Thursday, November 27, 2014


De Optimis Legibus

I love it when guys who get to publish their stuff in magazines and papers are just stone dead wrong about their subject. I don't get to call them out too often as my expertise is so limited, but the aftermath of no true bill from the Ferguson, MO Grand Jury is a target rich environment. First a little background.

There are two ways to bring criminal charges against a person of the United States. First, and this is the common way out West, is for the prosecutor to file an information with the court laying out the charges and some details of the crime alleged. Then, for many of the serious crimes charged this way, there is a preliminary hearing which in most states (not California) is seriously one sided for the prosecution. Hearsay is admissible (but can't be, in Colorado, 100% of the evidence) and all the judge has to find is that probable cause has been shown. Probable cause is sufficient evidence for a reasonable person to think that a crime might have been committed. That's a very low standard especially compared with the burden of proof at a criminal trial. The reason the prelim can be so one sided is that we rely on the ethical constraint on the prosecutor not to bring charges he or she cannot prove beyond a reasonable doubt (95% sure). That ethical constraint works almost all the time.

The second way is by Grand Jury, and that's how most of the Eastern states do it. It's a little one sided in that there is no defense attorney, nor judge present and no cross examination by the other side of witnesses and the rules of evidence are relaxed. The Grand Jury is looking to see if probable cause for an indictment exists. But the jurors are supposed to look at the testimony and decide credibility. In the prelim, the judge doesn't often decide credibility, any evidence of the crime shown is usually good enough to send the case to trial even if there is counter evidence. That's a huge difference between prelims and grand juries.

Anyone who says there was no way Officer Wilson would have been convicted at trial but they should have had the trial anyone is ignorant of the aspect of criminal law explained above. We don't put on show trials. If the prosecutor doesn't think he or she can get a conviction the case cannot go forward. If the grand jurors have heard all the evidence and decided there is no way that the person against whom the indictment is sought will be convicted then the juror has a duty to return no true bill, the functional equivalent of acquittal before trial. Once more, on the other hand, in the normal prelim, even if there is a ton of evidence that makes a conviction tough to imagine, if there is any evidence that would convict the case is bound over for trial.

OK, that took longer than I had thought because the difference is real, even substantial, but subtle.

Most of the legal morons saying we should have had a show trial are confused, I believe, by the rules of the prelim versus the rules of the Grand Jury. If the prosecutor had decided he could get a conviction of Officer Wilson for voluntary manslaughter, for example, (and he didn't think he could) and he brought the charges and in the prelim, even one witness said Officer Wilson shot Mr. Brown to death when Mr. Brown posed absolutely no danger to the officer (as in the false narrative Brown had his hands up and was surrendering) then the case (most places other than California) would have been bound over. The grand jurors, however, were free to decide what likely happened from evidence that was impossible to disbelieve (forensic and autopsy) and from overlapping, mutually supporting testimony. Based on this evidence the jurors were free (and indeed required) to ignore testimony that seemed false, or even implausible, in rendering a decision.

So in the real world, in a case not receiving the publicity this case received, given the evidence the prosecutor had to present, I know that there would have been no charges from his office in the first place. Given the political weight this case had from incredibly bad reporting of a false narrative from the beginning, I'm OK with the decision to put it to a Grand Jury. That way, he had their verdict and the record of the evidence (generally kept secret, but not here) to buttress his decision not to bring charges. But once he decides and the Grand Jury says no true bill, that's it. We don't charge people without probable cause merely because there are people who don't understand the difference between a prelim and a Grand Jury. QED.

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Friday, November 21, 2014


Looking Back

I'm thinking about the impressive political things I have lived to see live on TV during my lifetime.

I saw Pres. Kennedy tell us about nuclear weapons in Cuba.

I saw Kennedy's assassin shot by Jack Ruby on the Sunday after the Friday Kennedy killing (the weekend without cartoons).

I saw Gov. George Wallace (D-AL) stand in the door way to prevent black students from entering UA.

I saw Bill Buckley threaten to punch Gore Vidal in the face and I then saw cops hit hippies over the head, repeatedly, with nightsticks in Chicago in 1968.

I saw Nixon leave the White House in disgrace, the only President to resign a few steps ahead of the impeachment.

I saw Reagan talk about paying for a microphone.

I saw Michael Dukakis riding in a tank with a ridiculous helmet on his head.

I saw Democrat election judges looking hard at un-dimpled ballots in Florida.

I saw young George Bush talk about Justice through a loud speaker in downtown NYC not a full year into his presidency.

And I watched tonight a president, knowing for a fact that it was wrong, illegal, unconstitutional, and beyond his power, usurp illegal powers to thwart the People's will in an action that contain the seeds of political ruin for our great country.

So I've seen some important TV here and there.


Tuesday, November 18, 2014


What Shellacking Part Two Has Done to the Lefty Columnists

As it stands now, the Republicans are plus 8 in the Senate and almost certainly to be plus 9 after Mary Landrieu goes down in December run off. Instead of taking back the House, as several Democrats were predicting just a few months ago, the Democrats lost a net 12 and there are 5 seats still in contention and Republicans lead (slightly) in three and the two in Louisiana will certainly suffer the Landrieu treatment in December. So perhaps the House will be plus 17. Most governors are Republicans and most state houses and senates are Republican. So the midterms were not a fatal blow to the Democrats but the results really hurt and the majorities in the House and in the states at least might last a decade or more. With Shellacking Part Two, the Democrats are striking out at the winners in an ever more perplexingly dishonest way. Here are but two examples: Brian Beutler at the New Republic and Jamelle Bouie at Slate.

Let's deal with Mr. Bouie first. He's the guy who saw rampant racism in a jury hung on one count in the loud music murder case in Florida. I wrote then that the state would retry the hung count and probably prevail and it did and the jury convicted and Mr. Bouie bravely said not a single thing about his pointless rant. Here he's lashing out at the evil and stupid Republicans for forcing President Obama to violate his oath of office and the constitutional mandates and limitations on his executive power (again). It's just too inane to talk about further.

Beutler's piece is just as inane but it contains a classic tantrum. For background, Beutler acknowledges that there are two distinct, bad groups of Jonathan Gruber videos--the ones where he repeatedly says the Democrats had to lie to get Obamacare (the ACA) passed because the American voters are stupid and the ones where he said the purpose of making subsidies only available to users of state exchanges was to put political pressure on the states to establish such insurance exchanges. Buetler sees the two sets of videos as conjoined in an evil (but perhaps not stupid this time) Republican plot to destroy the unpopular and horrible ACA in the Supreme Court. He writes:

But the controversies are actually conjoined, and the link between them explains why the right isn’t merely going to run Gruber’s name through the mud, but probably haul him in front of a congressional committee or two and recapitulate his sins every day until the Supreme Court determines the fate of the Affordable Care Act for a second time. The two Grubergates are being deployed together in service of a common goal.
That goal is for the Supreme Court’s five conservatives to hobble the law without fear that their decision will be interpretedcorrectlyas a spite-driven judicial logrolling of a statute conservatives hate. (Emphasis added).

Yeah, the right is going to run Jonathan "Hans" Gruber's name through the mud by showing old clips of him speaking. Those bastards! How dare they show people what Gruber actually said.

But the real drivel is the notion that the Supreme Court Justices will rule in the King v Burwell case because of spite and political partisanship.

No, boy wonder, the Justices will rule on the ACA and the IRS regulations based only on well established rules of statutory construction of which you seem abysmally ignorant. This is more projection from the left because their Justices sometimes actually do rule on cases based on spite and political partisanship.

Here, in passing, is another head scratcher:

To do the right's bidding, the justices will need confidence that the public and the media won’t perceive an adverse ruling in King v. Burwell as unwarranted or out of the ordinary. Never mind that the ACA debate was, in reality, the most transparent legislative processes in the recent history of big Congressional action. One of the people who helped make it possible says the opposite. And it’s easier for the Court to do damage to an illegitimate law, or one built on a foundation of lies, than one that has achieved consensus.

What universe was he inhabiting when the ACA was passed into law? There were no legislative committee hearings about any actual language of the Act, extremely limited floor debate, and no one who voted for it had ever read it before the vote. If these are earmarks of transparency, what would a secretive bill's passage look like? Oh, and for support of his absolutely mistaken statement of the ACA's "transparent legislative process" he links to himself in an article which contains not a single fact in support of his false statement here. It does contain statements about Gruber's videos which apparently no longer apply, but no statements about transparency of the ACA's passage because there was none, particularly about the language of the statute. None!

I really don't mind being lectured to by what passes as the left's intelligentsia, but at least they should stop lying about their side's lying. That destroys any molecule of persuasive power these pieces could theoretically contained.

But the real take away from this groundless ad hominem attack on the Supreme Court before it rules is a very clear sign that even the flavorade drinking Democrats know that they will very likely lose the Burwell case next June and are attempting now to prepare the faithful for a delusional belief that the results were fixed, merely political and not legitimate statute construction. Good luck with that.

I'm enjoying the Democrats delusional meltdown now that things are going Republicans' way as much as I've enjoyed the Midterm results and the kicked in the stomach look the lefty talking heads had during coverage of that massacre.


Monday, November 10, 2014


A Legal Conundrum--How Do We Know What Legislators Intended Except Through What They Drafted?

When hack political pundit Paul Krugman writes about foreign work forces, a subject for which he won the Nobel Prize in Economics, I believe him, because all I've ever read about economics was by Karl Marx. However, when he writes about legal subjects, particularly statutory construction by courts, as he did here yesterday, he's on my turf and I have a lot to say in direct contradiction.

I've written a few times about why the rules of statutory construction seem to doom the IRS regulations that allow federal subsidies be paid to people who buy health insurance policies on federal exchanges. That's something the plain language of the ACA (Obamacare) prohibits. Let's take a look at Paul's two cents on the subject, (two cents is way too much to pay for his drivel). Here we go.

He calls interpreting the statute as written a frivolous attack. I'm not sure he knows what frivolous means. He starts off with a story about a county clerk fixing the poorly drafted property description on a deed of his parent's house filed in that county. I have no doubt that county clerks have that power. Judges, on the other hand, looking at statutes don't have the power to amend absent extraordinary circumstances. First and foremost is the problem, how do we know what the legislators meant to say outside of the language they drafted, voted on and passed? The short answer is we don't. Here's Mr. Krugman's non- judgemental posing of the problem.

It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim. But the fact that the suit is ridiculous is no guarantee that it won’t succeed — not in an environment in which all too many Republican judges have made it clear that partisan loyalty trumps respect for the rule of law.

It is not clear in "everything else in the act" that the sections being examined do not say what they say. The only thing that's clear is the language of the sections under review. They say what they say. Paul can't seem to imagine that judges have rules for independent review of statutes and "ask[ing] the people who drafted the law" is not what you do. At least not first. He imagines that judges who follow the rules of statutory construction are doing it for political advantage. He's projecting. The construction rules are the opposite of partisan. Mean spirited Krugman, who senses a loss here, says that by making the decision to come the judges are doing something wrong, (not having a principled disagreement). This is the quintessential Democrat view of the opposition. Oh, and we don't ask the bill's drafters now, because they are unreliable witnesses, given to partisan lying. We look, if necessary, at the contemporary history of the drafting.

The subsidies for poor people forced to buy health insurance are available only for state run exchanges (markets) of which there are about a dozen and a half. That's what the law says. Clearly. Mr. Krugman seems to acknowledge this grudgingly.

But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

His idea of "an incredibly hostile" reading is looking at the language of the statute and giving all words there their plain meaning. That's hostile? Only if you are a Democrat, apparently.

But how do we know that the law wasn't meant to say what it says? Again, Krugman says ask any Democrat now what they intended to write (but didn't). Sorry, that's evidence never used by Courts in interpreting laws.

Did the Democrats mean to put political pressure on the states to have a state exchange by limiting the subsidies to purchases only on the state exchanges--unavailable to people in states were the local government did not set up an exchange? I say yes and my source is not the NYT but the man generally considered to be the architect of the ACA, Mr. Gruber, who contemporaneously stated here (at least twice) that the law was indeed designed to put just that pressure on state governments because, exactly as it says, mirable dictu, only state exchanges can get federal subsidies for policies sold to the poor.

I take it as a sign that Krugman knows better and knows he's probably going to lose this that he goes, as Democrats are wont to do, completely ad hominem at the end. You probably don't have the winning argument if your big finish is to call the people deciding this corrupt. More projection.

Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen.
So let’s be clear about what’s happening here. Judges who support this cruel absurdity aren’t stupid; they know what they’re doing. What they are, instead, is corrupt, willing to pervert the law to serve political masters. And what we’ll find out in the months ahead is how deep the corruption goes.

Only those who accept, or actually expect, corrupt motives in their allies, routinely accuse their enemies of corruption without evidence of corruption. Krugman's revealing a lot about his thinking here but nothing about what the Court is supposed to do.

Anyway, we'll know by July next year. I am reasonably confident the Court will follow the well established rules of construction and rule the ACA says what it says.

UPDATE: Mr. Frey completely agrees with my analysis. I take that as a good sign.


Friday, November 07, 2014


Catch a Wave and You're Sitting on Top of the World

Good election. We're plus 9 (almost certainly) in the US Senate, so 54-44-2 and Republican control. Another dozen or so in the House, the most Republican members of the House since the 20s. Several more Republican Governors with a few losses here and there but no one famous nation wide. More of the state houses and senates in Republican control. More women. More black candidates successful. More Republican vets in office. Younger candidates, making the Democrats look as old and tired as their policies and election strategies. The Democrats pouty and petulant. Obama in prickly denial becoming ever more irrelevant. What is there not to like about Tuesday's results?

Here is a replay of 2010 gloatfest Glenn Beck only because the one he and his crew did yesterday was pretty lame. It's still very funny.


Thursday, November 06, 2014


Thought of the Day

New Republic, January 14, 2014: Stupid filibuster!
The Filibuster Does Not Protect Minority Interests
New Republic, September 29, 2014: Stupid filibuster!
Killing the “Nuclear Option” Will Not Save the Senate. It Will Ruin Obama’s Final Two Years
New Republic, March 7, 2013: Stupid unconstitutional filibuster!
Is the Filibuster Unconstitutional?
New Republic, July 15, 2013: Stupid filibuster!
Bring on the Nuclear Option!
New Republic, August 6, 2013: Stupid filibuster!
Harry Reid Should Kill the Filibuster, for Real This Time. Democrats have all the leverage. Why won’t they use it?
New Republic, November 21, 2013: Stupid filibuster!
Nuking the Filibuster Is Great. Sanctimonious Beltway Types Just Won’t Admit It.
New Republic, November 4, 2014 (just after GOP retakes the Senate): Second look at the filibuster?
Democrats Should Use the Filibuster Ruthlessly Against the Republican Senate
Hackery is fun to watch, isn’t it?

Patrick Frey


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