E minus 8: Lawfare is a growing danger

The term “lawfare” has been used to describe the manner in which radical groups use democratic laws and mores to defend their activities. Thus, Al Qaeda manuals instruct captured militants to file false claims of torture – “human rights” litigation is instituted abroad in an effort to impede the free movement of democratic state officials – the UN is lobbied to exclude attacks on civilian citizens of an “occupying power” from international definitions of terrorism – defamation and “hate speech” lawsuits are filed against anyone who speaks up about Islamic terrorism and its sources of financing. Lawfare Project.org, What is Lawfare? http://tinyurl.com/otaf96t

Abusive legal actions by the government to intimidate or neutralize critics or political opponents have also been dubbed lawfare. Subpoenaing sermons of Houston pastors – indicting politicians on dubious legal charges, e.g., Texas Governor Rick Perry – “secret” grand jury investigations of Wisconsin Governor Scott Walker et al. – IRS harassment of conservative groups applying for tax exempt status (more about this later). Waging lawfare to criminalize dissent; Obama Democrats suppress free speech to enact their liberal agenda, Robert Knight, 10/18/14.

The following survey indicates that government lawfare is extensive and deeply rooted. Used for both offensive and defensive purposes, it threatens this country’s underpinnings. Legal guns for hire – Shock and awe – Zero tolerance – Double standard

A. Legal guns for hire – Unsurprisingly, the legal industry has tended to favor the Democratic Party (and probably some moderate Republicans as well). Its consistent support for bigger government, ever more complicated laws, and wealth redistribution helps to keep attorneys profitably employed..

Trial lawyers love Democrats because Democrats advance policies that help trial lawyers make money. More regulation and more legislation often [mean] more litigation. Democrats oppose tort reform, while Republicans — encouraged by the business lobby — support tort reform. Democrats push laws such as the Lilly Ledbetter Fair Pay Act that create all sorts of legal ambiguities and liabilities, which yields profits for lawyers.

Both in this year and others, the legal industry has shown its gratitude. Trial lawyer industry tries to buy a Democratic majority, Timothy Carney, Washington Examiner, 10/22/14.

Lawyers and law firms have given more money to House and Senate candidates and party committees than any other industry, with an overwhelming majority going to Democrats. *** In each of the eight most competitive Senate races [LA, AR, CO, NC, MI, GA, KS, IA], the industry providing the most money is trial lawyers.

Another way to show gratitude, we would suppose, is to willingly exceed the bounds of ethical legal representation. See the American Bar Association Model Rules of Professional Conduct, 3.1 Meritorious claims and contentions,

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

In any case, there seems to be no shortage of attorneys willing to proceed based on extreme legal theories so long as they are paid for doing so. Consider how many times the Supreme Court has unanimously upheld legal challenges against the administration, which was acting – no doubt – based on the advice of counsel. Why Obama strikes out in court, Ilya Shapiro, Wall Street Journal, 6/6/12.

This term alone, the high court has ruled unanimously against the government on religious liberty, criminal procedure and property rights. When the administration can’t get even a single one of the liberal justices to agree with it in these unrelated areas of the law, that’s a sign there’s something wrong with its constitutional vision.

A particularly egregious example was supporting the president’s recess appointments of three members of the National Labor Relations Board. SAFE said at the time that these appointments (and also the recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, although Cordray’s appointment was not included in the ensuing legal challenge) were “reckless and inappropriate.” The Senate had remained in session according to its own rules; who was the president to say otherwise? About those recess appointments,

It took over two years, but the 9-0 decision of the Supreme Court left no doubt that the president had exceeded his powers. Supreme Court deals blow to Obama on recess appointments, Brian Hughes, Washington Examiner, 6/28/14.

. . . since the upper chamber held pro forma sessions every three days, Senate Republicans argued they were in session [over the holidays]. The nation's highest court agreed with the GOP reasoning. "The Recess Appointments Clause empowers the president to fill any existing vacancy during any recess — intra-session or inter-session — of sufficient length," the court wrote in its decision. "A Senate recess that is so short that it does not require the consent of the House under that clause is not long enough to trigger the president's recess-appointment power," it added.

B. Shock and awe – Federal agents do need to use force in some cases, e.g., raids on drug gangs and terrorists such as are depicted on TV shows like Hawaii Five-0 or Miami CSI. Swat team tactics against ordinary businesses and people are another matter, and they are used more often than one might expect.

Consider a 2012 raid on Mountain Pure Water Bottling Company, Arkansas by 40+ armed agents. Company employees were forcibly detained during the raid, deprived of their cell phones (which could have been used to call attorneys, etc.), and in general given to understand that “we are the government and can do whatever we want.” Most of Mountain Pure’s records and computers were seized; months later, a majority of the items had still not been returned.

A filmed reenactment of the raid plus post-raid interviews with company employees and managers provides a sense of what it would feel like to be on the receiving end of this type of treatment. The video (21:47) also provides information concerning similar raids on Duncan Outdoor, Arkansas and Gibson Guitar, Tennessee. Rampant INjustice: The IRS and DOJ raid small businesses with paramilitary, Gestapo style tactics, Debra Heine, breitbart.com, 6/12/13.

Higher officials and their attorneys are calling the shots in such cases. While we do not know why they would condone armed raids in lieu of normal procedures, e.g., serving a subpoena for defined documents in the Mountain Pure Water case, one possibility is to make an example of “troublemakers” and frighten others into submission. The video cites stepped-up tax audits of small and medium-sized businesses, which rightly or wrongly are attributed to the nation’s top legal officer, Attorney General Eric Holder.

An even more frightening situation developed in Nevada earlier this year, with the feds intent on seizing open range cattle owned by the Bundy family due to an alleged threat to Mojave Desert tortoises and a dispute about grazing fees. This time the defenders were prepared and armed. The feds ultimately left without the cattle, but one false move by any of the scores of armed people involved could have resulted in a bloodbath. Bundy ranch showdown shows erosion of rule of law,

C. Zero tolerance - When it comes to going after people for alleged legal violations, the government can be quite inflexible. The law is the law – we can’t start making exceptions – especially for people engaged in an activity that is viewed with disfavor.

•Long-time gun dealer Doug Stockman in Virginia worries about draconian enforcement of government requirements. And who can blame him, given the intensity of a recent audit by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. The 7-month proceeding didn’t unearth any serious violations, apparently, but it did find (in rounded numbers) 180 clerical errors on the federal form 4473s (6 pages, 132 items) filled out for the sale of 7,500 guns. This works out to a 99.98% accuracy rate, which was deemed unsatisfactory. Any further errors (another audit is expected soon) could result in closure of his shop.

The incidence of ATF audits has risen sharply in recent years, and industry insiders believe the goal is to minimize gun sales since it hasn’t proved possible to enact the legislative “reforms” that gun control advocates want. Onerous ATF rules threaten to put gun dealers out of business, Kelly Riddell, Washington Times, 9/18/14.

Matthew Bergstrom, managing attorney at Arsenal Attorneys, which represents gun owners and the firearm industry nationally: “There’s a huge burden on the individual gun dealer to complete all the paperwork 100 percent accurately or they can be put out of business for the most insignificant practices. We’ll never have an answer as to how much is too much regulation, because deep down inside the anti-gun advocates don’t want anyone to own any guns.”

Never mind that the right to bear arms is guaranteed by the Second Amendment, as has been specifically recognized by the Supreme Court.

•Payday lenders are anticipating tough new regulations from the Consumer Finance Protection Bureau. In addition, lender access to the banking network may be curtailed as a result of Operation Chokepoint, a government campaign to pressure banks into avoiding involvement with “high risk” activities lest they face tougher audits, etc.

Some of the designated activities are clearly disreputable others not so much. Here’s a list posted by the Federal Deposit Insurance Corporation.

Ammunition sales, Cable box de-scramblers, Coin dealer, Credit card schemes, Credit repair services, Dating services, Debt consolidation scams, Drug paraphernalia, Escort services, Firearms sales, Fireworks sales, Get rich products, Government grants, Home-based charities, Life-time guarantees, Life-time memberships, Lottery sales, Mailing lists/Personal info, Money transfer networks, On-line gambling, PayDay loans, Pharmaceutical sales, Ponzi schemes, Pornography, Pyramid-type sales, Racist materials, Surveillance equipment, Telemarketing, Tobacco sales, Travel clubs.

Sounds like a power grab to us. Surely the banking examination system was not set up for the purpose of forcing banks to monitor their customers to the extent contemplated here. And most of these businesses will continue to be conducted, so why drive the payment arrangements underground? At a minimum, congressional authorization would seem to be in order. Government should target “bad guys,” not entire industries, trade group says, Kelsey Harkness, Daily Signal, 10/7/14.

A House report concluded that the Justice Department initiative purposefully pressures financial institutions into denying legal businesses access to the very banking system they need to survive—simply because the administration doesn’t like them.

• Here is one more example, which illustrates that federal officials aren’t the only ones who can administer laws in an unreasonable way. Imagine a homeowner being thrown in jail for having a messy yard! Police state update, Jennifer Burke, tpnn.com, 10/19/14.

D. Double standard – Although a 99.98% accuracy rate may not be good enough for gun dealers, government officials seem quick to rationalize incompetence or corruption in operations under their own control. “It all depends,” as the saying (sometimes attributed to Martin Luther) goes, “on whose ox is being gored.”

Many examples could be given, but let’s focus on one: handling of claims that the IRS harassed conservative groups seeking tax-exempt status.

Shortly after this story broke, the president pronounced the IRS conduct “inexcusable” and announced the departure of the acting head of the IRS. Our read at the time was that the administration would address the matter properly, in contrast to its downplaying of the Fast and Furious operation, a cover-up of the Benghazi attack, and a far reaching AP phone records subpoena. Kabuki theater in DC (item C),

Concrete action has been taken in response to the IRS misconduct, however, namely the sacking of the acting IRS head (although he was reportedly slated to leave in June anyway). No political leaders appear to be involved that the president would hesitate to throw under the wagon, and more personnel actions will likely follow before the controversy fades from the headlines.

Wrong! The president showed no further interest in getting to the bottom of things, nor did the IRS under a new commissioner (John Koskinen) make any effort to do so. A lengthy series of congressional hearings and litigation (brought by Judicial Watch) ensued, which thus far has not resulted in anyone of importance being held accountable.

Along the way, various excuses for the IRS conduct were offered and in due course discredited. Here are some of them:

Targeting of tea party, etc. groups was a bone-headed mistake by employees in the Cincinnati office – Actually, officials in the national office had been well aware of what was going on. Lois Lerner, head of the IRS division in charge of applications for tax-exempt status, famously took the 5th when haled before the House Oversight Committee. She was placed on administrative leave with pay, and later allowed to retire with a full pension. IRS official at heart of tea party scandal retires, Stephen Ohlemacher, breitbart.com, 9/23/13. http://tinyurl.com/k8p2ksh

Some applicants for tax exempt status were singled out for special review, but it happened on a nonpartisan basis – Almost all of the special reviews involved the applications of conservative groups, and people on the receiving end rightly perceived that they were being selectively targeted. True the Vote President Catherine Engelbrecht slams IRS abuse, weaponizing of government, Katie Pavlich, Townhall.com, 2/7/14. http://bit.ly/1ccAAmp

Shortly after filing IRS forms to establish 501(c)(3) and 501(c)(4) tax exempt organizations, an assortment of federal entities including law enforcement agencies and a Congressman from Maryland, Elijah Cummings [ranking minority member of the House Oversight Committee] came knocking at my door. In nearly two decades of running our small business, my husband and I never dealt with any government agency, outside of filing our annual tax returns. We had never been audited, we had never been investigated, but all that changed upon submitting applications for the non profit statuses of True the Vote and King Street Patriots. Since that filing in 2010, my private businesses, my nonprofit organizations, and family have been subjected to more than 15 instances of audit or inquiry by federal agencies.

Due to the volume of requests for tax-exempt status, the IRS needed to develop better procedures for handling them – Whether good or bad, the relevant statutory provisions and regulations had been in effect for years. And when new regulations were proposed, there was a firestorm of criticism to the effect that they would stifle the free speech rights of nonprofits. Obama’s proposed IRS rules to limit tax-exempt status concern liberals, too, Stephen Dinan, Washington Times, 2/24/14. http://tinyurl.com/n5km3c5

Almost all of the nearly 70,000 public comments submitted as of Monday night were vehemently opposed to the proposal, which would limit the ability of social welfare nonprofits — those organized under 501(c)(4) of the tax code — to even talk about candidates in the two months before an election.

The IRS eventually announced that the proposed regulations would be revised before any further action was taken. Reboot: IRS revising political activity rules, Mark Hrywna, NonProfit Times, 5/23/14.

Document requests could not be complied with – First the IRS ignored document requests, forcing the House of Representatives to begin contempt proceedings. Then the IRS commissioner testified under oath that it was impossible to comply with the request because e-mails of Lois Lerner et al. had been “lost” and the hard drive of Lerner’s computer had been destroyed. Subsequently, in a related lawsuit brought by Judicial Watch, government attorneys advised that copies of the supposedly missing e-mails still existed although it would be burdensome to retrieve them. Given this record, it would be difficult to conclude that the IRS made good faith efforts to comply with its legal obligations. Lois Lerner’s e-mails aren’t missing after all, lawyers say, Susan Ferrechio, Washington Examiner, 8/25/14. http://tinyurl.com/klef8gs

There have been no apologies to conservative groups that were targeted, so far as we know, but tax-exempt certificates have been issued to some of them after years of stalling. According to a recent court decision, such action justifies dismissal of any claims they might have had for damages. IRS notches legal victory in tea party cases, Rachael Bade, Politico, 10/23/14.

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