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Tuesday, May 14, 2013

Never Trust A Libertarian Lawyer To Protect The Constitution

Listen guys, I'm not dead, just suffering the agonies of the damned.

But I break my legitimate silence to point out that the Department of Justice apparently violated its own regs with the AP records subpoena, so this is anything but a "nonstory". Apparently the professional law bloggers (one example) are just too busy to bother with reading the law, so here it is, and I publish it below so that the DOJ can get its knickers in a twist and have another person to harass.

My comments in red. Please understand that the subpoena was not issued to AP directly. The subpoena would not have been issued by a court, but by the AG. No negotiations took place. Unless the subpoena was issued last year during the period for which records were requested, then notice and negotiations were required BEFORE the subpoena was issued. It looks as if this was not done because that would have allowed AP to take this to a court and a court would have been unlikely to allow it due to it being overbroad, to say the least. There's that pesky little bit about freedom of the press in the First Amendment, which libertarian lawyers don't worry about but the federal courts do worry about. Holder should have personally approved the subpoena. If the subpoena was issued last year during the period in question, the requirement to investigate all other avenues first was probably violated and the timely subsequent notice was also violated. These regulations have been in effect since 1980. 

Write your representatives and demand a real investigation.
50.10 - Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and the interrogation, indictment, or arrest of, members of the news media.
Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function.
In balancing the concern that the Department of Justice has for the work of the news media and the Department's obligation to the fair administration of justice, the following guidelines shall be adhered to by all members of the Department in all cases:
(a) In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.
(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.
(c) Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. These negotiations should attempt to accommodate the interests of the trial or grand jury with the interests of the media. Where the nature of the investigation permits, the government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the media.
(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. (Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section. (Holder's in the bag regardless for this action.)
(e) No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General: (Holder should personally have signed off on this request) Provided, That, if a member of the news media with whom negotiations are conducted under paragraph (c) of this section expressly agrees to provide the material sought, and if that material has already been published or broadcast, the United States Attorney or the responsible Assistant Attorney General, after having been personally satisfied that the requirements of this section have been met, may authorize issuance of the subpoena and shall thereafter submit to the Office of Public Affairs a report detailing the circumstances surrounding the issuance of the subpoena.
(f) In requesting the Attorney General's authorization for a subpoena to a member of the news media, the following principles will apply:
(1) In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation?particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
(2) In civil cases there should be reasonable grounds, based on nonmedia sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
(3) The government should have unsuccessfully attempted to obtain the information from alternative nonmedia sources.
(4) The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.
(5) Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment.
(6) Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.
(g) In requesting the Attorney General's authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply:
(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.
(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.
(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days.
(4) Any information obtained as a result of a subpoena issued for telephone toll records shall be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes. (
h) No member of the Department shall subject a member of the news media to questioning as to any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General: Provided, however, That where exigent circumstances preclude prior approval, the requirements of paragraph (l) of this section shall be observed.
(i) A member of the Department shall secure the express authority of the Attorney General before a warrant for an arrest is sought, and whenever possible before an arrest not requiring a warrant, of a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media.
(j) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General. (k) In requesting the Attorney General's authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking a bill of indictment or to file an information against, a member of the news media for an offense which he is suspected of having committed during the course of, or arising out of, the coverage or investigation of a news story, or committed while engaged in the performance of his official duties as a member of the news media, a member of the Department shall state all facts necessary for determination of the issues by the Attorney General. A copy of the request shall be sent to the Director of Public Affairs.
(l) When an arrest or questioning of a member of the news media is necessary before prior authorization of the Attorney General can be obtained, notification of the arrest or questioning, the circumstances demonstrating that an exception to the requirement of prior authorization existed, and a statement containing the information that would have been given in requesting prior authorization, shall be communicated immediately to the Attorney General and to the Director of Public Affairs.
(m) In light of the intent of this section to protect freedom of the press, news gathering functions, and news media sources, this policy statement does not apply to demands for purely commercial or financial information unrelated to the news gathering function.
(n) Failure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action. The principles set forth in this section are not intended to create or recognize any legally enforceable right in any person. [Order No. 916-80, 45 FR 76436, Nov. 19, 1980]

Comments:
Well, this is just par for the course for the "most transparent administration in history." Fits well with rewriting the talking points 12 times on Benghazi to eliminate any mention of AQ or terrorism, and with having the IRS overreach on conservative non-profit applications (portrayed initially as something done by low-level staff at only the Cincinnati office, but already information has leaked that the DC office was involved).

Administrations aim to misbehave - that's the nature of the beast these days.
 
I think Holder resigns over this. Too much meat on the bone
this time.
Sporkfed
 
Well, he's claiming that he had nothing to do with it - that all authority over the investigation was delegated to the Deputy AG.

It's a stunning violation of practice as well as policy, and the media is going to lobby for a shield law as a result of this. And they should.
 
WSJ - these are all different actors.

Still, I agree with you about the transparency. This particular move is pretty Nixonian.

It seems like a transparent attempt to hit AP with a mallet.
 
MOM,

Were on the downslope of Peak America. Holder should have been booted out of the office when it known that his law firm represented wall street (Citi in paticular)and he worked on the settlement, heck he should have been out in the cartel gun running expose.

I can see why you go into exhile, it becomes harder and harder to sit and see the carnage of the last 5 presidents. This Admin takes the cake! Thanks for all you do! Happy belated Mothers day!
 
Actually the more I think about it, Mel Watt as director of FHFA is a scarier figure than Holder...

Taxpayers are going to get hit even more with his housing for all lobbyist background..

Let's face it, criminals run America..The biggest Cartel
 
M_O_M,

These are NOT all different actors. It's all the same rot, from the same head.

IRS investigates new grass-roots conservative groups. Donors to said groups (and to the RNC) mysteriously audited at above-random rates. Secured creditors of Chrysler and GM threatened with audits of their clients if they don't "voluntarily" give up their seniority. AP's phones tapped to find a White House leak.

I disagree with sporkfed (so what's new--haha); Holder resigns only at gunpoint.
 

Oh, can't forget: the IRS just happened to illegally release confidential information from 501(c) applications by conservative groups to left-wing media groups--who used the information to pressure donors to said groups.

No, this isn't the uncoordinated screw-ups of unconnected individuals. See, I'm from Illinois, too. Once is happenstance, twice is coincidence, three times is enemy actions.

 
Yep, they're are overrun with sociopaths these days. What do you want to bet they haven't even scratch the surface on the corruption we know is rife throughout DC & Wall Street?
 

No bet.

I did say I'm from Illinois, right?

 
TJ - it's the cronyism that so worries me. I think the inbred elite will go to almost any length to defend the indefensible.

A culture of political thuggishness would create a reason to come down on the press with hobnailed boots, so I think the AP targeting is a marker for social implosion. This must be reversed. It's interesting how neither the right nor the left seems very excited about such a gross divergence from past policy and practice.

But we see other markers of impending social disaster as well. The IRS clearly did target groups of whom it disapproved, but what the hell was the justification for targeting what it considered to be conservative Jewish groups? And how can any justification exist for the types of questions they were asked? And doesn't all history tell us that by the time we get around to the JOOOOOOOOOOS we are nearing the abyss?

As for Benghazi, it's the targeting of Nakoula in service of the lie that the government wanted to sell the public that is the screaming red flag.

The odds are that we won't reverse this. It's time to make a last-ditch stand, but I am also looking at getting out of the country.

In each of these situations, a very clear and very bright line was crossed with very little concern, and the press served as the government's patsy.

The entire US system is going to implode, and it looks like the dacha class intends to immunize itself no matter whom must be thrown into the flames as a tribute to the god of enraged masses.
 

M_O_M-

Actually, I find this much less scary than when this stuff was going on and nobody cared. There's an awful lot of people who are finally figuring out that they're NOT going to be among the winners in a strong-president system.

If this dies down over the next month with no effect, I'll be edging toward the exit myself.

 
MOM,
Does this mark your return to regular blogging?

I too sense a growing threat for social implosion. At bottom, the country has become lawless. Presidents fight wars without consulting Congress, banking fraud goes completely unpunished, illegals are promised amnesty, and all the while the ruling class becomes more and more incestuous. The result is declining social trust and rotting institutions. One of the most dramatic symptoms is the ongoing run on guns and ammo. Americans are arming up; not a ringing endorsement of future expectations.
 
No, Obama will throw Holder under the bus and proclaim
his ignorance. Midterms are coming up next year and
Congressional democrats need cover.
Sporkfed
 
Anon - I will try. I have been spending some time trying to explain constitutional law at certain progressive forums.

The GOP has historically not been good at defending basic constitutional freedoms. If Dems abandon them, the country is sunk.

It's quite clear that the GOP establishment hates and fears the chance of a third party at least as much as the Dems. If the apparatchiks in both parties succeed in quashing the public's attempts to try to restore basic law and order, then we are all in deep trouble.

The fact that only a small minority of progressives appear to have any appreciation of the First Amendment is acutely alarming. No constitution can survive if the people do not insist on it.

I really am quite desperate. I keep having nightmares about the Weimar Republic and the aftermath.
 
Spork - I doubt it, to be honest. I think Obama wants Holder because Holder is willing to toe his line.

You have to realize that the DOJ did not pursue the open criminality of the MF Global customer robbery. Despite all the claims of wild-eyed socialism, Obama's government is actually functioning like a Junker-dominated dying Hindenberg regime. In order for that to continue, DOJ must be rigidly controlled. It is clear Holder is willing to do that.

The AP boondoggle is a pretty transparent attempt to let the press know that they will toe the line or go to the wall. Their real crime is that they exposed the administration in a political lie.

The right cares a great deal about the IRS thing, which is bad. But internal control measures did catch it and try to curb it, although top IRS officials shouldn't have lied to Congress about it.
 

There's another dynamic here. There's an awful lot of leftists who truly believe that government is always and everywhere a good thing--that democracy means the government always works for the good of the people.

Right now they're having their noses rubbed in the facts of life, like this lady:

http://bostonherald.com/news_opinion/columnists/margery_eagan/2013/05/eagan_even_liberals_are_leaping_off_bandwagon

 
You could never have a President Obama until well after Mike Royko was dead.
 
WSJ-

I've had that thought many times.

 
Surely there is a concerted attempt to control the press.

The unity between Benghazi and the AP press boondoggle is that the administration was attempting to control the story.
 
The absolute worst thing for AP reporters has to be the creeping suspicion that the wingnuts were right about something. That'll have them buying Alka-Seltzer.

 
There is a deeper issue than feeling good about the IRS internal control measures "catching" it and trying to "curb" it. Think about the timing. The IRS started this in the run-up to the 2012 elections, in time to ostensibly curb the ability of conservative groups to use their advocacy and funds for "Get Out the Vote" uses. So there is the whiff of using government power to stifle opposition. Then, helpfully, there was a sudden mea culpa (unfortunately after the election). As you alluded to before, MOM, the horror is that each side seems to think THEY can can circumvent the Constitution w/o bad consequences. Yeah, I think this is all going to end very badly.
 
Clara, I looked up the IG's report and posted above. It was extreme.

And yes, the problem is both sides. The Imperial Executive is still on the rise, and it is not compatible with our basic constitutional structure.

Add the inevitable economic and social stresses, and you have the formula for an implosion.
 
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I agree that society is in free fall, and the pavement is coming up fast.

But to where am I supposed to flee? It is too late for me, my son.
 
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