misuse of public office – USA Gov Policy

The New York Analysis of Policy and Government concludes its review of how some state attorneys general abuse their office for partisan political purposes.

Hans Bader, writing for The Competitive Enterprise Institute (CEI), outlines the various ways that some state attorneys general have abused their office for partisan political purposes, aimed primarily at implementing leftist agendas rejected by the voters or prohibited by the Constitution.

“State attorneys general (AGs) are among the most powerful office holders in the country, with few institutional checks on their power. A State Attorney General…can bring a politically motivated prosecution in violation of the First Amendment, yet his victims may well have no legal redress. With the possible exception of former New York Attorney General Eliot Spitzer, the enormous power wielded by state attorneys general has received little scrutiny…Under all state constitutions, the legislature, not the attorney general, is given the power to make laws. If the legislature has not specifically given the attorney general the right to enforce a particular law, then he may be exceeding his authority by bringing a lawsuit under it. Federal law also limits an attorney general’s power. When a state attorney general attempts to regulate conduct in another state, that may violate not only state law, but also the Constitution’s Due Process and Commerce clauses, which forbid any state from imposing its laws on another state or regulating interstate commerce. Unfortunately, many state attorneys general now ignore these constraints. In recent years, many state AGs have increasingly usurped the roles of state legislatures and Congress by using lawsuits to impose interstate and national regulations and extract money from out-of-state defendants who have little voice in a state’s political processes.”

The CEI report outlines the various means leftist state attorneys generals have abused their authority:

The Ethical Breaches and Selective Applications of the Law. Using campaign contributors to bring lawsuits. Using the attorney general’s offi ce to promote personal gain or enrich cronies or relatives. Favoritism towards campaign donors and other uneven or unpredictable application of the law (including refusal to defend state laws or state agencies being sued when plausible defenses exist).
Fabricating Law. Advocating that courts, in effect, rewrite statutes or stretch constitutional norms in order to make new law—for example, seeking judicial imposition of new taxes or regulations, or restrictions on private citizens’ freedom to contract.
Usurping Legislative Powers. Bringing lawsuits that usurp regulatory powers granted to the federal government or other state entities, or that are untethered to any specifi c statutory or constitutional grant of authority.
Predatory Practices. Seeking to regulate conduct occurring wholly in other states—for example, preying on out-of-state businesses that have not violated state law and have no remedy at the polls.

The actions of the state attorneys general who are seeking to influence national policy through legally baseless lawsuits is similar to the legal offense known as “malicious prosecution.” The legal dictionary defines malicious prosecution as

“an action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without Probable Cause and for a purpose other than that of bringing the alleged offender to justice.
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An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil.”

The use of baseless law suits which seek to defy the Constitution’s separation of powers and general governing system, will first garner success both in terms of public relations with the left wing of the Democrat Party and before sympathetic judges—and, following eight years of hard-left control of the White House, there is a significant number of them.

A Fox News analysis noted: “The president, [Obama] over the course of his two terms, has appointed hundreds of justices to the lower federal courts, leading to a majority of appeals courts now dominated by Democratic picks. While those nomination battles aren’t nearly as high-profile as they are for the high court, the impact of the appointments is just as pronounced.” A Reuters study agreed. “His appointments of dozens of judges to the country’s influential federal appeals courts have tilted the judiciary in a liberal direction that will influence rulings for years to come…”

Democrat legal officials have a history of using lawsuits as a means of gaining influence in areas in which they have been rejected by the voters. A 2014 Federalist analysis of a lawsuit against Texas elected officials outlines the tactic.

“Since 1982, the Democrat-controlled Travis County District Attorney’s Office has received state funding to manage the “Public Integrity Unit,” which has jurisdiction to investigate and prosecute political corruption by elected officials statewide. (It is odd that a local district attorney, rather than the state Attorney General, has this responsibility.) Travis County politics ensure that the PIU is used as a bludgeon against Republican officials. The notoriously partisan former District Attorney Ronnie Earle used the PIU to bring bogus charges against then-state Treasurer (and later U.S. Senator) Kay Bailey Hutchison and House Majority Leader Tom DeLay, both Republicans…”

Similar baseless actions, some prompted by organizations funded by George Soros, were brought against Texas governor Rick Perry.

However, the ultimate arbiter will be the U.S. Supreme Court. The politicized decisions of federal judges who have placed personal ideology over the law will encounter a substantial roadblock at the highest level. According to an analysis by the American Bar, the politicized Ninth Circuit, which recently ruled against President Trump’s travel ban, has a stunningly high reversal rate at the U.S. Supreme Court of 80%. The median reversal rate is 68.29%.

The New York Analysis of Policy and Government presents a two-part examination of how some state attorneys general are abusing their offices for partisan political purposes.

The concept of elected and appointed officials exercising their office with complete impartiality is a basic tenet of fair government. While the absolute perfection of this ideal is rarely achieved, the past eight years have seen an unprecedented abandonment of the goal. Agencies such as the Justice Department and the Internal Revenue Service were extensively misused for partisan purposes.

With the regime change following the 2016 elections, the center of gravity for using public office to benefit party or ideological interests shifted to some state attorneys general. Martin Morse Wooster, writing for the Capital Research Center notes that “Aiming to reshape society, state attorneys general wield ever-expanding powers over private corporations, foundations and nonprofits. Their activities–too often motivated by ideology and politics–frequently undermine the very institutions they are supposed to protect.” The author was discussing partisan assaults on private organizations, but the concept now applies to the highly partisan and overt attempt to de facto overturn the impact of the 2016 election.

Alan Greenblatt writing in Governing magazine reports that “’Democratic attorneys general are going to be very active, suing a number of regulatory agencies,’ says Paul Nolette, a political scientist at Marquette University. ‘They will be prepared to use a kitchen sink strategy against everything coming out of the EPA…’ The number of Democratic attorneys general has ticked down with recent Republican successes at the state level. But there are still 21 of them — more than the number of Democratic governors or legislatures…And it isn’t really the number of Democratic AGs that matters. A single activist attorney general such as Eric Schneiderman of New York or Xavier Becerra of California can command a small army of lawyers.…But with prominent Democratic AGs threatening to challenge Trump before he even has made many policy pronouncements, it’s clear that legal briefs will be among the most powerful weapons progressives will be able to deploy against him.”

The City Journal offers this description of Schniederman: “New York’s progressives scored a breakthrough by electing as the state’s attorney general Eric Schneiderman, who had no prosecutorial experience but, as Ben Smith noted in a Politico profile…had ‘spent his career building an ideological infrastructure for the left.’

The issue that has gathered the most headlines in the battle between partisan attorneys general and the White House is immigration.

An Economist study emphasizes that “Lawsuits are likely to be a critical form of resistance for Democrats in the Trump era…On January 29th, 17 Democratic attorneys-general signed a letter vowing to ‘use all of the tools of our offices to fight this unconstitutional order.’ Four Democratic attorneys-general have officially filed or signed onto lawsuits challenging the restrictions. On January 31st, the city of San Francisco sued Mr. Trump over another executive order demanding that federal funding be withheld from so-called ‘sanctuary cities’ that limit their cooperation with federal immigration authorities.”
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Law suits by state attorneys general are nothing new, and both sides have used them to varying degrees. What differs in the current, concerted effort is the overt attempt to use their offices as a substitute for the political influence lost by the Democrat Party in state and federal elections over the past seven years.

The involved attorneys general are sufficiently trained in the law to know that seeking to direct border security and immigration policy is beyond their jurisdiction. As the New York Analysis of Policy and Government has previously noted, the case they brought opposing President Trump’s travel ban was successful in the radicalized Ninth Circuit, but could not pass Constitutional muster in a less politicized forum:

“There is a reality surrounding the Ninth Circuit Court’s upholding of a stay on President Trump’s temporary travel ban: It is based on that Court’s political preferences, and not on the law. It is a reflection of an ongoing and desperate attempt by the left to nullify by disruption and force the election of 2016.

“There is no Constitutional provision, no statutory law, and no legal precedent that could reasonably be cited as the justification for the opinion. There is not even political precedent to back it up. Former Presidents Carter and Obama, during their tenures in office, engaged in similar acts, without facing the obstacles now levied at the current Administration. President Bill Clinton deported 12 million illegal aliens, without the opposition of the same forces that seek to discredit Trump.

“The Constitution has no provision allowing the courts to set this type of policy. Further, Statutory law Title 8, Section 1182 of the U.S. Code explicitly, clearly, and undeniably provides the president with this authority. The Court ignored both facts in its decision. A first-year law student would be given a failing grade if he or she wrote a moot court opinion without noting those key facts.”

The report concludes tomorrow.

Quick Analysis

China’s Tech Targets

Chinese technology is changing and its leadership is using it, along with espionage, to challenge the West in a number of critical areas. The United States is only one of its targets. Previously, Beijing’s spies primarily sought Western technologies as a way to skip generations of develop cost and time to modernize its economy. Today, its acquisition of advanced technologies, and now also its indigenous development, makes the communist giant a threat to freedom-loving people everywhere. This week Nan Mulchandani, the CIA’s chief technology officer, said Director William Burns is preparing for an “infinite race” with Beijing for artificial intelligence and advanced technologies. He argues the US must pivot toward providing American spies with the latest transformative technologies to outcompete China. Mulchandani says this means updating everything the agency does “from operations to the analytic function, support functions and other piece there.” America, he suggests, needs to alter its thinking toward viewing this not as a race with a finite end point, but as an ongoing competition. Mr. Mulchandani predicted that the next area of competition would “be primarily a software war that is powered by something like AI” rather than hardware fueled by software. That competition, however, is not confined to simply acquiring critical technologies for use in the future. China is also challenging the US in space. China announced today it launched a groundbreaking mission to retrieve samples from the far side of the moon. The space capsule will arrive in four days and collect 4.4 pounds of moon rocks and regolith, or moon dirt. Beijing’s desire to one day become a space power and scientific force is for pragmatic purposes in 2024 a fait accompli. Rep. Frank Lucas (R-Okla.), chairman of the House Science, Space and Technology Committee, said during a NASA budget hearing this week, that “while the US remains the global leader in space exploration, we face increasing challenges internationally.” Referring to China’s space station, Lucas said: “We cannot allow China to become the front-runner in space exploration… There are too many consequences for our competitiveness, our national security, and our continued ability to explore space.” A new report released this week by the Center for Strategic and International Studies (CSIS) says that the United States, to further its geopolitical interests and maintain a strong domestic economy, must approach every aspect of economic and trade policy through the lens of global technology competition. The Biden Administration’s approach, it says, discounts the landscape of competition between China and the US and may “jeopardize US advancements in emerging technologies… which could cede the advantage to China….” In particular, the report recommends that the US take action now because quantum and artificial intelligence (AI) need a federal policy to ensure the country can spur the entrepreneurship and R&D efforts foundational to the strength of the technology sector. As China’s Communist Party (CCP) becomes more hostile to the United States and other Western nations, its aggressive activities abroad expand and intensify. Chinese spy cases far outnumber those of Russia and every other nation. CSIS reports that since President Xi took over in 2012 there have been 224 incidents of spying. Estimates of the long -term economic, scientific, and national security cost to the US run into the billions and have “created immeasurable damage to national security with the theft of weapons technology, including nuclear weapons test data… China has added the theft of massive quantities of personal information, political coercion, and influence operations, to its espionage activities.” The CSIS reports says that 49% of incidents of spying in the US directly involved Chinese military or government employees, with private Chinese citizens accounted for 41%. In 29% of the espionage cases the person involved was attempting to acquire military technology, while in 54% of the incidents it was related to commercial technologies. Almost half of the cases involved cyber espionage, usually by state—affiliated actors. No matter where one turns today China is challenging the West, from the depths of our oceans to outer space. The United States cannot count on China to be a good global citizen and refrain from attempting to enforce its vision of world order with Beijing at the apex. The time is growing short for the West to take action. Daria Novak served in the U.S. State Dept.