Saturday, June 24, 2017

Lawyers in Search of A Crime. Ending "The Occupation."

It is absolutely ludicrous for a judge to take campaign commentary and use it to eliminate a president's authority under the Constitution.  What this idiot judge is doing is restricting free speech which is against the law and his decision will be over-ruled but that is nothing new because he  has a long history of having his opinions overturned. The same for the dwarfs in the 9th Circuit. (See 1 below.)
Fifteen lawyers in search of a crime. (See 1a below.)
What it means to end "the occupation." (See 2 below.)

Don’t Subpoena Me, Bro

The Left’s overreach extends to a blogger’s notebook.
My former law partner John Hinderaker and I founded the website Power Line over Memorial Day weekend in 2002. Once we attracted a few readers, we found it a helpful vehicle through which to continue our collaboration, writing commentary for newspapers and magazines, that we had taken up as a sidelight to our law practice in 1992. Over the past 15 years, Power Line has carried us on a magic carpet ride, opening just about every door we ever dreamed of walking through. This spring, to take one prominent example, I was invited to attend President Trump’s 100-day reception for conservative media in the White House.
In a sequel to this particular magic carpet ride, however, I have now been caught up in the so-called “travel ban” litigation challenging President Trump’s executive orders “protecting the nation from foreign terrorist entry into the United States.” On June 10, I was served with a letter and draft subpoena from Tana Lin of the Keller Rohrback law firm’s Seattle office alerting me to my “document preservation obligations with respect to documents that are relevant or potentially relevant to this litigation.” Lin represents plaintiffs in Doe v. Trump, venued before Judge James Robart in the federal district court for the Western District of Washington.
Though the lawsuit had been stayed, pending a recently issued ruling from the Ninth Circuit in the parallel Hawaii v. Trump “travel ban” case, Judge Robart authorized Lin to notify me of the lawsuit and seek my confirmation by June 15 that I would preserve potentially relevant documents until such time as she sends me a formal subpoena or the lawsuit is formally resolved. Surely you jest, I thought hopefully to myself.
Leafing through the draft subpoena to ascertain what documents I could possibly have that would be relevant to the stayed “travel ban” lawsuit, I find this (capitalization in the original indicating defined terms):
1. All Documents and Communications Concerning President Donald Trump’s comments about Muslims, Christians or refugees during the April 24, 2017 reception for media at the White House which you and/or your colleagues attended. This request includes but is not limited to contemporaneous notes or recordings you made or taken [sic] of the event.
2. The notebook referenced in one of Your blog post entries regarding the April 24, 2017 reception in which You state, “Although there was some degree of difficulty writing while standing, I took notes on the questions and Trump’s answers in my new notebook from CVS.”
3. Documents reflecting your Document retention policies or procedures in effect from January 1, 2017 through the present.
What bearing could my notes on Trump’s remarks at the White House reception have on the legality of Trump’s executive orders that are before the court in the “travel ban” lawsuit? Lin’s letter reflects the weird jurisprudence that has been called Trump law by National Review’s David French and others. In the wacky world of Trump law, what might have been lawful for President Obama and others may not be for President Trump, depending on statements Trump made on the campaign trail or elsewhere. At the White House reception, as I reported on Power Line, Trump had expressed his desire to help persecuted Christians in Syria seek refuge in the United States.
Lin’s letter cited my alleged obligations under Rule 34 of the Federal Rules of Civil Procedure. In law school and in the course of my legal practice, I became familiar with the Federal Rules of Civil Procedure. The rules have a beautiful lucidity rare in federal law. Rule 34 governs certain obligations of parties to a lawsuit. Rule 45 governs subpoenas issued by a party and limits a party’s rights to seek evidence from a non-party more than 100 miles from his residence (“a distant non-party,” as I refer to him). I ask the indulgence of readers to let me quote my email message responding to Lin’s letter and draft subpoena without further explanation:
Dear Ms. Lin: Over the weekend I received your letter dated June 7 and the draft subpoena you enclosed in the above referenced matter. Referring to the draft subpoena, your letter advises me to preserve all documents in my custody potentially relevant to the litigation. Your draft subpoena refers to my notes and other documents pertaining to comments made by President Trump at the White House reception for conservative media that I attended on April 24, 2017. You footnote two posts I published on Power Line in connection with the reception.
I find your letter deeply offensive. You seem to think I might have left some Trump bombshell buried in my notes. As you know, the purpose of my posts was reportorial. The premise of your subpoena seems to me like glorified harassment.
You advise me that the litigation is stayed but that Judge Robart has “authorized” you to notify me to seek my confirmation by June 15 that I will comply with your preservation instruction. You may have been “authorized” to send out your letter by Judge Robart—you don’t provide me a copy of his authorization to let me take a look for myself—but as far as I can tell I have no obligation to respond. As Bartleby put it in Melville’s story, I would prefer not to. If you are aware of any rule, law or order imposing a duty on me to respond, please let me know.
The final sentence of your letter in bold type cites Rule 34(a) of the Federal Rules of Civil Procedure. Rule 34(a) applies to a “party” to litigation. I am not a party. I am a “non-party.” As such, Rule 34(c) would apply to me. Unless I am missing something, I find your instruction to me that I am “required” to do anything under Rule 34(a) highly misleading.
Rule 34(c) cross references Rule 45. As a distant non-party to the litigation, Rule 45 gives me certain rights once you serve me with a valid subpoena. Yet the draft subpoena you have served on me is a nullity.
This is to notify you that if and when you serve me with a valid subpoena, I intend to object to it under Rule 45. If obligated to comply, I intend to seek the protection of the other provisions of Rule 45 applicable to distant non-parties.
Once I have objected to the subpoena under Rule 45, the rule would require you to seek an order enforcing compliance in the United States District Court for the District of Minnesota. I understand that Minnesota Attorney General Lori Swanson has joined you in the litigation. Perhaps you can assign enforcement of the subpoena to Ms. Swanson. I’m sure Minnesota taxpayers would enjoy the opportunity to see up close and personal how she is expending the resources of her office to hound a journalist for his utterly superfluous notes in the service of your litigation.
In a follow-up letter, Lin confessed to having made a “typographical error” in citing my obligations under Rule 34. It was an error, all right, but not of the typographical variety.
I am in the process of seeking to retain counsel to resist the subpoena if and when it is served on me. But the thought that I would destroy my notes from a meeting with the President of the United States is bizarre. Is a “preservation instruction” really necessary? And as I am not a state agency or much more than an individual citizen journalist, why would I have a formal “document retention policy” for my own notes?
The premise of Lin’s letter is that my notes might go beyond what I reported on Power Line. I took notes to assist me in recalling what the president had said to us; Lin seems to think that I may have left the juicy parts out as part of a conspiracy to mask the president’s true motives for his executive order. The forthcoming demand for notes is, as a reasonable observer would guess, gratuitous.
To me, it all feels like glorified harassment of a conservative writer. Is it conceivable that if I had covered the reception for the New York Times, Lin would be demanding my notes? I doubt it.


By Ruth King 

Further to my observations on Deep State dinner theatre, the “Russia investigation” show goes on, undeterred by the lack of any evidence of actual crime: The more obvious the absence of any crime to investigate, the bigger the investigation gets. As I’ve said before, in Hitchcockian terms, this is a thriller without a MacGuffin: instead, it’s one big MacNuffin – unless you count the “collusion” between government bureaucracies and the Hillary campaign in surveilling their political opposition before the election, or FBI honcho Jim Leaky leaking material to The New York Times to get his buddy Bob Mueller appointed as “Special Counsel”.

That last one worked – notwithstanding calls for a Special Counsel to investigate the Special Counsel over his ties to the FBI Director who wanted the Special Counsel. This is a very Washington creature-feature: the Blob feasts on nothing. So at the Deep State dinner theater Mr Mueller is now casting an army of extras. With the usual money-no-object lavishness of the world’s premier five-star swamp, the Special Counsel has appointed, to date, 14 lawyers to his “investigation”, “with more still to come“. In a fascinating column, my old colleague Andrew McCarthy puts this prosecutorial football squad in perspective:
Andy was the lead counsel in the prosecution of the Blind Sheikh for the 1993 bombing of the World Trade Center. It led to a nine-month trial of twelve defendants. The Government somehow managed to pull that off with three prosecutors plus an appellate lawyer.
A couple of years before that, Andy was on the “Pizza Connection” Mafia case – a 17-month trial of 22 defendants. In that one, he was the junior member among five government lawyers, and many of his peers thought the size of the prosecution team was “excessive”.
But McCarthy’s column contains an even more sobering context for Bob and his Fantastic Fourteen:
Does it seem strange to anyone else that, by comparison, the president of the United States has managed to get—count ’em—three appointees confirmed to Justice Department positions in five months?
So in one month Mueller has managed to put five times as many people on the DoJ payroll as Trump has since January.

As has been noticed, no matter how many lawyers Mueller hires, he only seems to know big time Hillary donors. If he wraps the investigation up in time, the Special Counsel can change his title to Special Bundler for the Clinton 2020 campaign. But, even if they weren’t so ostentatiously partisan, the whole money-no-object profligacy sums up dysfunctional Washington at its most repulsive.

Recently I had occasion to speak with an FBI agent myself in connection with a matter rather closer to home for me than the Kremlin. After a couple of hours of going over all the details, I leaned back in my chair and said, “What do you think’s really going on here?” And the G-Man, who was actually a G-Woman, replied that, in her experience, you could investigate someone for two or three years and never know the answer to that question. So you nail them on mail fraud. And we all had a good laugh and went on our merry way.
But I confess I feel a little queasy about that. If you investigate someone long enough, you may not get the goods on them, but you’ll certainly get some goods. And so much of American justice seems to involve designating the guy you’re gonna get, and then figuring out afterwards what it is you can get him on – Al Capone for tax evasion being merely the most celebrated example thereof. But there are a zillion lesser examples and Jim Comey has made his own famous contribution to the pantheon: He got Martha Stewart banged up in the Big House for lying to the FBI in a matter for which there was no underlying crime.
Incidentally, why is it a crime for Americans to lie to the FBI but not for the FBI to lie to Americans? As when Comey testified – just a month ago – that Huma Abedin had forwarded hundreds of thousands of emails to the laptop of her sex-fiend husband. Like so much Comey grandstanding, it was a great story – but it wasn’t true:
The problem: Much of what Comey said about this was inaccurate. Now the FBI is trying to figure out what to do about it.
If Martha Stewart or Scooter Libby had done that, “what to do about it” would be easy: They’d be headed to the slammer. But, when the FBI Director makes false statements under oath in a matter for which he is giving expert, prepared testimony, he gets to skate.
This “Russia investigation” is now in its Martha Stewart phase: Fifteen lawyers are not going on a two-year fishing expedition in order to hold a press conference and say they came up empty. Somewhere along the way someone will mis-remember something and the fifteen synchronized fishers will leap in the air and pounce: Ah-ha!

But, until that point, what the hell are these fifteen guys doing every day? This bloated pseudo-investigation is the very embodiment of Washington dysfunction: The less there is, the fewer real American lives it has any connection to, the further it recedes in the rear-view mirror, the more the Swamp is invested in it. They’ve already been on it for a year, and, if there were any “collusion”, it would have been leaked months ago: If Russia is a riddle wrapped in a mystery inside an enigma, the “Russia investigation” is a nullity wrapped in an absence inside a void, now shimmering in the black hole of the billable hours of fifteen lawyers and the expense accounts of a hundred FBI agents.

But tally-ho! The Great MacNuffin Hunt goes on – because in the Swamp all the most luxurious gravy trains are rear-view only. Putin must be laughing his head off. For the next three years they’ll be so busy investigating the 2016 election, they won’t even notice he’s already moved on to stealing the 2020 election…

During the last few decades, the Palestinian propaganda machine aided by anti-Israel elements in the international community have created one of the most powerful and effective emotional and psychological weapons to defeat Israel: “End the occupation.”

Although it’s a popular mantra, few understand what it means.
It could refer to what Israel conquered during the Six Day War in 1967, or what Israel acquired during the War of Independence (1948-49), or everything “from the river to the sea.”

At first, Arab Palestinian propaganda focused on Israel’s presence in Judea and Samaria (the “West Bank”) as a “violation of international law,” specifically, the Fourth Geneva Convention as interpreted by the International Committee of the Red Cross. An anti-Israel, Geneva-based NGO, the International Committee of the Red Cross was the first to accuse Israel of “occupying Palestinian territory,” thus arbitrarily allotting a disputed area to one side. Because the International Committee of the Red Cross is also – uniquely – an official UN agency, its decisions are considered authoritative.

After Israel signed the Oslo Accords with Yasser Arafat (for the PLO), withdrew from Areas A and B, and along with the international community assisted the Palestinian Authority in developing its institutional structure, the focus turned to Israel’s legal and historical claims to Area C, in which all of the “settlements” are located. Experts and pundits debated the issue, but neither side was able to convince the other.

The debate over territory was important, but had limited effect because as Palestinian terrorism and incitement continued unabated and after two more withdrawals – from southern Lebanon in 2000 (which empowered Hezbollah), and from the Gaza Strip in 2005 (which empowered Hamas) – Israel was reluctant to surrender more territory. The “land for peace” mantra no longer persuaded anyone except hard-line ideologues. Even Israelis who supported the “two-state solution” were unwilling to make further concessions.

During the last decade or so, a new argument became prominent, often espoused by Israeli Jews and Progressive Jews in North America who are pro-Israel: “The occupation” is not only about territory, but is about “the Palestinian people.”

This shift to a humanitarian argument is persuasive because it is presented as a moral issue: Israel has no right to control another people, or nation – the Palestinians.

This portrays Israelis (i.e. Jews) as persecutors and Palestinians as their victims.

Therefore, even if the question of the legality of settlements is conceded, the alleged violation of human rights – the moral issue – remains “the elephant in the room.” For example, critics charge that restricting where Palestinian Arabs can live, interfering with their daily lives, and invading their towns and villages, violating their civil and human rights, constitute “occupation.” Ending that occupation, however, is complicated because (1) Palestinian terrorists pose a constant threat, (2) radical Islamists are involved, and (3) withdrawal from Area C and creating a Palestinian state would promote terrorism.

In other words, “ending the occupation” as a humanitarian and moral issue cannot be accomplished without making territorial concessions and removing Israeli security control. The link is crucial: The humanitarian argument is used to justify and leverage Palestinian demands for territory and a state. Israel’s rational and realistic refusal to allow Palestinians to form an independent state, therefore, becomes entangled in a moral argument over the right of self-determination.

The failure to understand the dynamic relationship between the humanitarian argument and Palestinian demands for territory and statehood has paralyzed Israel’s attempts to justify its claims and the settlements in Judea and Samaria.

Therefore, Israel is trapped: As long as it refuses to grant Palestinians a state, holds on to Area C, and maintains its anti-terrorism activities in Palestinian towns, it will be accused of “occupation” and “persecution” of Palestinians. Moreover, “the occupation” is used to justify terrorism and “resistance.” The dilemma has profound effects.

“End the occupation” suggests an immediate and direct distinction between good and evil – and this is where it is most effective. Regardless of the details, the mantra creates a psychological determinism that forces an “either-or” decision.

Once the premise that occupation is evil is accepted, the conclusion is inevitable.

That’s why mantras are so powerful: They don’t require thinking and in fact prevent critical thinking.

It’s also why advertising works: You hear/ see “Coke” and its symbol and you think ‘sweet, pleasant, satisfying’; you don’t think about whether it’s good for you, or not. Similarly, “End the occupation” means Israel is bad and Palestinians are victims.

It’s a form of brainwashing that, like an addiction, alters perception and promotes rationalizations: Don’t worry, it will be okay; we’ll be happier, appreciated, loved; we can control the consequences.

Repeating mantras such as “Settlements prevent peace” and “Israel is a colonialist, apartheid state” may make someone feel empathy and a sense of injustice; whether or not the story is true is irrelevant.

Finally, “End the occupation” demands that Israel give up tangible assets (e.g. territory) for intangible agreements (such as diplomatic recognition) that are easily revocable.

The only way to fight against brainwashing and addictions is to assert self-awareness, critical thinking, and a realistic evaluation of the situation.

The most important refutation is that the first priorities of a state are to protect its population, preserve its society and defend its borders. That’s why all countries have armies, police forces and prisons.

Since Palestinians and Arabs seek to destroy Israel, Israel is obligated morally and practically to defend itself. Capitulation and surrender to terrorism are not options.

Second, a Palestinian state west of the Jordan River would not become a democratic peaceful regime or resolve the problem of millions of “Palestinians” who live in Lebanon, Syria, Jordan and other countries, including Israel. The danger that it would be a failed state run by gangs and militias, like Somalia, is real.

Finally, Arab Palestinians are not captives.

Most have Jordanian passports.

They can move, and if they own land and property, they can sell it. Many have done so and are successful.

As long as terrorism exists there will be “occupation,” checkpoints, police interventions, and long lines at airports. “Ending the occupation” begins with ending incitement and hatred, ending terrorism.

“Ending the occupation” does not apply only to Israel. It includes ending the dictatorship in Iran that threatens the entire world. Ending the occupation applies to Hamas rule in Gaza, Hezbollah in Lebanon, Assad and ISIS in Syria, and the Taliban in Afghanistan.

“End the occupation” is not a call to protect Palestinian rights, but to end Israel’s existence. It’s not a plea for humanity, but a paean to mayhem and genocide.

“End the occupation” should be understood for what it is: a death threat.

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