Saturday, June 30, 2012

John Roberts and a Vietnamese Village

No one need read the entrails of a goat to understand the decision five Supreme Court justices rendered last Thursday regarding the constitutionality of the so-called Obamacare individual mandate.

With the dust settling on that decision—the mandate is constitutional not under the Commerce Clause, but as a newly-invented “tax” within Congress’s power to impose—focus is shifting to Chief Justice John Roberts’s vote that gave the four Court liberals and President Obama the constitutional victory.

Serious people are asking why Roberts wrote so patently an indefensible opinion, distorting reality to find a tax when there is no tax.

There are some who believe that Roberts’s whole-cloth tax rationale masked the Chief Justice’s clever Machiavellian plan to prevent the Commerce Clause’s further engorgement, tilt the election toward Mitt Romney, and otherwise in some not apparent manner do damage to the Court’s enemies.

Other commentators, preeminently Charles Krauthammer, argue that Roberts—who literally sat still when Obama insulted the Court and some of its members in person in front of Congress, the American people, and the world—is still hearing echoes of Bush v. Gore.  They believe, with some justification, that the Chief Justice feared his Court would again be held in disrepute if a 5-4 conservative bloc ruled Obamacare unconstitutional.  Indeed, in the last few weeks Obama himself, some members of his administration, a few Congressmen and Senator Patrick Leahy unconscionably told the Supreme Court it better not hold the mandate, let alone the rest of Obamacare, unconstitutional.

If this is why Roberts—otherwise a card-carrying judicial conservative, and staunch supporter of judicial restraint—caved in and ruled Obamacare constitutional, he made a serious miscalculation.  His tortured majority opinion has not only sullied his own reputation.  It has confirmed the view of many that the Supreme Court is just another pragmatic political institution—to be distrusted, even scorned.

One is reminded of the perhaps apocryphal Vietnam War comment, attributed to an unnamed American officer, to the effect that “to save the village, it had to be destroyed.”

Thursday, June 28, 2012

The Late Unlamented Section 704(b) of the Stolen Valor Act

As many readers of this occasional blog know, in 2003 Erika Holzer and I authored Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service.

When in 2006 Section 704(b) of the Stolen Valor Act (SVA) showed up in the name of nailing military imposters by criminalizing pure speech, we warned its proponents and supporters that it was unconstitutional.

To no avail.  They pushed it, managed to have it introduced, secured its enactment and -- apparently while Congress's lawyers and White House counsel were out to lunch -- President G W Bush signed it.

Prosecutions, trials, plea deals ensued.  Some courts upheld Section 704(b), some did not.

On June 28, 2012, by a 6-3 vote, the Supreme Court predictably held it unconstitutional.

Several months ago, Erika Holzer and I began preparing the second edition of Fake Warriors.

Chapter 8 deals with the Court's opinion in the Alvarez case, explaining why Section 704(b) was held unconstitutional.
Chapter 9 presents our Fake Warrior Act, designed to nail military imposters, but in a manner that will survive constitutional scrutiny.

Fake Warriors II will be available in eBook and print editions around the end of July.  
It is our hope that someone will introduce the Fake Warrior Act in both Houses of Congress -- and we can get on with the job of shutting down a lot of the Fake Warriors.

Monday, June 25, 2012

The Treason That Won't Die

A few months ago some high school students from Massachusetts interviewed me for a documentary they were making for a class.

The subject?  

Jane Fonda in North Vietnam.

Their film runs about 9 minutes.  The narrator is a young Chinese girl (a "Chinese-American"?), so her accent is sometimes hard to get through.

I leave their grade to you.

You may have to put this link into your browser.

Thursday, June 21, 2012

Joe and Jews

Yesterday the print media reported a statement made by congressional candidate Joe the Plumber to the effect that "German gun controls contributed to deaths during the Holocaust because Jews didn't have firearms to defend themselves."

Apart from any other Jews, anywhere in World War II Europe, surely the Jews of the Warsaw Ghetto could have put guns to good use. 

The article continued: "[Joe's] comments quickly drew strong rebukes from Democrats and Jewish organizations."


Certainly not because Joe was wrong on the facts.  He wasn't.

Why, then?  Why "rebuke" someone who spoke the truth?

In this case, only because the notion that Jews could have defended themselves--with guns, no less!--was anathema on the Upper West Side, on K Street, and elsewhere one finds "Democrats and Jewish organizations" who lack what the Hebrew (or Yiddish) translation is for cojones.

Wednesday, June 6, 2012

Batter Up?

On May 19th I wrote the following:


Alan Dershowitz and Florida Rule 4-8-3: What Florida lawyer will step up to the plate?

This is about the Zimmerman case and Harvard’s Professor Alan Dershowitz.  (Full disclosure: Years ago when I represented Walter Polovchak, “The Littlest Defector,” Professor Dershowitz was one of the few lawyers, let alone academics, in America who defended the boy’s right to asylum and to remain in the United States.  I still owe him. You can Google it.)
In the past few days, Professor Dershowitz has been interviewed at length about the outrageous immoral, unprofessional, unethical, unconstitutional and even illegal conduct of the Zimmerman prosecutor.  He has been 100% correct!

I will not recount her misdeeds, nor Dershowitz’s indictment of her.  Suffice to say that the prosecutor's treatment of evidence, disclosure of relevant information to the defendant and court, her handiwork in preparation of the affidavit upon which the charges were based, and charging Murder 2 when not only was there no evidence but the available facts showed a prima facie case of self-defense, all raise substantial questions about her violation of American Bar Association and Florida rules for the professional conduct of lawyers.

The Florida Statutes Annotated Bar Rule 4-8.3(a) provides that: “Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.”  The emphasis on “shall” is mine, to make the point that if the conditions of Rule 4-8.3(a) have been violated a Florida-licensed lawyer has no choice but to report the offender.

The statute’s Editors’ Notes inform us of this: “Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. * * *  This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.”

The convincing case against the Zimmerman prosecutor that has been made by Professor Dershowitz and others has imposed a professional obligation on Florida lawyers.  It will be interesting to see if any of them recognize that and act accordingly.
Today, Professor Dershowitz wrote the following:

Alan M. Dershowitz’s Perspective: State Attorney Angela Corey, the prosecutor in the George Zimmerman case, recently called the Dean of Harvard Law School to complain about my criticism of some of her actions.

She was transferred to the Office of Communications and proceeded to engage in a 40-minute rant, during which she threatened to sue Harvard Law School, to try to get me disciplined by the Bar Association and to file charges against me for libel and slander.
State Attorney Angela Corey
(AP Photo)
She said that because I work for Harvard and am identified as a professor she had the right to sue Harvard.

When the communications official explained to her that I have a right to express my opinion as “a matter of academic freedom,” and that Harvard has no control over what I say, she did not seem to understand.

She persisted in her nonstop whining, claiming that she is prohibited from responding to my attacks by the rules of professional responsibility — without mentioning that she has repeatedly held her own press conferences and made public statements throughout her career.

Her beef was that I criticized her for filing a misleading affidavit that willfully omitted all information about the injuries Zimmerman had sustained during the “struggle” it described. She denied that she had any obligation to include in the affidavit truthful material that was favorable to the defense.

She insisted that she is entitled to submit what, in effect, were half truths in an affidavit of probable cause, so long as she subsequently provides the defense with exculpatory evidence.

She should go back to law school, where she will learn that it is never appropriate to submit an affidavit that contains a half truth, because a half truth is regarded by the law as a lie, and anyone who submits an affidavit swears to tell the truth, the whole truth and nothing but the truth.

Before she submitted the probable cause affidavit, Corey was fully aware that Zimmerman had sustained serious injuries to the front and back of his head. The affidavit said that her investigators “reviewed” reports, statements and “photographs” that purportedly “detail[ed] the following.”

It then went on to describe “the struggle,” but it deliberately omitted all references to Zimmerman’s injuries which were clearly visible in the photographs she and her investigators reviewed.

That is Hamlet without the Prince!

The judge deciding whether there is probable cause to charge the defendant with second degree murder should not have been kept in the dark about physical evidence that is so critical to determining whether a homicide occurred, and if so, a homicide of what degree. By omitting this crucial evidence, Corey deliberately misled the court.

Corey seems to believe that our criminal justice system is like a poker game in which the prosecution is entitled to show its cards only after the judge has decided to charge the defendant with second degree murder.

That’s not the way the system is supposed to work and that’s not the way prosecutors are supposed to act. That a prosecutor would hide behind the claim that she did not have an obligation to tell the whole truth until after the judge ruled on probable cause displays a kind of gamesmanship in which prosecutors should not engage.

The prisons, both in Florida and throughout the United States, are filled with felons who submitted sworn statements that contained misleading half truths. Corey herself has probably prosecuted such cases.

Ironically, Corey has now succeeded in putting Zimmerman back in prison for a comparably misleading omission in his testimony. His failure to disclose money received from a PayPal account requesting donations for his legal defense made his testimony misleadingly incomplete.

In her motion to revoke his bail, Corey argued that Zimmerman “intentionally deceived the court” by making “false representations.” The same can be said about prosecutor Corey. She too misled and deceived the court by submitting an affidavit that relied on a review of photographs and other reports that showed injuries to Zimmerman, without disclosing the existence of these highly relevant injuries.

Even if Angela Corey’s actions were debatable, which I believe they were not, I certainly have the right, as a professor who has taught and practiced criminal law nearly 50 years, to express a contrary view. The idea that a prosecutor would threaten to sue someone who disagrees with her for libel and slander, to sue the university for which he works, and to try to get him disbarred, is the epitome of unprofessionalism.

Fortunately, truth is a defense to such charges.

I will continue to criticize prosecutors when their actions warrant criticism, to praise them when their actions deserve praise, and to comment on ongoing cases in the court of public opinion.

If Angela Corey doesn’t like the way freedom of expression operates in the United States, there are plenty of countries where truthful criticism of prosecutors and other government officials result in disbarment, defamation suits and even criminal charges.

We do not want to become such a country.

So now the prosecutor tries to silence one of her most eloquent and harshest critics.

Some of us are still waiting for at least one Florida lawyer to step up to the plate.

Surely, there is at least one who's not intimidated by this runaway state attorney.

Or, maybe there isn't!

Tuesday, June 5, 2012

Constitutional Law: The Final Chapter

On May 7, 2012, a few weeks after print and eBook publication of  my latest book, The American Constitution and Ayn Rand's "Inner Contradiction," I wrote the following on this blog:

The American Constitution and Ayn Rand's "Inner Contradiction" is the product of years practicing, teaching, researching, writing, cogitating, analyzing and synthesizing American constitutional law.  And spending decades applying to that subject Ayn Rand's political philosophy.  To the best of my knowledge no one else has done this in the same way I have.

Just as Erika Holzer's and my "Aid and Comfort": Jane Fonda in North Vietnam, and my first and second editions of The Supreme Court Opinions of Clarence Thomas, are unique books, so too is The American Constitution and Ayn Rand's "Inner Contradiction."

I've eschewed my regular publisher, McFarland & Co., in favor of getting this book out to the public before the November election, in the hope that it could have an impact on some voters.

. . . it is for sale on virtually every digital format in existence (for peanuts), and now there are print copies available (for peanuts, plus).

That's all I'm going to do.

(I'm taking a minute to think of a polite way to say the following.)

OK.  I've done enough.  The horses have been led to water, but I consider it unseemly for me to try to make them drink.

If members of the public consider my work valuable in the fight for freedom in America, it's up to them to use the ammunition I've provided.  Indeed, that's the least they can do.  They can spread the word . . . or not.

One easy way for like minded people to do that is by reviewing the book on Amazon.  Another is simply to tell as many people about it as possible.

I have put up.  Now it's time for others to do the same, or . . . .

The “peanuts” price for the Kindle and every other eBook edition was about $5.00 and for the print edition just under $19.00—326 pages, 104 endnotes.

The announcement went out directly to hundreds of men and women who receive this blog, as well as indirectly to countless others throughout America and even around the world.

In the announcement, I requested that those who found the book valuable spread the word, and provide reviews on Amazon.

Only two recipients of the announcement told me that they would do so.

In about the last six weeks, there has been one Amazon review (a good one, from a former student).

The number of print and eBook editions sold has been, to say the least, disappointing.

With the exception of a few “regulars,” I have received no comments about the book.

My reaction to this latest experience is the same it has been for the last 53 years, while as a lawyer, teacher and writer I engaged in my Quixotic efforts to make the case for individual rights, limited government, free markets, and national sovereignty.

Despite winning some important cases, enlightening some open-minded students, and authoring some provocative articles and books, much of my effort during that time has been wasted.  The return on my investment of time and intellectual capital has been not commensurate with my labors.  Not even close!

I didn’t really need another lesson, let alone one taught by The American Constitution and Ayn Rand's “Inner Contradiction,” but I’ve just received one.

What I’ve experienced, again, is that there is a miniscule serious audience for my ideas. Thus, I’ve finally accepted that long ago I should have abandoned the irrational, intellectually corrupt, and mostly altruist-collectivist-statist field of American constitutional law and found honest legal work elsewhere, practicing, teaching, and writing.  Perhaps in contract law which, despite some government meddling, does deal with voluntary relations between consenting adults (and entities).

While it’s too late for that now, it’s not too late for me to turn my back on constitutional law.  Starting right now, I shall no longer practice, teach, or write about that subject.  (Except to finish one nearly complete writing job for the forthcoming second edition of Erika Holzer's and my Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service--when the Supreme Court decides the Alvarez case by the end of this month.)

Which brings me back to the print edition of The American Constitution and Ayn Rand's "Inner Contradiction."

Ideally, as one last, doubtlessly futile, attempt to make my case about the Constitution, I wanted to give the book away.  But Amazon, understandably given its production costs, insists that the book sell for a minimum of $12.33.  So that’s what the print edition of The American Constitution and Ayn Rand's "Inner Contradiction" costs as of today. 

Maybe at that price it will be inexpensive enough to elicit the interest and consideration it deserves.

Who is John Galt?