What Is DOJ Hiding About Its Targeting of Sharyl Attkisson?

I wrote last night about Judicial Watch’s bombshell revelation that Eric Holder’s office collaborated with the White House to try to force Sharyl Attkisson off the Fast and Furious investigation. (If you haven’t read that post, you should start there.) We know this because of this email thread, which was among the documents that DOJ produced to Judicial Watch. The thread is a conversation between Tracy Schmaler, Eric Holder’s press person, and Eric Schultz, a White House staffer. (Schultz, by the way, is the White House aide who screamed and swore at Attkisson over the telephone.) The bottom email, which refers to “Sharryl,” is first in time:

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The funny thing is that the reference to “Sharryl” in the first email comes from out of the blue. It is obvious that Schmaler and Schultz had been talking about Attkisson and that the first email we see is the middle of a conversation, not the beginning. Yet, a search of the 40,000 pages produced by DOJ does not include a single additional reference to Attkisson. With the exception of the email above, her name appears only when she is referred to in a news story that is reproduced in an email. Strange.

A reader writes with a theory:

The reason that this reference to Sharyl Attkisson made it into this document dump is that her name was mis-spelled (Sharryl rather than Sharyl). There are assuredly more emails about this that were searched for and deliberately withheld. They apparently did not search for this particular mis-spelling of her name.

Bingo. I think he is right. Someone at DOJ systematically searched for references to Sharyl Attkisson and pulled out all emails where DOJ and White House personnel were talking about her and, as we now know, how to block her Fast and Furious investigation. A single email, which gave away the game, slipped through because her name was mis-spelled.

It is harder than many people realize to cheat on a document production. Judicial Watch and others should now start hounding Eric Holder to release the rest of the story–the other emails where Holder’s DOJ and Barack Obama’s White House plotted to kill the Fast and Furious investigation by, among other things, influencing senior managers at CBS News.

When Even the Climatistas Know You Are a Fool . . .

I thought by now it would be ungentlemanly to keep piling on Naomi Klein’s ridiculous climate-change-means-we-have-to-smash-capitalism book, This Changes Everything. But then I ran across Elizabeth Kolbert’s review of Klein in the latest edition of the New York Review of Books, and I can’t resist. Kolbert is one of the most distraught of the climatistas, and writes the doomiest of the gloom-and-doom climate articles in The New Yorker and elsewhere. And even she can’t stand Klein’s book, if you read between the lines carefully toward the end:

Klein goes so far as to argue that the environmental movement has itself become little more than an arm (or perhaps one should say a column) of the fossil fuel industry. . .

The need to reduce carbon emissions is, ostensibly, what This Changes Everything is all about. Yet apart from applauding the solar installations of the Northern Cheyenne, Klein avoids looking at all closely at what this would entail. She vaguely tells us that we’ll have to consume less, but not how much less, or what we’ll have to give up. At various points, she calls for a carbon tax. This is certainly a good idea, and one that’s advocated by many economists, but it hardly seems to challenge the basic logic of capitalism. Near the start of the book, Klein floats the “managed degrowth” concept, which might also be called economic contraction, but once again, how this might play out she leaves unexplored. Even more confoundingly, by end of the book she seems to have rejected the idea. “Shrinking humanity’s impact or ‘footprint,’” she writes, is “simply not an option today.”

In place of “degrowth” she offers “regeneration,” a concept so cheerfully fuzzy I won’t even attempt to explain it. Regeneration, Klein writes, “is active: we become full participants in the process of maximizing life’s creativity.”

Kolbert concludes by saying that everyone in the climatista kamp is lying about there being solutions to climate change, including Klein. So Kolbert’s real complaint in the end is that Klein gets further to the left on the matter, but is still pollyannish about the realities of the world. But isn’t that what being an anti-capitalist utopian is all about?

Obamnesty, what to do

There are as many ways to express disgust with President Obama’s unlawful amnesty as there are talented conservative pundits prepared to write about it. The real question is what, if anything, can be done to negate the amnesty.

Impeachment is not the answer. The votes don’t exist to remove Obama from office. Nor should Republicans attempt impeachment. Doing so would probably hurt Republican standing in the run-up to the crucial election of 2016.

In any event, impeachment is off the table. Republican leaders have made this clear. Jeff Sessions reiterated it at a Heritage Foundation event this morning.

A government shutdown also appears to be off the table, and rightly so. Even if Republicans mustered the will for a shutdown, they would eventually back down, as happened last time, because the public would again turn against them. As with impeachment, the likely consequence would be a loss of standing in the eyes of the electorate.

I have argued in favor of denying the funds necessary to implement Obama’s program of issuing papers to illegal immigrants. However, as Ramesh Ponnuru said at Heritage today, Obama would likely find the money necessary to carry out his amnesty. This is not to say that Republicans shouldn’t try to use the power of the purse; they just shouldn’t count on it working.

Some Republicans have advocated refusing to confirm Obama’s appointees. Depending on whom Obama nominates, this idea might have merit in its own right. But it’s not likely to force Obama to back down on amnesty. Obama doesn’t expect many of his important judicial nominees to be confirmed in any event. At most, he would try to break the logjam through some sort of deal — one that sees Republicans confirming nominees they might otherwise not and making concessions on immigration, as well.

What about legal challenges? The threshold here is a plaintiff with legal “standing” to bring the lawsuit. Obamnesty is a serious affront to our constitutional system, but who has suffered injury concrete enough to meet the standing requirement imposed on plaintiffs in a lawsuit?

There are obvious candidate: Congress whose power has been usurped; the states whose resources will be strained; unions whose members likely will have fewer employment opportunities; and others. However, during the Heritage Foundation conference two first-rate legal scholars — Prof. Jan Ting and John Malcolm of Heritage — expressed skepticism that the “standing” barrier can be overcome here. In addition, courts traditionally have been reluctant to decide “political” questions involving disputes between the executive and legislative branches.

I’m a bit more optimistic. The court created doctrine of standing is subject to manipulation. If judges are sufficiently outraged by Obama’s power grab, they can find standing for one or more of the types of plaintiffs described above.

Moreover, by executing its power of the purse aggressively, Congress can perhaps force Obama into methods of circumvention that will improve its arguments in favor of standing. That’s another reason why Congress should embrace this approach.

As for the “political question” doctrine, it seems increasingly like an anachronism these days. Indeed, it is almost perverse, in this age of aggressive assertions of executive power by both presidents of both parties, for courts to bow out of cases challenging highly controversial efforts to bypass the legislature. In a sense, these cases (as opposed to ones where the president and Congress together enact a law) seem like precisely the ones in which judicial intervention is warranted.

To be sure, the Constitution provides Congress with the impeachment remedy. But given the vote threshold for removal and the near certainty that the president’s party will block impeachment when the issue is a president’s assertion of power to implement a policy favored by his party, impeachment is not a practical remedy in this context. Thus, apart from “modesty,” there is no non-technical reason why courts should duck cases like the one Obama has provoked. And in view of the immodesty of the modern judiciary, modesty is a dubious barrier.

I don’t mean to say that litigation will likely negate Obama’s amnesty, only that it may provide a better shot than is generally thought.

Congress should not, of course, confine its response to litigation. In addition to litigating, Congress should use the power of the purse to gum up the works and perhaps increase the prospects of succeeding in court and the power to block nominees as a means of registering protest and exacting a price.

Energy Flotsam and Jetsam

Yesterday’s Wall Street Journal story about the production difficulties of the Arizona supplier that Apple selected to make sapphire screens for the iPhone 6 was fascinating in its own right, but there was one little detail in the story that zipped by too quickly:

Mr. Squiller, the GT operations chief, told the bankruptcy court that GT lost three months of production to power outages and delays building the facility.

Whoa, show down there a moment: what’s this about power outages? I’d sure like to know more of the full story here. Was this simply bad engineering on site, or was there a problem with the local grid or the energy sources supplying the grid in that area? Grid stability is going to be a more serious issue going forward as we compel more and more “renewable” (meaning “less stable”) energy as part of the EPA’s mania to restructure the electricity sector through the Clean Air Act.

Meanwhile, two Googlers have written a worthy article for the IEEE Spectrum website (IEEE is the Institute of Electrical and Electronics Engineers) on “What Would It Really Take to Reverse Climate Change?”. The subtitle tells the story: “Today’s Renewable Technologies Won’t Save Us.”

I know one of the authors, Ross Koningstein, slightly, and kudos to him and his co-author David Fork for admitting forthrightly that Google’s RE<C (“renewable energy cheaper than coal”) initiative was largely a bust. I’m pretty sure we noted here at the time that Google had pulled the plug on this much-hyped project a couple years ago.  As Koningstein and Fork admit:

At the start of RE<C, we had shared the attitude of many stalwart environmentalists: We felt that with steady improvements to today’s renewable energy technologies, our society could stave off catastrophic climate change. We now know that to be a false hope . . . even if Google and others had led the way toward a wholesale adoption of renewable energy, that switch would not have resulted in significant reductions of carbon dioxide emissions. Trying to combat climate change exclusively with today’s renewable energy technologies simply won’t work; we need a fundamentally different approach. 

As I’ve been pointing out for more than six years, the mathematics of climate orthodoxy, which call for an 80 percent reduction in global greenhouse gas emissions by the year 2050 so at to stabilize CO2 levels at no more than 450 parts per million, essentially requires replacing the world’s entire hydrocarbon energy systems with zero-emission sources. In practical terms, it means the United States would have to roll back its oil, coal, and gas use to the amount last seen in 1910. This is looney tunes.  I’ve still not seen any credible plan to do this in the space of 40 years. (One narrow example: Roger Piekle Jr. has calculated that if you set out to replace the world’s existing coal fired power plants with nuclear power, you’d need to build one 800 MW nuclear plant per week, every week, for the next 40 years. And this would only displace coal, and not touch oil and natural gas. Ts is looney tunes. Anyone think the U.S. is going to build 400 new nuclear power plants—we have about 100 now—to replace our 500 coal-fired power plants?)

To their credit Koningstein and Fork reach much the same conclusion, though with different arithmetic than me:

Even if every renewable energy technology advanced as quickly as imagined and they were all applied globally, atmospheric CO2 levels wouldn’t just remain above 350 ppm; they would continue to rise exponentially due to continued fossil fuel use. So our best-case scenario, which was based on our most optimistic forecasts for renewable energy, would still result in severe climate change, with all its dire consequences: shifting climatic zones, freshwater shortages, eroding coasts, and ocean acidification, among others. Our reckoning showed that reversing the trend would require both radical technological advances in cheap zero-carbon energy, as well as a method of extracting CO2 from the atmosphere and sequestering the carbon.

Koningstein and Fork are equally realistic about the limitations of today’s renewable technologies:

Unfortunately, most of today’s clean generation sources can’t provide power that is both distributed and dispatchable. . . Across the board, we need solutions that don’t require subsidies or government regulations that penalize fossil fuel usage.

Even though Koningstein and Fork are writing from within the framework of climate orthodoxy, their call for the development of market-oriented disruptive energy technologies that don’t need government diktats is a refreshing departure from the totally unserious happy talk about wind and solar and banana peels and unicorn flop sweat we get from most of the climatistas. What I think they fail to appreciate, however, is that if such technologies do come about (say, cheap fusion), the bulk of the environmental establishment will oppose it, because it would be another triumph of capitalism. (See: Naomi Klein.)

Should Republicans Embrace the Obama Non-Enforcement Doctrine?

The Obama Non-Enforcement Doctrine holds that a president is not required to implement or enforce laws passed by Congress with which he disagrees. Obama’s use of the doctrine sets an interesting precedent for the next chief executive, who likely will be a Republican.

For example, a Republican could adopt the Obama Non-Enforcement Doctrine with regard to corporate income taxes by directing the IRS to cease all efforts to enforce those portions of the Internal Revenue Code relating to income taxes payable by corporations. This would be great public policy. My law school tax professor once remarked that there is no intellectually respectable argument for the corporate income tax, other than the fact that it employs an army of lawyers and accountants. Repealing, in effect, the corporate income tax would give the economy an enormous shot in the arm.

Or, if a Republican president didn’t want to go that far, he could stop enforcing those provisions of the tax code relating to taxation of repatriated profits. This is an area where the right policy is obvious, but Congress has failed to act. Without the tax on repatriated earnings, somewhere between $1 and $2 trillion would flow back into the American economy.

Environmental policy is another area where the Obama Non-Enforcement Doctrine could be applied. The Environmental Protection Agency, as now operated, probably does more harm than good. A Republican president could suspend enforcement of all federal environmental laws, thereby putting the EPA out of business, and remit all environmental regulation to the states and to private actions sounding in nuisance and trespass. This would result in a major improvement in the nation’s environmental policies. Or, if he preferred, the president could single out for non-enforcement some, but not all, environmental laws.

Under the Obama Non-Enforcement Doctrine, a president can’t enact new laws by decree, but he can exercise his discretion by not enforcing existing laws. This means that the doctrine is a one-way ratchet with an inherently libertarian bent. Given a little thought, conservatives could come up with a long list of laws that we would be better off without. Each one would be a candidate for the Obama Non-Enforcement Doctrine.

My guess is that if a Republican president applied Obama’s doctrine a couple of times, the Democrats would say “uncle.” There would be bipartisan support for a constitutional amendment to make it beyond dispute that the Obama Non-Enforcement Doctrine is defunct. That goal could be accomplished through a constitutional amendment requiring that the president “take care that the laws be faithfully executed,” or some such language. But in the meantime, Republican presidents could use Obama’s precedent to good effect.


Ramirez’s take

You can tell that Investor’s Business Daily editorial page editor/editorial cartoonist Michael Ramirez has attended to President Obama’s many disavowals of the authority he wielded last night. In the cartoon below that is posted here, Ramirez dispenses with words entirely except the ones cut out of the opening of the Constitution and placed atop the head of the king for a crown. Hey, he’s only illustrating the point Obama made twenty-plus times over the past several years.


Go down, Barry

You’d never know that President Obama got clobbered in the midterm elections held — when was it now? — earlier this month, a few weeks ago. Last night Obama was buoyant — not like Mark’s Twain’s “Christian with four aces.” He was way beyond that. He was gleeful.

What what he so happy about? He’s not facing the voters again. He’s free at last and it’s time for payback. He’s giving it to us good and hard. He’s sticking it to us big time.

Today he jets off to Vegas to take care of business and begin the celebrations. The symmetry is perfect. The last time he took off for Vegas this excited, Ambassador Christopher Stevens and his three colleagues had just been murdered by Islamist terrorists. Obama had to get out of DC to pick up campaign cash and soak up the love.

The White House has posted the text of Obama’s immigration speech last night here. In the speech Obama assured us that he had the authority to act as the lawgiver, despite his own constitutional exegeses to the contrary some twenty-plus times over the past several years.

In case you missed it, Obama omitted any mention of his previous exegeses.

In its editorial this morning, however, the Wall Street Journal reports that the Office of Legal Counsel “made its justification public about an hour before the speech.” Talk about just in time manufacturing! (The rationale is “prosecutorial discretion.”)

Roll Call took up Obama’s previous exegeses with White House higher-ups speaking on background: “As for Obama’s many statements that he did not have the authority to significantly expand DACA, the answer from the White House was muddled.” Do tell! The answer, my friend, is blowin’ in the wind.

Listening to the speech last night, I thought, not for the first time, Obama thinks we’re really, really stupid. Jonathan Gruber could not be reached for comment.

It struck me most forcibly when he introduced his daughters into the discussion: “I’ve seen the courage of students who, except for the circumstances of their birth, are as American as Malia or Sasha…”

Here I think the speechwriters’ ear let the team down. “Amy Carter” would actually have sounded better in that sentence. Amy Carter could not be reached for comment either.

One nice touch: Obama’s discussion of the illegal alien girl who came to the United States speaking only Spanish. She learned to speak English by listening to PBS! In the trade, that’s what we call gilding the lilly.

We have to give Obama his due. The speech was carefully crafted to drive the likes of me ballistic. How to do it? Well, you go beyond the usual lies and deceptions and evasions and slyly insert the PBS reference. You give it some additional thought before inspiration strikes: let’s go with an evocative biblical allusion.

Obama explained: “Scripture tells us that we shall not oppress a stranger, for we know the heart of a stranger –- we were strangers once, too.” Yep, we were strangers once too, when we were in the land of Egypt. Thus the mitzvah.

As Tonto said to the Lone Ranger when they were surround by unfriendly, ah, Native Americans: What you mean “we,” kemosabe?

President Obama, let my people go!

I wish Obama would stick to the Wright sect of Christianity for nonbelieving progressives, or to the exposition of Islam for dummies.

I will concede, however, that the Torah portion was brilliant. The White House functionaries love it so much that they highlight it in their post on the speech. Go down, Barry!

Obama has come down from the mountain as the lawgiver with his immigration commandments, but he left out the part about not bearing false witness. It’s not part of his immigration package.

Anyway, Obama is obviously more Pharaoh than Moses. Obama’s immigration commandments have no higher authority than his own say-so. He’s Pharaoh a la Yul Brynner in the classic 1956 movie, issuing edicts with the force of law: “So let it be written. So let it be done.”