December 2018

Townhall.com
DECEMBER 19, 2018

Federal Election Law “Gotcha!”
Bob Barr

12/19/2018 12:01:00 AM – Bob Barr

Rather than jump into the media-led free-for-all clamoring for President Trump to be indicted or impeached (or both) based on the latest court filing by Special Counsel Mueller or the U.S. Attorney’s office in New York, let’s step back for just a moment.  It might behoove all sides to  consider matters as weighty as these, by at least glancing at relevant historical and legal precedents. In so doing, two cases come readily to mind: the 1998 impeachment of former President Bill Clinton and the 2012 prosecution of former Sen. John Edwards.  Such a review would urge caution, rather than the headlong rush to judgment that appears as the default to which so many in the media and political arenas are today drawn.

While a Member of the House of Representatives in 1997, I introduced the first formal resolution directing the Judiciary Committee to inquire into whether there were grounds for impeachment against Clinton.  This move followed mounting evidence that his Administration had violated a number of federal laws, including most importantly, those designed to protect against foreign government contributions to a U.S. presidential campaign, and guarding against disclosure of national security-related technology to a foreign government.

Late the following year, after extensive hearings by the Committee and a vote by the full House, Clinton was impeached on two counts of perjury and obstruction of justice.  While these articles of impeachment were unrelated to those that precipitated my initial inquiry, they nonetheless were based on solid evidence establishing the elements of well-known federal criminal laws – perjury and obstruction.

Rather than trying to manufacture trumped-up charges of wrongdoing to make a bigger splash in the media, the Judiciary Committee focused on proving specific charges; supported on the record with clear evidence from expert witnesses, experienced prosecutors, and even former federal employees convicted for the same crimes.

The Committee did not simply throw a handful of spurious charges against the wall hoping some might stick.   Sure, charges of obstruction of justice and perjury lack the panache of “Russian collusion,” or the tabloid drama of hush money paid to adult porn stars. But by focusing on precise violations of specific laws that were commonly used and widely understood, the House constructed a successful case against Clinton leading to only the second impeachment of a sitting president in American history.

Now, two decades later, we are dealing with salacious charges against a former “fixer” for Donald Trump, and scattershot charges against former Trump associates like Paul Manafort that have little, if anything, to do with the President.  While these may be high-octane fuel for television drama and tabloid exploitation, they lack the clear and carefully crafted prosecutorial decision-making that formed the foundation for the “Starr Report” and the subsequent impeachment of Clinton.

The course now being followed by those now investigating Trump most probably also will end as did the 2012 prosecution of John Edwards; in an embarrassing failure.

Many of Trump’s accusers (like those who went after Edwards) are basing their case on alleged violations of federal campaign financing law which, unlike the well-understood and time-tested nature of crimes such as perjury and obstruction of justice, are a convoluted mess.

It is one thing to levy a civil fine against a federal campaign for violating a reporting requirement hidden within the labyrinth federal campaign finance laws.  Building a criminal prosecution or an impeachment of a sitting President for such a violation, however, is perhaps only slightly easier than constructing a house on a foundation of quicksand. This is exactly what prosecutors discovered at the end of the day six years ago in the Edwards prosecution. Fitting the round peg of personal hush payments by Edwards to a former mistress, into the square hole of federal campaign law violations, did not convince a jury then; and nothing since is likely to have changed this calculation.

That federal jury six years ago did not acquit Edwards because they misapplied federal campaign laws.  They found him not guilty because federal campaign laws were not then and are not now intended to or designed to criminalize such personal behavior, no matter how distasteful.

The Edwards case illustrates the inherent shortcomings of federal election laws when used to punish “bad behavior.” The handwriting was on the wall for anyone who cared to study the genesis of our modern federal election financing laws in 1975 – a response to the corrupt 1972 Nixon reelection campaign; in which huge amounts of money flowed surreptitiously into the campaign, and suspicious appointments flowed out.

The Federal Election Commission’s clearly defined and intended purpose was to bolster confidence in our country’s electoral process by setting campaign donation limits and requiring transparency; not to police “bad” or immoral behavior.

Efforts to punish Trump with the hammer of convoluted election laws not intended to be used in such a matter or manner, illustrates just one of the many challenges prosecutors would face in pursuing Trump with criminal charges; or by Members of Congress pressing impeachment.   Both their time would be far better spent pursuing issues of real and relevant substance to the American people.   Special Counsel Mueller could begin that course correction by quickly wrapping up his open-ended investigation that already has gone on far too long.

Pelosi and Schumer Should Take a Lesson from Bill Clinton
The Daily Caller
By Bob Barr

As much as the media obsesses over President Trump, and as much as he exhibits to the media the behavior they love to hate, it is amazing how little the media remembers.

The latest flap over immigration policy, and especially the televised Oval Office meeting just last Tuesday with soon-to-be Speaker Nancy Pelosi and still-Senate Minority Leader Schumer, has the left and its media darlings all in a tizzy.

The fact is, the episode and its aftermath are vintage Trump – pure stagecraft. And anything the president said at that meeting had a shelf life of precisely one news cycle.

The White House meeting was orchestrated by Trump not to announce new substantive policy or signal a major change in policy. Trump has been railing about building the wall since long before he was elected in 2016.
His base continues to support him on that issue, and he knows this. He also must know the polling on the question of whether to build a wall has remained relatively constant over the course of his presidency and does not spike or crater depending on what he says. It’s all about negotiating. Think Bill Clinton.

Even more important than Trump’s oft-demonstrated ability to control the news cycle, is his notorious habit of maneuvering his adversaries into chasing critters down rabbit holes. This is simply a ploy to then strengthen his own bargaining position by appearing to back away from one of those red herrings.

The bottom line for this president is that virtually everything is negotiable, including “the wall.” Well, not the wall itself, but any aspect of it, including the funding amount and the timetable.

If Nancy Pelosi and Chuck Schumer returned to Capitol Hill after meeting with Trump the other day and told their colleagues that they had reached a complete dead end with the administration, neither one of them deserves the mantle of Democrat leader. What Trump was telling them, in reality, is: “I’ve made my latest offer; now give me yours and we’ll negotiate.”

For Democrats, if they fail to see things this way, they will be missing a golden opportunity to get something from Trump in return for some sort of compromise on funding for the wall.

With a number of important appropriations measure still awaiting final action by the Congress – bills that always are vessels into which both sides can pour goodies for their constituencies – Pelosi and Schumer surely can enunciate a list of items to include that are of value to their team.

Moreover, despite Trump’s boastful comments about relishing a “government shutdown,” Trump realizes such a move is not really in anyone’s long-term interests, notwithstanding short-term kudos with which his hard-core supporters would shower him.

Here again, Democrats should learn to look beyond the moment’s rhetoric. Bill Clinton was a master at this and tied the Republicans up in knots during the so-called “shutdown” in late 1995 and early 1996.

But after the mini-crisis blew over, Clinton and the congressional Republicans (led by then-Speaker Newt Gingrich) better understood each other. Both parties learned to play to their base but in a constructive way, and within a year-and-a-half, had passed historic welfare reform legislation and balanced the federal budget.

Both Pelosi and Schumer were in the House at that time, but right now, neither appears to have any recollection of how patience and negotiating skills cannot only strengthen one’s political base but accomplish real and substantive good for the country. Both leaders seem to be at least temporarily blinded by their perhaps understandable dislike for Trump or are feeling the heat from the more radical new members of their caucus.

If the Democratic leaders persist in concluding that there is nothing more to be gained by negotiating with Trump and by giving him some funding for the wall, they will have let slip through their fingers a real chance to help themselves and the country.

So what if they have to share the credit with Trump? Clinton and Gingrich both claimed credit for balancing the budget, and the country was better off for it.

To be sure, Trump will not be bought off by meaningless gestures regarding the wall. But if Pelosi and Schumer decide to play a smarter game than they thus far have, they will strengthen themselves for future negotiations with Trump, and at the same time will have tamped down some of the more radical elements nipping at their heels. Seems to be a win for them and for Trump.

Bob Barr represented Georgia in the U.S. House of Representatives from 1995 to 2003. He currently serves as president and CEO of the Law Enforcement Education Foundation.

New Jersey Assaults the First and Second Amendments

By Bob Barr

Townhall.com

Last week I wrote about a spate of bills in the New York State Senate, sponsored by a liberal Senator from Brooklyn, intending to squash gun ownership across the entire Empire State. On the other side of the Hudson, New Jersey politicians are upping the ante, with a measure signed into law last month that criminalizes speech. Not just any speech, mind you; but speech relating to the Second Amendment.

You can still rant in New Jersey about Donald Trump, or call conservatives any manner of vile names.  But, if you try to communicate online about certain firearms matters, Bingo!  The “Garden State” authorities will come after you for daring to provide instructions for readers to learn how to print plans for a 3-D firearm. This is not about criminalizing the possession of such an instrument (New Jersey competes with its older brother in making it extremely difficult to legally own a firearm at all).  The new law makes it illegal to even communicate how to print one.

Insidiously, New Jersey political leaders, whose fear of the right to keep and bear arms knows no bounds, have constructed this latest Second Amendment speech infringement in such a way that it effectively makes it unlawful for anyone to place such plans online anywhere, not just in their state.  What prompted this draconian measure?  One small company — Defense Distributed, a non-profit defense firm based not in Newark or Jersey City, but in Austin, Texas.  Defense Distributed had the audacity to provide instructions for individuals who want to try their hand at printing a 3-D firearm to do so.

There is, of course, more to what New Jersey is doing beyond just banning the communication of the firearm plans themselves.  As in New York, which is moving to force gun purchasers and owners to give law enforcement unfettered access to all their social media and internet searches in return for the “privilege” of possessing a firearm, the broader purpose is to chill people from even considering owning or purchasing firearms in the first place.

If New Jersey had simply banned the manufacture of 3-D printed firearms within its borders, it would be another kneejerk reaction typical of most any liberal state legislature, but would likely — and unfortunately — survive a court challenge. However, by going a step further and banning the “facilitation” of manufacturing such a firearm by making it illegal to “distribute by any means, including the Internet, plans on how to print a 3-D gun to a person in New Jersey,” the law crosses the line into First Amendment territory.

This new tactic, if permitted to stand, lays the groundwork for a state to criminalize everything from engineering books detailing the process of the 3-D printing of firearms for educational purposes, to hosting digital copies of 3-D printed gun designs regardless of where they are in the world, if someone from New Jersey has any way whatsoever to access them.  It will then be a small step to banning the transmission of plans for any firearms-related actions.

Even in today’s society where the interpretation of “interstate commerce” has been stretched by government to afford it the right to regulate virtually any product or activity in which an individual might engage, this law reaches new heights of unconstitutional behavior.  And our federal Courts, which are supposed to be the constitutional failsafe by which citizens are protected against unconstitutional acts by government, have failed to lift a finger to help. It seems that while federal district courts are all too happy to jump in and issue nationwide injunctions to stop President Trump from implementing federal policies with which they disagree politically, when it comes to stopping favored but nonetheless unconstitutional acts by state governments, federal jurists are content to sit idly on the sidelines.

Ironically, it was this year that the state of New Jersey won a Supreme Court case against a law passed by the U.S. Congress banning sports betting online. New Jersey, then, was an aggressive champion for free Internet speech.  But now, mere months later, it has changed its tune.  The state’s former free-speech advocates have morphed into Nanny State Internet censors.  Their justification for such blatant hypocrisy?  The tried and true, go-to justification for virtually all Second Amendment-limiting state action: “public safety”; which trumps not only “individual safety” but every other constitutionally-guaranteed right in today’s world.

It remains to be seen whether the Supreme Court will at long last step in and undergird the Second Amendment with the same degree of authority as it has its sister provisions in the Bill of Rights. Perhaps this outrageous action by New Jersey, which locks the First and Second Amendment in a single challenge, will be that case.  In light of recent actions by the High Court, however, I will not be holding my breath.

New York’s Anti-Gun Fervor Reaches A New Height
Townhall.com
By Bob Barr

Not content with enacting some of the most stringent anti-gun laws in the country and abusing its regulatory power by browbeating insurance carriers to not do business with the NRA, New York has launched a new broadside against the Second Amendment.  In a move that should set off alarm bells with privacy advocates everywhere and with anyone who uses or has used social media, legislation has been introduced in the state legislature that would force residents seeking to either purchase a rifle or a shotgun from a lawful dealer, or seeking to obtain or renew a pistol permit, to surrender to law enforcement access to their social media history along with their use of internet search engines for the previous three years.

This monstrosity of a bill undermines not only an individual’s Second Amendment rights, but those guaranteed by the First, Fourth and Fifth Amendments as well.   State Sen. Kevin Parker, a Democrat from Brooklyn, is the proud sponsor of the legislation.  And, knowing that a majority of his colleagues in the legislature have in the past demonstrated as little regard for constitutional rights as Parker when it comes to the Second Amendment, his bill could very well find its way to Gov. Cuomo’s desk, where it would be gleefully signed into law.

In Parker’s view of things, invading a person’s privacy as his bill would do, apparently is a reasonable response to the tragic shooting at a Pittsburgh Synagogue in October.  The reality is that Parker’s idea is nowhere close to reasonable or constitutional.

What, exactly, would New York’s Finest be looking for, in such canvassing of citizens’ social media and internet search history? According to the proposal, they would be on the lookout for any “issue deemed necessary by the investigating officer.” In other words, anything a law enforcement officer might find suspicious or not in accord with their notion of what an actual or prospective gun owner should be looking at on the internet or communicating via social media.

How would these law enforcement snoops gain access to citizens’ private social media and internet information?  Simple.   As a requirement for completing the paperwork necessary to purchase the firearm or to obtain or renew a permit, the person would have to give the police their log-in credentials and passwords. In so doing the individual loses control over all their data — past, present, and probably future.

This 21st Century internet fishing expedition, fueled by New York’s longstanding disdain for the Second Amendment, would accomplish two things; neither of which is good.

First, having to submit to such an intrusive search of one’s social media and internet usage, will have a chilling effect on individuals seeking to purchase or carry a firearm. This, of course, is exactly what Parker and his cohorts want – fewer and fewer citizens being able to exercise their Second Amendment rights.

Second, and even more important, giving law enforcement the power to scour at will your personal social media and internet history, means they can (and will) look for anything that from their perspective, indicates actual or potential unlawful or inappropriate behavior (including matters having nothing to do with firearms), and therefore worthy of further investigation and possible prosecution.

Not to be deterred, Parker and others who support his anti-Second Amendment crusade, likely would argue that the searches that would be undertaken if his proposal becomes law, would be “voluntary” since the purchaser or applicant is giving “consent” simply by expressing a desire to buy or carry a firearm.  Such twisted logic is used by governments at all levels all the time.  First, government mandates that citizens comply with certain regulations if they want to exercise a right (whether that be possessing a firearm, engaging in a financial transaction, or something else).  Next, government uses the information thus obtained against the citizen. Finally, government lawyers defend against constitutional challenges by arguing that the citizen “consented” to the government’s action.

This is a clever circular argument favored by the Regulatory State, and which is all too often accepted by federal and state court judges.

Concerns such as these, rooted in the Fourth Amendment’s protection against unreasonable searches and seizures, don’t even address other constitutional defects in Parker’s proposal; among which are its chilling effect on free speech as guaranteed by the First Amendment, and the Fifth Amendment’s protection against self-incrimination.

During one 2016 Republican presidential primary debate, Donald Trump took Sen. Ted Cruz to task (quite effectively) for criticizing “New York values.”  If those values are represented by legislation such as Sen. Parker is proposing, then Cruz made a valid point.

Bump-Stock Prohibition Sets Dangerous Precedent
The Daily Caller
By Bob Barr, President & CEO of the Law Enforcement Education Foundation

In one of the more blatant examples of a federal agency abusing its power and usurping the power of Congress to legislate, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), reportedly is ready to declare that “bump stocks” are “machine guns” and therefore unlawful to be possessed, except under strict licensing.

Gun control activists certainly will cheer this action once it is finalized (which reportedly will be later this month), and the average citizen, if asked, likely would agree that bump stocks should be illegal following the well-publicized use of such a device by mass murder Stephen Paddock in Las Vegas in October 2017.

The manner by which the administration is going about making the devices unlawful, however, should be of great concern to all Americans who care not only about sound federal firearms policies but, even more important, the rule of law.

Normally, and according to Article I of our Constitution, if the government deems certain activity – such as possessing a machine gun – to be of sufficient danger and therefore should be illegal, the Congress (not an Executive Branch agency) passes legislation to that effect. If signed by the president, that activity becomes unlawful. This is what occurred in the immediate aftermath of Prohibition when the National Firearms Act of 1934 went into effect.

That Act defined what a “machine gun” is (essentially a firearm capable of firing more than one round with a single pull of the trigger) and declared that only licensed persons strictly regulated would be permitted to possess such a firearm.

The Gun Control Act of 1968 added further restrictions in this area. Thus, it has been well-understood for more than 80 years what a machine gun is and that their possession by citizens-at-large is unlawful.

In the aftermath of the horrific Las Vegas shooting, several members of Congress introduced legislation that would prohibit possession of bump stocks, which are plastic composite devices that fit over a rifle’s stock and trigger guard to enable faster trigger pull, mimicking an automatic rifle but with far less accuracy.

These efforts have faltered, largely due to the overly broad definitions in the legislation.

Into the breech stepped ATF; exercising the Bureau’s power to regulate (not “legislate”) firearms.  The manner by which ATF has taken this ball and run with it is devilishly clever; not only accomplishing the goal of outlawing bump stocks but setting a precedent that almost certainly will be used by the Bureau and others in the future to expand their reach and power.

ATF (and the Department of Justice, in which ATF is a component) decided to accomplish the goal of outlawing bump stocks not by defining them as a new device to be restricted (which would be subject to challenge as usurping Congress’ power), but by simply “clarifying” the definition of a “machine gun” in existing law to include a “bump stock.”

Thus, by regulatory sleight-of-hand, a bump stock becomes not an accessory to a machine gun but an actual “machine gun.”

Think about it: A piece of composite plastic, with no moving parts and incapable by itself of firing any projectile, is now, pursuant to ATF’s machinations, a machine gun; and notwithstanding that just a few years ago, that same ATF expressly had deemed such devices lawful.

It gets worse. The regulations, which were proposed last March by then-Attorney General Sessions, direct that anyone who possesses a bump stock after the regulation goes into effect, must destroy it or turn it into ATF; failure to do so will subject the person to a federal felony conviction.

So, a device that was lawful when acquired is made unlawful not by law but by regulatory “clarification” (George Orwell would approve of such newspeak).

The list of constitutional infirmities with ATF’s approach is lengthy; and includes taking of property without due process of law, making a lawful act unlawful after the fact (an ex-post facto law), and failure to provide fundamental due process of law.

It is one thing for the citizens of this country to decide, through their representatives in the Congress, that bump stocks should be illegal. It is quite another for unelected bureaucrats to do so, especially in a manner that makes a mockery of lawful, constitutional process and then sets a precedent for further such constitutional mischief down the road.

This is a road down which neither the Congress nor this president should allow ATF – or any federal agency to travel.

Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003 and currently serves as President and CEO of the Law Enforcement Education Foundation.