U.S. Fifth Circuit Court of Appeals Issues Temporary Injunction Blocking OSHA Vaccination Mandate

A three judge panel in the U.S. Court of Appeals for the Fifth Circuit in Louisiana has temporarily blocked the Biden administration OSHA vaccination mandate [Court Ruling Available Here].

A group of states including Louisiana and Texas along with businesses, religious groups and organizations filed their petition on Friday with the court. The Biden administration must reply to the court by 5:00pm Monday thereafter the court will decide if a permanent injunction is warranted.

New York Times – […] At the core of the legal challenge is the question of whether OSHA exceeded its authority in issuing the rule and whether such a mandate would need to be passed by Congress. […] The suit against the mandate stated that President Biden “set the legislative policy” of substantially increasing the number of Americans covered by vaccination requirements, and “then set binding rules enforced with the threat of large fines.”

“That is a quintessential legislative act — and one wholly unrelated to the purpose of OSHA itself, which is protecting workplace safety,” the suit said. “Nowhere in OSHA’s enabling legislation does Congress confer upon it the power to end pandemics.”

(more…)

Chief Justice of the Court of Natural Law

Natural Law 101, expounded by the jurisprudence of Clarence Thomas, is a powerful argument on behalf of justice and a proper reordering of our country.

by Ken Masugi for American Greatness

Recently, the Heritage Foundation and the Scalia School of Law at George Mason University honored Justice Clarence Thomas on the 30th anniversary of his joining the Supreme Court. A day of panels featuring former Thomas clerks and prominent legal scholars commented on his legacy and future. The justice responded that evening. 

Yet even a full day of often enlightening panels and speeches, doubtless to be supplemented in the years to come by law review issues, articles, and books, misses the crucial fact about Thomas’ jurisprudence that has made him the indispensable justice: his overarching focus on natural law. 

In America natural law comes to sight in the principle of equality, which continues to confuse both conservatives and liberals. With the Democrats’ embrace of “equity,” they have cast aside equality as a principle. Conservatives have never been comfortable with equality to begin with, as Harry Jaffa consistently pointed out in his work. Equality does not mean socialism but rather government by consent, and all the institutions that follow from the preservation of this fundamental element of justice. The clearest expositor of this principle, as Thomas explains, has been Abraham Lincoln, when he attacked the evil of slavery. 

The aftermath of the Civil War undermined the political attractiveness of equality for both Left and Right, for different reasons. The Left was further cut off from equality by Woodrow Wilson’s attack on the Declaration, the Right by the hyperpartisanship of Franklin Roosevelt’s New Deal and the endless quest for security.

Transcending this muddle over equality arose Clarence Thomas, who produced some remarkable writings on natural law and equality. Those who come up clueless—some perhaps disappointed, others perhaps relieved—at not finding a Thomas Aquinas emoji in his writings, need the counsel of former clerk John Yoo, who spelled out the importance of natural law to Thomas clearly: 

While the principle of natural rights may sit silently beneath the crashing waves of the latest disputes at the Supreme Court, whether over abortion, the right to bear arms, or affirmative action, do not doubt that it is there. Justice Thomas made this clear in a remarkable speech delivered in September at the University of Notre Dame for its Alexis de Tocqueville series . . . That Justice Thomas has been able to dedicate himself to the unfinished work of the Declaration of Independence, and to set an example for others to take up that work, is the very fulfillment of that document’s promise. His coming years on the Court will reveal how his belief in natural rights may fare against the centralized government, identity politics, and critical theories of our own day.

Yoo does not need to torture any of Thomas’ writings to expose renditioned natural law closeted beneath. Quite the contrary, we see in his Notre Dame speech (whose rough transcript I edit slightly for accuracy): 

But despite [segregation and Jim Crow] there was a deep and abiding love for our country, and a firm desire to have the rights and responsibilities of full citizenship. Regardless of how society treated us, there was never any doubt that we were equally entitled to claim the promise of America as our birthright, and equally duty bound to honor and defend her to the best of our ability. We held these ideals first and foremost, because we were raised to know that as children of God, we were inherently equal and equally responsible for our actions . . ..

Whether deemed inferior by the crudest bigots [or] considered a victim by the most educated elites, being dismissed as anything other than inherently equal is still at bottom, a reduction of our human worth. My nuns at St. Benedict’s taught me that that was a lie. And to paraphrase Solzhenitsyn, we were not to live by that lie. [I]n God’s eyes, we were inherently equal, and that was the truth that permeated our home life as well—less with a focus on rights and more with a focus on what was required of us as children of God. [emphasis added]

These are all key natural law principles: you have a duty to love the country you’re born into and seek within it what is true and elevating. You exercise your natural rights, such as acquisition of property and self-defense, but you remain at peace with your fellow humans. Various inconveniences oblige you to leave the state of nature, but this is done deliberately. This Catholic teaching bore further fruit in later years:

I use this background to set the stage for my later and more in depth encounter with the Declaration of Independence in the mid-1980s. At that time, having run agencies and seeing how the federal government actually worked, I became deeply interested in The Declaration of Independence. I had hoped studying the founding would bring some clarity to the cacophonous world in which I found myself. Yet, studying the founding . . . [was] more like a return to familiar ground, the ground of my upbringing.

The Declaration captured what I had been taught to venerate as a child, but had cynically rejected as a young man. All men are created equal, endowed by their Creator with certain unalienable rights. And so . . . the Declaration of Independence did not propose to have discovered anything new. Its truths were self-evident. They were beyond dispute. They were a priori in the society of my youth, and by the school, [at] home, and in the culture they were given. And, as I rediscovered the God-given principles of the Declaration and our founding, I eventually returned to the church, which had been teaching the same truths for millennia. That the Declaration set forth self-evident truths was no accident.

The Declaration, as with other natural law documents for men and women throughout the ages, brought Thomas back to God. While it may not have that power with others, this synthesis of reason and revelation must be respected. 

As Thomas wrote in his autobiography, reflecting on his pre-judicial government service as Chairman of the Equal Employment Opportunity Commission, 

I led my staffers (especially Ken Masugi and John Marini) in discussions of the natural-law philosophy with which the Declaration of Independence, America’s first founding document, is permeated. ‘All men are created equal,’ Thomas Jefferson had written in 1776 ‘They are endowed by their Creator with certain unalienable Rights.’ That’s natural law in a nutshell: if all men are created equal, then no man can own another man, and we can only be governed by our consent.

Men exist between God and the beasts, as both the Declaration and Psalm 8make clear. Political life, the City of Man, subsists outside the City of God. This limit on the legitimate authority of government meant that man’s freedom had to be respected. Unlike Barack Obama, who made “equality” an excuse for unlimited government authority for unlimited purposes, Thomas’ equality maximizes individual freedom, but a freedom based on natural law principles.

A fine example of Thomas’ use of natural rights goes back almost 35 years ago. In a November 21 1986 letter to the Wall Street Journal titled “‘Natural Disgust’ and Natural Rights,” Thomas, who was chairman of the Equal Employment Opportunity Commission at the time, raised the issue of how we Americans came to recognize and eventually enforce natural right, in abolishing slavery. In denouncing the Dred Scott decision, which cut America off from its natural right founding principle, Lincoln responded to Douglas’ demagogic charge that “Black Republicans” wanted to have a promiscuous society of mixing races. Of course Douglas suppressed the key point that black slaves, men as well as women, were exploited, both sexually and economically, and often brutally. 

Rather than declining to address the “natural disgust” that Douglas threw in Lincoln’s face and that most Americans accepted as following from slavery, Lincoln, Thomas noted, sought to teach Americans about the injustice of this undeniable evil. 

Lincoln showed how “natural right,” or fundamental justice, would lead Americans out of the disgusting horror Douglas depicts (and whose cause he distorts). Lincoln says bluntly that the force of Douglas’ argument is because “I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either.” (A condition, I should note, which holds for a black man as well.) “I can just leave her alone.” Lincoln concludes, “In some respects she certainly is not my equal”—which logically means that she may also be Lincoln’s superior in some respects—“but in her natural right to eat the bread she earns with her own hands, without asking leave of any one else, she is my equal and the equal of all others.” 

The work ethic, honored and respected by northern and western men and women, though at that time losing its hold in the South, had at its core this principle of natural right to acquire and benefit from ownership of property and labor with it. And property included one’s mental and spiritual qualities, as well as physical possessions. Justice can moderate passion. It can create the conditions for civility and even friendship. Natural right can redirect and transcend natural disgust.

Sometimes such an instinctive disgust can also be instructive about natural law. In an exchange with Senator Howard Metzenbaum, which Thomas recounts in his autobiography, he explains, “all I did was ask him if he would consider having a human being sandwich for lunch instead of, say, a turkey sandwich. That’s Natural Law 101: all law is based on some sense of moral principles and human purposes inherent in the nature of human beings . . ..” 

There is no magic trick that can create political virtue or even simple sanity in Washington, D.C., where too much power and control over wealth has caused our political class to self-aggrandize for well over a century. But is this really a country where “gender fluidity” is gaining acceptance? Even if it is, Natural Law 101, expounded by the jurisprudence of Clarence Thomas, would be a powerful argument on behalf of justice and a proper reordering of our country, as it lumbers along toward its 250th birthday. This Thomas testament would be the new Gettysburg Address for our battles today.

X22, Trish Regan Show, and more-Nov 6th

 

Extra hour of sleep tonight, Winter is coming. :( Here's tonight's news:

At Long Last, The Right Has Joined The Culture War

The left has understood the power of the culture war for half a century. But something happened leading into last Tuesday: The right figured it out too.

Ben Domenech & Emily Jashinsky for The Federalist

We’re spiking the football because it’s long past time for the political establishment to pay attention. Culture is a kitchen table issue, just as much as health care bills and taxes, despite years of smug assurances otherwise from consultants and pundits. We were right and they were wrong. They are not good at this, and their incompetence is hurting the cause of conservatism and, more importantly, the country.

In the wake of Glenn Youngkin’s blue-state culture war upset, CNN panelists pondered their echo chamber. Sen. Joe Manchin tried to pump the brakes on President Joe Biden’s massive social spending plan. James Carville unloaded. Others doubled down on the false and toxic narrative that dissenters from the left’s cultural dogma are motivated by bigotry.

While radical illiberalism crept from academia to the so-called real world, the establishment assured us it was a non-issue. Republicans boasted of their brilliant strategy to moderate on social issues, a theory that earned them Twitter follows from Very Serious People and airtime on cable news.

It was all wrong. All of it. The culture war is not only a moral battleground for conservatives, it’s a politically advantageous one. It animates voters. People care, not because they’re racist or unsophisticated, but because an unhealthy culture affects their everyday lives just as immediately as a higher tax bill. It’s not a distraction from “the issues,” it underlies all of them.

The culture war is here and has always been here because it’s the pivot point that determines what the nation has been and will become. The other side has understood it from day one, and has been cleaning up on it in a leftist blitzkrieg that has gone on for generations.

The years since have seen an explosion of controversy over political correctness, with battles over safe spaces, speech codes, and the assertion of privilege spreading from academia into the broader culture.

“[S]ince 2012, the nation has changed,” Ben wrote in early 2016. “[Mitt] Romney ran the last campaign of the pre-gay marriage era. The years since have seen an explosion of controversy over political correctness, with battles over safe spaces, speech codes, and the assertion of privilege spreading from academia into the broader culture. The flashpoint in this new phase of the culture war is the issue of speech: what our culture and politics will allow you to say, and where you are allowed to say it.”

“Congratulations to the American left,” he concluded. “You asked to win the culture wars — and evangelicals are giving you Donald J. Trump.”

At the Texas Tribune Festival in 2018, Ben was the only voice on a skeptical panel insisting, “We have a radicalized culture war that is here now, it’s here tomorrow, it’s here forever as far as the eye can see, and it’s not going away,” echoing sentiments he expressed long before Trump entered politics.

In 2019, before George Floyd’s killing, Ben warned that “the left may be turning into the culture war white walkers.”

That same year, we both wrote that Big Tech censorship was a “kitchen table issue,” in the face of staunch disagreement from thinkers on the establishment right who dismissed concerned voters as a “rounding error.” Why? Because censorship, as Ben wrote long before, had become a key element of the left’s culture war. Here’s an excerpt from The Transom at the time:

If you want to know why, just consider this: Internet activists hear about people like Steven Crowder. What you don’t hear about is the local realtor who put a Trump sign in their lawn, and because of that, the neighborhood listserv and Nextdoor app filled up with people campaigning to nuke their Google mentions, respond to their Facebook page with constant harassment, and deface their ads in the neighborhood, calling them a white supremacist. That is not a major story. It is not even a minor story. But it is the sort of story that radicalizes a church, a community, a group of likeminded people … and then you start looking for politicians who take this issue on.

On the same subject, Emily explained in 2019 why it was significant that Sen. Josh Hawley, R-Mo., was “waging war on both the regulatory and cultural fronts” when it came to Big Tech. When Hawley and a handful of other GOP candidates ran on culture war issues in 2018, she reported on the wisdom of their strategy, writing, “As populist sentiments against coastal elites run high among conservatives — bolstered by Trump’s strategic media baiting — [they] are casting themselves as the authentic representatives of their states, and their opponents as the pawns of wealthy outsiders.”

Earlier this year, Emily argued, “The political discourse is not a zero-sum game limited by time and space,” noting, “economic distress and the immediate destruction of free expression are not mutually exclusive.” Here’s an excerpt from that essay, which explained why normal people are animated by cancel culture.

What’s the point of freaking out over Dr. Seuss? Isn’t it just a culture war fomented by Beltway MAGA cynics and their Fox-guzzling fans? After all, most of his beloved books are still for sale. This is actually an instructive example, although I hardly expect the left to give their angle any pause.

To the vast bipartisan coalition of normal people annoyed by “cancel culture,” news of backlash against Dr. Seuss means norms have quickly shifted even more out of alignment with their fundamental values. It also makes people feel as though they’ve been implicated in gross moral wrongdoing. It creates anxiety that these rapid and unpredictable shifts will soon catch up with them or their loved ones, and that reading a simple children’s book could land them in hot water with enforcers of these new norms in their communities.

That, of course, was smugly mocked. (As were questions like this one, posed to Ronna McDaniel.)

In a piece that could have been written after Youngkin’s win, Emily analyzed data on suburban voters collected in the run-up to the 2020 election, arguing the numbers showed Democrats would be “much less well-positioned in suburbia after Trump is out of office, forced to defend their radicalized agenda instead of merely opposing the president.”

“For them,” she added, “Trump-era victories could be one step forward and two steps back, as the president’s overpowering presence convinces suburbanites to vote Biden while also allowing Democrats to transform into a party that will look a lot less appealing when the lights come on.” That’s exactly what ended up happening in Virginia. (She wrote about this in the context of the 2020 RNC as well.)

We’ve covered this constantly in popular culture and news media too, highlighting how demand for heterodox alternatives to Hollywood and corporate media are empowering new platforms and revealing massive, widespread distaste for cultural leftism. (See our series on the New Contras.)

If Youngkin had lost, all of this would still be true. His narrow margin against a Democratic giant in a blue state, with the entire media aligned against him, would have been equally telling. It would not, however, have shaken any awareness out of the chattering class of the strategic avenue offered by the culture war focus.

It’s true that many of our so-called experts are now doubling down on their nonsensical narrative that everyone who voted for Youngkin is a racist. But establishment Democrats are starting to notice the conundrum they’ve created for themselves, and establishment Republicans are starting to notice they can lean into it. (Or “pounce,” as The New York Times put it.)

An apocryphal remark credited to Alexander the Great by Winston Churchill applies: The Right, at long last, has learned how important it is to vocalize, at the top of your lungs, over and over: No.

The culture war has for years been considered dirty by the same secular, socially liberal elites who were waging it. Stop listening to them, whether you’re on the left, center, or right. Their bad ideas are metastasizing in echo chambers, protected from debate. They are wrong, and their power is waning.

The left has understood the power of the culture war for half a century. They know its power and have deployed their forces accordingly. But something happened leading into Tuesday: The right figured it out too. It’s a bell that can’t be unrung.

Why Won’t The Left Admit Schools Teach Critical Theory And Defend It On The Merits?

Democrats and the corporate press obviously agree with the tenets of critical race theory. But instead of defending it, they pretend it doesn’t exist.

by John Daniel Davidson for The Federalist

By now, most Americans know that critical race theory is real and that it’s being taught widely in public schools.

This isn’t a semantics debate. Students are being taught racial hierarchies, along with the idea that the United States was founded on white supremacy, and that the U.S. Constitution, our legal system, and American ideals like freedom and equality all work to perpetuate and sustain systemic racism.

There are mountains of evidence of this. The work of Christopher Rufo and others has exposed critical race theory’s many manifestations, not just in public schools but inside major corporations and even the U.S. military.

Yet the left has refused to debate critical race theory on the merits. Instead, the corporate press, Hollywood, and woke Twitter bluechecks keep insisting that it doesn’t even exist, it’s just a fantasy conjured up by racist Trumpers trying to scare white voters into electing Republicans.

Just look at the left’s response to the historic Republican sweep of Virginia on Tuesday. Glenn Younkin’s campaign, their theory goes, falsely claimed that critical race theory was being taught in Virginia public schools. Racist white Virginians, terrified at the idea their kids would have to learn the truth about slavery and racism in America, elected Youngkin, who is also a racist.

(That these same voters also made history by electing Winsome Sears, a black woman, as lieutenant governor, and Jason Miyares, an Hispanic man, as attorney general, is conveniently ignored in this narrative.)

Their key talking point is that critical race theory isn’t even taught in Virginia schools. Cable news talking heads like MSNBC’s Nicolle Wallace incessantly dropped it into her election-night commentary, saying critical race theory, “which isn’t real,” swung the suburbs 15 points to the “Trump insurrection-endorsed Republican.”

Julian Castro called it a “fantasy world.” Larry Sabato called it a “phony issue.” Joy Reid called it a “coded boogeyman.”

After the election, humorless comedians like Seth Meyers kept hammering away at it. “Republican and Fox News have successfully weaponized the panic over so-called critical race theory, but I’m sorry, it shouldn’t be radical to teach children about the history of racism in American society.”

Examples abound, both before and after the election, but you get the idea. For the left, critical race theory is nothing more than an obscure and harmless legal theory that’s been twisted into something sinister by racist MAGA Republicans. Months ago, legacy media outlets were insisting that critical race theory is a “moral panic” and an “obsession” of racist Republicans. It’s what white conservatives denounce whenever their kids have to study “real” American history in school.

The problem for the left is that no one outside their cloistered milieu believes this. There’s been too much original-source reporting about the prevalence of critical race theory in public institutions for any honest person to think otherwise.

So here’s my question: why doesn’t the left just debate critical race theory on the merits? People like Joy Reid and Wajahat Ali clearly agree with its central tenets. They obviously think America was founded on white supremacy, and that racism pervades our civic life and public institutions. Why not just come out and say, “You know what? Critical race theory should be taught in public schools, because it’s the best way to expose kids to the truth about America.”

Why pretend something that you fervently agree with doesn’t exist? Why play shell games about how to define critical race theory? Why not just take the broadest definition that all sides can agree to and go from there? Why not make the case for why we should base school curricula on it, why corporations should train their workforces in it, why it should be the legal basis for racial reparations and the mass redistribution of wealth?

If people are confused about what critical race theory is, why not explain what it really is? Why argue that its attendant ideas and policy prescriptions are correct and desirable, and make the case for why they will make America a better, more peaceful, and just society?

Leftists won’t do that because they know that most Americans find the ideas at the heart of critical race theory repulsive, and rightly so.

This is also why the left never openly debates the merits of, say, mass illegal immigration, which they obviously support. Instead, they pretend to oppose it, or argue that the border isn’t really in crisis. Same with the Black Lives Matter riots last summer, the effects of pandemic lockdowns, the dangers of transgender ideology and bathroom policies. Whatever the issue, they pretend the thing they support isn’t even real, then call their opponents racists and bigots for insisting that it is.

The bad news for the left is that this tactic obviously isn’t working. So I look forward to frank, open, and honest debates about teaching racial hierarchies in elementary school, the merits of totally open borders, and a rich discourse on why urban rioting for racial justice is a public good.

Just kidding. The media assures me none of that’s even real.

A Post-Virginia Conversation With the Democrats

A Post-Virginia Conversation With the Democrats

Democrats know they had it coming, but does anyone expect them to change?

Scott McKay for The American Spectator 

Hey Democrats,

So how’s your week going? Specifically, what’d you think of those elections Tuesday night? Pretty big stuff, right?

Yeah. We get it. And you’re right — that’s a pretty nasty bruise.

Actually, we wanted to talk to you about that. No, we understand — the concussion protocol has to be followed, and it’s clear you’re not in much of a state for introspection right now, but we can accommodate you. How about you just let us do the talking for a little while and you can just listen?

No, no. This time it’s talking-talking. We promise. Tuesday night was Tuesday night. This is different. Now that we got your attention, hopefully.

Hopefully.

The thing is, that old saw about hubris and nemesis? It’s a real thing. By now we’d kinda thought you would understand that. After all, we’ve been through this before, haven’t we? Remember 1993 and 1994? You actually handled that reasonably well, other than that business with President Rapey McRaperson and his limited modified hangout with that intern. But then we had 2009 and 2010, and it seemed like you got worse.

And now we’re doing it again. Frankly, it’s a little disappointing. Are you slow learners, or what?

So maybe we should remember how we got here. Let’s go back about two years. Remember that point? You had a president who had really gotten you into a state. Mean tweets and middle fingers. We know. We might have thought it was a little much, too, other than he did seem to have a decent handle on the job. But to be fair, you didn’t handle him too well. You sent a crazy lady with a pretty weak story to smear his Supreme Court appointee, and while that failed it didn’t stop you from making Nancy Pelosi the Speaker of the House.

Good for you, we guess. But the next thing we knew Pelosi was impeaching the president, and we’re still not quite sure why. He wanted to get some help with a corruption investigation or something, and that was a bad thing … anyway, it didn’t work, and most of us were pretty happy about that.

But then came the virus. And yeah, we got pretty spooked about that. After all, your buddies in Hollywood have been plying us with movies and TV shows about the Zombie Apocalypse and scary pandemics practically forever, and we’re pretty much primed for The Big One. So when this thing came out of that Chinese bioweapons lab…

No, we don’t want to talk to Dr. Fauci. He’s gotten boring, and we notice that most of what he says ends up not being true. Tell him he can wait.

And no, that doesn’t mean we hate science. Actually, in a minute we’re going to have a conversation about that as well.

Anyway, as we were saying before we were so rudely interrupted, this Wuhan Flu, or COVID-19, or whatever you want to call it, scared the hell out of us. A lot of us thought it was a bioweapon, and frankly a lot of us still do. That president you hate banned travel from China, which we thought was pretty prudent even though you said he was racist for doing it. That’s something else we want to talk about later. But then you guys started acting like the virus was his fault some kind of way, like he wasn’t doing anything to fight it.

It was pretty clear he was grasping for solutions to this thing when it hit, and that’s when he agreed with your “experts” that what we really needed was to shut everything down and try to wait the virus out. If people weren’t out and about maybe they wouldn’t spread it. Two weeks to stop the spread, right?

That was your experts’ advice. And that president you hated followed it. And boy, did your governors and mayors follow it.

We haven’t really talked about this, but the way that whole lockdown thing worked out almost looks like it was opportunism on your part. A little suspicious. After all, those lockdowns crashed what had been a pretty good economy. They blew up what had been a fairly happy national morale. And they drove in a lot of uncertainty about that president you hated right when he was up for re-election.

Not to mention the fact that once you had the country locked down over the WuFlu, all of a sudden all the election rules changed — on account of the emergency. And those new rules sure did help you guys out, didn’t they? Things got weird.

After all, you nominated this guy Biden to run against that president you hated. But let’s face it, “run” is a pretty charitable term, right? We haven’t seen anybody “run” for president like that in all of our lives. He’s in his basement phoning in TV interviews, half the time he’s knocking off for the day right after breakfast, when he bothers to give a speech the crowds look like the final episodes of The Squid Game and they’re all sitting in spray-painted circles on a lawn somewhere…we’ve got to tell you, that was a bit surreal.

What else was strange was that in between making up a whole new language on the campaign trail and walking around like he had poopy pants, Biden magically managed to build up these 15-point polling leads on that president you hated, according to those news-media people who hang out with you guys all the time. We’d already seen that movie before, and we noticed it this time. We all said to ourselves, “Boy, they sure do say a lot of fishy things, don’t they?”

Then we find out — or at least some of us do — that this Biden has a son who’s a crackhead and who had a laptop with all kinds of bad stuff on it. Like massive corruption involving the son and this guy Biden, who’s apparently a big guy, and the Chinese and Ukrainians and all kinds of other people. But as soon as that story popped it seemed like it immediately went away. We couldn’t find it on Facebook or Twitter, and all anybody else would say was that it was “Russian disinformation.”

So Election Night comes, and that president you hated won. At least, that’s what it looked like. But you said no, he didn’t, just wait. And those news media guys who hang out with you agreed.

Shockingly.

And when we all knocked off and went to sleep, we then woke up to find that this guy Biden was ahead in a whole bunch of states he was behind in before. We’d never seen that ever, really, and we looked at each other and wondered “what in the hell is going on?”

But you assured us that everything was legit, and your news media buddies agreed, so we shrugged it off and hoped for the best. But some of us weren’t quite so accepting, and they did what you had your buddies in all the big cities around the country do last summer — they protested.

Mostly peacefully. That’s how the saying goes, right?

Anyway, the folks last summer burned cars and looted stores and even declared an independent little gang dictatorship in one of the cities you control, and you were pretty cool with that even though we asked you to do something about it. But when some of us got a little out of hand in Washington, you went nuts.

Look, most of us weren’t cool with a riot in the U.S. Capitol. But honestly? Burying people under the jail for trespassing is a little extreme. It doesn’t sit well. And no, these guys weren’t trying to start a revolution. For one thing, none of them brought a gun. And for another, you’re all big fans of that old guy with the wild hair who sounds so much like Larry David he even plays him on Saturday Night Live once in a while — other than the fact you keep screwing him out of your nomination — and he’s been talking about a revolution for years. His supporters actually do bring guns and shoot congressmen and we’re told it’s all under control, but when a couple of the characters from Jan. 6 brought Trump flags and wore Indian headdresses you acted like it was the Harper’s Ferry raid.

Razor wire? Honestly.

We started realizing a pattern, which is that we’re being gaslit. Like, a lot. You tell us things we know aren’t true, and then when we call you on them you start throwing out insults. Some of them we’ve never even heard of before. A transphobe? Huh? We remember a Trans Am, but that wasn’t much of an insult.

And the racist thing. That one confuses us. We thought we’d pretty much taken care of the race thing. We thought we’d all agreed that yeah, let’s have a colorblind society. Let’s do content of our character. That’s why we all agreed Michael Jordan was the all-time baller. That yeah, Richard Pryor was a little funnier than George Carlin. And that we’d rather give Barack Obama a chance than suffer through four years of John McCain or even Mitt Romney. But instead of getting credit for that, all of a sudden we had to agree that America was “systemically racist.”

Say what? It’s easier for black girls to get into college than white boys and this is a racist country? Since when did all that happen?

That one’s tough enough to swallow, but when your guy Biden botched the Afghanistan pullout while telling us that everything was going according to plan, and when he shut down a chunk of our oil and gas business and put tens of thousands of us out of work and then went begging to OPEC for more oil when it started running short, and when you told us inflation was “transitory” while the prices skyrocketed and the supply chain ran dry, which you knew was happening while your obnoxiously gay Transportation Secretary went on secret maternity leave (he’s a dude, what’s up with that, anyway?), it didn’t work for us.

Seriously. The gaslighting. We hate it.

We tried to tell you politely. We told your pollsters “This sucks. Make it stop.” You didn’t listen. You kept on gaslighting.

So what else were we supposed to do? You ran one of Rapey McRaperson’s old crook cronies for governor of a state you own, and he went around trashing us as every name in the book, and it was predictable what happened.

Sure, you took a nasty shot to the head. But that’s what happens when you act like you’re smarter than us.

Or did what happened to Bill Kristol not register with you? Seriously. Have you seen him lately?

We keep telling you that Randi Weingarten isn’t an asset, and we keep telling you Planned Parenthood grosses us out. We’ve asked you to keep Black Lives Matter off our lawn, and that we’re pretty much done with this COVID thing, particularly since you really don’t manage it well. And you don’t listen.

So let’s be honest here. That bump on your head? There are a lot more where that came from. We’d like you to cut it out. Straighten up and fly right. And no, that doesn’t mean more cowbell.

Or more Eric Swalwell. We already told you no.

It’s really up to you. You pushed your luck and you’ve been told. Be nice, or you won’t like what’s coming.

But hey, we’re glad we had this talk. Get well soon, we guess.

The American people.

Trump Justice Department Official Invoked Executive Privilege at Jan 6 Select Committee

Clark, acting assistant attorney general for the Justice Department’s civil division in President Trump’s last few months of office, invoked executive privilege today before the January 6 committee.

Julie Kelly reporting for American Greatness

In a 15-page letter obtained by American Greatness and prepared by his attorney, Jeffery Clark,  the acting assistant attorney general for the Justice Department’s civil division in President Trump’s last few months of office, invoked executive privilege today before the January 6 Select Committee.

Clark, who has been under intense media scrutiny for attempting to address election illegalities in the 2020 presidential election, was subpoenaed by the committee on October 13. Committee chairman Bennie Thompson (D- Miss.) claimed Clark thwarted “the peaceful transfer of power.” Democrats on the Senate Intelligence Committee last month prepared a lengthy report accusing Clark of working with Donald Trump to overturn the election results.

Harry W. MacDougald, Clark’s lawyer, explained to Thompson why Clark would not testify. “Because former President Trump was properly entitled, while he held office, to the confidential advice of lawyers like Mr. Clark, Mr. Clark is subject to a sacred trust—one that is particularly vital to the constitutional separation of powers,” MacDougald wrote. “As a result, any attempts—whether by the House or by the current President—to invade that sphere of confidentiality must be resisted.”

In an unprecedented move, Biden rejected Trump’s appeal for executive privilege to shield privileged communications from the partisan committee. “President Biden has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents,” Biden’s attorney wrote in October. “Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities.”

Clark also rightly asserts he was not involved with the events of January 6. “Mr. Clark had nothing to do with the January 6 protests or the incursion by some into the Capitol,” MacDougald wrote.

Text of the Letter

November 5, 2021

Dear Representative Thompson:

I have been retained to represent Jeffrey Clark in the investigative matters pending before your Committee.

Despite disparaging and misleading media narratives, Mr. Clark is not a politician and has never sought notoriety or press attention beyond what was necessary to discharge his duties.  Indeed, despite serving more than four years during the Bush Administration’s Justice Department from 2001-2005 and more than two years during the Trump Administration’s Justice Department from 2018-2021, he was never once during those six-plus years of service asked to come before a congressional committee for oversight purposes, even though he litigated and supervised highly controversial cases.  He had a winning record, recovered billions of dollars for the fisc, successfully defended numerous agency rulemakings of extreme complexity, and personally briefed and argued many cases—exemplary service.  He was confirmed in October 2018 with bipartisan support in the Senate—just one part of his distinguished 25-year legal career.

Now, after his most recent, 26-month-plus tenure in government ending in January 2021, he wants nothing more than to return to ordinary life and law practice, without being subjected to selective anonymous leaks and press attacks.  Yet he finds himself involuntarily caught up in a novel conflict that includes both significant inter-branch and cross-presidential features to which we must provide a response.

The main purpose of this letter is this:  Because former President Trump was properly entitled, while he held office, to the confidential advice of lawyers like Mr. Clark, Mr. Clark is subject to a sacred trust—one that is particularly vital to the constitutional separation of powers.  As a result, any attempts—whether by the House or by the current President—to invade that sphere of confidentiality must be resisted.  Nothing less will comport with both Mr. Clark’s obligations to former President Trump and with Mr. Clark’s ethical obligations as an attorney.  The general category of executive privilege, the specific categories of the presidential communications, law enforcement, and deliberative process privileges, as well as attorney-client privilege and the work product doctrine, all harmonize on this point.  Most importantly, core matters of constitutional principle hang in the balance.

Mr. Clark’s position as a legal advisor to the President late in 2020 and early 2021 was particularly sensitive because he was a Senate-confirmed Justice Department leader with significant high-profile litigation and governmental experience, making it natural for a President to seek out and consult his views.

We trust that members of Congress of all stripes would agree that it is indisputable that American Presidents need to be able to consult, as they see fit, with their Senate-confirmed appointees.  The principle goes both ways.  Whomever succeeds President Biden, for instance, should not be able to expose to public scrutiny advice provided to President Biden by his advisors.  Establishing precedent to the contrary would deeply chill the vigorous Executive Branch and energetic President the Founders envisioned.

Without that energy and ability to be candid, presidential advisors would be reduced to bland, tasteless creatures, and the prospect of innovative advice would be stifled.

For these reasons, as amplified below, and with due respect to the Committee, Mr. Clark has come with me today, to present this letter of objection.  Mr. Clark will, of course, abide by a future judicial decision(s) appropriately governing all underlying disputes with finality, but for now he must decline to testify as a threshold matter because the President’s confidences are not his to waive.

Since August 2, 2021, when a pivotal letter was sent on behalf of former President Trump to Mr. Clark, there have been several cardinal developments:

(1)  On September 23, 2021, this Committee subpoenaed senior White House officials Mark Meadows and Daniel Scavino, senior Pentagon official Kashyap Patel, and Stephen Bannon, making especially clear to Mr. Clark that executive privilege had been invoked in light of the violation of a condition set forth in the August 2, 2021, letter from former President Trump’s counsel, as explained in more detail below; 

(2) On or about October 7, 2021, former President Trump invoked executive privilege and instructed these four presidential advisors not to comply with the Committee’s requests; 

(3) Additionally, on September 29, 2021, the Committee had subpoenaed 11 other individuals to appear for questioning; and, most importantly, 

(4) The former President took the critical step of bringing suit against the Committee, among others, in Trump v. Thompson, Civ. A. No. 21-2769 (D.D.C. Oct. 18, 2021). In this case, President Trump asserts executive privilege and is objecting to the Committee’s request to the Archivist of the United States to produce records of his administration.

The August 2 letter from your former colleague, Georgia Congressman Douglas A. Collins, stated to Mr. Clark that “President Trump continues to assert that the non-public information the Committees seek is and should be protected from disclosure by the executive privilege,” and that this “executive privilege applicable to communications with President Trump belongs to the Office of the Presidency, not to any individual President, and President Biden has no power to unilaterally waive it.” 

The Collins letter also quoted the Supreme Court’s recognition that “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.”  That decision provides that the purpose of the privilege is to “give his advisers some assurance of confidentiality,” so that the “President [can] expect to receive the full and frank submission of facts and opinions upon which effective discharge of his duties depends.” 

Additionally, the August 2 letter noted that an earlier July 26, 2021 letter to Mr. Clark from the current Justice Department had selectively edited a quotation out the Nixon decision, leaving off the key sentence that “the privilege survives the individual President’s tenure.”

I concur with that assessment by the former President and his counsel.  Were any successor occupant of the office of President able to waive claims of executive privilege asserted by his or her predecessors, the principal purpose of the privilege would be defeated, to the detriment of the Executive Branch, to the separation of powers, and to the proper functioning of government as envisioned by the Constitution, relevant judicial precedent, and long traditions of inter-branch accommodation.  This is particularly true when, as here, President Biden’s purported waivers over recent months may have been informed by partisan political purposes.  This is suggested by the haste with which Mr. Biden prejudged Mr. Bannon’s invocation of the privilege on behalf of former President Trump.

Executive privilege has fundamental importance to and constitutional significance in the operation of government. Waivers of executive privilege should therefore be considered only with a gravity and solemnity commensurate with their deployment, and should not be influenced by workaday political grievances or by grudges lingering from past political controversies, even bitter ones.

Other former Department of Justice officials who received the Collins letter have apparently interpreted its concluding paragraph to mean that the former President had waived the privilege on a blanket basis or somehow otherwise greenlighted their testimony to Committees looking into assertedly similar issues prior to this Committee beginning its work.  We disagree with that interpretation. No fair reading of the Collins letter can conclude that it waives any privileges as to an official like Mr. Clark, especially after the key contingency set out in the letter had been triggered.

Nonetheless, to avoid further distraction and without in any way otherwise waiving the executive privilege associated with the matters the executive privilege associated with the matters the Committees are purporting to investigate, President Trump will agree not to seek judicial intervention to prevent your testimony or the testimony of the five other former Department officials . . . who have already received letters from the Department similar to the July 26, 2021 letter you received, so long as the Committees do not seek privileged information from any other Trump administration officials or advisors.

The condition in the emphasized language has been triggered because the Committee sought privileged information from multiple other Trump administration officials or advisors before Mr. Clark was subpoenaed on October 13, 2021.

Our position is simple and is dictated by the plain text of the letter.  The Collins letter does not waive privilege as to Mr. Clark.  Even before the contingency triggered by your Committee seeking information from other Trump Administration officials had occurred, at best the Collins letter indicated that former President Trump would agree himself not to seek judicial intervention on the pre-contingency state of the facts.  That is not remotely the same as authorizing testimony or waiving executive privilege.  All portions of the Collins letter prior to the concluding paragraph clearly invoked privilege.  Nor could Mr. Collins’ indicating that the former President would not file suit at an earlier time act to relieve Mr. Clark of his ethical obligations.

And surely, once the Committee issued subpoenas to Messrs. Meadows, Scavino, Patel and Bannon on September 23, the assertion of executive privilege set forth in all of the other paragraphs of that letter applied with special force to Mr. Clark.  This is because Congress has, in fact, sought privileged information from Messrs. Meadows, Scavino, and Patel as they are all, no doubt, “other Trump administration officials.”  In short, even former President Trump’s statement that he would not go to court in August 2021 was expressly conditional, and the Committee’s issuance of the Meadows, Scavino, and Patel subpoenas has caused the failure of that condition. Therefore, especially after the triggering of the contingency, the letter simply cannot be read as an unconditional waiver as to Mr. Clark or the others named in the final paragraph.

Accordingly, particularly under the present circumstances, the Collins letter expressly informs Mr. Clark that President Trump is asserting and not waiving executive privilege with respect to the Committee’s pursuit of information from Mr. Clark. President Trump’s assertion of his privileges with respect to the Committee’s subpoena to Mr. Clark is confirmed in Trump v. Thompson, et al, U.S.D.C. D.C. 1:21-cv-02769-TSC

The Committee also sought testimony and documents from several individuals, some of whom were serving in the Trump Administration in January and others who were not. To preserve all privileges applicable to him and the Presidency, President Trump sent a letter to a number of these individuals, instructing them to preserve any and all relevant and applicable privileges, including without limitation the presidential communications and deliberative process privileges and attorney-client privilege, all to the extent allowed by law.

The Committee of course has actual notice of this contention since it is a party to that litigation.

Mr. Clark thus has no choice but to comply with President Trump’s assertion of executive privilege and related privileges.

Since September 7, 2021, staff on the Select Committee has been in contact with Mr. Clark’s former attorney, Robert Driscoll, about the possibility of Mr. Clark giving a transcribed interview to the Committee regarding communications with and advice given to former President Trump during the last few months of his Administration.

In good faith and while he was engaging in legal research and keeping apprised of related actions by the Committee and other parts of Congress, Mr. Clark had been requesting and reviewing documents from the Department of Justice pursuant to 28 C.F.R. § 16.300.  And, if the federal judicial system orders Mr. Clark directly or produces final and clearly applicable precedent in (a) related case(s) indicating that Mr. Clark must testify, he would resume that process consistent with other legal strictures.  But in line with our research and study, events subsequent to September 7 have convinced me that the only proper course of action for Mr. Clark now is to stand on the privilege position articulated to him on August 2 by former President Trump and affirmed in his October 19, 2021 filing in Trump v. Thompson.

This is for three reasons: (1) first and foremost because former President Trump, as noted, took heavy step of invoking the privilege in federal court litigation on October 18 against the Committee in its official capacity, indicating that the inter-branch accommodation process had broken down; (2) because the September 23 subpoenas to Messrs. Meadows, Scavino, and Patel unmistakably triggered the contingency in the Collins letter, seemingly removing the basis for any potential accommodation agreement with the Committee premised on it cabining the scope of its inquiry; and (3) because the former President acted to invoke the privilege as to those advisors and Mr. Bannon.

I am aware that other former top officials in the Department of Justice have provided testimony to Congress, despite the former President’s assertion of privilege and despite the failure of the conditions in the Collins letter. As the privilege was not theirs to waive, at least without greater clarity (such as a court order with finality or a comprehensive arrangement entered into between former President Trump and Congress, where the latter agreed not to seek “privileged information from any other Trump administration officials or advisors”), it is unclear to me how their testimony could be consistent with former President Trump’s assertion of executive privilege. 

Former President Trump holds that privilege, not them.  Be that as it may, in the present circumstances, the fact that other former officials may have testified, rightly or wrongly at the time, does not change Mr. Clark’s obligations in light of the recent positions taken by former President Trump in the Collins letter and in Trump v. Thompson.  Indeed, D.C. Bar Ethics Opinion #288 has advised that, even in response to a congressional subpoena (and therefore, by parity of reasoning, in response to a voluntary request as well), a “lawyer has a professional responsibility to seek to quash or limit the subpoena on all available, legitimate grounds to protect confidential documents and client secrets.”

It is improper to put Mr. Clark in a vise between this Committee and its claimed enforcement powers on the one hand and his constitutional and ethical obligations on the other, especially while there is a pending lawsuit to determine President Trump’s privilege objections.  To apply such pressure to Mr. Clark is to present him with a potential Hobson’s choice in a manner not countenanced by the long history of inter-branch accommodation over Congressional requests for information from the Executive Branch.  The Constitution is the ultimate source of our law and this Committee is bound to respect government-wide constitutional boundaries, including respecting the prerogatives of the coequal Executive Branch.

Additionally, the claim made by Senate counsel at the outset of the relevant testimonies  of at  least one of these other Department of Justice officials, namely, that the Collins letter was a “letter of nonobjection . . . on behalf of former President Trump,”[9] if it were ever correct there (and it is not because nothing in the letter waives privilege or states a general principle of non-objection), is obviously incorrect as to Mr. Clark at the present time.  The Collins letter quite explicitly (1) asserts that the former President has not waived claims of executive privilege; (2) asserts the privilege; and (3) at most, even from this Committee’s potential perspective, fixes conditions that as to Mr. Clark are no longer met.

In light of the foregoing, I have advised my client that, at this time and based on these most up-to-date factual developments, he is duty-bound not to provide testimony to your Committee covering information protected by the former President’s assertion of executive privilege.  Accordingly, beyond showing up today to present this letter as a sign of his respect for a committee of the House of Representatives, albeit one not formed in observance of the ordinary process of minority participation, Mr. Clark cannot answer deposition questions at this time.  No adverse inferences can or should be drawn from Mr. Clark accepting my advice. His doing so defends the Republic’s interest in the separation of powers.

As noted, Mr. Clark is not a politician but he is a strong defender of the Constitution, stemming from his political beliefs as an unapologetic conservative—beliefs protected by the First Amendment.

In addition to the foregoing, I must also point out that the vast majority of the document requests in the subpoena sent to Mr. Clark are duplicated in the requests for documents sent by the Committee to the National Archives presently at issue in the Trump v. Thompson litigation. It is entirely proper, therefore, to defer compliance with the Committee’s subpoena to Mr. Clark until that litigation is resolved.

Moreover, the documents subpoenaed from Mr. Clark are instead largely in the possession of the Department of Justice or the Archives. Mr. Clark left his work papers at the Department of Justice when he resigned in anticipation of the January 20, 2021 inauguration of President Biden.  Based on prior actions, beginning with those of the House Oversight Committee, we also believe that your Committee has access to Mr. Clark’s government records, making the imposition on us of organizational work, such as Bates-stamping documents, unduly burdensome. If the Committee could please confirm this one way or the other, it may obviate any claim of demonstrably critical need for Mr. Clark to re-produce documents the Committee already has, should that become necessary at some future point.

Accordingly, I respectfully urge the Committee to recognize that the best and most regular course in light of the latest developments would be to pause the request for the testimony of Mr. Clark (likely along with the requests for the testimony of Messrs. Meadows, Scavino, and Patel, who would seem similarly situated) pending resolution of the Trump v. Thompson litigation.  That will provide important guidance from the Article III branch of government to referee this inter-branch dispute, including, among other things, the entwined issue of whether the current President can purport to waive the former President’s executive privilege over the former President’s objection.  As Justice Powell remarked in concurrence in Nixon, “[t]he difficult constitutional questions lie ahead.”

A pause, as we here request, would also show proper comity both to Executive Branch’s interests (considered holistically and not as defined myopically to embrace only the views of the current President) and to the Judicial Branch’s role in resolving cases and controversies. As Nixon indicates, “[t]he confidentiality necessary to this exchange [of advice and confidences between a President and an advisor] cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.”

I am also compelled to note the disconnect between the scope and purpose of the Committee’s authorizing resolution and the information sought from Mr. Clark. The Committee’s scope revolves around events at the Capitol on January 6, 2021. The Committee would not appear to be seeking to question Mr. Clark about January 6, 2021 and no media reporting has connected him to those events. Mr. Clark had nothing to do with the January 6 protests or the incursion of some into the Capitol.  He has informed me he worked from home that day to avoid wrestling with potential street closures to get to and from his office at Main Justice.  Nor did Mr. Clark have any responsibilities to oversee security at the Capitol or have the ability to deploy any Department of Justice personnel or resources there.  Indeed, Acting Attorney General Rosen testified almost 6 months ago that a January 3, 2021 Oval Office meeting involving him and Mr. Clark, inter alia, did not relate to January 6. That should alone be sufficient for Mr. Clark to be excluded from a January 6 inquiry.

Indeed, just about a week after January 6, Mr. Clark gave an “exit interview” to a reporter for Bloomberg Law that condemned the individuals who forcibly went into the Capitol and engaged in violence, noting that some of them may have been moved by mob psychology (Mr. Clark specifically remembers referencing Gustave Le Bon), besmirching by mere association the far more numerous peaceful protesters exercising their First Amendment rights.  As a clear example of mainstream media bias, however, the report later published about that interview omitted Mr. Clark’s remarks on January 6, even though the reporter had repeatedly sought Mr. Clark’s views on the topic during the course of the interview.

For all of these reasons, the information and testimony sought by the Committee as applied to Mr. Clark in particular are outside the scope of the Committee’s charter and are neither proper subjects of the Committee’s subpoena, nor any subsequent attempt to enforce the subpoena.

Finally, I would kindly request a response to the objections set out in this letter, which may include a proposal to me by the Committee as to a more limited scope of inquiry narrowed to January 6—something that I would be happy to engage on to try to reach an agreement.  And for the avoidance of all doubt, we reiterate that, during continued discussions and at all times, we reserve all other objections as may be applicable under the circumstances.

Respectfully,

Harry W. MacDougald