Government Too Often Gets in the Way of Home Cooking Sales, New Study Finds

When cooking your favorite holiday dishes, remember this friendly advice from the FDA: “The most important ingredient in preparing food for the holidays isn’t love (sorry granola people), salt (sorry New York Times), or cannellini beans (sorry Oprah). It’s food safety.

But if you’re among the growing number of people who sell homemade food, government safety regulations might be getting in the way of your profits.

A new report by the Institute for Justice surveys state regulations on the cottage food industry and finds that some needlessly hinder the success of entrepreneurial home chefs.

Consider the case of Kriss Marion, a Wisconsin chef. As co-founder of a local farmer’s market and a bed-and-breakfast owner, Marion regularly served homemade baked goods to patrons. But state law forbade her from selling them.

So, she would feed her leftovers to animals or give them away for free. That is, until she teamed up with other home bakers and the Institute for Justice to successfully challenge the law in court.

The report shows that while many home chefs like Kriss sell their goods as a source of supplemental income or as a hobby, it can also help people achieve financial independence. That income is typically invested in the cooking business, a nest egg, or used to pay the bills.

Only about 20 percent of the 775 home chefs that the Institute for Justice interviewed reported selling their food sales as their primary occupation. Yet the survey results suggest that this business is particularly attractive to women in rural areas who report below-average income.

Especially in times when the economy slackens and rural communities struggle to attract jobs, selling safe, fresh, and tasty home food items can be exactly the opportunity that a family and their community will look for. It provides self-employment with low overhead, relatively low investment, and a great family life.

Others may see selling homemade food as one of their few available economic opportunities. After an injury left Jane Astramecki unable to work outside her home, she built “Jane Dough Bakery” to sell baked goods from her own kitchen.

By teaming up with the Institute for Justice, Astramecki challenged a state restriction on home food sales and was soon able to help support her family through her own business.

These businesses also empower aspiring chefs to test their products before going all in on a brick and mortar venue.

But as Marion and Astramecki’s stories illustrate, some states put excessive red tape in the way of a would-be Julia Child or Wolfgang Puck.

States can and do impose a broad array of restrictions on who can sell food, where, when, in what quantity, and what types. Those rules most often seek to protect the public from harmful, unsafe foods.

That is undoubtedly an important state interest.

But the Institute of Justice’s report confirms numerous studies on occupational licensing laws, including several by Heritage Foundation senior legal scholar Paul J. Larkin, Jr., that show how “today’s licensing regimes prohibit individuals, sometimes on pain of criminal liability, from engaging in conduct that poses no risk of harm to any person or to the community.”

“Such a regime,” Larkin notes, “causes injury rather than protecting against it.”

And according to the Institute of Justice’s research, there “appears to be no rational link between many restrictions on cottage food sales and any legitimate government concern for public health and safety.”

Meanwhile, home cooking businesses can bring prosperity and well-being to a family and value to their neighbors-turned-customers.

As the report suggests, “[s]tates can, and should, take steps to encourage entrepreneurship by easing restrictions on cottage food producers.”

States that have relaxed cottage food laws or expanded protections for those who are already in the industry deserve kudos. As the number and size of safe home cooking businesses increase in states like Texas, California, and Minnesota, other states should follow their lead and enhance economic liberties for home cooks, too.

And as the industry grows, states with greater regulatory burdens should take the Institute of Justice’s hint: “leave the [lawsuit], take the cannoli.”

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Court Ruling Allows Consumers, Not Bureaucrats, To Regulate ‘Scandalous’ Trademarks

Should federal bureaucrats be able to reject trademarks for brand names that they consider “immoral” or “scandalous”?

On Dec. 15, in In re Erik Brunetti, the U.S. Court of Appeals for the Federal Circuit said “no,” ruling that the First Amendment leaves consumers to decide which brands are too offensive to buy—without help from lawyers in Washington.

A federal law called the Lanham Act prohibits registering trademarks that are immoral or scandalous. Lawyers at the U.S. Patent and Trademark Office handle any such inquiry by asking whether a “substantial composite of the general public” would find a proposed mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; … or calling out for condemnation.”

Or, more simply, the Patent and Trademark Office may deny a trademark that “contemporary attitudes” deem “vulgar.”

In 2011, Erik Brunetti sought a federal trademark for a clothing brand that he founded in 1990 under a sensational spelling of an expletive, “fuct.” Patent and Trademark lawyers refused to register the mark after they referenced multiple dictionaries and decided that the term is immoral or scandalous.

On appeal, the Federal Circuit agreed, finding Brunetti’s brand to be crass and offensive.

Nonetheless, the court held that the prohibition on immoral or scandalous trademarks violates the First Amendment.

Judge Kimberly Ann Moore, joined by Judge Kara Farnandez Stoll, wrote for the court that “[t]here are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public.”

It is a worthwhile policy debate to ask whether or not it is good for our culture to open the marketplace to vulgar trademarks.

That puts a greater onus on store owners to consider what goods and services they wish to sell, and on individuals, particularly parents, to assess what they and their children buy.

But the court’s opinion builds on the Supreme Court’s ruling in June, in Matal v. Tam, that the Lanham Act’s similar “disparagement” provision violated the First Amendment’s free-speech clause.

That provision barred registering trademarks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” There, the Patent and Trademark Office rejected Simon Tam’s bid for federal trademark registration of the name of his Asian rock group, the Slants, because it thought that the term disparaged Asians — like Tam and his bandmates.

Justice Samuel Alito wrote for a plurality of the court (joined by Chief Justice John Roberts and Justices Clarence Thomas and Stephen Breyer), that “[s]peech may not be banned on the ground that it expresses ideas that offend.”

Alito continued, “The proudest boast of our free-speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

The court rejected the government’s argument that it can restrict trademarks because they are government speech, just like state advertising.

The court was also unpersuaded by the government’s theory that trademark registration is a federal subsidy or program that confers broad authority to restrict trademarks that it finds offensive.

Heritage senior legal fellow Alden Abbott wrote that “by enhancing legal protection for a wider variety of trademarks, the Tam decision has paved the way for the expansion of mutually beneficial marketplace transactions, to the benefit of consumers and producers alike.”

Heritage legal scholar Elizabeth Slattery also wrote that the court’s decision in Tam “continues the trend of cases extending First Amendment protection for offensive speech, such as burning crosses, animal ‘crush’ videos, violent video games, lying about military honors, and the Westboro Baptist Church protesting military funerals.”

In In re Erik Brunetti, the Federal Circuit carried that trend one step further, finding that the Supreme Court’s reasoning in Tam applied with equal force to the Lanham Act’s “immoral or scandalous” provision.

In order to restrict speech based on its content, the government must prove that its restriction is “narrowly tailored” to advance “a compelling interest.”

The court found that the government’s only asserted interest for prohibiting “immoral or scandalous” trademarks was “protecting public order and morality”—and that did not pass muster.

The court also wrote that the provision could not pass the lower standard, established in Central Hudson Gas & Electric Corporation v. Public Services Commission of New York (1980), for restrictions on commercial speech, which must be “narrowly drawn” to further a “substantial interest.”

The court found that the Lanham Act’s “immoral or scandalous” provision failed that test in part because the Act does not prevent parties from branding products with a mark of their choosing and advertising them to the public.

“In this electronic/Internet age,” the court wrote, “to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed.”

The “immoral or scandalous” provision was also doomed, at least in the court’s eyes, because it was too subjective and inconsistently enforced.

Even the Patent and Trademark Office once called “the determination of whether a mark is scandalous or disparaging” a “necessarily … highly subjective” inquiry. And “it is largely because governmental officials cannot make principled distinctions in this area,” the court continued, “that the Constitution leaves matters of taste and style so largely to the individual.”

The Patent and Trademark Office’s long history of approving some offensive marks while rejecting similar ones, evidenced by pages of vulgar trademarks included in the Federal Circuit’s opinion, confirms its subjectivity.

In his concurring opinion, Judge Timothy Dyk wrote that he would limit “the immoral-scandalous provision’s scope to obscene marks in order to preserve its constitutionality.”

Judge Dyk’s approach may have comforted those who would rather keep nasty products from coming soon to a store near them. But Judge Moore wrote for the court that “[w]hile the legislature could rewrite the statute to adopt such a standard, we cannot.”

Only Congress can amend a law. That remains true no matter how prudent an amendment might be.

So, the court’s ruling allows businesses to register trademarks that previously may have been prohibited as immoral or scandalous.

That may worsen the unfortunate trend, which economist Walter Williams recently described for The Daily Signal, of the coarsening of American culture.

But as Williams wrote, “Society’s first line of defense is not the law, but customs, traditions, and moral values … behavioral norms—mostly transmitted by example, word of mouth, and religious teachings.”

Now, consumers, rather than a small group of federal agency lawyers, will have greater responsibility to decide what goods and services are too vulgar for them and their families.


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New York Attorney General Has Filed 100 Acts of Resistance Against Trump

The New York attorney general has transformed his office into a bastion of the resistance movement by taking 100 legal or administrative actions against the Trump administration this year.

Eric Schneiderman’s legal team sued the Federal Communications Commission over its rollback of net neutrality regulations, challenged each successive version of the travel ban in court, and filed innumerable amicus briefs and formal letters challenging the perceived gutting of consumer finance protections and civil rights.


“We try and protect New Yorkers from those who would do them harm,” Schneiderman told The New York Times in a recent interview. “The biggest threat to New Yorkers right now is the federal government, so we’re responding to it.”

Though other state attorneys general have taken to challenging President Donald Trump in court, Schneiderman has taken a particularly aggressive stance, bolstering his political capital in a virulently anti-Trump state.

Enmity between the pair goes back a long way, beginning in earnest when Schneiderman spearheaded the investigation into fraudulent practices at Trump University in 2014. Since that time, Trump has referred to the attorney general as a “total lightweight,” a “total loser,” and “the nation’s worst AG.” Trump has also suggested Schneiderman should submit to a drug test because the attorney general “cannot be a cokehead.” Trump reached a settlement in the Trump University case in 2016.

Schneiderman’s office has maintained a rapid pace, challenging the administration at every turn. Most recently, New York joined 14 other states in suing the Environmental Protection Agency “for failing to meet the Clean Air Act’s statutory deadline” on air pollutant levels. The state also recently sued the administration for refusing to pay for a 17-year-old illegal immigrant’s abortion.

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How Trump Changed the Courts in 2017

Even before he was president, Donald Trump was clear about how he would prioritize putting Constitutionalists on the courts.

And now, at the end of 2017, we can see how his presidency is already having an effect on the courts.

On May 17, 2016, then-candidate Trump did something unprecedented. He released a list of 11 judges as a potential replacement for Justice Antonin Scalia, who had passed away earlier in the year.

On that occasion, Trump stated:

Justice Scalia was a remarkable person and a brilliant Supreme Court justice. His career was defined by his reverence for the Constitution and his legacy of protecting Americans’ most cherished freedoms. He was a Justice who did not believe in legislating from the bench and he is a person whom I held in the highest regard and will always greatly respect his intelligence and conviction to uphold the Constitution of our country.

The following list of potential Supreme Court justices is representative of the kind of constitutional principles I value and, as president, I plan to use this list as a guide to nominate our next United States Supreme Court justices.

Trump graciously credited the Heritage Foundation and the Federalist Society with providing names that informed his thinking on the matter.

In September 2016, Trump added ten names to that list —  including Neil Gorsuch, who was subsequently nominated and confirmed to the Supreme Court after Trump became president.  Recently, now-President Trump updated that list by adding five new names.

The list was instrumental to Trump winning the election.  It helped assuage the concerns of many conservatives and independents who were skeptical about Trump, but who cared a lot about the direction of the Supreme Court and the law and who did not want Hillary Clinton nominating the next Supreme Court justice.

The well-crafted list persuaded a lot of wavering voters that, at least with respect to the courts, they could trust Trump to nominate judges in the mold of Scalia and Clarence Thomas, that is to say originalists and textualists.  Moreover, the Trump administration made clear that it would prioritize nominating highly-qualified men and women to fill life-tenured positions on the federal bench.

So how has the president done in his first year in office in terms of making good on that promise?  Quite well indeed.

While the crowning achievement of the year was clearly the confirmation of Justice Neil Gorsuch to the Supreme Court, it is worth celebrating the fact that the Senate confirmed 12 Circuit Court judges this year —  the largest number of  appellate judges confirmed during the first year of any president in history (beating out John Kennedy and Richard Nixon by one).

While the Supreme Court only hears about 70 cases per year, the federal appellate courts consider roughly 50,000 cases per year.  In a very real way, therefore, the buck often stops at the lower appellate courts when it comes to deciding important legal issues.

The White House made filling these crucial appellate vacancies a priority, and that strategy has paid off in spades.  The intellect and overall caliber of each of the confirmed appellate judges — Stephanos Bibas (3rd Circuit), Jim Ho (5th Circuit), Don Willett (5th Circuit), Amul Thapar (6th Circuit), John Bush (6th Circuit), Joan Larsen (6th Circuit), Amy Coney Barrett (7th Circuit), Steve Grasz (8th Circuit), Ralph Erickson (8th Circuit), Allison Eid (10th Circuit), Kevin Newsome (11th Circuit), Greg Katsas (D.C. Circuit)   —  has been exemplary.  In short order, I expect them to become intellectual leaders on the courts where they serve.

The full Senate will soon consider David Stras for another vacancy on the 8th Circuit and Kyle Duncan for a vacancy on the 5th Circuit, and last week, the Senate Judiciary Committee held a hearing for Lisa Branch for a vacancy on the 11th Circuit. All are outstanding nominees who are likely to be confirmed.

Of course it’s not been all sunshine and roses.  There have been some hiccups along the way, most prominently with the recent, highly-publicized withdrawal of three federal district court nominees.

Moreover, while Trump has now set the record for circuit court confirmations during a president’s first year in office, with only 19 total judges confirmed during his first year, he lags far behind other presidents  — including George W. Bush (28), Bill Clinton (28, including Ruth Bader Ginsburg), Ronald Reagan (41, including Sandra Day O’Connor), Jimmy Carter (31), and Richard Nixon (25)  —  in terms of the total number of judges confirmed.

And it’s not difficult to figure out why.

Having lost the ability to filibuster judicial nominees  —  when then-Majority Leader Harry Reid exercised the “nuclear option” in November 2013 in order to pack the influential D.C. Circuit Court of Appeals with three Obama nominees  —  the Democrats attempted to use the blue slip process as a one-senator veto of judicial nominees, until Sen. Chuck Grassley, R-Iowa, effectively put an end to that abusive practice, at least with  appellate nominees.

As they have with many of the president’s executive branch nominees, the Democrats have gummed up the process for judicial nominees by forcing the Republican majority to take cloture votes on 18 of the 19 judges who were confirmed this year.  By comparison, the Senate was forced to take a cloture vote on only one of President Barack Obama’s nominees during his first year in office, and no closure votes were required during the first year of any other president dating back to Richard Nixon.

Each of these cloture votes —  including for judicial nominees who are completely non-controversial  —  causes unnecessary delays (up to 30 hours after cloture is invoked) on the floor of the Senate before a nominee receives a vote.  The Senate is currently considering several proposals to address this issue going forward.

With 167 current and future vacancies that have already been announced, with 50 nominees pending to fill those vacancies (including 10 who were announced Wednesday), there is clearly more work to do.

Nonetheless, it is worth taking a moment to offer congratulations and kudos to President Trump, White House Counsel Don McGahn, Senate Majority Leader Mitch McConnell, and Senate Judiciary Committee Chairman Chuck Grassley for a job spectacularly well done!

The post How Trump Changed the Courts in 2017 appeared first on The Daily Signal.

Supreme Court Tellingly Rejects Lower Court Roadblock to Elimination of DACA Program

On Dec. 20, in an unsigned, four-page opinion, the Supreme Court struck down a lower court order that severely burdened efforts by the  Trump administration to end the Obama administration’s Deferred Action for Childhood Arrivals Program (DACA), which has shielded certain younger illegal aliens from deportation.

This is good news, a helpful sign that the Supreme Court will not give unelected judges carte blanche to hamstring the federal government’s legitimate efforts to enforce immigration law restrictions, consistent with the current statutory law.

Continuation of DACA offends the rule of law. As Heritage Foundation scholar Hans von Spakovsky has explained, DACA should be eliminated as a matter of law:  “Why?  Because the president doesn’t have the authority to decide who should be in the United States legally when it comes to immigrants.  That power resides entirely in Congress [because] . . . the Constitution says it”.

In short, allowing a category of illegal aliens not to be deported requires an act of Congress, not an arbitrary presidential decision.

DACA was established in 2012 by a Department of Homeland Security (DHS) memorandum.  It applied to a large number of young illegal aliens who met certain conditions: they illegally entered the U.S. before the age of 16; were under the age of 31; had “continuously” resided in the U.S. since June 15, 2007; and were in school, graduated, or honorably discharged from the military.  DACA provided a period of deferred action (a promise that the alien would not be deported) as well as access to certain government benefits (including work authorizations, Medicare, Social Security,, and the earned income tax credit). The period of deferred action was initially for two years, but that period was extended to three years by a second DHS memorandum on November 14, 2014. The Trump administration took a different approach. On Sept. 5 then-Acting DHS Secretary Elaine Duke issued a new memorandum terminating the DACA program and all benefits provided under it effective March 18, 2018, unless President Donald Trump provides another extension of the program or Congress passes a bill addressing the issue.  The acting secretary stated that her determination was based in part on the attorney general’s conclusion that DACA was unlawful and likely would be enjoined in potentially imminent litigation.

Shortly thereafter, the administration found itself in a legal battle. Five related lawsuits challenging the acting secretary’s Sept.5 determination were filed in a federal district lower court in California.  The suits argued that the determination violated the Administrative Procedure Act(which governs the way in which federal administrative agencies may propose and establish regulations), and denied affected aliens due process and equal protection under the law.

On Oct. 17, the district court issued an order accepting plaintiffs’ contention that the 256 page record DHS used to support its Sept.5 determination was “incomplete.”  In so doing, the court imposed an enormous burden on the government, ordering it to turn over all “emails, letters, memoranda, notes, media items, opinions and other materials” that fell into several broad categories.

The Justice Department unsuccessfully challenged this ruling before the largely liberal Ninth Circuit Court of Appeals, and then appealed to the Supreme Court.

In its short unsigned opinion, the Supreme Court held that, before imposing its heavy-handed documentary request, the district court first should have ruled on the government’s two “serious” threshold arguments – that the decision to terminate DACA was unreviewable under the Administrative Procedure Act  because it was “committed to agency discretion,” and that the Immigration and Nationality Act deprived the lower court of jurisdiction.  As the Court explained, “[e]ither of those arguments, if accepted, likely would eliminate the need for the [d]istrict [c]ourt to examine a complete administrative record.”

Accordingly, the Supreme Court ordered the district court to rule on the government’s threshold arguments and certify its ruling for immediate appeal “if appropriate.”  Thereafter, if the case was not dismissed, the district court and the Ninth Circuit “may consider whether narrower amendments to the record are appropriate.”  The Supreme Court concluded by stating that its order “does not suggest any view on the merits of” the case.

In sum, although the Supreme Court has removed (for now) one unnecessary burden to elimination of DACA, the final judicial word has not been said.  Let us hope that, in considering this case, the federal courts remember that it is their job to construe the law and say what it is – not to impose their subjective immigration policy preferences on the American people.

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The State Government Agency That Spied on Citizens

A new report on a government spying operation conducted by partisan bureaucrats should outrage and scare Americans everywhere.  It shows what can happen when, as the report says, partisans “weaponize” a government agency and use its powers to advance “political goals.”

Americans already have seen that when federal bureaucrats such as Lois Lerner or Samantha Power do that with the fearsome power of the IRS and our intelligence agencies, we face a threat to our liberty and the democratic process that is unparalleled in our history.

The 88-page report by Wisconsin Attorney General Brad Schimel details the notorious “John Doe” investigations that went after almost every conservative, nonprofit organization in Wisconsin (the state chapter of Club for Growth among them) for supposed violations of campaign finance laws.

Except that there were not any actual violations of the law, according to the Wisconsin Supreme Court.  The court shut down the prosecutions in 2015, calling the legal theory under which the prosecutors were pursuing the case “unsupported in either reason or law.”

The state’s highest court used the word “amazing” in describing the “breadth” of documents seized by prosecutors through numerous, wide-ranging subpoenas and search warrants.  This included “virtually every document possessed by the [targets] relating to every aspect of their lives, both personal and professional, over a five-year span.”

The report from Schimel, a Republican, has an unbelievable list of 218 subpoenas and search warrants issued in the investigation–and this is only a “partial” list.

Prosecutors treated conservative organizations as if they were dangerous drug cartels or mob operations. As the Wisconsin Supreme Court said, they executed search warrants against the personal homes and families of the leaders of these nonprofits in “pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets’ homes.”

Here is the meritless theory behind the investigations: Any support for issues important to Gov. Scott Walker, such as the bill reducing union power over state government employees, was illegal “coordination.”

As the state Supreme Court said, however, our democracy is supposed to assure the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Instead, the prosecutors’ theories “would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.”

Meet John Doe

These investigations tried to criminalize political speech and political activity protected by the First Amendment.

The John Doe harassment was conducted by the state’s now-defunct Government Accountability Board–the agency responsible for elections and ethics matters–and local prosecutors, led by unrepentant Milwaukee County District Attorney John Chisolm.

As this writer previously reported, the motive of Chisolm, a Democrat, was apparently very personal: His wife was a steward for the teachers union at a local high school and was upset over the union bill sponsored by Walker, a Republican.

The accountability board, known as GAB, was broken up into two separate agencies by the Wisconsin legislature after this debacle, and its former longtime director, Kevin Kennedy, the chief miscreant behind this abusive behavior, retired. Kennedy was part of the state’s elections bureaucracy for nearly 40 years.

Until this report, we only knew about two John Doe investigations.  Amazingly enough, however, Schimel’s investigators discovered a third and secret case, not revealed by bureaucrats, when they searched the former offices of the accountability board.

What Schimel labeled as “John Doe III” went even further that the John Doe I and John Doe II investigations.  According to his report, it “collected hundreds of thousands of private emails from dozens of Wisconsin Republicans (and at least two national conservative leaders, Ed Gillespie and Leonard Leo).” Gillespie, a Republican, just lost the governor’s race in Virginia; Leo is executive vice president of the Federalist Society, the conservative legal group.

The John Doe III investigation gathered over 500,000 personal emails, which the report says were found in “unsecured boxes” in the basement of the board’s former offices. Thousands of private emails from Wisconsin Republicans also were found in several folders on computer servers marked “Opposition Research,” the report says.

In other words, the state agency that was supposed to be the nonpartisan regulator of elections and ethics in Wisconsin was staffed by bureaucrats who labeled Republican legislators as the “opposition” and saw nothing wrong with using the legal process to secretly obtain their personal email communications.

Getting Personal

How personal were these emails, and how far removed were they from having anything to do with elections, campaigning, or fundraising?

Schimel details some of the emails his investigators found on pages 67 and 68 of his report.  They include over 1,000 emails among members of a private Bible study group that met at a church in Middleton, Wisconsin; an email between parents discussing a daughter’s need for an OB-GYN; an email about prescription medications; and “dozens of emails sent to, received from, or regarding radio talk show hosts Mark Belling, Vicki McKenna, and Charlie Sykes.”

That means that emails from this writer, a guest numerous times on McKenna’s radio show, very well may be in this collection.  A leading conservative voice in Wisconsin, McKenna went after the Government Accountability Board and its abusive tactics in the John Doe investigations.

Schimel also found that the John Doe investigators “obtained, categorized, and maintained over 150 personal emails between state Sen. Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information.”

These emails were found in one of the folders marked as “Opposition Research.” Vukmir plans to challenge U.S. Senator Tammy Baldwin, a Democrat, next year.

Leaks to the press by individuals involved in the John Doe investigations sparked Schimel’s probe.

When the courts ruled against the prosecutors, they issued orders that the prosecutors and bureaucrats no longer could review, examine, or access any of the documents they had seized. The Wisconsin Supreme Court later ordered all of the information destroyed and all seized property returned to its owners.

The Leak

Despite those orders, the London-based Guardian newspaper published an article in 2016 linking to 1,500 pages of documents under seal from the John Doe investigations. The leak occurred just 11 days before the U.S. Supreme Court was set to consider the prosecutors’ petition for it to overturn the Wisconsin Supreme Court’s decision ending the prosecution.

Schimel’s extensive investigation concluded that the leak, a criminal violation of the law, came from inside the Government Accountability Board.  From the particular documents leaked and the timing, it was clear to the state attorney general that the motivation was to attempt to influence the U.S. Supreme Court’s decision. The high court, though, ultimately refused to take up the case.

Schimel notes that “only someone with an intimate knowledge of the case, a knowledge of campaign finance law, and familiarity with the leaked documents would know which documents to leak that would respond directly” to issues raised in the petition seeking review by the U.S. Supreme Court.

Schimel also was able to determine the leak did not come from the Wisconsin courts or any of the district attorneys. The source was the accountability board, but that agency so mismanaged–through incompetence or intentional conduct–the handling of all of the documents in an unsecured, unmonitored setting that Schimel could not determine the leaker’s identity with the amount of proof required to win a criminal conviction.

The evidence, however, seems to point to Shane Falk, a former attorney at the accountability board. In his report, Schimel recommends action against a long list of individuals, including referring Falk to the Wisconsin Office of Lawyer Regulation, which oversees the licensing of lawyers and disciplines those who violate ethics rules.

Schimel also recommends initiation of contempt proceedings against nine individuals for violating various court orders issued by the Wisconsin Supreme Court and the lower courts, including for leaving “hundreds of thousands of confidential documents” in the basement of the former board offices “in violation of a Supreme Court order.”

Among the nine are employees, lawyers, and investigators of both the Government Accountability Board and the Milwaukee District Attorney’s Office, as well as the special prosecutor hired to help run the case—Frances Schmitz, a former U.S. Justice Department lawyer.

Prejudging the Evidence

Kennedy, the former head of the accountability board, also is on this list. To its great shame, the National Association of State Election Directors last year gave Kennedy an award despite all of the evidence of his wrongdoing and misbehavior in the John Doe investigations. The fact that Kennedy now is on the board of the U.S. Vote Foundation, a nonprofit voting rights organization, tells you everything you need to know about that entity.

Here is the bottom line, according to Wisconsin’s attorney general, after his review of the evidence in the case, including emails exchanged between prosecutors and Government Accountability Board lawyers:

GAB attorneys had prejudged the guilt of Governor Walker, Wisconsin Republicans, and related organizations that they were investigating and this dramatically influenced their ability to give competent legal advice.

GAB attorneys did not act in a detached and professional manner … they were on a mission to bring down the Walker campaign and the governor himself. … Because the attorneys for GAB (none of whom were experienced criminal prosecutors) prejudged the evidence and what it meant, they had difficulty accepting that their interpretation of the law was wrong.

The Government Accountability Board’s attorneys refused to accept the legitimacy of court rulings against them, too, labeling the rulings as a “bad joke” and “pathetic” and indulging in conspiracy paranoia.  One of the board’s lawyers, commenting on an adverse ruling, said: “I’m not a conspiracy theorist by nature, but something does not smell right here.”

In his report, Schimel writes that the

words and actions by individuals supposedly part of a ‘non-partisan’ governmental body demonstrate … that some or all of these individuals did not maintain the kind of objectivity that is expected of officials legitimately investigating potential civil campaign law violations.  Indeed, it is to the Legislature’s credit that it disbanded GAB following this sordid tale.

This “sordid tale” of government spying on private individuals is a stain on Wisconsin’s reputation.  It should serve as a warning to the public about the dangers of out-of-control, unaccountable government bureaucrats who abuse their power and threaten Americans’ freedom to participate in the political process.

The post The State Government Agency That Spied on Citizens appeared first on The Daily Signal.

After Texts Show Bias of FBI Agents in Russia Probe, GOP Lawmakers Question Justice Official in Testy Hearing

Revelations that FBI investigators who were part of special counsel Robert Mueller’s team sent each other derogatory text messages about Donald Trump during the 2016 campaign dominated a House hearing Wednesday featuring the No. 2 Justice Department official.

The electronic messages disparaging Trump fit into a larger pattern of partisanship undermining the integrity of Mueller’s ongoing probe into allegations the Trump campaign team colluded with Russia, according to legal analysts and government watchdogs.

The Justice Department submitted copies of about 375 of the two FBI agents’ text messages to Congress on Tuesday night, as Politico reported and Republican and Democrat lawmakers confirmed Wednesday during the House Judiciary Committee hearing.

The text messages include several exchanges between Peter Strzok, an official who served in the FBI’s counterintelligence division, and Lisa Page, an FBI attorney. Strzok and Page reportedly were having an extramarital affair at the time they sent the text messages about Trump and other 2016 presidential candidates.

Rep. Darrell Issa, R-Calif., said Strzok’s “strident” texts created an appearance of impropriety and was one reason to appoint a second special counsel to look into wrongdoing within the FBI and the Justice Department designed to “hang” Trump.

“Were you aware of just how biased Mr. Strzok was?” Rep. Louis Gohmert, R-Texas, asked Deputy Attorney General Rod Rosenstein during the hearing.

“No, I was not,” Rosenstein replied.

“It’s not just the FBI agents and their obvious partisanship,” Hans von Spakovsky, a senior legal analyst at The Heritage Foundation, told The Daily Signal. “It is now a whole series of disturbing revelations about the lawyers hired by Mueller that show the same level of bias, partisanship, and conflicts of interest.”

The text messages first came to light as the department’s Office of Inspector General conducted an internal review of the FBI’s investigation of Hillary Clinton’s use of a private email server to conduct official business as secretary of state from 2009 through 2012.

Clinton, the Democrats’ 2016 presidential nominee, was cleared before the election of any criminal activity by then-FBI Director James Comey, who Trump fired less than four months into his presidency.

The dates of the text messages by Strzok and Page range from August 2015 to December 2016, according to The Washington Times and other media outlets that obtained copies. Fox News Channel reported that officials were reviewing more than 10,000 messages.

Republican lawmakers noted that Strzok was lead investigator in the probe of Clinton’s secret email setup, and identified him as the one who urged Comey to use the words “extremely careless” rather than the legally weighted “grossly negligent” to describe Clinton’s email practices as secretary of state.

‘Loathsome Human’

Mueller removed Strzok from his investigative team about five months ago, in July, after learning of the text messages. Strzok was in charge of the FBI’s investigation into Clinton’s private email server prior to joining Mueller’s team.

Page, the FBI lawyer, also served on Mueller’s investigative team, but by the time Inspector General Michael E. Horowitz’s probe uncovered the text messages, she had returned to other duties at the FBI.

Strzok and Page referred to Trump as an “idiot” during the Republican primaries, the text messages show. Other exchanges indicate that the pair supported Clinton for president over Sen. Bernie Sanders, I-Vt., in the Democratic primaries.

Politico noted a March 2016 text in which Page declared: “God trump is a loathsome human…omg he’s an idiot.”

“He’s awful,” wrote back Strzok, who also texted that Trump was an “idiot” in another exchange.

House Judiciary Chairman Bob Goodlatte, R-Va., expressed concern about partisan inclinations within the Justice Department and FBI in a statement he released during the oversight hearing, when committee members questioned Rosenstein about the text messages, the Russia probe, and the Clinton email investigation.

“Reports on the political predisposition, and potential bias, of certain career agents and department lawyers on Special Counsel Mueller’s team are deeply troubling to all citizens who expect a system of blind and equal justice,” Goodlatte said. “DOJ investigations must not be tainted by individuals imposing their own political prejudices. We are now beginning to better understand the magnitude of this insider bias on Mr. Mueller’s team.”

‘Super Agent’

Rosenstein appointed the former FBI director as special counsel after Attorney General Jeff Sessions recused himself from the Russia probe because of his advisory role in the Trump campaign. The deputy attorney general repeatedly defended Mueller’s investigation during the hearing from Republican lawmakers who cited evidence of political bias on the part of key investigators.

“I’m not aware of any impropriety, I’m not aware of any violation of rules,” Rosenstein said early on, a refrain he would repeat while declining to address the appearance of impropriety.

“How can you say with a straight face that this group of Democrat partisans are unbiased and will give Trump a fair shake?” Rep. Steve Chabot, R-Ohio, asked at one point.

“This guy thought he was super agent James Bond at the FBI,” Rep. Jim Jordan, R-Ohio, said of Strzok, pointing to texts in which Strzok appeared to see it as his mission to protect the nation from Trump.

Jordan said Americans have lost trust in Mueller and the Russia investigation, and Rosenstein ought to disband it and begin to probe efforts within Justice and the FBI to undermine Trump as president.

The inspector general at Justice is doing that already, Rosenstein repeated.

“What’s it going to get to get a second special counsel to answer these questions?” Jordan shot back.

“High-ranking FBI officials involved in the Clinton investigation were personally invested in the outcome of the election,” Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee, says during Wednesday’s hearing. (Photo: Joshua Roberts/Reuters/Newscom)

‘Showing Disdain’

In his statement, Goodlatte specified major issues with the special counsel’s probe of possible coordination between Trump campaign operatives and Russian officials:

First, we have FBI agent Peter Strzok and FBI lawyer Lisa Page exchanging communications showing extreme bias against President Trump, a fact that would be bad enough if it weren’t for the fact that these two individuals were employed as part of the Mueller ‘dream team’ investigating the very person for whom they were showing disdain.

And calling it mere ‘disdain’ is generous.  According to the documents produced last night to this committee, Mr. Strzok and Ms. Page referred to the president as “an utter idiot,” “a loathsome human,” and “awful,” while continually praising Hillary Clinton and the Obamas.

These text messages prove what we all suspected: High-ranking FBI officials involved in the Clinton investigation were personally invested in the outcome of the election, and clearly let their strong political opinions cloud their professional judgment. And this was only an ‘initial disclosure,’ containing heavy redactions.

Second, former embattled FBI general counsel and current Mueller prosecutor, Andrew Weissmann, expressed his ‘awe’ of a former DOJ official [Acting Attorney General Sally Yates] for shunning the president and failing to faithfully execute the law. However, we are the ones now in ‘awe’ that someone like Mr. Weissmann remains on an investigative team that looks more and more partisan.

Third, we have learned that a top Mueller prosecutor, Jeannie Rhee, in addition to other actions that would normally justify recusal, served as an attorney for the Clinton Foundation. Aren’t DOJ attorneys advised to avoid even the ‘appearance of impropriety?’ A former Clinton employee is now investigating President Trump. This seems to be the very definition of  ‘appearance of impropriety.’

Fourth, we just recently learned that another top DOJ official, Bruce Ohr, has been reassigned because of his and his wife’s connections with the infamous [Trump] ‘dossier’ and the company [Fusion GPS] from whom the opposition research document originated.

‘The Runaround’

Tom Fitton, president of Judicial Watch, a Washington-based nonprofit that promotes “integrity, transparency, and accountability in government,” released a YouTube statement Tuesday about what he said were “anti-Trump and pro-Hillary text messages.”

Fitton called on the Justice Department to respond to Judicial Watch’s related requests under the Freedom of Information Act.

“We are getting the runaround from this Justice Department and this FBI in our Freedom of Information Act lawsuits,” he said. “The coverup and secrecy must end. We want the documents now.”

The Justice Department did not respond to The Daily Signal’s request for information Wednesday on any policy or guidelines governing text messages and other mobile messaging on government devices, and for a comment on whether the Russia probe is undermined by political bias.

Heritage’s von Spakovsky told The Daily Signal in an email that Rosenstein should revoke Mueller’s authority to pursue Russia-related questions since there are too many “conflicts of interest” at work.

He said:

How can you have lawyers working on this special investigation who represented the Clinton Foundation; represented the IT staffer who installed the home server; attended Hillary’s election eve party; supported [acting Attorney General] Sally Yates’ unprofessional and unethical behavior? All of this raises serious questions about Mueller and the lawyers he has hired and his lack of judgment. The work of this special counsel seems to now be irretrievably suspect.

After revoking Mueller’s authority, von Spakovsky said, Rosenstein “should ask the Criminal Division of the Justice Department and its career prosecutors to investigate the very narrow issue of Russian election collusion.”

No Improper Orders

During the hearing, Democrats–Reps. Hank Johnson of Georgia and Eric Swalwell of California among them–asked Rosenstein whether Trump ever interfered with investigations.

“I told you I have never received any improper orders,” Rosenstein snapped to Johnson at one point.

“Are you afraid of President Trump firing you?” Johnson asked.

“No, I am not,” Rosenstein replied.

Other Democrats cast Republicans as running down the professionalism of the FBI and Justice Department.

In response to questions from Rep. Steve Cohen, D-Texas, Rosenstein made an emotional defense of Mueller’s reputation, record, resume, and experience.

“I believe he was an ideal choice for this task,” Rosenstein concluded.

The post After Texts Show Bias of FBI Agents in Russia Probe, GOP Lawmakers Question Justice Official in Testy Hearing appeared first on The Daily Signal.

FBI Agent Calls Trump an ‘Idiot’ in Text to Fellow Special Counsel Investigator

FBI agent Peter Strzok referred to President Donald Trump as an “idiot” in a series of texts exchanged with then-fellow special counsel investigator Lisa Page during the 2016 presidential campaign.

“I just saw my first Bernie Sander[s] bumper sticker. Made me want to key the car,” Page, now a senior FBI lawyer, wrote in a message to Strzok, released by the Department of Justic Tuesday night.


“He’s an idiot like Trump. Figure they cancel each other out,” Strzok replied.

Deputy Attorney General Rod Rosenstein released 375 of Strzok’s Trump-related text messages to the House Intelligence Committee. The communications span over a year, from Aug. 16, 2015, to Dec. 1, 2016. Rosenstein is scheduled to testify in front of the House Judiciary Committee Wednesday

Strzok, who was dismissed from special counsel Robert Mueller’s investigation in the early summer after DOJ officials learned he sent messages to a colleague mocking Trump, also referred to the president as a “loathsome human” and said, “God, Hillary [Clinton] should win 100,000,000 – 0,” in a string of March 2016 texts text messages obtained by USA Today.

Page’s detail on Mueller’s team concluded before the text messages were unearthed during an Office of the Inspector General inquiry into political bias on the special counsel.

The pair also disparaged House Speaker Paul Ryan, R-Wis.; Sen. Bernie Sanders, I-Vt.; and former Maryland Gov. Martin O’Malley.

Page said she hoped Ryan “fails and crashes in a blaze of glory,” to which Strzok responded, “[the GOP] needs to pull their head out of that a–. Shows no sign of occurring any time soon.”

Strzok, who also helped lead the investigation into former Secretary of State Hillary Clinton’s use of a private email server, softened former FBI Director James Comey’s description of her behavior from “grossly negligent”—a term that carries legal weight—to “extremely careless.”

Fox News reported in early December that the wife of a Department of Justice attorney was once employed by Fusion GPS, the opposition research firm that commissioned the Steele dossier, which amounted to a compilation of unverified salacious claims about Trump’s ties to Russia.

The report led Trump’s attorney, Jay Sekulow, to call for a special counsel to examine bias among Mueller’s investigators. Additionally, conservatives have demanded a special prosecutor to examine Comey’s decision to forego pursuing criminal charges against Clinton.

Attorney General Jeff Sessions, who ordered federal prosecutors to look into Republican lawmakers’ calls for a special counsel, said Strzok’s anti-Trump communications “would raise serious questions of public trust” if proven to be true in a Dec. 2 statement.

“We will ensure that anyone who works on any investigation in the Department of Justice does so objectively and free from bias or favoritism,” Sessions said.

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FBI Chief Vows to Keep Politics Out of Probes After Trump Says Bureau’s Reputation Is in ‘Tatters’

FBI Director Christopher Wray told a congressional hearing on Thursday that investigations should never be politicized, while at the same time defending the integrity of the people who serve in the bureau.

“I am emphasizing to every audience I can inside the bureau that our decisions need to be made based on nothing other than the facts and the law and the rules of our processes and our core values at the FBI, and not based on any political considerations on any side of the aisle,” Wray told the House Judiciary Committee.

His testimony at the oversight hearing comes after revelations that cast doubt on the impartiality of the FBI and Justice Department during investigations of former Secretary of State Hillary Clinton’s email server and the investigation of alleged collusion between President Donald Trump’s campaign and the Russians.

A top FBI investigator, Peter Strzok, was recently removed from the special counsel’s probe after revelations that he texted anti-Trump, pro-Clinton messages to a woman with whom he was allegedly having an extramarital affair.

Strzok also worked on the Clinton email investigation, and is thought to have changed the language in former FBI Director James Comey’s speech clearing Clinton of criminal wrongdoing, by replacing the term “gross negligence,” which has a legal meaning, to “extremely careless.”

“Surely, you’ve examined the distinction between ‘extreme carelessness’ and ‘gross negligence’ that is within the statute,” Rep. Steve King, R-Iowa, asked. “You are really going to tell us today you don’t have an opinion on that?”

Wray responded that “gross negligence” is the language in the statute, but followed with a caveat.

“Almost anybody who grabbed a thesaurus would say that ‘gross negligence’ and ‘extremely careless’ are pretty darn close to each other,” Wray said. “I would also say the handling, including the handling of the statement that Director Comey issued, is exactly what the inspector general is investigating.”

Meanwhile, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, asked the FBI in a letter to prioritize producing documents relating to the activities of Strzok. Grassley asked the FBI for text messages and communications containing favorable or unfavorable statements about Trump or Clinton.

During the House hearing, Rep. Matt Gaetz, R-Fla., pushed the FBI chief on whether the bureau gave Clinton special treatment.

“What’s it going to take? Why do we have to wait for an inspector general? If I walk outside, and it’s raining, I don’t need an inspector general to tell me to get an umbrella,” Gaetz said to Wray. “With these highly aberrational circumstances, which almost anyone would acknowledge depart from the standards of the FBI, why wait for an inspector general?”

Wray again said the bureau should wait for the official findings.

“It’s appropriate that we wait in this instance until we have all the facts, until the last witness, as he said, has been interviewed, and then, based on the facts that we have, take appropriate action,” Wray said. “I completely understand the reasons you’re asking the question. I sympathize with them.”

Throughout most of the hearing, Wray deflected in answering the questions. On Republican questions about the Clinton email probe, he noted that the FBI’s inspector general is reviewing how the probe was conducted. When Democrats on the committee asked about the Russia probe, Wray said it would be a matter for special counsel Robert Mueller to address.

“My preference is not to be one of these people who act first and ask questions later kind of guys, but an ask questions first and then act kind of guy,” Wray said. “These matters are being looked at, as they should be, by somebody outside the FBI, and when those findings come to me, I will take appropriate action.”

House Judiciary Committee Chairman Bob Goodlatte, R-Va., said it would be “unacceptable for FBI employees to permit their own political predilections to contaminate any investigation,” adding that “even the appearance of impropriety will devastate the FBI’s reputation.”

However, the committee’s top Democrat, Rep. Jerrold Nadler of New York, pressed the FBI director about Trump’s tweets attacking the bureau’s reputation as being in “tatters.”

“We have heard other veterans of the FBI and the Department of Justice push back against this attack on the reputation of the FBI,” Nadler said. “We haven’t heard from you. Will you respond to this tweet from the president? Is the FBI’s reputation in tatters?”

Wray didn’t challenge the president directly, but defended his team.

“There is no shortage of opinions out there. What I can tell you is that the FBI that I see is tens of thousands of agents and analysts and staff working their tails off to keep Americans safe from the next terrorist attack, gang violence, child predators, spies from Russia, China, North Korea, and Iran,” Wray said. “The FBI that I see is tens of thousands of brave men and women working as hard as they can to keep people they will never know safe from harm.”

Rep. Eric Swalwell, D-Calif., opined, “It is sickening to sit here and listen to the good names of people like Bob Mueller and James Comey smeared and the work of your agents has become politicized.”

White House press secretary Sarah Huckabee Sanders stressed during the press briefing the president wasn’t attacking the FBI itself, but rather the “FBI’s political leadership” and expressed confidence that Wray can “clean up” the problems from Comey’s time as bureau chief.

Rep. Trey Gowdy, R-S.C., praised the FBI and Justice Department, but added, “Unfortunately, the last two years have not been good years for the bureau, and they have not been good years for the department.”

Gowdy cited the secret meeting between former President Bill Clinton and then-Attorney General Loretta Lynch days before the Comey speech exonerating Hillary Clinton, and outlined what he considers other challenges to the credibility of the federal government’s law enforcement. He also raised questions about the number of Democratic campaign donors serving as prosecutors on Mueller’s team.

We’ve had the director of the FBI appropriate a major charging decision away from the Department of Justice because he was concerned that the public wouldn’t have confidence if the Department of Justice handled that decision themselves.

We had an FBI director write two politically volatile letters weeks before an election. We had an FBI director memorialize conversations he had with the president of the United States, because he didn’t trust the president’s recall of those conversations.

I think what frustrates some folks is when Director Comey wanted a special counsel for President Trump, he leaked. When he didn’t have confidence in Loretta Lynch, he didn’t leak. … We’ve had an acting [attorney general] fired. We’ve had an FBI director fired. And we can’t manage to find prosecutors who haven’t donated to presidential candidates.

Later in the hearing, a question came up about whether to prevent certain investigators or prosecutors from engaging in political activities.

“I’d have to think about the First Amendment implications of that. I certainly take the point,” Wray said. “My guess is that you could encounter similar concerns when looking at an individual’s charitable contributions to particular 501(c)3 organizations that have a particular social view, for example.

“So I think questions of bias and objectivity back and forth have to be taken very seriously,” he said.

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