RUTHFULLY YOURS

Before the angry mob of breathless Democrats gets too spun up and ahead of itself, the anti-Trumpers should calm down and try to absorb just how preposterous it is to suggest that President Trump may have committed a criminal offense by supposedly obstructing justice during the Russia/Michael Flynn investigation.

Consider for a moment what would have happened if Trump had placed an op-ed in a prominent newspaper, arguing that the investigation into his campaign and former national security adviser Flynn was misguided, a wasteful use of government resources, and that he thought it should stop. To do so would be foolish, but not criminal.

Similarly, what if the president paraded up and down Pennsylvania Avenue in front of the Justice Department with a bullhorn shouting, “Stop the Flynn investigation!”?

It would be unwise and inappropriate, but no one would say the president committed a crime. And he certainly could not be charged with obstruction of justice.

So, if the president’s wishes about an investigation can be loud and public, how is it possible that he violated the law by having a private conversation with a member of his own administration? How can it be that a bold position made in public would be legal, yet an arguably reserved position made in private is somehow considered criminal?

When it comes to obstructing justice before an audience, does size matter? I would love to hear from lawyers about this.

Anyway, everyone should also carefully consider the arguments made by constitutional scholar Alan Dershowitz. Dershowitz presented some compelling legal insight. “The president,” he writes, “is the head of the unified executive branch of government, and the Justice Department and the FBI work under him and he may order them to do what he wishes.”

Former FBI director James B. Comey likewise confirmed during yesterday’s testimony that, “as a legal matter, [the] president is the head of the executive branch and could direct, in theory, we have important norms against this, but direct that anybody be investigated or anybody not be investigated. I think he has the legal authority because all of us ultimately report in the executive branch up to the president.” “Norms” are important, and Trump is not big on playing by the rules, but that does not mean he has broken a law.

Comey’s testimony should be enough to let this issue of criminality fade away, but the Democrats and their allies in the media are heavily invested in bringing the president down. Yesterday did not go as they wanted it to, and the Democrats’ rage won’t let them see the truth.

Again, Dershowitz argues, “it is important to put to rest the notion that there was anything criminal about the president exercising his constitutional power to fire Comey and to request — ‘hope’ — that he let go the investigation of General Flynn.”

Democrats will continue to lash out and contort Comey’s testimony, but the facts speak for themselves. President Trump has not asked anyone to lie, he has not prevented anyone from performing his or her legal obligations, and he has most certainly not obstructed justice.

Comey’s testimony was not flattering toward the president, but, as I wrote yesterday, it did more to help Trump than to hurt him. No matter how much the Democrats and mainstream media outlets try to spin a crime out of the straw that was Comey’s testimony, the facts just do not take us there.

The president still has the advantage of being innocent. If the Democrats want to impeach Trump, they will have to keep looking. I’m sure they will.

Anchor Insurance has announced that it will not offer insurance plans on the Ohio ObamaCare exchange next year, leaving 20 counties without any subsidized insurance options.

Regarding the Anthem departure, the New York Times breezily dismisses the fact that

Although [Anthem’s] departure would leave a small number of people — roughly 10,500 who live in about a fifth of the state’s counties — without an insurance carrier, the move was seized on by Republicans as more evidence that the markets are ‘collapsing’ under the Affordable Care Act.

Don’t you just love the satirical use of the quotations marks around the word collapsing indicating that such a charge is just utter nonsense?

Consequently, when Americans relate their horrific experiences under ObamaCare, they are met with insensitive, foul-mouthed responses and threats of violence for daring to expose the built-in problems of ObamaCare. Michelle Malkin relates how “millions of us who wanted our individual market health insurance plans left alone were branded selfish or liars for the past eight years. Our stories were stifled; our cancellation notices derided; our accounts of skyrocketing health insurance costs and diminished access to doctors mocked.” In fact, “[t]he partisan Beltway press shot down true stories of government-engineered pain and suffering, while hyping countless tall tales spun by the Obamacare Fable Factory.”

John Hayward asserts that Obama “needed to conceal how many people would lose their insurance under his plan. Millions of people lost their insurance plans because of the Affordable Care Act. Quite a few people have lost more than one insurance plan because of Obamacare-related disruptions to the market since 2010.” Moreover, “[i]t matters very much that Obamacare is absurdly expensive and wasteful. That’s real money being siphoned from our productive private economy and thrown around by the bureaucracy. A repeal plan that saves American taxpayers billions of dollars is a good thing and should be promoted to the people who pay all those taxes, insurance premiums, and deductibles as such.”

In addition, physician organizations now predict that in a mere 13 years, there will be a near-catastrophic shortage of primary care doctors and specialists in the United States. Kevin Campbell explains that:

Based on a new report from the Association of American Medical Colleges, it is expected that we will see a shortfall of nearly 100,000 doctors by the year 2030. A closer look at the predictions show that we will have a shortage of 40,000 primary care physicians, as well as a shortage of nearly 60,000 physicians in specialties such as allergy and immunology, cardiology, gastroenterology, and infectious disease. In general surgery, the report predicts that there will be 30,000 fewer surgeons than are needed to provide care to those who need it.

But, rest assured that “all federal employees could see a better rate on their health insurance premiums under a bill to overhaul the U.S. Postal Service, according to an analysis from the Congressional Budget Office.” Eric Katz reports that:

A key component of the 2017 Postal Service Reform Act would be the creation of a new health benefits program just for postal employees and retirees, while also requiring all eligible annuitants to enroll in Medicare as their primary provider. Federal workers remaining in their current Federal Employees Health Benefits plans would see their costs shrink, as removing postal employees — who are generally costlier to insure than the rest of the federal workforce — from their pools would decrease the overall expenses associated with their insurance. CBO did not estimate the savings FEHB enrollees would themselves receive, but it did predict the government’s portion of premium costs would decrease by $1.4 billion for federal retirees and $1.9 billion for current employees over 10 years.

Analysts also predicted premiums in the new system ‘for postal employees and annuitants would be lower than the FEHB premiums those people would face under current law.’ Again, CBO did not project savings for the individual, but said USPS would save $2.2 billion for current postal workers and $2.5 billion over 10 years under the postal-specific health care program.

If you’re looking for American ingenuity and technological prowess to help resolve the climate issues that face the world, the Paris Climate Pact is not for you. The pact is a voluntary agreement among countries including the world’s worst polluters (this is axiomatic, since only Nicaragua and Syria are not signatories, and thus far, chemical agents dropped on civilians have not been classed as “pollutants”). Nearly 200 countries are encouraged (not required) to make plans based on their own priorities and commitments to their own people – except the United States, it appears.

The goals of the pact are strikingly modest – to limit global warming to 2 degrees Celsius above pre-industrial levels – but the withdrawal of the United States by President Donald Trump was followed by denunciation and frenzied despair for the future of the planet. German chancellor Angela Merkel, along with the new president of France and the prime minister of Italy, announced, “We deem the momentum generated in Paris in December 2015 irreversible and we firmly believe the Paris Agreement cannot be renegotiated, since it is a vital instrument for our planet, societies, and economies.”

“Irreversible” and “vital” are heavy adjectives applied to theoretically voluntary choices.

Jean-Claude Juncker, the European Commission president; Donald Tusk, the European Council president; and Mrs. Merkel decried the abdication of American leadership. Junker said the U.S. wanted to “untie itself from international connections” – more heavy words for a president withdrawing from an agreement not ratified or even discussed by the U.S. Senate.

What the rest of the world says is less germane here than what the United States does. A dozen American states and more than 200 cities have committed themselves (or their constituents) to maintaining the principles and goals of the Paris pact. More than 1,000 companies and institutions, including more than a dozen Fortune 500 businesses, signed a statement joining them.

Whether they planned it this way or not (probably not), they have exercised a fascinating burst of American federalism. Federalism, defined as “the distribution of power in an organization – such as a government – between a central authority and the constituent units,” is how states and municipalities exercise their authority separate from the federal government. For decades, liberals have sought more federal power over states (abortion, redefining marriage, mandatory health insurance), while conservatives have argued for less (school choice, Medicaid, abortion).

Not this time.

In fact, the determination of state, local, and business leadership to forge ahead on standards for conservation, energy, and pollution control is an outstanding development that does not require the federal government and appears not to run afoul of federal law (unlike, for example, sanctuary cities). The question is not whether it is better to have clean air and water or not. The question is not whether to find better ways of managing waste and generating electricity or not finding them. There are only two questions:

Who will do the heavy lifting for what we all consider benefits? Certain states, cities and companies say they will, and more power to them, so to speak. American ingenuity and American capability will surely create better and smarter ways to live in the only atmosphere we have.
What constitutes the best use of American money in pursuit of those aims?

Technology doesn’t create itself, and the role of government and private investment choices looms large. The federal government has a poor track record of choosing investments – Solyndra, anyone? The market, from startups to Fortune 500 companies, is the better mechanism for emerging and adaptive technologies – Wayze (Israeli) and Amazon and Uber (American) come to mind.

Absence of a market or investment mechanism, or money for the sort of innovation at which America excels, is a major shortcoming of the Paris pact. Consider the construct, and pay attention to the words of the founding document that the Europeans are adamantly opposed to changing.

Former FBI Director James Comey, who claims President Trump ordered him to end an investigation into former National Security Advisor Mike Flynn’s ties to Russia, admitted he leaked his notes from a private conversation with Trump in hopes of spurring an investigation of the president himself.

This raises the question, Why isn’t Comey being investigated? He has proven himself to be a prolific liar who abused his power in the vein of J. Edgar Hoover but without Hoover’s competence.

For Comey, leaking was revenge for the humiliating, public way President Trump fired him. His leaking to the media of what amount to official FBI documents may itself be unlawful and may violate the terms of his employment as FBI director. He’s not the victim he paints himself as.

Comey’s comments came as he testified for hours before the Senate Intelligence Committee as part of a massive fishing expedition against the Trump administration that should never have been launched in the first place. (A transcript of Comey’s testimony is available here.)

Commentators were all over map in their evaluations of the political significance of the testimony.

It was a bad day for Trump, retired Judge Andrew Napolitano said on Fox News Channel. Interfering with a federal criminal investigation for a corrupt purpose would be obstruction of justice, he told Shepard Smith on Fox News Channel. Some of Comey’s testimony was damning, Napolitano added, particularly Comey’s statement that he understood Trump was seeking some kind of a quid pro quo.

In response to a question from Sen. Angus King (I-Me.), Comey said during the hearing that Trump’s “hope” that he would “drop” the investigation into Flynn’s connections to Russia reminded him of 12th century English King Henry II’s annoyance with Archbishop of Canterbury Thomas Becket.

The use of the word “hope,” Comey said, “rings in my ear as kind of, ‘will no one rid me of this meddlesome priest?'” A group of Henry’s followers interpreted the statement as an indication that he wanted Becket dead and they did the king’s will.

But this is weak sauce. It is extremely unlikely a criminal case would arise out of a president’s stated “hope” that a probe be ended, with no actual evidence to back it up. Besides, the ultra-manipulative Comey has already proven himself an unreliable witness possessed of a self-serving memory.

And even if President Trump did order Comey to make the probe into Flynn go away, the president is entitled to do such things.

Harvard Law professor emeritus Alan Dershowitz, a liberal Democrat, made the point that in his testimony yesterday,

Comey confirmed that under our Constitution, the president has the authority to direct the FBI to stop investigating any individual. I paraphrase, because the transcript is not yet available: the president can, in theory, decide who to investigate, who to stop investigating, who to prosecute and who not to prosecute. The president is the head of the unified executive branch of government, and the Justice Department and the FBI work under him and he may order them to do what he wishes.

Andrew C. McCarthy is a former federal prosecutor and a contributing editor at National Review.

James B. Comey’s testimony Thursday before the Senate Intelligence Committee will no doubt embolden those who believe we already know enough to conclude that President Trump obstructed justice by leaning on the then-FBI director to halt a criminal investigation of Michael Flynn. But nothing that Comey said alters the fact that this claim remains fatally flawed in two critical respects: It overlooks both a requirement for corrupt intent and the principle of executive discretion.

It is true that federal statutes criminalizing obstruction of the administration of law — including by agencies such as the FBI — cite not only actual interference with an investigation but attempts to do so as well. That is, the fact that the investigation of Flynn, a close Trump campaign adviser who would briefly serve as his national security adviser, was never actually shut down cuts against the case for obstruction, but it is not dispositive.But the arguments for presidential obstruction here tend to omit the statute’s most important word: “corruptly.” Not every form of interfering with an investigation, or even the closing down of an investigation, is felony obstruction. Only corrupt ones. Prosecutors must prove beyond a reasonable doubt that the accused not only acted intentionally but also with an awareness that his actions violated the law.The usual examples are straightforward: A public official is paid off to lean on the police to drop a case. Or an official acts to halt an investigation out of fear that a suspect will reveal wrongdoing by the official.

So, what would be a legitimate interference with an investigation?

This brings us to executive discretion. Every day, in FBI and U.S. attorney’s offices throughout the nation, agents and prosecutors decide to close investigations and decline prosecutions. Many of these cases are viable, but these executive-branch officials judge that the equities weigh against continuing the investigation or filing an indictment. They consider the seriousness of the offense and balance that against personal factors related to the suspect — criminal history, contributions to society, whether alternatives to criminal prosecution would be more appropriate, whether a criminal charge would be overkill because of other consequences the suspect has suffered, etc.

This is important because the president is the chief executive. We like to think of law enforcement as insulated from politics, and we certainly aspire to a politics that does not undermine the rule of law. In our system, however, it is simply not the case that law enforcement is independent of political leadership. The FBI and Justice Department are not a separate branch of government. They are subordinate to the president. In fact, they do not exercise their own power; the Constitution vests all executive power in the president. Prosecutors and FBI agents are delegates.

That means that when they exercise prosecutorial discretion, they are exercising the president’s power. Obviously, the president cannot have less authority to exercise his power than his subordinates do.