Freedom of speech
Last week, I wrote about the upcoming Congressional reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. It was discovered recently that the FBI had been abusing the Act by illegally gathering information on American citizens. Documents revealed that agents had even illegally searched the name of a sitting U.S. Senator. This impropriety is in the context of a larger issue of the government’s collusion with big tech companies to censor Americans’ speech in violation of the First Amendment. This week, the White House conceded that the FBI had been acting improperly and offered to amend into the law more safeguards. They blamed the improprieties not on deep state political bias, but on compliance errors from a too heavy workload. Perhaps they could decrease the workload by stopping illegal surveillance and censorship of American citizens? You can read more about the most recent developments here.
More freedom of speech
I saw this poem recently and thought it relevant to the times we are in:
And I honor the man who is willing to sink
half his present repute for the freedom to think,
And, when he has thought, be his cause strong or weak,
Will risk t’ other half for the freedom to speak.– James Russell Lowell, “A Fable for Critics,” 1848, in Complete Poetical Works of James Russell Lowell 114, 136 (Horace E. Scudder ed. 1925)
Separation of powers
This week, Hunter Biden’s former best friend and business partner, Devon Archer, testified at a House Judiciary Committee hearing that Joe Biden, as then Vice President, was involved in over 20 meetings regarding Hunter’s foreign business dealings. This is the latest development in a Congressional investigation that is seeking to get to the bottom of allegations that the Biden family sold access to Joe. If true, that would mean Joe Biden committed criminal offenses. Seeking to hold a president responsible for criminal acts creates separation of powers issues, so the Constitution lays out a process for dealing with it. Here’s how the process is supposed to work.
Last week, Speaker Kevin McCarthy said that the House may launch a formal impeachment inquiry. McCarthy is distinguishing the inquiry from impeachment itself. Impeachment is the Constitutional process for the House to bring charges against elected officials. The inquiry is not the charge, but the investigation. McCarthy stated that the inquiry is necessary to access the full investigative power of Congress in order to complete a proper investigation. As you may recall from the recent past, a House impeachment is the bringing of charges. If the articles of impeachment pass the House, then there is a trial in the U.S. Senate. If the President is convicted in the Senate, then he is removed from office. Impeachment and conviction is the only way a sitting President who commits a crime can be brought to justice. It is unconstitutional to directly charge a sitting president with a crime; it violates separation of powers because it would give another official or agency direct power over the President. The President is the highest elected official, and no one can have direct authority over him. The Constitutional process is not direct charges but impeachment and trial. Once a president is removed from office, he is then a regular citizen, and he can then be charged with criminal acts just like everyone else. Whether we will see all this play out is still up in the air. It is encouraging, though, that the Speaker of the House appears committed to following the proper process.
More separation of powers
This week, the Wall Street Journal published an interview with U.S. Supreme Court Justice Samuel Alito discussing the U.S. Senate Judiciary Committee’s passage of a bill to mandate a code of ethics for the Supreme Court. In the interview, Alito stated, “I know this is a controversial view, but I’m willing to say it. No provision of the Constitution gives them the authority to regulate the Supreme Court---period.” Richard Durbin (D-IL), the Chair of the Senate Judiciary committee shot back at Alito stating, “He is not the 101st member of the Senate.” The separation of powers battle here could not be more clearly drawn. Durbin is correct that Alito should not be commenting on pending legislation that one day may come before the Court. Durbin loses the long game, however, because the U.S. Supreme Court gets the final word on whether the Senate can impose an ethics code on the Court. Alito may not be the 101st Senator, but he is currently one of a six seat conservative majority on the Supreme Court. The website Roll Call has a good analysis of the issue here.