Friday, July 14, 2017

Cruising the Web

Eugene Volokh, a First Amendment expert, weighs in on the argument that election law expert Rick Hasen has been making that it would be illegal for any American political campaign to receive opposition research from someone who is not an American citizen. Hasen and some others consider that such information would be classified as a "thing of value" and it is illegal for foreigners to give politicians or their campaigns a "thing of value."
Yet that, it seems to me, can’t be right. It would raise obvious First Amendment problems: First, noncitizens, and likely even non-permanent-residents, in the United States have broad First Amendment rights....

Second, Americans have the right to receive information even from speakers who are entirely abroad.... Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters?

The Supreme Court did affirm (without opinion) a federal court decision in Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), that upheld a ban on contributions and independent expenditures by non-citizen non-permanent-residents, on the theory that the government can use such a ban to limit foreign influence on American elections. But the panel decision expressly stressed that it was limited to the restriction on spending money. And it seems to me that restrictions on providing information to the campaigns — or on campaigns seeking such information — can’t be constitutional. Can it really be that the Clinton campaign could be legally required to just ignore credible allegations of misconduct by Trump, just because those allegations were levied by foreigners?
Read the rest of his analysis. I've left out the case citations. Volokh also includes Rick Hasen's response and his own refutation of that argument.

That doesn't mean that Trump Jr.'s actions were not repugnant and terribly ill-advised. But so far, it doesn't appear that they were illegal. I'm not saying that Republicans' standard of conduct should be "If it isn't illegal, anything goes." We can condemn the meeting without considering it an illegal action, much less treason. Ideally, American politicians and their organizations should look to foreigners for their opposition research. It's a question of judgment and, well, patriotism. And the fact that Donald Trump Jr. gave us several different stories about that meeting over the course of a few days is troubling. As David Harsanyi writes,
It doesn’t matter if the meeting was a dud. He was ready to use “sensitive information” that “is part of Russia and its government’s support for Mr. Trump.” I’m not sure why this would be illegal, but it’s certainly shady.

Nor does it matter whether the biased mainstream media has gotten dozens of stories wrong about Trump and Russia (they have) or whether they are out to get Trump (they are) because the facts on this story have panned out. If it were no big deal, Trump Jr. would not have lied about it.

Michael Barone writes
on the risks that Democrats are running of overreaching in their opposition to anything Trump does or says. For example, their response to Trump's speech in Warsaw.
Vitriolic criticism was quick to come from the left. "A statement of racial and religious paranoia," wrote the Atlantic's Peter Beinart. "The West is a racial and religious term," he explained. An "alt-right" speech, said the New Republic's Jeet Heer, "meant to conjure blood-and-soil nationalism."

But Trump's text included praise of Poland's and Western civilizations' resistance to Nazi and Communist totalitarianism, empowering women, striving for excellence, valuing the dignity of human life, debating and challenging "everything." Presumably, Trump's critics embrace each of these products of Western civilization.

Nonetheless, they sneer at Trump's pledge to oppose "another oppressive ideology — one that seeks to export terrorism and extremism all around the globe." But that threat of Islamic terrorism is real.

Trump was speaking for those, like Britain's Douglas Murray in his book, The Strange Death of Europe, who fear that European leaders' welcome of millions of unvetted Muslim "refugees" threatens to degrade and perhaps destroy the liberal achievements of the West. That is not racism, but prudence.

To maintain the opposite, to advocate entirely open borders, is not only problematic politically, but also as public policy. In the weeks since Trump spoke, Western eminences not considered illiberal have questioned the wisdom of allowing unlimited immigration to the West by peoples in African countries whose populations, according to United Nations projections, are set to zoom far above European levels.

Bill Gates, whose philanthropy has contributed to that growth, called for turning back boats of would-be migrants in the Mediterranean and said the influx to Germany is unsustainable. European Parliament President Antonio Lajani predicted an exodus "of biblical proportions" if migration is not limited now. French President Emanuel Macron said that Africa's "civilizational" problems — "failed states," "violent fundamentalism," "Islamic terrorism" — make unlimited migration undesirable.

To call these statements "racism" or "dog whistles" to "white nationalists" is nonsense.
I don't know how many "average" Americans have any idea of what Trump said in that speech or what liberals said in response, but to the extent that this story broke through to people, I suspect that most people don't find anything objectionable about praising western values. And when Bill Gates and Emanuel Macron are saying something very similar to Trump, it's not Trump who is on the extreme.

The same warning about overreach applies to the whole Russia collusion story about which Charles Krauthammer is halfway persuaded that there may indeed be evidence of collusion.
It turned out to be incompetent collusion, amateur collusion, comically failed collusion. That does not erase the fact that three top Trump-campaign officials were ready to play.

It may turn out that they did later collaborate more fruitfully. We don’t know. But even if nothing else is found, the evidence is damning.

It’s rather pathetic to hear Trump apologists protesting that it’s no big deal because we Americans are always intervening in other people’s elections, and they in ours. You don’t have to go back to the ’40s and ’50s when the CIA intervened in France and Italy to keep the Communists from coming to power. What about the Obama administration’s blatant interference to try to defeat Benjamin Netanyahu in the latest Israeli election? One might even add the work of groups supported by the U.S. during Russian parliamentary elections — the very origin of Vladimir Putin’s deep animus toward Hillary Clinton, then secretary of state, whom he accuses of having orchestrated the opposition.

This defense is pathetic for two reasons. First, have the Trumpites not been telling us for six months that no collusion ever happened? And now they say: Sure it happened. So what? Everyone does it.

What’s left of your credibility when you make such a casual about-face?

Second, no, not everyone does it. It’s one thing to be open to opposition research dug up in Indiana. But not dirt from Russia, a hostile foreign power that has repeatedly invaded its neighbors (Georgia, Crimea, Eastern Ukraine), that buzzes our planes and ships in international waters, that opposes our every move and objective around the globe. Just last week the Kremlin killed additional U.N. sanctions we were looking to impose on North Korea for its ICBM test.

There is no statute against helping a foreign hostile power meddle in an American election. What Donald Jr. — and Kushner and Manafort — did may not be criminal. But it is not merely stupid. It is also deeply wrong, a fundamental violation of any code of civic honor.

I leave it to the lawyers to adjudicate the legalities of unconsummated collusion. But you don’t need a lawyer to see that the Trump defense — collusion as a desperate Democratic fiction designed to explain away a lost election — is now officially dead.

Here is a look back to how another father-son presidential pair went into a political campaign. Makes me nostalgic.

Daniel Henninger writes on the same theme.
To simplify: One side of this debate will never be caught in anything it considers polite company using that phrase of oppression—“the West.” Ugh.

For an enjoyably trenchant takedown of the left’s revulsion at the Trump speech, I recommend Robert Merry’s essay in the American Conservative, “Trump’s Warsaw Speech Threw Down the Gauntlet on Western Civilization.” As Mr. Merry says, this is a big, worthy debate, and one I think the Trump “base” instinctively understood in 2016.

In fact, that Warsaw speech on Western Civ was really about the current edition of the Democratic Party and its two-term leader, Barack Obama....

The Trump “base” knew the 2016 presidential election—the contest between Mr. Obama’s successor and whoever would run against her—wasn’t just another election. It was a crucial event, deciding whether America would go on in the Western tradition as it had developed in the U.S. or continue its steady drift away from those ideas.

Progressives have an interest in ridiculing the Trump speech as a stalking horse for the heretofore obscure and microscopic alt-right because it deflects from their own political values—on view and in power the past eight years.

If there is one controlling Western idea developed across centuries in Europe, including by resort to war, it is that the individual person deserves formalized protection from the weight of arbitrary political authority, whether kings, clergy or dictators.

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One salutary result over the controversy over Donald Trump Jr.'s meeting with this shady Russian lawyer is that Magnitsky Rule will not be repealed. The outrage over Russia and this meeting in particular has made it politically impossible to repeal the law. Ian Tuttle reminds us what this law is about.
Anyone remotely familiar with the tensions that prevail between Russia and the United States knows the name “Magnitsky.” In 2012, President Obama signed into law the “Sergei Magnitsky Rule of Law Accountability Act,” legislation that permitted the federal government to ban entry to, and freeze the American assets of, anyone “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights” committed against whistleblowers or human-rights activists in Russia.

Naturally, the Kremlin was not happy. Moscow tried mightily to kill the bill and, failing that, to at least strip Sergei Magnitsky’s name from it. After it passed, Russia turned its efforts to undermining the law (hence the ban on Americans adopting Russian children). When Congress took up the Global Magnitsky Act last year — an expansion of the original bill that allows the U.S. to target human-rights violators worldwide — Russian operatives renewed their campaign.
And who was Sergei Magnitsky? His story is worth remembering.
The facts of the “Magnitsky affair” are beyond dispute. In 2009, Sergei Magnitsky died in the medical unit of Matrosskaya Tishina prison in Moscow, after 358 days in Russian custody — not for committing a crime, but for exposing one. In the summer of 2007, Hermitage Capital Investment was raided by Russian police on charges of tax evasion. They seized documents from the company’s Moscow offices — then used them to re-register the company under different ownership, concoct $1 billion in fake tax liabilities, and eventually take $230 million, in the guise of a tax rebate. Magnitsky, hired by Hermitage to investigate, was instrumental in exposing this crime, which implicated Russian Interior Ministry officers, judges, and more; he even testified against some of them. Shortly after, he was arrested by one of the Interior Ministry officers he exposed and imprisoned.

Over the next year, suffering increasing deprivations in Russian prisons — including, for a time, Moscow’s notorious Butyrka — he became seriously ill. His 20 requests for medical attention were ignored or rejected. Almost a year after his arrest, he was moved to Matrosskaya Tishina, where he was handcuffed to a bed and beaten to death by prison officials.
No wonder Putin is so angry about this law that bears the name of one of his more prominent victims. It is a reminder to everyone of what a murderous thug he is. And it is why Russians such as Natalia Veselnitskaya are making a living trying to lobby for the law's repeal. And why not punish innocent children by blocking their chances to be adopted by American families? That's how despicable Putin is. In the political environment we're in today, that law is not getting repealed and, on top of that, enhanced sanctions which have passed the Senate 98 to 2. So if Russia interfered in our election in order to get Trump elected, the result has been an atmosphere in Washington that makes any policy seen as favoring Russia impossible to implement. So there has been a good result from all this. And we all get to see Democrats, who used to be fine with a cozy relationship with Russia now have had a sudden change of mind.
In 2012, Obama met with Russia and said he would be more flexible if he was re-elected. The media and Democrats had no problem. There were no investigations and no spying on Obama looking for collusion.

The Clintons, the Clinton Foundation, and their close associates got huge amounts of money from foreign governments including Russia. In return, Russia got uranium, some of which it transferred to Iran. There were no investigations by the FBI; Democrats and the media didn't care. Kickbacks for uranium to the enemy looks like actual treason.

Russia attacked Ukraine, Ukraine requested defensive weapons from Obama, and Russia welcomed the fact that Obama turned Ukraine down. Of course, the media and Democrats didn't lecture Obama about the need to be tough on Russia. After all, the tough Obama had told Russia he would be flexible.

In the midst of remembering Sergei Magnitsky comes the news of the death of Liu Xiaobo, the winner of the 2010 Nobel Peace Prize. When we talk about courage, this is what courage is.
Liu Xiaobo, the 2010 Nobel laureate, died on Thursday, only weeks after he was moved to hospital from a prison cell. The Chinese government bears responsibility for failing to competently diagnose and treat his liver cancer. To Beijing’s shame, the only other Peace Prize winner to die in custody was Carl von Ossietzky, a prisoner of Nazi Germany who won in 1935 and died in 1938.

Liu played a pivotal role in the 1989 student protests in Tiananmen Square, helping to negotiate the peaceful departure of the last students to occupy the square. He kept the spirit of that movement alive in 2008 when he helped to write Charter 08, a democracy manifesto. Shortly thereafter he was sentenced to 11 years in prison for “subversion.”

China’s rulers have worked hard to make sure their citizens learned little about Liu’s ideas. That fear of one man’s courage testifies to the illegitimacy of their power. Liu could have played an important role in China’s transition to democracy, but his example will serve as an inspiration to future generations....

At the Nobel prize ceremony in 2010, Liu was represented by an empty chair. His death is a reminder of the world’s obligation to keep attention on China’s rights abuses.
We can only hope that the names of Sergei Magnitsky and Liu Xiaobo will not soon be forgotten.

And this reminder is especially timely for me as I'm going this week to attend a workshop on the Victims of Communism sponsored by the Victims of Communism Memorial Foundation. What a stark reminder that there are still victims of communism suffering today.

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Oregon is getting ready to pass a bill mandating that insurance companies cover abortions without any co-pay. Part of the motivation is to get around any health care bill that the Republicans might pass that wouldn't cover abortions. Personally, I'm not in favor of taxpayer money going for abortions, but this is why we have federalism so states can enact policies that fit their population better. What does strike me is the choices that politicians make with health care. Why is abortion the surgical procedure that they think insurance companies should cover without a co-pay? What about broken limbs or heart treatments? It is much the same way that I felt about the Obama administration
contraceptive mandate. Beyond the religious questions involved, why was that the one prescription that insurance companies should fully cover? I have Type II diabetes and spend a fortune every year on my prescriptions. Why aren't those covered? What about blood pressure, or cholesterol or cancer treatments? WHy are contraceptives the most favored prescription in the entire medical universe? I get that abortions are a lot cheaper than other surgical procedures and contraceptives are also a lot cheaper than most other prescriptions. But in terms of overall improvement in people's health, contraceptives would make less of an impact than some other medicines such as for blood pressure or cholesterol drugs. And if prescriptions are as cheap as contraceptives are, why do the taxpayers have to pick up the bill? Overall, this choice seems to be more about funneling money to Planned Parenthood and legislators garnering campaign donations from Planned Parenthood and pro-abortion donors than overall concern about health.

This whole story reminds me of a long time ago when I was in graduate school and had UCLA's student health care plan. When I got pregnant, I was amazed that the insurance plan would only cover around $200 which was about a fourth of the cost for prenatal care at that time. When I called the insurance company to question this, I was informed that the amount was meant to cover the cost of an abortion and they really didn't expect students to have babies. So abortions could be completely covered, but prenatal care - not so much.

The National Review editors point out the economics of Oregon's law and how extreme it is.
Because the bill prohibits insurers from shifting costs to customers in the form of higher deductibles or co-pays, private insurers will be forced to eat the costs — or, more likely, to distribute them among their customers through higher premiums. Medicaid (read: Planned Parenthood) will receive an extra $10 million from the state to cover the procedures. Rammed through both chambers of the state legislature on party lines, the bill now awaits the signature of Democratic governor Kate Brown.

Both California and New York mandate a certain degree of abortion coverage, but Oregon’s is especially aggressive. The legislative language is almost entirely unqualified. It does not exclude grisly late-term abortions (which take place long after the fetus can survive outside the womb), nor does it prohibit sex-selective abortions. If a woman wants to kill her unborn daughter because she wanted a son, her insurer has no choice but to cover that.

Forget about all the problems facing Congress, none of that matters given that Paul Ryan is addressing the outdated House dress code. This is in response to a story last week about how the code barred women from wearing sleeveless dress and open-toed shoes. Even Nancy Pelosi is praising this change.I guess that Pelosi didn't remember that she used to be Speaker of the House and allowed female representatives and journalists to be oppressed by these rules.

Education Secretary Betsy DeVos is meeting with those on both sides of sexual assault accusations. Good. This is not about supporting victims of sexual assault, but of being sure to provide fair and just procedures to adjudicate such accusations. The Obama administration did much to tilt the playing field against the accused.
How university and college administrations have dealt with campus sexual misconduct charges has become one of the most volatile issues in higher education, with many women saying higher education leaders have not taken their trauma seriously. But the Obama administration’s response sparked a backlash, not just from the accused and their families but from well-regarded law school professors who say new rules went too far.

In an interview previewing her plans, Ms. Jackson, who heads the Education Department’s Office for Civil Rights and organized Thursday’s sessions, made clear that she believes investigations under the 1972 law known as Title IX have gone deeply awry. A sexual assault survivor herself, she said she sees “a red flag that something’s not quite right” — and that the rights of accused students have too often been ignored.

Hundreds of cases are still pending, some for years, she said, because investigators were “specifically told to keep looking until you find the violation” on college campuses even after they found none — a charge her critics strongly deny....

The most controversial part of the 2011 guidance mandated that college officials use a “preponderance of the evidence” standard, which makes it easier to find students responsible than a “clear and convincing” evidence standard that some schools had been using. Advocates for the accused are pushing for Ms. Jackson to revoke the guidance and adopt the “clear and convincing” standard.
In many cases, the accused men are not granted the standard rights of due process. And why are university officials the ones investigating allegations of a crime? Why are they considered competent to do so?
The simple fact is that universities have no business hearing such cases in the first place. Notwithstanding concerns for Title IX, they should never have been allowed to pursue the matter -- at least not exclusively or without full disclosure to the alleged victim of the downsides of pursuing such a course of action. For, by doing so, they both compromise justice and public safety, as well as inadvertently legitimize the stigma of rape itself.

Stanford and all other institutions of higher learning are woefully unprepared to handle the complexity of rape cases, lacking sophisticated evidentiary processes, forensic skills and the compulsory force of the law required of such cases. University hearings are invariably shrouded in secrecy, lack transparency, fail to produce an accessible transcript or mechanism for appeal, and are riddled with procedural quirks and flaws that range widely not only from campus to campus but also from administration to administration. There is little standardization and ample room for chicanery, backroom deals and institutional bias. Neither the accuser nor the accused enjoy the rights accorded by a court of law and the Constitution. For both sides in such a tribunal, due process matters.
There have been people complaining about DeVos's meeting with both those who have been falsely accused of sexual assault and with victims. She's also meeting with representatives from schools and universities. Would people prefer that she make a decision without holding any meetings with people affected by the policies that were suddenly implemented by the Obama administration? It would seem that the situation now is biased against the accused, something that our justice system is designed to prevent. If the investigations were conducted by the police and district attorneys who had to follow the legal norms of due process, we could have a more neutral system when victims are seeking justice while still according the accused a just hearing. I hope that DeVos comes up with a more fair procedure for both sides.

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Peggy Noonan notes two of the stories that didn't get much public attention this past week. Think of how little attention the fall of ISIS in Mosul has gotten. Basically the I and S in the Islamic State of Iraq and Syria have been erased. Noonan then turns to NYC police officer Miosotis Familia who was murdered while sitting in her police car.
Here is NYPD Commissioner James O’Neill at her funeral this week at the World Changers Church: “Let me tell you something. Regular people sign up to be cops. They sign up for this job of protecting strangers knowing the inherent risks. . . . But not one of us ever agreed to be murdered in an act of indefensible hate. Not one of us signed up to never return to our family or loved ones. So where are the demonstrations for this single mom who cared for her elderly mother and her own three children?”

The 4,000 mourners stood and burst into sustained applause. Mr. O’Neill continued: “There is anger and sorrow, but why is there no outrage? Because Miosotis was wearing a uniform? Because it was her job? I simply do not accept that. Miosotis was targeted, ambushed and assassinated. She wasn’t given a chance to defend herself. That should matter to every single person who can hear my voice in New York City and beyond.”

It should.

Unnamed but a clear focus of Mr. O’Neill’s remarks was the radicalism and rage of the Black Lives Matter movement, coupled with a national media too often willing to paint the police, in any given incident, as guilty until proven innocent. This sets a mood that both excites and inspires the unsteady and unstable.

Mr. O’Neill: “When we demonize a whole group of people, whether that group is defined by race, by religion or by occupation, this is the result. I don’t know how else to say it. This was an act of hate, in this case against police officers—the very people who stepped forward and made a promise to protect you day and night.”

We are not paying enough attention to what is happening to the police throughout the country. As this was being written, Newsweek reported the National Law Enforcement Officers Memorial Fund claims that the number of officers killed in the line of duty was up 30% for the 12 months ending June 30, compared with the preceding year. That number doesn’t include Miosotis Familia. The head of the Memorial Fund said: “Officers have been targeted for the job they do, shot and killed, or hit with vehicles.”

It should be a major, sustained national story when cops are killed for being cops. Yet each incident never gels into a theme. The media caravan moves on.

Sometimes, it seems as if liberals are working hard to fit every laughable stereotype. Consider this Seattle city councilman.
The area surrounding King County Superior Court includes a homeless shelter and other social-services organizations and has become an “unsanitary and potentially frightening” scene — one “that reeks of urine and excrement” — according to an article in the Seattle Times. Desperate for help with the disgusting environment, two of the court’s judges have asked the city to please power-wash the poop-covered sidewalks. That seems like a pretty reasonable request, but apparently, one councilman is worried that doing so might be a form of microaggression.

According to the Times, Councilmember Larry Gossett “said he didn’t like the idea of power-washing the sidewalks because it brought back images of the use of hoses against civil-rights activists.”