The Senate Judiciary Committee has released its witness lists for the Kavanaugh hearing starting on Tuesday. On one side are a diverse group of people including leaders of the Supreme Court Bar and the other side is John Dean. Democrats seemingly have no interest in Kavanaugh but are trying to score some sort of larger political point. As the Hill puts it:

Dean is among more than a dozen witnesses selected by Democrats on the Judiciary Committee. The former White House counsel "will speak about the abuse of executive power" during his appearance, according to Sen. Dianne Feinstein (Calif.), the top Democrat on the panel.

Contrast this with the Majority witness list which includes some of the greats of the Supreme Court Bar:

The Honorable Theodore B. Olson, Partner, Gibson Dunn & Crutcher; Former Solicitor General, United States Department of Justice, Washington, DC Ms. Maureen E. Mahoney, Former Deputy Solicitor General of the United States, Washington, DCThe Honorable Paul Clement, Partner, Kirkland & Ellis LLP; Former Solicitor General, United States Department of Justice, Washington, DC.

(This is the second in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the third is here, and the next installments will be posted in the next few days.)

Commissioner Weintraub's Personal Staff Routinely Trolls President Trump and Criticizes All Things Republican

Since President Trump took office, Weintraub's personal staff has been tweeting almost daily invective about President Trump and Republicans on the Twitter account altFEC, self-described as "The unofficial Resistance team of the U.S. Federal Election Commission." "Resistance" means resistance to the Trump Administration.  Consider a few examples of the kind of deep enmity and prejudice expressed toward President Trump: 

• Gleefully: "Mr. Art Of The Deal got his ass kicked by the D.C. City Government"

• Directed at a Donald Trump tweet on legal issues likely to be addressed by the FEC:  "Once this is over, however it ends, we’re going to wonder, 'Why did we put up with this nuttiness for so long?'"

• Retweeting James Comey's criticism of President Trump on issues likely to come before the FEC:  "Thought experiment: Make a list of all the public figures in this country and around the world the current president has criticized. Ask yourself: 'Why is Putin missing from the list?' No responsible American should ever stop asking, 'Why?'" 

• Mocking Trump:  "Where are Hillary Clinton's emails? Mr. Trump said.  Oh, here's one.  [faux email from Hillary Clinton to Donald Trump]  Resign, you treasonous clown." 

• Criticizing Trump:  "Oddly, as his behavior gets more erratic & overtly pro-Russian, it may actually be a sign that Trump is *not* a Russian agent. Because at a certain point – one already passed – you would think his handlers would say, 'Yo, dude, tone it down a little. You’re being too oobvious [sic].'” 

• Prejudging alleged payments by Trump to Cohen as undisclosed campaign expenditures, a matter likely to come before the FEC:  "So, the payments Trump made to Cohen to cover the #Stormy payoff included money for “a few other situations that might have been considered campaign expenses,” Giuliani tells @costareports. Why weren’t *these* expenses disclosed? https://t.co/lKJFLA1fbA" 

• Promising Trump detractors to conduct private investigations of their secret complaints.

• Exhorting cable carriers to drop Fox News -- a news channel Commissioner Weintraub concluded broke the law by hosting a Republican debate in 2016:  "Here's a question. The more people watch #FoxNews, the less well-informed they are about basic facts. Arguably, FOX is tearing at the fabric of our democracy. They have a 1st Amendment right to exist, but not to be carried by cable companies. So: Why do cable companies carry it? https://t.co/0Ttqvrl5EQ"   

Generally the first defense of any Secretary of State or chief election official caught in a scandal is to claim partisanship. And Kentucky’s Secretary of State Alison Lundergan Grimes has quite a scandal on her hands. Secretary Grimes was a darling of MSNBC for her Senate run against Mitch McConnell a few year back. Yet, it is her day job as Secretary of State that is getting her in trouble with both sides of the aisle.

In a nine-page letter to the Kentucky State Board of Elections, State Board of Elections Executive Director Jared Dearing, wrote:

Dearing, a Democrat, said in his letter that since he took the position last year either Grimes or her assistants have asked him and Scutchfield to do things, "we have found to be inappropriate, unethical and potentially illegal."

Among those unethical things are to ignore a consent decree which required Grimes’ office to clean up Kentucky’s voter rolls:

Dearing said in his letter, which he provided to the Courier Journal on Monday, that after about 100,000 postcards were returned he was ordered to stop scanning them by Grimes' staff. He said they were told to "slow walk" the process after he and Scutchfield raised concerns about disobeying the federal court order.

On Friday Vice President Mike Pence addressed the RNLA and issued a call to action to confirm Judge Brett Kavanaugh to the Supreme Court. Vice President Pence stated:

We're going to fight to take his case all the way to confirmation. We need your help. We need your continued engagement. We need the RNLA, not just those of you who came to the lunch today, but your 6,000 members, who are leaders in your community, to get out and spread the word among your peers. Spread the word in every state in the nation. Get the word to every Senator from every state about what Judge Brett Kavanaugh brings.

He also spoke on the qualifications of Judge Kavanaugh:

Judge Kavanaugh graduated from Yale Law School, fellow in the United States Solicitor General’s office, clerked in the Third Circuit, and then he clerked for the man who he would be replacing on the Supreme Court, Justice Anthony Kennedy. He also served as Associate Counsel at the White House. And since 2006 served on what many regard as the second highest court in the land, the Court of Appeals of the District of Columbia. During his time on the bench, Judge Kavanaugh has been called a judges’ judge. A stunning 39 of his 48 clerks have gone on to clerk at the Supreme Court. His peers in the judiciary rightly see him as a thought leader. His opinions are cited by courts across the country on a regular basis. And the Supreme Court has endorsed Judge Kavanaugh’s opinions more than a dozen times. I think that’s worth a round of applause. And the truth is Judge Brett Kavanaugh has established a record of enormous weight and credibility on the bench. He’s written 307 opinions and they have proven not only the strength of his intellect but also you can see he has a crystal clear judicial philosophy and fidelity to the Constitution of the United States. Judge Kavanaugh has proven his support for our first freedom, religious liberty. He stood for the Second Amendment’s right to keep and bear arms. He's always enforced the Constitution's clear and unambiguous limits on government power, upholding the separation of powers, checks and balances, the principle of federalism that’s essential to our freedom. The truth is, Judge Brett Kavanaugh supports the principles of limited government enshrined by our founders in the Constitution of the United States of America. He is a textualist and an originalist.

He thanked the RNLA for its help in the past and reminded us that President Trump's last Supreme Court nominee was a former RNLA Member, Neil Gorsuch:

The men and women in this room have been supporting judicial nominees across the board.  You and your peers across the county made our case in your states, with your peers and in the public debate. The President and I are truly grateful for everything you've done. In fact, I know you're particularly grateful that we've also nominated a number of RNLA members into positions on the courts around the country, including one who ended up serving with distinction on the 10th Circuit Court of Appeals, a former RNLA member by the name of Justice Neil Gorsuch. What a great guy.   In nominating Justice Gorsuch, President Trump kept his word; kept his word to appoint a justice in the mold of the late and great Justice Antonin Scalia. And frankly seeing the early days of his tenure on the Supreme Court of the United States, Justice Gorsuch has already proven, already proven himself for the trust the President has placed in him, in his commitment to the Constitution and the principles of limited government that are enshrined there. President Donald Trump and I could not be more proud of Justice Gorsuch.We also cannot be more proud of the next Justice of the Supreme Court of the United States Judge Brett Kavanaugh.

It is really important that as lawyers, RNLA members do their best to live up to the praise and fight for Judge Kavanaugh and “make the case.” Please sign our letter supporting Judge Kavanaugh here.      

Senate Judiciary Chairman Chuck Grassley spoke on the Senate floor(video here) to call out the Democrats' latest tactic today on Judge Kavanaugh's confirmation to the Supreme Court:

Over the past day, several of my colleagues issued statements calling for Judge Kavanaugh’s confirmation hearing to be delayed. They claim it’s because President Trump’s former lawyer recently pleaded guilty to criminal violations of campaign finance law, allegedly at President Trump’s direction. 

I’m not going to delay Judge Kavanaugh’s confirmation hearing. There’s no precedent for delaying a hearing in these circumstances. In fact, there’s clear precedent pointing the other way. . . . President Clinton was under investigation for much of his presidency and was impeached for committing perjury. But the Senate didn’t stop confirming his lifetime appointments to the bench. President Trump is not even close to being in the same legal situation as President Clinton. My colleagues’ pleas to delay the hearing ring false. I’ll tell you why. . . . 

The goal has always been the same: delay the confirmation process as much as possible and hope Democrats take over the Senate in the midterm elections. The Ranking Member’s hometown newspaper reported on this strategy recently, calling it an attempt to stall. The strategies might change, but the goal to obstruct the confirmation process remains unchanged.

The Democrats have tried to use their unreasonable demands for huge numbers of largely irrelevant documents as an excuse to delay also:  

They tried pushing for an unprecedented disclosure of Judge Kavanaugh’s executive branch documents, even though we’ve already received more pages of such documents than any previous Supreme Court nominee. And this is on top of his twelve-year judicial track record and other more relevant publicly available materials. . . . 

On a related note, we are working to make as many of the documents we receive publicly available as soon as possible. It’s common practice to receive documents as “committee confidential” until we can assure ourselves that we won’t disclose sensitive, confidential information to the public. . . .  And, of course, all my Senate colleagues are welcome to review “committee confidential” documents at their convenience. Simply get in touch with my staff. They will make sure you have full access to the range of “committee confidential” documents.

And Chairman Grassley recently noted that, contrary to liberal and Democrat complaints about the hiding of records, the majority of the records related to Judge Kavanaugh's service in President George W. Bush's White House Counsel's office are restricted from public access under the Presidential Records Act and the Freedom of Information Act.  Both Presidents Bush and Trump are working to make as many documents available to the Judiciary Committee as possible, but instead of being praised for their transparency, they are being baselessly attacked.  As of yesterday, the Committee had received 430,700 pages of documents, dwarfing the previous record of 180,000 set by Justice Gorsuch.

Chairman Grassley also confirmed that the confirmation hearing for Judge Kavanaugh will start on September 4, allowing enough time for him to be confirmed before the start of the Supreme Court term this fall.  Thanks to Chairman Grassley for standing against all the Democrats' attack and delay tactics by consistently pointing to the facts.

(This is the first in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The second is here, the third is here, and the last installments will be posted in the next few days.)

From the Department of Justice to FBI leadership to the halls of Congress to American public opinion, nobody can credibly defend the conduct of FBI investigator Peter Strozk.  His blatant and deeply personal bias against Donald Trump, the subject of his investigation, and his politicization of FBI investigations cannot be condoned.  Strozk and his girlfriend Lisa Page were properly removed from the Mueller investigation team.  Even after their removal, however, their involvement in the Clinton email investigation and the Russian meddling investigation has left both investigations tainted. 

Which brings us to other law enforcement agencies and officials whose prejudice and enmity for President Trump is as deep and even more vocal than Peter Strozk's.  Strozk was a small player, one of several line investigators, and his personal emails and opinions about Trump -- as explicit and biased as they were -- pale by comparison to mounting evidence of anti-Trump prejudice in the office of Democratic Federal Election Commission Vice Chair Ellen Weintraub -- a Commission decision maker and powerful leader of the agency who is scheduled to become agency Chair in four months.  

Commissioner Weintraub has joined the political opposition to President Trump.  Weintraub started lobbing gratuitous political volleys at President Trump soon after he was took office.  She publicly jousted with President Trump over claims of voter fraud, an issue outside the jurisdiction of the FEC.  That drew a complaint to the FEC Inspector General.  Weintraub quickly -- and lamely -- attempted to link her foray into the President's voter fraud politics to her official duties as a Commissioner, while at the same time rallying her own political support on Twitter and elsewhere, declaring that she would not be "silenced."  

But Weintraub's post hoc effort at legitimization was transparent. A single Commissioner has no authority to launch an investigation by letter to the President (or any other witness).  Her missives to the President could not possibly constitute the conduct of official FEC business because it was unauthorized and out of order.  This was confirmed when Project Veritas confronted Weintraub with actual evidence of voter fraud in New Hampshire and asked her pointedly what she intended to do about it, butWeintraub suddenly claimed she could not comment publicly on the issue.  She has done nothing since that time to prioritize the issue.  Letters loudly jousting with the President took priority, but serious, official action can wait and must remain hush-hush.       

Weintraub also published a mean-spirited diatribe against the President's legal counselin a Washington Post op-ed at the beginning of the administration.  That's far afield from the business of the FEC, and its terms were so personal and nasty that Weintraub's hatred for the Trump campaign and its lawyer were on full display.  

All this political jousting indicates one thing: that Commissioner Weintraub started off with a clear bias against Donald Trump, his lawyer, and his administration.  

On Saturday, the New York Times published an expose on how White House Counsel and former Trump campaign counsel Don McGahn has been cooperating with the Mueller investigation and has given thirty hours of interviews.  Yet, instead of being praised for his cooperation and transparency, Mr. McGahn's character is being attacked by the "Gray Lady" in its ongoing efforts to undermine President Trump. 

The Wall Street Journal's editorial board responded, pointing out that Mr. McGahn could have only cooperated with President Trump's permission:

The thesis of the New York Times story is that Mr. McGahn cooperated in a way that could hurt Donald Trump in order to protect himself and because he doesn’t trust the President. This fits the media narrative that Mr. Trump is covering up his collusion with Russia and his obstruction of justice, and thus Mr. McGahn must be scrambling to save himself. 

Yet lost in the resulting tempest is a crucial fact that appears to contradict this spin: Mr. Trump had to waive executive privilege for Mr. McGahn to cooperate with Mr. Mueller. . . . But as White House counsel Mr. McGahn represents the Presidency. He is a careful enough lawyer to advise Mr. Trump that agreeing to answer Mr. Mueller’s questions would waive executive privilege. And the Times reports that Mr. McGahn’s attorney, William Burck, said on the record that Mr. McGahn cooperated only after Mr. Trump waived any privilege claim.

Executive privilege is held by the chief executive - the President - and as with other legal privileges, only the holder of the privilege can waive it.  Unlike President Clinton when investigated by Ken Starr or President Obama's administration when investigated by Congress, President Trump has nothing to hide and is cooperating with the Mueller investigation, despite its problems and failure to return any evidence of wrongdoing by the President or his campaign after over a year of investigation: 

This isn’t what you’d expect if Mr. Trump is leading a coverup. . . . Yet when Mr. Trump doesn’t invoke privilege for his White House counsel, he gets no credit. . . . Keep in mind that Mr. Trump’s lawyers cooperated extensively with Mr. Mueller for months, turning over tens of thousands of documents—also without claiming executive privilege.

The Wall Street Journal's editorial board pointed to the heart of the problem in the Times' misleading report - the effort to portray the Trump White House as fractured.  Mr. McGahn has been loyal to the Presidentthroughout his cooperation with the Mueller investigation: 

Mr. McGahn has been one of the President’s most effective advisers—notably on judicial nominations. But some in and outside the White House resent his influence and might want to portray him as undermining Mr. Trump. The bottom line is that readers should remain skeptical about what is reported about Mr. Mueller’s probe, waiting to see the evidence he actually produces.

To see the double standard here, one must only imagine what the news stories would be were the political parties reversed.  The mainstream media would lament the waste of taxpayer dollars spent on a lengthy, unnecessary investigation by the Republicans and either applaud a Democratic administration for cooperating with it for the good of the country or defend the administration for not cooperating.

The trial of Paul Manafort has been frequently in the news the past few weeks, and to listen to the mainstream media, it would appear that the trial is about Mr. Manafort's crimes on behalf of President Trump during his brief time with the Trump campaign in 2016.  But as Hans von Spakovsky pointed out, the trial has nothing to do with President Trump, the Trump campaign, or alleged Russian interference in the 2016 election:

But when it comes to the mandate given to Mueller on May 17, 2017, we’ve learned absolutely nothing. Mueller was charged with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” 

But neither Gates nor any other witness at the Manafort trial has testified about the Russian election interference or any alleged collusion between the Trump campaign – or Trump himself – with the Russians. . . . All of the testimony at the Manafort trial has addressed events that occurred long before Manafort went to work for 2016 Trump campaign. The testimony has focused on Manafort’s and Gates’s activities as alleged “unregistered agents” representing the Ukrainian government starting in 2006. 

It would be absurd to argue that Manafort’s other clients in the 12 years since then are somehow to blame for any criminal activity he may have engaged in – and prosecutors aren’t even trying to point the finger at President Trump for these activities.

As Mr. von Spakovsky describes, the only connection between President Trump and Mr. Manafort's alleged misdeeds is how President Trump's opponents will try to attack him through his brief association with Mr. Manafort:  

If Manafort is found guilty of tax evasion and bank fraud, some will try to use his very brief association with the Trump campaign to tar the president. But such criticism would ignore two crucial facts. 

First, presidential campaigns are not law enforcement agencies. They have neither the capacity nor the resources to do detailed background investigations on the thousands of individuals who volunteer to work with a campaign. 

Second, Manafort appeared to be a successful, ethical businessman. Even the government – including the IRS, the FBI and our intelligence agencies – had no idea that he was allegedly engaging in any wrongdoing for a foreign government through an elaborate scheme of offshore bank accounts and shell companies, until Mueller’s office started investigating him. 

While the trial of Mr. Manafort is rife with political overtones, it is important that he not only receives a fair trial but also that the coverage of any evidence presented and the eventual verdict is accurate and not used as a political weapon through distorting the subject matter of the trial.

In today's Senate Judiciary Committee hearing, former Senate Judiciary Committee Chairman Patrick Leahy made the case for his needing to retire in a bizarre rant against “his friend” current Senate Judiciary Committee Chairman Chuck Grassley and the Senate Judiciary Committee over the nomination of Judge Kavanaugh.  Leahy talked about “wandering in the woods” and compared the hearing to his childhood love of “Alice in Wonderland.”  In other parts he made some outlandish claims that made him look like he was in some sort of fantasy woods created by Lewis Carroll.

One example.  Leahy said:

“When I was Chairman . . .[we] requested the full universe of Justice Kagan’s documents. . . .   We received 99% of them.”

As Chairman Grassley pointed out,

“The [Judiciary] Committee did not receive 99% of Justice Kagan’s record; we did not get her Solicitor General records.”

Leahy made all kinds of other accusations over the number of records turned over.  It is apparent that no number would be enough. 

Putting aside the debate over numbers of documents, there is the more important debate over relevancy.  It seems all rational observers would agree the most relevant part of Brett Kavanaugh’s record for determining if Judge Kavanaugh is fit to be a Supreme Court Justice is his time as an appellate court judge. 

Among those who agreed with this rational standard in the past is Senator Leahy.  In 2009 during the confirmation hearing for Justice Sotomayor, it was Senator Leahy who said:

“In truth, we do not have to speculate about what kind of a Justice she will be because we have seen the kind of judge she has been.”

Sotomayor had one less year then Judge Kavanaugh on the Court of Appeals at the time of her confirmation (although more time as a judge).  It seems like 2018 Senator Leahy should listen to 2009 Senator Leahy and review Judge Kavanaugh’s judicial record.  If he left the woods of wonderland, he would realize that would give him what he needs.

Charles Koch Institute's Senior Fellow for Free Speech and Toleration Casey Mattox, who spoke on campus free speech at the RNLA's National Policy Conference in April, described how three First Amendment cases from the Supreme Court's October 2017 term would impact free speech on college and university campuses.  First, on Minnesota Voters Alliance v. Mansky:

The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. . . . In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination. 

Some attorneys have argued that this "unbridled discretion" doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. . . . But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.

Second, Mr. Mattox writes of the impact of Janus v. AFSCME:

Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” . . . In Southworth v. Board of Regents, University of Wisconsin System, the Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. . . . After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.

And finally, on NIFLA v. Becerra: 

Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment. 

The Roberts Court, particularly in the last term with the addition of Justice Gorsuch, has been a strong speech-protective Court.  Judge Kavanaugh has a strong record on free speech cases and will likely continue this trend when he is confirmed to the Supreme Court.  While the Court does not hear many campus free speech cases, mainly because universities' speech-suppressing policies are usually clearly unconstitutional and quickly dropped or invalidated once challenged, its First Amendment jurisprudence has many implications for free speech on campus.