Ayn Rand’s magnum opus, Paul’s many years toiling as one of the very few voices of reason in the Senate, has given way to near open-rebellion against the Deep State. “I will stop the motor of the Senate,” might be the Senator’s new motto.

Sen. Chuck Schumer, The Art of War by Sun Tzu. Schumer is one of the most powerful Democrats in Congress, thanks largely to the deftness with which he plays Republicans like Sen. John McCain; tricking them into believing he’s their buddy. A master of manipulation, Schumer knows who his enemies are.

Rep. Nancy Pelosi, The Memory Book by Harry Lorayne. In spite of odd, almost alarming, episodes of nonsensical laughing, memory slips, and garbled speech, Pelosi is convinced she still has a role to play in the Democratic Party struggling to rebrand itself after being trounced in 2016. Pelosi almost certainly has this book at her desk and her nightstand.

Vice President Mike Pence, The Art of the Deal by Donald Trump. The Apprentice studies his Master wisely.

Hillary Clinton, Rules for Radicals by Saul Alinsky. Hillary, who came of age in the same era of radical politics that gave birth to Alinsky’s writings, may actually consider Rules for Radicals to be her Bible. Let us pray she never again has the chance to rest her left hand on this or any book.

Bill Clinton, Lolita by Vladimir Nabokov. When Bill reflected this week that “the norms have really changed in terms of what you can do to somebody against their will,” one could almost detect a sense of regret and nostalgia to this sexual predator’s musings.

Rep. Maxine Waters, Das Kapital by Karl Marx. Like the new Athens-Clarke County Commissioner, Waters knows the value of fiery rhetoric, especially when attempting – at age 79 — to gain relevance with young voters. Unfortunately for Maxine, few of the Millennials who applaud her have read any books worth reading.

Paul Manafort, Aladdin and the Magic Lamp. For the beleaguered Manafort, nothing brings him such relief from his fast-unraveling life, than stories of Aladdin, and his ability to escape the wrath of an evil sorcerer by rubbing a magic lantern. Though a certainty never to be sworn into office, this would be his book of choice should the sun ever rise in the West.

Bob Mueller, 1984 by George Orwell. Like Manafort, Mueller is unlikely to ever take an oath of office, especially in a Republican administration. Nevertheless, his preference undoubtedly would be to use Orwell’s book, based on the dystopian novel’s concept of a government in which its agents have unlimited power to discover, track down, and punish enemies of the State.

Bernie Sanders, Free Money for Everybody by Matthew Lesko. You might remember Lesko as the man in the television infomercials with the question mark suit, shouting about free government money. For a socialist like Sanders, this is less a cheesy sales pitch than true gospel.

Bob Barr

Fox News.com

If current generic congressional polling numbers hold, Republicans will lose their majority in the House of Representatives in the Nov. 6 midterm elections – and a Democratic majority in the House will then likely vote to impeach President Trump. Republicans must start doing more now to prevent this nightmare scenario from becoming a reality.

Of course, impeachment by the House doesn’t mean President Trump will be moving back to Trump Tower. As one of the leaders of the House impeachment of President Bill Clinton in 1998, I know from personal experience that the Senate is under no obligation to convict a president after the House votes to impeach.

Through June 16, get $100 off the ultimate Garmin GPS watch with multisport features and advanced color mapping.

A two-thirds vote of the Senate – meaning 67 votes – is required to convict a president of impeachment charges and tell him, in effect: “You’re fired!”

Only 50 senators voted to convict President Clinton on one impeachment charges and 45 voted to convict him on another. Similarly, President Andrew Johnson was impeached by the House in 1868 but the Senate also failed to convict him.

But the high bar required for an impeachment conviction in the Senate shouldn’t prompt overconfidence by Republicans. It’s important for the GOP to step up the fight now to hold onto majorities in the House and Senate in November, and to prepare to fight the impeachment battle should Democrats become the majority party in the House and possibly the Senate as well.

Rather than scattering like rats leaving a sinking ship – as many Republican House members already have done by announcing they will not seek re-election – Republicans should be donning armor and girding for battle. So far, 40 GOP House members will not be seeking re-election in November, compared to only 20 Democrats

Too many Republicans appear hesitant to prepare for battle to save the Trump presidency before the dogs of war are unleashed.

Even if the midterm elections do not result in the “blue wave” for which Democrats pine, a bare majority of one Democratic House member will cost the GOP every committee chairmanship, the speakership, and control of the legislative agenda, in addition to making impeachment of President Trump more likely.

Up to now, the question of impeachment has resided on the ideological and financial fringes of the Democratic Party. The impeachment drive has been led by far-left Democrats like Rep. Maxine Waters of California and billionaire Tom Steyer, who has spent millions of dollars on pro-impeachment TV ads. But so far, this effort to overturn the 2016 presidential election has not picked up strong grassroots support.

All that will change on Nov. 7 if the previous day’s voting confirms a House and possibly a Senate majority win for the Democrats. Democrats now serving as ranking members on every House committee – including Maxine Waters on Financial Services – will begin immediately to set in motion plans to give President Trump an eviction notice from the Oval Office.

Hopefully, this scenario will not come to pass. But the first midterm election results for the party occupying the White House are almost always bad.

The worst thing Republicans could do with so much at stake is to pretend the problem of losing their majority and seeing the Trump presidency end does not exist or will magically disappear.

The smarter course, which actually may improve the chances that Democrats fail in their effort to regain control of the House, is to meet the challenge of potential impeachment head-on. But that requires at the start an understanding of what impeachment is – and is not.

Even though our Founding Fathers clearly understood the need for a mechanism by which to remove a president from office before his term expires, the guidance they provided beyond the mechanics of such a move are slim.

Alexander Hamilton, one of the two principal authors of the Federalist Papers, described the impeachment process in his Essay No. 65 in broad-brush strokes as dealing with presidential “misconduct” that violated the “public trust” and was “political” nature. But he made clear that impeachment was not to be used by Congress to remove a president simply because it disagreed with the president politically.

A Democratic majority in the House would reject Hamilton’s wise counsel. Instead, Democrats would follow Steyer’s example and not bother with any historical or reasoned analysis of what constitutes a legitimate impeachment. They would concoct whatever it takes to justify President Trump’s removal.

Back in 1997, when I first called for an inquiry of impeachment regarding President Clinton, my action was based on evidence that Clinton had violated federal laws. Even though the actual articles of impeachment that passed the House in December 1998 were based on matters unknown to me in 1997, the fact remains that it was violations of federal law – perjury and obstruction of justice – and not personal behavior or political disagreements that formed the predicate for President Clinton’s impeachment.

This distinction between violations of law and differences of policy is critically important. It’s based on sound legal and historical analysis, and must be articulated repeatedly. If impeachment were a proceeding in a court of law, Democratic moves to impeach President Trump would have no legal ground to stand on, at least based on what we know so far.

But impeachment is not a neat and tidy legal proceeding governed by carefully crafted statutes and learned court opinions. A Democratic majority controlling the House would have no trouble claiming that some amorphous connection between Trump and someone with a Russian-sounding name – or a presidential tweet that criticized a Justice Department lawyer – satisfied the criteria for “high crimes and misdemeanors” justifying impeachment.

The impeachment game is already well underway, regardless of whether the Republican leadership cares to acknowledge the fact. And if the GOP refuses to suit up and take to the field now, the final score becomes distressingly predictable and unpleasant.

Perhaps the strangest aspect to this, however, is that the Republican leadership does not even seem to recognize who their opponent is. As noted by veteran conservative writer Richard Viguerie late last month in his flagship online newspaper, Conservative HQ, House GOP leaders cling to the absurd belief that it is conservatives who are causing the party’s poll numbers to dip.

If the GOP leadership really believes its chances to retain control of the House rise or fall based not on how vigorously it fights Democrats and that party’s agenda – but on whether it can rein in conservatives within the GOP – it will doom Republicans to significant losses in November and dramatically increase the chances that President Trump will be impeached.

If, on the other hand, Republicans focus on drawing clear and actual distinctions between themselves and those who seek to wrest the House majority from them, the dynamics change dramatically in their favor. Such a strategy – given the will to pursue it – is relatively simple, even in the context of an opposition party clearly intent on impeaching the Republican president.

First of all, the GOP should reject the oft-quoted but largely misunderstood notion, attributed to former Speaker Tip O’Neill, D-Mass., that “all politics is local.”

Trump’s astonishing 2016 victory had nothing to do with “local” politics. Neither did Ronald Reagan’s in 1980. The tsunami that swept four decades of Democratic control out of the House in 1994 also had little to do with “local” issues; it had everything to do with broad, national issues like gun control and tax reform. History is fairly clear on this score – the Republicans win when the elections focus on national issues.

Even if Republican leaders refuse to learn from President Trump’s 2016 winning game plan, all they have to do is consider the issues on which the grassroots supports him now. Trump’s agenda is a national agenda; it presents a clear and distinct break with that of the Democratic Party.

The president favors true immigration reform – Democrats don’t. The president supports freeing businesses from strangling regulations that hamper the market – Democrats don’t. The president supports local control of schools – Democrats don’t. And the president wants you to pay less in taxes – the Democrats want you to pay a lot more. There are plenty of other examples of differences between President Trump and Democrats.

These issues, and many others, are clear winners for Republicans in the House. They should be vocally advocated in both legislation as well as in political arenas.

Republicans need not fawn over every Trump tweet. But it would seem to be a no-brainer to support the president’s agenda openly, and to back him up in the House through legislative actions, spending bills reflective of that agenda, and strong opposition to Democratic moves trying to undo his regulatory reform.

If House Republicans do all this – while also drawing attention to the manner in which the Democrats are waving the impeachment flag wildly and in a manner clearly designed to overturn what Hillary Clinton lost for them two years ago – the Republicans may regain their fighting edge and maintain a majority that right now is slipping through their fingers.

Former Rep. Bob Barr was a member of the U.S. House of Representatives from Georgia from 1995 to 2003. He now practices law and heads Liberty Strategies, a consulting firm in Atlanta.

Bob Barr in Townhall.com

With the Trump Administration it often is difficult to determine whether a bizarre public statement is a clever smokescreen, or if the proponent actually believes what he or she is saying. While Trump is a true master at manipulating his enemies, his advisors are not always as deft.

Take, for example, the recent proclamation by Trump’s latest Legal Eagle, Rudy Giuliani, asserting the president possesses the power to self-pardon.

Considering all that has been happening in Washington these days, one might conclude that such a statement serves as an intentionally crafted distraction by Trump’s attorneys, thrown to the media like chum for sharks in order to keep them thrashing about.  On pause, however, and again taking into account other recent statements by various legal pundits, it might be that Giuliani has come to actually believe such nonsequiturshave, in today’s world, become true.

Contrary to Giuliani’s novel theory, which is like a “Magic Mirror” into which a president speaks and is granted a pardon, such fantastical pardon powers do not actually exist. And, if Giuliani were the lawyer he fancies himself to be, perhaps he would realize the reason this power does not exist in law is because the law — going back all the way to the Federalist Papers— makes such powers legally and factually irrelevant.

In Federalist No. 69, Alexander Hamilton lays out the two methods for dealing with corrupt presidents. The first is electoral, with Hamilton stating the president could be re-elected “as often as the people of the United States shall think him worthy of their confidence.” The second method is impeachment. Here, Hamilton declares the President subject “to be impeached, tried, and, upon conviction…removed from office”; adding that the president “would afterwards be liable to prosecution and punishment in the ordinary course of law.”

In case Rudy missed it, the operative word used by Hamilton, as regards the issue of impeachment and prosecution, is “afterwards.” First comes impeachment. Then a trial and conviction by the Senate. And, only after these proceedings, when the president is removed from office and no longer occupying a seat of power, can he be prosecuted for his crimes.

Though hinging on a single word, this is a crucial distinction and one essential for the smooth operation of the Republic. If a president couldbe indicted and prosecuted while in office, there is nothing to stop rogue U.S. Attorneys, or in the case of President Trump, out-of-control special prosecutors, from bogging down the Executive in non-stop litigation, frivolous or otherwise.  Such procedural protections would also logically extend to the fruits of prosecution for the same reasons, such as refusing subpoena or deposition requests, or generally cooperating with investigators (as Giuliani, to his credit, has previously mentioned).

Though not tested to the fullest extent by former President Bill Clinton during the impeachment investigation against him, Clinton regularly defied Independent Counsel Kenneth Starr. Had Clinton’s actions been tested in court, I suspect the former president would have prevailed for the reasons outlined here.

All of this is not to say that Trump is wrong in declaring the vast extent of his pardon powers.  Courts have consistently deemed absolute the president’s power to pardon those who have committed federal crimes.  We were reminded of this in 2001, when challenges were unsuccessful against Clinton’s pardoning of his brother Roger and corrupt financier Marc Rich on the last day of his presidency.

The far better track on which Trump’s lawyers should be travelling (and the President himself) is to argue that he would never, ever find himself in a place where he would need to invoke a self-pardon.  Arguing otherwise implies he would have been successfully prosecuted for a crime – a situation which can only occur after he is out of office.

Periodically, and depending largely on which party’s representative resides at 1600 Pennsylvania Avenue, both major political parties have advocated for increasingly robust powers for the person who occupies that office.  Most recently, a legal memorandum prepared by Trump’s legal coterie reportedly describes the office as “sacred.”  In reality, the president is neither deity nor absolute monarch. As a matter of constitutional history and law, however, he is insulated from the vagaries of prosecutorial politics. President Trump does not need legal fairytales spun by those like Giuliani to protect him; the Founding Fathers already did a fine job in that regard.

Studying a copy of the Federalist Papers would be time far better spent by Trump’s legal team than glancing at Grimm’s Fairtytales.