Friday, August 29, 2014


The politically savvy, though thoroughly obnoxious, Democrat operative James Carville has predicted that Mitt Romney will seek the 2016 Republican presidential nomination, joining a growing chorus of others who agree with him. As the bugle gets louder, it's worth reminding my blogees of what I wrote on this blog some five months ago [bracketed text has just been added].

Monday, March 24, 2014

A Republican dark horse?

The other evening I was talking politics with a friend. The conversation turned to the 2016 presidential election, particularly the Republican nominee. My friend was stunned by my mention of a possible “dark horse”—a man beyond the horizon, theoretically and practically. 

My friend urged me to post my thoughts on my blog. OK, for what it’s worth………..

This is not a prediction! Let alone an endorsement. Grounded in reality, it’s merely a not-so-remote possibility that can happen either by the dark horse’s overt campaign to obtain the nomination, or via a draft.

Who’s the dark horse?

Mitt Romney!?!

Yes, That Mitt Romney!!


1.      Mitt Romney has more name recognition than any other potential [Republican] candidate, having received approximately 61,000,000 popular votes in 2012. And he won them against a then-popular sitting president. 

2.     If 61,000,000 voters wanted Romney instead of Obama in 2012, it is reasonable to assume many of them would want Romney against the likes of Biden, Clinton, or virtually any other Democrat. This means that in 2016 Romney would go into the election with a huge inventory of popular votes. Romney’s opponent in the 2016 election [whomever it is] would have an inventory of zero [actually cast] presidential votes.

3.     To the extent Massachusetts’ RomneyCare was a deal-breaking negative for some 2012 voters, his 61,000,000 voters apparently didn’t think so. This means that whatever one thinks of RomneyCare, it can now be a positive in a Romney candidacy. Why? Because accepting its premise and existence, on a state (Tenth Amendment) level RomneyCare does what it was designed to do. In other words, for better or worse it “works.” With so many angry voters now accepting the principle of reformed [not abolished]federal health care, the “success” of RomneyCare in Massachusetts could be seen by many voters as a model either for other states or even the federal government. (I oppose it on any level.)

4.     During the October 2012 presidential debate Obama ridiculed Romney about his concern over Russia’s “geo-political” threat. Quoting Obama: “You [Romney] said Russia. Not Al Qaida. You said Russia. The 1980s are now calling to ask for their foreign policy back because . . . the cold war’s been over for 20 years.” (My emphasis.) [Apparently, Vladimir Putin didn't get the memo.]

Here’s what the more knowledgeable and forthright Romney retorted: “Russia, I indicated, is a geopolitical foe . . . and I said in the same paragraph I said and Iran is the greatest national security threat we face. Russia does continue to battle us in the U.N. time and time again. I have clear eyes on this. I’m not going to wear rose-colored glasses when it comes to Russia or Mr. Putin . . . . ” (My emphasis.) Romney knew more about Russia than Obama had learned in four years as president. Make that 5+ years, now.

5.     Romney is, despite the 2012 [Democrat, and Democrat-inspired] slanders, a hugely successful businessman, unlike such as Gingrich, Cruz, Ryan, Santorum, Paul, Palin, J. Bush, Perry, Walker, Kasich, and other possible contenders for the Republican nomination. Like the last five, Romney was also a governor.

6.     Since the 2012 election even many of Romney’s political detractors have acknowledged, albeit grudgingly, that he is a thoroughly decent and honorable man. Which is more than can be said about the people being bandied about as potential Democrat nominees [especially Hillary Clinton]. Pundits tell us that the “nice guy” factor is of utmost importance in elections.

But, one might say, Romney won’t run. Maybe not. Maybe he’d have to be drafted. 

Remember this, however, whatever else Mitt Romney is, he’s a patriotic American with a lifetime of service.

If the bugle sounds, Mitt Romney will answer the call of his country.

[If you listen carefully, perhaps you can hear it. Faint now, but getting louder every day.]

Tuesday, August 26, 2014

Don't bother locking the barn door

August 26, 2014
A nation became unhinged by trivialities like “hope and change.” It has now awakened.
By Victor Davis Hanson
America is suddenly angry at the laxity, incompetence, and polarizing politics of the Obama administration, the bad optics of the president putting about in his bright golf clothes while the world burns. Certainly, no recent president has failed on so many fronts — honesty, transparency, truthfulness, the economy, foreign policy, the duties of the commander-in-chief, executive responsibilities, and spiritual leadership.
For those who are “shocked” at the present meltdown, of a magnitude not seen since the annus horribilis of 1979, in their defense: Obama certainly did not campaign on a new health-care plan that would force Americans to give up the doctors they liked and their existing coverage, while raising premiums and deductibles, while giving exemptions for insiders and cronies, and while raising the deficit.
Nor did we hear on the campaign trail that Obama would push gay marriage, open borders, near-permanent zero interest rates, six consecutive $1 trillion deficits, and record food-stamp and Social Security disability payouts. He criticized Bush for relatively minor executive orders, suggesting that he would never rule by fiat — as he since has done in matters of Obamacare, immigration law, and environmental regulations. Remember the promise of ending the revolving door and stopping aides from cashing in — and then follow the post-administration careers of Obama’s closest advisers.
Obama promised to halve the deficit — not run up more red ink than almost all prior presidents combined. Indeed, he once as a senator voted against raising the debt limit and blasted Bush for borrowing from China. He once sermonized to us that the presidency is serious stuff, that it entails inordinate personal sacrifice and even a virtual absence of downtime and vacation — and then he became just the sort of president he was critiquing. But those deceptions were simply politics as usual, and it was logical for the hard leftist Barack Obama to try to appear to be a moderate, given that no Northern liberal had won the presidency in the half-century since John F. Kennedy.
The antidote to the great madness of 2008 would have been, instead of focusing on what Obama claimed or hedged, simply to recall what he had done before he ran for president and to notice what he did during the campaign. Had America done that, there would never have been a President Obama to surprise us now.
The racial animosity characterized by Obama’s editorializing about Skip Gates, Trayvon Martin, and, now, the Ferguson, Mo., hysteria, or his call to Latinos to “punish our enemies,” or the tenure of Eric Holder is simply a continuation of 2008’s “typical white person,” the clingers speech, Michelle Obama’s America as “just downright mean,” “They raise the bar,” and “For the first time . . . I’m really proud of my country” commentaries, and of Obama’s earlier boast that he never missed services at the Trinity Church of the hate-mongering and anti-Semitic Reverend Jeremiah Wright. If Obama had not proved to be a racial divider, we should have been surprised — given what we learned of his past in 2008. After all, it’s from Jeremiah Wright that Barack Obama got the title for his campaign brief, “The Audacity of Hope.”
We are now shocked at the current spate of alphabetic scandals — IRS, AP, NSA, VA. But why are we surprised, given that Obama never told the truth about his relationships with the old terrorist Bill Ayers and former PLO ad hoc spokesman Rashid Khalidi, or about the creepy land deal with the crook Tony Rezko? If the Obama White House demonized the Tea Party as tea-baggers, or compared the Republican House opposition to terrorists and arsonists, why should we be astonished, given how he was elected to the U.S. Senate? Quite mysteriously, his primary opponent, Blair Hull, and his general-election opponent, Jack Ryan, both of whom were favored to win, had their confidential divorce records leaked. Their campaigns subsequently imploded.  
Obama has played fast and loose with ethical rules, from promoting crony capitalists to attending near-constant fundraisers among the pay-to-play 0.0001 percent. Again, why should we be surprised, given that he was the first presidential candidate who refused in a general election to accept federal campaign financing, with its accompanying rules curbing mega-fundraising? Obama was the largest recipient of Goldman Sachs donations in the company’s history, and raised more cash in 2008 and 2012 than any other presidential candidate in history.
We are terrified of the chaos that is spreading across the world: Egypt, Gaza, Iran, Iraq, Libya, Syria, Putin’s Russia, and the Chinese–Japanese tensions. But was there any evidence in 2008 that rookie senator Obama had any foreign-policy experience or even knowledge of the world beyond Chicago, other than as a boy in Indonesia or a teen on a jaunt with buddies to Pakistan? We knew in 2008 that his opportunistic trashing of Guantánamo, renditions, tribunals, drones, and preventive detention was permitted only by the fact that the Bush–Cheney protocols he was criticizing had prevented another 9/11-like attack — and thus gave him the leeway of easy second-guessing. If we are now worried about Obama’s equivocation, there was plenty of evidence, as Hillary Clinton pointed out in 2008, that Obama as a state legislator had voted “Present” as a matter of habit.
Polarization? Partisanship? The National Journal warned us in 2008 that Obama was the most partisan of the 100 U.S. senators. Did we assume that he would revert to something that he never had been?
Critics are angry that Obama seems disengaged, or that as a man of the people he is inordinately obsessed with golf, a sport that the Left used to despise as a fixation of the rich in their lime-green pants and bright pink polo shirts. But again, can we point to any landmark legislation that Obama accomplished as a state legislator or U.S. senator? Was not Obama golfing during the 2008  campaign?
Then there is the matter of the presidential untruths. The problem is not just that Barack Obama says things that are untrue but that he lies about what Barack Obama has said. He brags that he set red lines, but then he says it was the U.N. had set red lines. He boasts of pulling out every U.S. soldier from Iraq but then alleges that President Bush, the Iraqis, or Maliki did that. He claims that ISIS are Jayvees but then claims they are serious. But his prevarication too is habitual and was known in 2008 when it was discovered that he had simply misled the nation about his relationships with Jeremiah Wright and Bill Ayers. He had no desire, in the transparent manner of John Kerry, Al Gore, John McCain, or George W. Bush, to release his medical records or college transcripts. If Americans find their president ill-informed, there was no record that he was informed in 2008. His gaffes were far more frequent than those of Sarah Palin, who knew there were 50 states.
Historians will look back at 2008 as a time when the country became more or less collectively unhinged. There was an accompanying perfect storm of sorts: He was the first serious African-American candidate, whom condescending liberals like Harry Reid and Joe Biden heralded for being clean, light-skinned, and without a black patois; he was running in an orphaned election without an incumbent vice president or president on the other side’s ticket, a situation not seen since 1952; we had an unpopular lame-duck president and the Iraq war; the sudden financial meltdown in September 2008 caused a then-behind Obama to immediately surge ahead; the McCain campaign was lackluster; and the media became an advocate of the Obama effort.
Pundits vied for superlatives. On little evidence, Christopher Buckley assured us that Obama possessed “a first-class temperament and a first-class intellect.” For some, proof of Obama’s godhead became almost physical — a “perfectly creased pant” for David Brooks, a tingling leg for Chris Matthews. For Evan Thomas he was a “sort of God”; for one blue-chip historian he was the smartest man with the highest IQ ever running for the presidency. And on and on, as huge crowds acted as if they were watching Paul McCartney on tour in 1966. After the election, there was real apprehension that the country might not make it for the two and a half months until an elected Obama could take power.
Given that there was no evidence from Obama’s legislative career to justify such superlatives, we can only assume that our intellectual elites got caught up in the faux Greek columns, the Obama tutorials for fainting crowds about proper first aid, the teleprompted emphatics of “Let me be perfectly clear” and “Make no mistake about it,” the Latinate motto “Vero possumus” on the faux presidential seal on his campaign podiums, the boast that Obama & Co. were “the ones we’ve been waiting for,” the messianic promise to cool the planet and lower the seas, the Lincoln self-comparisons, and the other embarrassing childish banalities.
Obama, it is true, ran a brilliant campaign in 2008, hinting to the Other that as a non-white he shared both their racial bona fides and their frustrations, hinting to white elites that his own unique heritage would end racial hostilities and thus allow them to square the circle of living largely separate elite lives and not having to feel guilty about it. He dropped his g’s and went into Southern cadences among African Americans, and then back again into wonkish academese to mainstream whites. It was well known that in impromptu talks he stuttered and stumbled with uh’s in deer-in-the-headlights fashion, and used the pronouns I, me, my, and mine ad nauseam, but such unease was ignored given his teleprompted eloquence and the considerable elite investment in his symbolism.
In sum, in 2008 Obama gave America more than enough evidence to doubt that he was ready for the presidency, but when a nation becomes unhinged by trivialities like “hope and change,” there is not much one can do — until the patient wakes up from his trance and in embarrassment asks, “What exactly was all that nuttiness in 2008 about?”
We will be fathoming that strange madness of 2008 for decades to come.
NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution and the author, most recently, of The Savior Generals.

Thursday, August 21, 2014

Interim report

As O.J. Simpson directs the search from his jail cell for his wife's and Ron Goldman's killer, the United States Army continues its investigation of PFC Bowe Bergdahl's desertion.

Tuesday, August 19, 2014

Special prosecutor admits mistake: The Perry indictment

On Tuesday, The Wall Street Journal in an article about the Perry indictment wrote that the special prosecutor, Michael McCrum, "said that claims by Mr. Perry and his lawyers that the prosecution was politically motivated was ridiculous, saying 'Anyone who knows me knows I look at the evidence and the facts'."

What Mr. McCrum apparently failed to look at is the law.

When one does, as I wrote in this blog a few days ago--"Ham sandwich time in Texas: The Perry indictment"--it is clear that Mr. McCrum has no case when his beloved facts are measured by the law. And that's what will do him in--barring a corrupt judge and/or jury.

Monday, August 18, 2014

Several moves later on the board: The Perry Indictment

Back in the day, when I was advising lawyers and their clients about litigation and appellate strategy I stressed the obvious: For better or worse, litigation (especially criminal law) is a real-life chess game, with much higher stakes. Accordingly, it’s essential to think several moves down the board, beginning with launching the first pawn.

In bringing the indictment against Governor Rick Perry, the special prosecutor has made a colossal mistake.

Let’s assume for the sake of argument that the case goes to trial.

Count I (as does Count II) charges an “intent” crime: Governor Perry “intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property contrary to the oath of office he took as a public servant . . . which were approved and authorized by the Legislature . . . to fund the continued operation of the Public Integrity Unit [of the Travis County District Attorney’s Office]”

This allegation (and the same in Count II) squarely puts in issue why he vetoed the Public Integrity Unit’s budget. His reason was that in his best judgment as governor drunken DA Rosemary Lehmberg—who lied to the police, disgraced herself while in their custody, pleaded guilty, and did jail time—was unfit for office as the chief legal officer for the County of Travis.

How will Perry show what his opinion was based on, especially the DA's drunkenness, lying and disgraceful behavior?


By showing as clearly admissible evidence the two videotapes, which have gone viral on the Internet. (HERE and HERE

The special prosecutor opened the door.

He’s not going to be able to shut it.

The jurors can decide what Perry was trying to do in ridding the public sphere of such a despicable character.

Sunday, August 17, 2014

Ham sandwich time in Texas: The Perry Indictment

It is said that grand juries are so much in thrall to the power of prosecutors, the latter could indict a ham sandwich. Well, on Friday a special prosecutor didn’t indict a ham sandwich but instead charged Texas governor Rick Perry with the commission of two state crimes. However, when all is said and done, when the political vendetta is exposed and over with, the prosecutor will have choked on his sham indictment.

First, a quick lesson in Criminal Law 101’s prosecutorial burdens. The prosecutor must convince [1] a unanimous jury, [2] beyond a reasonable doubt, [3] overcoming the presumption of innocence, [4] with the criminal statutes’ meaning strictly construed against the State, [5] of every essential element of each crime charged.

Please put aside all the premature, and much erroneous, commentary that’s been generated in the last 48 hours, and follow me into the sketchy, bare-bones, superficial, unprovable, less-than-two-page indictment to see what those essential elements are under Texas law.

Count I: Perry “intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property contrary to the oath of office he took as a public servant . . . which were approved and authorized by the Legislature . . . to fund the continued operation of the Public Integrity Unit [of the Travis County District Attorney’s Office]”

Translation: Perry vetoed the appropriation.

Though not cited in the indictment, this sounds like the Texas law entitled “Abuse of Official Capacity.”

V.T.C.A., Penal Code § 39.02
§ 39.02. Abuse of Official Capacity 

     (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:

          (2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment.

Although much of the preliminary commentary about the indictment seems to believe that Count I charges Perry with the threat to veto (surely not a crime, even in Texas), the language quoted above—“dealing with such property”—albeit somewhat opaquely, alleges that he violated Section 39.02 by his actual veto. I’ll get to the threat in Count II.

Proper analysis of the statute begins, and ends, with what it actually says. (Even though it will become clear later in the judicial proceedings that the legislature never intended either section charged in the indictment to apply to a governor’s threat to veto, and then actual veto, that intent is irrelevant. The statute says what it says, and there is no need to go beyond it.)

First, the section requires [1] a specific “intent.” Since this is the defendant’s state of mind, almost always it must be proved by circumstantial evidence.

That specific intent must be to “obtain a benefit,” which is not charged, or to [2] “harm another,” which has been charged. Presumably, here the “harm” was Perry’s veto of a legislative appropriation, and the “another” was the Public Integrity Unit (which may or may not be considered “another” under the statute).

That specific intent to harm another must manifest itself in a [3] “misuse,” a standard definition of which is “to use improperly.” In other words, the indictment charges Perry with improperly using appropriated funds by line-item-vetoing them. A novel kind of “misuse,” to put it mildly.

All three of these essential elements of the Section 39.02 crime the prosecutor must prove.

Count II: Perry “by means of coercion, to-wit: threatening to veto legislation . . . to provide funding for the . . . Public Integrity Unit . . . unless [the] . . . District Attorney . . . resigned . . . “intentionally or knowingly . . . attempted to influence [her] . . . in the specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities . . . .”

Translation: Perry threatened to use his line-item veto unless the DA resigned. Why did he want her to resign? Because she was a drunken, abusive, irresponsible, literally unethical law enforcement public servant who, in Perry’s sound judgment as Governor of the State of Texas, had necessarily lost his confidence and that of the public, bench, and bar of Travis County, Texas.

Though not cited in the indictment, this sounds like the Texas law entitled “Coercion of Public Servant or Voter.”

V.T.C.A., Penal Code § 36.03
§ 36.03. Coercion of Public Servant or Voter

     (a) A person commits an offense if by means of coercion he:

          (1) [A]ttempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty....

What are the essential elements of this crime?

Per Section 36.03, the prosecution would have to prove that Perry’s threat to veto the funding sought to influence the DA’s [1] specific [2] exercise [3] or performance or [4] violate her known legal duty. Putting aside the policy absurdity of this count because threatening to veto is what mayors, governors, and presidents do every day of the week, and putting aside the unacceptable democratic and separation of powers implications of every county DA in America holding a criminal charge over the heads of elected executives who threaten to, or actually, veto, the fatal problem with Count II is that the prosecutor must prove [1] and either [2], [3] or [4] of these essential elements of the Section 39.02 crime.

But he can’t, unless the jury is as corrupt as he is.

Focusing on the alleged threat, and even accepting for the sake of argument that under Texas law it could be considered coercive, it was not aimed at any of the DA’s specific exercise or performance, or sought to coerce violation of any of her legal duties

Perry did not want to influence the DA. He wanted her gone. The governor of Texas was commendably trying to coerce the drunken, abusive, irresponsible, literally unethical DA to resign—a far cry from what Section 36.03 expressly makes a crime (and from what the intent of the Texas legislature must have been when it enacted the statute).

The indictment’s express allegations that Perry’s coercion was aimed at a specific aspect of the DA’s exercise or performance, or sought to cause her to violate her legal duty, is as sham as the entire indictment itself.

One last—but crucially important—point. Regarding Count I—Section 39.02, Abuse of Official Capacity—there are a mere 4 reported cases: Goldsberry, Campbell, Megason, and Trevino. Not a single one of them is relevant to the facts of the Perry case. Regarding Count II—Section 36.03, Coercion of Public Servant or Voter— there are only 2 reported cases: Tobias and Philipps. As with Count I, neither one is relevant to the facts of the Perry case. In other words, there is no Texas case-law precedent, none, to support either criminal charge that has been brought against Governor Perry for his threat or his veto.

The indictment—which should be an embarrassment to every fair-minded member of the Texas bench and bar—deserves to be promptly quashed. 

Please forward this blog far and wide.

Professor Emeritus
Brooklyn Law School