legal

Supreme Court rules for Border Patrol agent in suit filed by Mexican family over cross-border shooting

A divided Supreme Court ruled Tuesday in favor of a Border Patrol agent who faced a lawsuit from parents of a Mexican child he killed in a June 2010 cross-border shooting. Jesus Mesa Jr. and the parents of 15-year-old Sergio Adrián Hernández Güereca gave different accounts of what happened, with the parents claiming the teen and his friends were playing a game where they ran back and forth across the border, and Mesa claiming they threw rocks at him during an illegal border-crossing attempt. The Supreme Court’s 5-4 ruling said that regardless of the circumstances, precedent regarding lawsuits against officers, known as “Bivens claims,” does not apply to cross-border shootings. “As we have made clear in many prior cases,” Justice Samuel Alito wrote in his opinion, “the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new ‘context,’ and a claim based on a cross-border shooting arises in a context that is markedly new.” In the 1971 opinion Bivens v. Six Unknown Fed. Narcotics Agents, the Supreme Court held that a person claiming they were unlawfully arrested and searched could bring a lawsuit under the Fourth Amendment, even if there was no statutory basis for it. In Tuesday’s opinion, Alito noted the high standard of extending Bivens to a “new context” and gave several reasons why it was inappropriate in this case. The first factor was the impact a lawsuit in such a case could have on foreign relations. “A cross-border shooting is by definition an international incident; it involves an event that occurs simultaneously in two countries and affects both countries’ interests,” Alito wrote. “Such an incident may lead to a disagreement between those countries, as happened in this case.” The U.S. had determined that Mesa should not face criminal charges or be extradited to Mexico. “To avoid upsetting the delicate web of international relations, we typically presume that even congressionally crafted causes of action do not apply outside our borders,” the opinion said. “These concerns are only heightened when judges are asked to fashion constitutional remedies. Congress, which has authority in the field of foreign affairs, has chosen not to create liability in similar statutes, leaving the resolution of extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process.” Alito also pointed to concerns with the court getting involved with matters of national security. “Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens into this field,” he said. The court also pointed to Congress’ history of not awarding damages in cases against federal officials where the injuries took place outside the U.S. While Mesa was on American soil at the time, Hernández was on the Mexican side of the border when Mesa shot him. In a concurring opinion, Justice Clarence Thomas asserted that “the time has come to consider discarding the Bivens doctrine altogether,” noting that the court “has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided.”

Even though a split decision, it was the right one.

Ex-CNN darling Michael Avenatti convicted of trying to extort Nike

Brian Stelter and Joy Behar thought he could run for president in 2020. Now he’s going to jail. Former liberal media darling and frequent CNN guest Michael Avenatti won’t be offering anti-Trump talking points on cable news anytime soon after the disgraced lawyer on Friday was found guilty of trying to extort Nike. A New York jury found Avenatti, 48, guilty on three counts, including extortion, wire fraud and transmission of interstate communications with intent to extort. He faces up to 42 years in prison and did not testify in the case against him. Back in 2018, a Media Research Center study revealed that Avenatti, who represented a porn star in a lawsuit against President Trump, appeared on CNN a whopping 74 times over a 10-week period and the network’s in-house media critic famously declared the now-disgraced porn lawyer was a legitimate threat to challenge Trump in the 2020 presidential election. Stelter told Avenatti on air, “Looking ahead to 2020, one of the reasons why I’m taking you seriously as a [2020 presidential] contender is because of your presence on cable news.” At the height of Avenatti’s fame, he spent his rare time away from CNN’s greenroom partying with the network’s anchors while regularly appearing on late-night shows, MSNBC and “The View.” Juanita Scarlett, a former aide to Andrew Cuomo, the Democratic governor of New York and brother of CNN host Chris Cuomo, once tweeted — and then deleted – a photo of herself with Avenatti and another CNN host, Don Lemon, who apparently hosted a bash at his posh Hamptons home. It’s unclear how many other CNN personalities were at Lemon’s “Sag Harbor soiree,” but it was clear Avenatti had a cozy relationship with the liberal network prior to his drastic fall from grace. CNN was even accused of downplaying Avenatti’s Nov. 2018 arrest and Stelter once admitted critics “have a legit reason to dunk on me” when he chalked up omitting a negative story about Avenatti from his newsletter to a mix up. “After being called everything from a political and legal expert to the ‘man who could take down Trump’ and given hundreds of segments and hours of television time from both CNN and MSNBC, Michael Avenatti is headed to jail,”author and political satirist Tim Young told Fox News. “Not only has he proven himself to be a fraud, but he’s exposed the fact that these networks are willing to book literally anyone who confirms their Trump Derangement Syndrome.” Young said Stelter’s theory that Avenatti was a legitimate contender for president shows the CNN pundit has a “complete lack of understanding of the media and political sphere” for valuing a now-convicted felon over most politicians in America. “It’s an important reminder that people aren’t smarter than you or better judges of character just because they have a major media platform,” Young added. CNN did not immediately respond to a request for comment. MRC analysts Bill D’Agostino and Rich Noyes wrote in 2018 that there “no guest in CNN’s recent history who has been given as much free media exposure by the network as Avenatti” received. But CNN wasn’t the only liberal network to parade Avenatti in front of the camera. Over the same 10-week period, Avenatti appeared on MSNBC 57 times, according to the study. “On a single day [May 3 2018], MSNBC featured Avenatti a stunning seven times,” D’Agostino and Noyes wrote. “While CNN has been the friendliest network… MSNBC has been close behind.” He was also asked about a potential run at the White House on ABC News’ “The View” in August 2018. The disgraced lawyer was accused of trying to extort up to $25 million from Nike by threatening to go public with evidence that the company had paid off the families of young NBA-bound athletes. For about two weeks, prosecutors called several witnesses, including lawyers and Nike employees, and played recordings of Avenatti at his meeting with Nike attorneys. The defense’s case consisted of documents and stipulations insisting that Avenatti was only being an aggressive attorney and was working on behalf of his client. However, the client, Gary Franklin, the founder and coach of youth basketball team California Supreme, testified in court that Avenatti didn’t keep him in the loop of the negotiations with the athletic giant. Avenatti hasn’t been able to appear on CNN, or anywhere else, as he was in custody after violating bail conditions in a federal case against him in California and was housed at Manhattan’s Metropolitan Correctional Center during the trial. The once famed lawyer for adult-film star Stormy Daniels faces two other trials. In a second trial in Manhattan, he faces charges that he cheated Daniels out of the proceeds of a book deal. The most serious charges are in a federal case in Los Angeles, where he is accused of defrauding clients and others. Avenatti has denied all charges and insisted that they were part of an ongoing vendetta by the Trump administration after he represented Daniels in her litigation against the president. Donald Trump Jr. reacted to Avenatti’s conviction by sharing a Free Beacon montage of his frequent media appearances.

One word…karma.   The “creepy porn lawyer,” as Tucker Carlson referred to Michael Avenatti, is who he is.  Most of America could see right through him.  But, the dominantly liberal mainstream media, especially CNN and MSNBC (and The View) were so consumed with their extreme liberal bias and their pathological Trump Derangement Syndrome, that they latched onto him almost as a savior of sorts; someone who could take down Trump.  As such, Brian Stelter and Don Lemon over at CNN, and people like Chris Matthews and Rachel Maddow over at MSNBC have been exposed for who and what they are.  They’re not just extremely liberal, agenda-driven, elitist tools who are consumed with Trump Derangement Syndrome.  We already knew that.  What America now knows, is that they’re complete idiots.  And, those who watch or listen to them, have been following total buffoons.  These liberal elitist media figures talk down to us normal folk.  They really think they’re smarter than the rest of us.  But, THEY are the ones who got conned by the “creepy porn lawyer,” and the rest of America wasn’t.  Gotta love this.

After impeachment acquittal, Senate confirms another Trump court pick over Dem objections

Minutes after Chief Justice John Roberts gaveled out President Trump’s impeachment trial, which had consumed the Senate for almost three weeks, Majority Leader Sen. Mitch McConnell, R-Ky., got right back to what he’s said is his top priority — confirming judges. Less than half-an-hour after TV networks cut away from the Senate to dive into the ramifications of the body acquitting Trump, McConnell filed cloture on the nomination of Judge Andrew Brasher to the 11th Circuit Court of Appeals, a procedural step that moved the controversial nominee one step closer to confirmation. The Senate took the next step to confirming Brasher with a 46-41 cloture vote Monday, then confirmed him 52-43 on Tuesday. Progressive groups, which have opposed many Trump nominees, cried foul over the move. “Last Wednesday, a narrow majority of the Senate voted to cover up the president’s actions. Immediately after the vote to betray our democracy, Senate Majority Leader Mitch McConnell turned right back to nominations,” said Lena Zwarensteyn, the Fair Courts campaign director for The Leadership Conference on Civil and Human Rights. “McConnell is staying the course on shielding the president’s actions from checks and balances and stacking the courts with nominees who have records of hostility to civil and human rights, particularly voting rights.” Others on Monday a conference call with reporters that was organized by the liberal group included Sen. Chris Coons, D-Del., former Florida Democratic gubernatorial candidate Andrew Gillum and NAACP Alabama State Conference President Bernard Simelton. They said Brasher has a history of fighting against voting rights, gay rights, women’s health care and environmental protection. “Voting rights are at the very foundation of civil liberties and civil rights in our society, and we should be doing everything possible to protect and defend them,” Coons said. “I’m gravely concerned that Judge Andrew Brasher, if confirmed to the Eleventh Circuit, would only continue the efforts to roll them back. Judge Brasher’s record and lack of candor during his confirmation hearing show that he is unfit for this appellate judgeship in the Eleventh Circuit, and I will be voting no.” The 38-year-old Brasher is Trump’s 51st judge confirmed to the appeals courts and 188th overall, according to a Heritage Foundation count. He was confirmed to the Middle District Court of Alabama last year and was previously the Alabama Solicitor General, a job in which he argued before the Supreme Court and the 11th Circuit, the bench Trump and Senate Republicans would like him to join. Also a former white-collar criminal defense lawyer and civil litigator, Brasher received a unanimous “Well-Qualified” rating from the American Bar Association for his nomination to the 11th Circuit. Republicans have been supportive of Brasher’s nomination, which saw a cloture vote split on party lines with no defections either way. “Andrew Brasher is an outstanding choice to serve as a district judge for the Middle District of Alabama,” Sen. Richard Shelby said when Brasher was confirmed to his district court post in May. “His judicial temperament and vast legal experience make him well-suited to assume this new role.” Shelby was just as supportive of the judge when Trump nominated him to the 11th Circuit in November.

Another Trump judicial nominee confirmed by the Senate, and the left is losing its mind because he is eminently qualified.  He even got his law degree, cum laude, from Harvard.  But he’s a member of the Federalist Society and a solidly conservative judge.  Er go why the left is losing its mind.  Gotta love that!  Kudos to Sen. Mitch McConnell (R-KY) for getting another excellent judge confirmed in the Senate!  For more, click on the text above.     🙂

Federal Appeals Court Throws Out Democrats’ Emoluments Lawsuit Against Trump

A federal appeals court on Friday morning tossed a lawsuit brought by congressional Democrats alleging that President Donald Trump violated the Constitution’s emoluments clause by using the White House to profit from the presidency. The D.C. Circuit Court of Appeals wrote in a 12-page decision that Democrat lawmakers behind the suit lack the standing required to sue. “The Members can, and likely will, continue to use their weighty voices to make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit,” the decision reads. “But we will not—indeed we cannot—participate in this debate. The Constitution permits the Judiciary to speak only in the context of an Article III case or controversy and this lawsuit presents neither.” The clause prohibits federal officials from receiving payments from foreign governments without Congressional approval. President Trump relinquished control over the Trump Organization, which includes his portfolio of hotels and golf clubs, to his children Donald Jr. and Eric Trump. The president still has ownership over the group of nearly 500 business entities. “I’ll be reading it on the helicopter, but it was a total win,” the president told reporters of the decision on the White House lawn. The development comes after the panel of three judges expressed doubt in December as to whether individual members of Congress could bring the suit, rather than Congress. “You are not here representing Congress.” Judge Thomas Griffith remarked to an attorney representing the over 200 lawmakers at the time. The Fourth Circuit Court of Appeals is considering an emoluments suit against the president by Maryland Attorney General Brian Frosh (D) and Washington, D.C., Attorney General Karl Racine (D). The progressive group Citizens for Responsibility and Ethics in Washington (CREW) had its emolument case revived by the Second Circuit Court of Appeals in September. The decision marks another victory this week for President Trump, who is fresh off being acquitted in the Senate impeachment trial and a State of the Union address that received rave reviews. Earlier Monday, the Department of Labor announced that the U.S. economy added 225,000 jobs in January, smashing expectations of 158,000 jobs.

Just another feeble attempt by the Dems to derail President Trump and his agenda.  And, while they continue wasting their time, our hard-earned tax dollars, and our patience with this sort of nonsense…Trump just continues to “keep winning.”    🙂

 

Opinion/Analysis: Trump’s conviction in impeachment trial not justified even if Bolton claims are true

After sitting on their hands and listening to arguments for a week in President Trump’s impeachment trial, senators were finally allowed to pose their own questions Wednesday. It proved to be illuminating. As is often the case, the first question was the most penetrating and important one. It got to the heart of the Democrats’ principal accusation regarding why they contend the president should be removed from office. Democrats claim that when Trump asked Ukrainian President Volodymyr Zelensky to look into what Trump called troubling actions by former Vice President Joe Biden and his son Hunter, Trump was seeking a political advantage against a prospective opponent in the November presidential election. This, argue Democrats, was an impeachable “abuse of power,” and was the basis of the first article of impeachment approved by House Democrats in December. Trump’s legal team has countered that the president had every right to ask Ukraine to examine and produce any evidence of a potentially corrupt act by a U.S. public official. The act to be examined was Joe Biden’s demand that Ukraine fire a prosecutor who was allegedly investigating Burisma, a Ukrainian natural gas company that employed his son. By any reasonable and objective standard, Hunter Biden’s employment was highly suspicious and unusual. At a time when his father was serving as vice president and in charge of Ukraine policy for the Obama-Biden administration, Hunter Biden was being paid $83,000 a month to sit on the natural gas company’s board – despite having absolutely no experience in the energy sector and no experience in Ukrainian affairs. The question put to Trump’s defense team by Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah was: “If President Trump had more than one motive for his alleged conduct such as the pursuit of personal political advantage, rooting out corruption and the promotion of national interest, how should the Senate consider more than one motive in its assessment of Article 1?” More than any other question, this one needed answering. Setting aside whether Trump was genuinely motivated by electoral gain, Deputy White House Counsel Patrick Philbin explained that presidents often make decisions that have multiple or “mixed motives.” This is an obvious truth. As I argued in my last column, nearly all presidential actions involve some ancillary political calculation. Sometimes there is a dual or overlapping purpose. History is replete with examples of how presidents, including Abraham Lincoln, have rendered decisions that benefited themselves and the nation simultaneously. This does not mean their judgments constituted an abuse of power. If it were otherwise, nearly all presidents would be impeached and evicted from office. Philbin reasoned that all elected officials are mindful of how their conduct will affect their political standing because “there’s always some personal interest in the electoral outcome of policy decisions.” In asking President Zelensky to look into then-Vice President Biden’s threat to withhold $1 billion in U.S. aid from Ukraine unless the prosecutor allegedly investigating Burisma was fired, Philbin explained that Trump had a legitimate public purpose. “If there were a motive that was of public interest, but also some personal interest, it follows more clearly that it cannot possibly be the basis for an impeachable offense,” Philbin said. He added that “lots of their own witnesses from the State Department said that, on its face, it (Joe Biden’s actions) appeared to be a conflict of interest.” Constitutional law professor Alan Dershowitz was even more animated in defense of the multiple motives argument when he spoke in President Trump’s defense at the impeachment trial. “Every public official that I know believes that his election is in the public interest,” Dershowitz said. “And, mostly, you’re right. Your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest that cannot be the kind of quid pro quo that results in impeachment.” Dershowitz again cited the example of President Lincoln, who encouraged General William T. Sherman to grant his men leave from the battlefield to return to Indiana to cast votes for Lincoln’s reelection in 1864. Did Lincoln use the power of his office for personal and/or political gain? Of course, he did. Was it an impeachable “abuse of power?” No, said Dershowitz, “because the president believed it was in the national interest. He believed that his own reelection was essential to victory in the Civil War.” The retired Harvard Law School professor added: “Everybody has mixed motives, and for there to be a constitutional impeachment based on mixed motives would permit almost any president to be impeached. How many presidents have made foreign policy decisions after checking with their political advisers and their pollsters? If you’re just acting in the national interest, why do you need pollsters? Why do you need political advisers? Just do what’s best for the country.” Dershowitz tied his constitutional analysis together by stating: “For it to be impeachable, you would have to discern that he [the president] made a decision solely on the basis of, as the House managers have put it, a corrupt motive and it cannot be a corrupt motive if you have a mixed motive that partially involves the national interest and partially involves electoral interests.” Only an unlawful act by the president would be impeachable, Dershowitz concluded. Yet, House managers have not alleged a crime or violation of the law in their articles of impeachment. The defense argument – blending history, precedent and common sense – renders the prospect of the Senate calling new witnesses, such as former National Security Adviser John Bolton, superfluous. For the sake of argument, let’s assume – as The New York Times has reported – that Bolton’s upcoming book recounts how Trump mentioned in a conversation that he “wanted” to withhold $391 million in U.S. security assistance from Ukraine unless that nation investigated the Bidens. Let’s further assume that Trump’s motive was, in part, political. This still does not meet the proper impeachable standard for several reasons. First, can anyone truly argue that the behavior of the Bidens was not suspicious enough to merit an investigation? Democrats’ own witnesses said it posed a serious conflict of interest. Evidence produced by Republicans during the Trump impeachment trial has raised the specter of influence peddling and self-enrichment. Video clips were played of the media asking persistent questions regarding the Bidens and airing stories suggestive of corruption. This demonstrates that President Trump had a legitimate basis to ask Ukraine to scrutinize what happened. It was a matter of public interest. Even accepting that the leaked story about the Bolton book is accurate, a president wanting to do something and actually doing it are two very different concepts. Lots of presidents want to do things they never choose to do. After delaying U.S. military aid to Ukraine, Trump released the funds to the nation without any strings attached. No “quid pro quo” ever came to fruition. The idea – if there ever was one – was discarded. Importantly, President Zelensky and his foreign minister both stated they were never pressured to investigate anything and had no idea that American aid was temporarily halted until well after the fact. President Trump may have talked with Bolton about conditioning aid to Ukraine on an investigation of the Bidens, but such action never occurred. To remove Trump from office for merely discussing something with a senior aide is to turn Congress into the “thought police” where contemplation is tantamount to an impeachable offense. Finally, there’s the matter of Bolton’s suspected breach of confidential communications with Trump and the disclosure of classified material. Presidents have the right to obtain confidential advice and to engage in private deliberations without the intrusion of the legislative branch. The principle of executive privilege has been recognized and respected since President George Washington invoked it more than two centuries ago. It is a paramount privilege when matters of national security are at stake. Trump’s conversation with his national security adviser is most likely covered by the privilege. It is deeply disturbing that Bolton would have the temerity to write a book that would breach this privilege and profit by it financially. Three days before The New York Times reported its story based on (you guessed it) anonymous sources, a senior director at the National Security Council sent a letter to Bolton’s lawyer. The letter warned that the manuscript submitted to the council contains “significant amounts of classified information,” including some “at the TOP SECRET level.” Under federal law, and perhaps as well as under the nondisclosure agreement that Bolton signed as a condition to his employment, publication of the existing manuscript could subject him to criminal charges. The Times reports that Bolton has already circulated his book manuscript to “close associates” – something Bolton denies doing. If the newspaper report is correct and those individuals did not have the highest security clearance, the law may already have been broken. Whoever leaked to the Times could also be prosecuted if the information conveyed was deemed classified. Regardless of the security issues, senators are still not entitled to pierce the veil of executive privilege unless Trump waives the privilege or the federal courts determine that it does not apply. Is it really worth a protracted legal battle for the Senate to gain access to a purported presidential discussion of a “quid pro quo” that, in the end, never actually happened? To pose the question is to answer it.

Indeed…and well said, Gregg.  Gregg Jarrett is the author of that excellent legal analysis.   He is a former defense attorney and adjunct law professor, and the author of the No. 1 New York Times best-selling book “The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump.” His latest book is the New York Times bestseller “Witch Hunt: The Story of the Greatest Mass Delusion in American Political History”  Excellent!    🙂

Supreme Court refuses to ‘Free the Nipple’ in topless women case

The Supreme Court on Monday decided not to hear an appeal by three women fined by a city in New Hampshire for exposing their breasts in public who argued that banning female but not male toplessness violates the U.S. Constitution. The justices left in place a 2019 ruling by New Hampshire’s top court upholding the women’s convictions for violating an ordinance in the city of Laconia that makes it illegal to show female breasts in public “with less than a fully opaque covering of any part of the nipple.” The women – Heidi Lilley, Kia Sinclair and Ginger Pierro – were involved in the “Free the Nipple” movement, which court papers described as campaigns against “sexualized objectification of women” and in favor of women being able to go topless in public if they wish. Pierro was arrested on a beach on the shores of Lake Winnipesaukee in May 2016 where she was performing yoga while topless. Lilley and Sinclair were both arrested days later while topless on another beach where they were protesting Pierro’s arrest. The three women were given suspended fines of $100 each, on condition of subsequent good behavior. Among the legal arguments made by the women is that any law that punishes women for exposing their breasts while allowing men to go shirtless violates the Constitution’s 14th Amendment, which requires that laws be applied equally to everyone. The New Hampshire Supreme Court ruled that the ordinance did not discriminate against women, noting that it bars nudity of both men and women. The different definition of what constitutes nudity is based on “the traditional understanding of what constitutes nudity,” that court concluded. Laconia is located about 25 miles (40 km) north of Concord, the capital of New Hampshire.

This is one of those cases that nobody really wanted to deal with.  Even the ladies were given suspended $100 fines and told to behave.  And the Supremes rightfully let stand the NH Supreme Court’s ruling.  The ruling in effect said, “nudity in public is against the law in NH, and yes..the bodies of men and women ARE different.  Get over it.”  Agreed.

Analysis: Enemy Combatant Terror Commanders Are Fair Game

Last week, Iranian General Qasem Soleimani was killed in a targeted strike by U.S. forces authorized by President Trump. This preemptive attack has spawned a curious debate over whether Soleimani posed an imminent threat at the time he was taken out. The suggestion, mainly by partisan Democrats, is that it was illegitimate for the president to use lethal force without congressional authorization absent proof that Soleimani was on the cusp of killing Americans — or, better, killing even more Americans. The debate puts me in mind of the early-to-mid 1990s, when our counterterrorism laws were dangerously flawed. Back then, sensible Democrats — as most of them were — knew that these defects had to be addressed. Rather than sound like apologists for anti-American jihadists, they took admirably expeditious action. The problem emerged in the investigation of the proto-Qaeda terror network guided by the so-called Blind Sheikh, Omar Abdel Rahman. I was then a federal prosecutor and took over that investigation in Spring 1993. At the time, having just bombed the World Trade Center, the jihadists were actively plotting something even more monstrous: simultaneous attacks on the Lincoln and Holland Tunnels and the United Nations complex on Manhattan’s east side. The jihadists were also scouting additional landmarks in the city, including U.S. military facilities and the FBI’s downtown headquarters. We knew about the plot — and were in a position to thwart it — because we had a confidential informant. (Back then, neither he nor anyone else got the sniffles over the media’s labeling him a “spy.”) Emad Salem, a former Egyptian military officer, had infiltrated the cell and covertly recorded discussions with the Blind Sheikh about the desirability of bombing U.S. armed forces. Like the Shiite Iranian regime (longtime supporters of Sunni al-Qaeda and Hamas, as well as Shiite Hezbollah), Abdel Rahman, a renowned Sunni sharia scholar, recommended that Muslims put aside their internecine conflicts when it came to fighting America, “the Great Satan.” In the early-to-mid 90s, the United States thankfully did not have extensive experience with international terrorist attacks on the homeland, certainly not the systematic use of mass-murder attacks as a method of prosecuting war that we’ve seen in the last quarter-century. This meant that our legal architecture was sorely lacking. That was a significant defect, given that the government was determined to treat this national-security challenge as if it were a mere crime problem. There were anomalies. If, for example, terrorists successfully detonated an explosive, as they did in the 1993 WTC attack (killing six, including a woman about to give birth, injuring hundreds, and causing massive property damage), we had a bombing statute that prescribed an appropriately severe penalty: life imprisonment. But there was no federal bombing-conspiracy statute. Consequently, any bombing plot had to be charged under the catch-all federal conspiracy statute. Generally applicable to less serious offenses, it makes sundry conspiracies punishable by no more than five years, and as little as no imprisonment. In other words, if jihadists killed a few people, you could put them away forever; but if they were stopped while plotting to kill 10,000 people, the penalty was illusory. In effect, our investigators were penalized for doing their jobs well. There was something of a fall-back position, though it further illuminated the flaws in our criminal code — and, analogously, the foolishness of today’s debate over whether a suspected attack is sufficiently imminent to warrant responding with force. Terrorists who’d been stopped could be charged with attempted bombing, which carried a possible penalty of up to ten years’ imprisonment — still inadequate, but better than zero to five years. Yet there was a catch. Court decisions, even in the bombing context, made proving the crime of attempt much harder than it should have been. Evidence was deemed insufficient unless prosecutors could establish that the suspects had taken enough actions in furtherance of a bombing to meet the legal threshold of a “substantial step.” So . . . what was a substantial step? Was discussing a bombing enough? How about conducting surveillance of a target? Purchasing bomb components? Did it matter whether the plotters had done bombings in the past? No one could really be sure. In effect, the question became: Did it seem, under the circumstances, that the bombing was imminent? On this calculus, even evidence of implacable terrorist hostility and a commitment to use force would not be sufficient to prove an attempted bombing. Investigators would need, in addition, evidence that the plotters were so far along in their planning that we could conclude an attack would have happened if the police had not interrupted it. Consider the perverse incentive this legal framework created. If investigators were fortunate enough to be in a position to stop a mass-murder attack and round up the jihadists, the law nevertheless encouraged them to let the plot continue, right up to the moment before detonation if possible, to ensure that a “substantial step” had been proved. Of course, even if they have an inside cooperator, investigators are never in complete control of a criminal enterprise. The last stage of a plot is the time when plotters may speed up matters to avoid getting caught in possession of incriminating evidence. The higher-ups are apt to flee before the strike, so they’ll be beyond capture when the lower-ranking plotters set off the explosion. The chance that a bombing will happen increases immensely if investigators are discouraged from taking decisive preemptive action that a court may later second-guess as premature. This is one reason (of many) that international terrorism is best regarded as a military threat rather than a criminal prosecution issue. It is one thing to agitate about whether the proof of an attempt is good enough when, if the agents lose control of the situation, the only danger is that a few victims will be defrauded or robbed. It is quite another thing when jihadists are projecting power on the scale of a national military force. That risk is unacceptable. It is interesting to contrast the mid Nineties to today. Back then, most Democrats were committed to the law-enforcement approach to counterterrorism. While you can debate the wisdom of that, those Democrats were at least serious about making sure that court prosecution was as effective as it could possibly be. In the 1996 overhaul of counterterrorism law, the Clinton White House and Justice Department worked closely with a Republican-controlled Congress. They not only addressed the flaws that made uncompleted bombing plots so challenging to prosecute. They also defined new crimes tailored to how modern international terrorism actually works. These improvements enabled investigators to thwart plots in their infancy; we were also empowered to starve jihadist organizations of funding, personnel, and materiel. The bipartisan message was loud and clear: We want terrorists aggressively prosecuted but, even more, we want our agents to have the tools to prevent plots and attacks from taking shape in the first place. Where is that message today? In neutralizing terrorists and their state sponsors, the venerable law of war is, to my mind, a necessary complement, if not a preferable alternative, to the criminal law. One of many reasons is that, when an enemy is making war on the United States, there is no need to wait for an attack to be imminent in order to justify a defensive, preemptive strike. General Soleimani was an enemy combatant commander for the Iranian regime and the jihadist terror networks it uses in Iraq, Lebanon, Syria, and elsewhere. For more than 40 years, Iran has unabashedly pronounced itself as at war with the United States. It has conducted major attacks that have killed hundreds of Americans. In just the past few weeks, Iran’s jihadist militias attacked American bases in and around Baghdad eleven times. Reports of intelligence indicating that Soleimani was planning more attacks in the near term are surely credible. Legally, though, they are beside the point. Soleimani was a proper target regardless of the evidence that any new attack was imminent. The real question is: Why is imminence even an issue? This is not a close call. We are talking about one of the most notorious mass-murderers of Americans on the planet, the top combatant commander of the regime that proudly tells the world its motto is “Death to America.” Why would we want to raise an abstruse question that would make eliminating such a monster more difficult? In the Obama years, Democrats were happy to line up in support of unprovoked U.S. attacks on Libya. The use of lethal force was not authorized by Congress, and Americans were not being threatened. Now, because the president at the helm is Donald Trump, they want to quibble over whether the latest Iranian atrocities and U.S. intelligence were a sufficiently flashing neon sign that more atrocities were imminent? That is irresponsible. In the 1990s, Democrats understood that we needed to fix our laws to make it easier to eliminate threats to attack the United States, regardless of whether they were about to occur or hadn’t even gotten beyond the recruitment-and-training phase. Maybe those Democrats make themselves heard only when one of their own is in the White House. Right now, though, we need to pull together as a united front against an Iranian enemy that could not be clearer about its murderous intentions. Yes, we’re in a period of extreme partisanship. That is no excuse for playing politics with our security.

Agreed!!  And well said, Andrew.  Attorney and former federal prosecutor Andrew C. McCarthy is the author of that well thought out, and at times tedious, legal analysis.  Bottom line…  President Trump had every legal authority to take out Soleimani.  So, don’t believe a single thing you hear to the contrary by posturing Democrats and the hypocritical anti-Trump idiots suffering from non-stop Trump Derangement Syndrome over at CNN and MSNBC.  Had Obama ordered that strike they would have said it was “bold;” not reckless, etc.  Anyway, we also posted another legal article by attorney Gregg Jarrett.  Scroll down about 13 articles or so for that one to get his input as well.  Thanks Andrew!!    🙂