PowerLine -> The Factual Feminist on Gender Differences in Math and Science and Mueller’s fishing expedition continues

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PowerLine -> The Factual Feminist on Gender Differences in Math and Science and Mueller’s fishing expedition continues

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Daily Digest


  • For AG Sessions, ten theses on leaks
  • The Factual Feminist on Gender Differences in Math and Science
  • Mueller’s fishing expedition continues
  • France Under Martial Law
  • Colin Kaepernick remains unemployed
For AG Sessions, ten theses on leaks

Posted: 09 Aug 2017 03:45 PM PDT

(Scott Johnson)

This past Friday Attorney General Sessions held a news conference to announce the Justice Department’s dedication to stopping the flood of leaks of classified information that is undermining the Trump administration and damaging our national security. The transcript of Mr. Sessions’ statement at the press conference is posted here.

What is to be done? This was the only potential reform of policy or practice mentioned by Attorney General Sessions: “[O]ne of the things we are doing is reviewing policies affecting media subpoenas.” After getting burned by its friends in the media, the Obama Justice Department adopted a restrictive policy. The Trump Justice Department must be considering something of a return to the status quo ante.

Despite the dedication and bravado in Attorney General Sessions’ statement, it looks to me like a confession of futility. Consider that the status quo ante did precisely nothing to produce testimony from reporters in leak cases.

What is to be done? I address the following ten theses to Attorney General Sessions and interested readers.

1. The government cannot legally seek to restrain publication under any circumstances other than some kind of dire emergency (and then it would have to prove it). See New York Times v. United States, 403 U.S. 713 (1971)(“the Pentagon Papers case”). We know that prior restraint is off the table as a general rule.

2. The Pentagon Papers case leaves open the door to criminal liability on the part of newspapers and journalists. Justice White noted in his concurring opinion, for example: “The Criminal Code contains numerous provisions potentially relevant to these cases…. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish.”

3. Reporters who obtain and disclose highly classified information are almost always the sole witnesses to the substantive crimes involved in the leaking of classified information. In these particular whodunnits, they know who.

4. The testimony of the reporter involved could, therefore, shortcut the investigatory phase of a leak prosecution which might otherwise proceed at a snail’s pace. Under whatever policy — restrictive or expansive — might be applicable to the issuance of subpoenas to the reporter, the reporter’s testimony is frequently necessary to discover the source of the leak.

5. The reporter’s testimony is also subject to the compulsion of a subpoena. See, e.g., United States v. Jeffrey Sterling, 724 F.3d 482 (4th Cir. 2013)(upholding government trial subpoena of New York Times reporter James Risen in leak prosecution).

6. Yet a reporter only obtains the leak of classified information on the promise of confidentiality because the source knows the leaking is illegal. A reporter would rather be held in contempt for failure to comply with a subpoena than testify to the source of a given leak where the reporter has promised the source confidentiality. Reporters like Risen are held up by their colleagues as heroic martyrs to the First Amendment when they protect their criminal sources. The threat of a reporter being held in contempt is an ineffective route to the information. It will not get you there.

7. The government protected its right to secure the enforcement of the trial subpoena on Risen in the Sterling case after lengthy appeal proceedings up to and including the Supreme Court (which declined review of the Fourth Circuit decision). After securing its right to enforcement of the subpoena, the government simply gave up its effort to obtain Risen’s testimony identifying his source because Risen said he wasn’t talking.

8. The Sterling case presents a painful illustration of the difficulty of prosecuting a devastating leak case without direct evidence of the leaker’s guilt. The leak occurred in 2002 or 2003. The government’s investigation relied on circumstantial evidence. The path to Sterling’s indictment was long and tortuous.

9. Sterling was indicted in 2010. He was convicted at trial in 2015, more than ten years after the leak occurred. The Fourth Circuit just affirmed all but one of Sterling’s convictions in a decision released in June of this year.United States v. Jeffrey Sterling, No. 15-4297 (June 22, 2017).

10. Pick your best case to prosecute the reporter who serves as a conduit for the dissemination of highly classified information damaging to our national security, either with or without his source(s) as co-defendants. Make the reporter pay the price. Brand him a criminal. Let’s get it on. Anything short of this is a sideshow.

If I am wrong, where am I wrong?

  

The Factual Feminist on Gender Differences in Math and Science

Posted: 09 Aug 2017 11:54 AM PDT

(Steven Hayward)Leave it to Christina Hoff Sommers, in her “Factual Feminist” video series, to bring clarity to the Google-fueled controversy about women in math and science. This video is from three years ago, but it gets right at the heart of the matter. (I wonder if it comes up in a Google search? Well, I’m not going to waste my time finding out.)

  

Mueller’s fishing expedition continues

Posted: 09 Aug 2017 11:53 AM PDT

(Paul Mirengoff)

The Washington Post reports that FBI agents raided the Alexandria home of Paul Manafort, President Trump’s former campaign chairman, late last month. They used a search warrant to seize documents and other materials.

The search occurred soon after Manafort met with investigators for the Senate Intelligence Committee. At that meeting, Manafort reportedly answered questions and provided investigators with notes from a 2016 meeting between Trump campaign officials and Russians claiming to have damaging information on Hillary Clinton. In addition, according to his spokesman, he has voluntarily been producing whatever documents Mueller’s team has requested.

New York Times reporters Michael Schmidt and Adam Goldman believe the search indicates that the inquiry into possible misconduct by Manafort has broadened. They write:

Until now, it was only known that Mr. Manafort was under investigation for his business dealings with his son-in-law, his role in the 2016 meeting between Trump campaign officials and the Russians and whether his work for the Ukranian government violated the Foreign Agents Registration Act.

The government rarely prosecutes cases related to the Foreign Agents Registration Act, and Mr. Manafort’s consulting firm retroactively filed forms with the Justice Department last month to be in compliance with the act.

But the search warrant for the tax and foreign banking records suggests that investigators are looking at criminal charges related to the federal Bank Secrecy Act, which requires Americans to report their foreign banking accounts.

An expanded investigation of Manafort could have implications for President Trump. The more evidence Robert Mueller and his team can accumulate against Manafort, the better their chances of “flipping” him — that is, getting him to testify against Trump in exchange for leniency.

Frankly, it’s ridiculous that Mueller is investigating Manafort for possible violations of the Bank Secrecy Act (if this, in fact, is what’s happening). Such an investigation is meat and drink for ordinary federal prosecutors. There is no need for a special counsel and the matter has nothing to do with “collusion” or with Russia’s role in the 2016 presidential election.

As for inducing Manafort to testify against Trump, what basis is there for believing that Trump colluded with Russia? As of the time James Comey was fired, he had none (apparently he was fired because he wouldn’t say publicly what he said privately about this). Since that time, we’ve learned that Team Trump attended a meeting in the hope of obtaining adverse information from Russians about Hillary Clinton, but none was forthcoming. There was nothing illegal about attending the meeting.

Under these circumstances, storming into Manafort’s home for the purpose of getting him to testify against the president of the United States (if that’s what happened) falls somewhere between a fishing expedition and a witch hunt.

In my view, President Trump would be within his rights to fire Mueller for straying into the matter of Manafort’s foreign bank accounts (if Mueller is doing so) and/or to fire Rod Rosenstein for enabling Mueller to do so. Whether it would be prudent of Trump to fire either man is, of course, another matter.

  

France Under Martial Law

Posted: 09 Aug 2017 10:25 AM PDT

(Steven Hayward)

Over at PJ Media, Patrick Poole is following the story that broke this morning in Paris of a car that rammed and injured several French military personnel. The driver, who fled the scene, was subsequently arrested, though as of this writing his identity has not been revealed. But French authorities are describing it as a “terror attack,” which means we can expect that CNN will say that “we don’t know the motive” until we get the recording of the driver yelling “Allahu akbar,” after which CNN will recycle another Russia story.

Worth paying attention to one key phrase in an early Sky News report about the incident:

A search is also ongoing for the dark-coloured vehicle which is said to have been driven at speed at the troops as they left their barracks to go on patrol(Emphasis added.)

Wait—French army troops on patrol in Paris? Yes: France has been officially under a “state of emergency” since the Charlie Hebdo attack in January 2015. On any given day, up to 10,000 French military personnel are guarding every Jewish synagogue and merchant location in the entire country, as well as popular tourist locations. It’s called “Operation Sentinelle,” and you don’t need to be fluent in French to comprehend the title.

Translation: France is under martial law. Few Americans understand this. Today’s attack is merely the latest in a series of deliberate attacks on French military personnel.

The Sky News report adds this:

It is the sixth time soldiers involved in the nationwide security crackdown have been targeted. In February, a man with a machete attacked troops near the Louvre Museum.

French defence minister Florence Parly described Wednesday’s attack as “cowardly”, adding that it “does nothing to dent soldiers’ determination to work for the security of the French people”.

France has been under a state of emergency since the November 2015 attacks in the French capital which left 130 people dead. Mr Philippe said that despite a “high threat” against France, the government is sticking to plans to lift the 21-month state of emergency on 1 November.

Prediction: The formal state of emergency” may end on Nov. 1, but I expect French soldiers will still be deployed as they are now. Unless France has decided on suicide.

  

Colin Kaepernick remains unemployed

Posted: 09 Aug 2017 09:17 AM PDT

(Paul Mirengoff)

Last year, playing for a bad San Francisco 49ers team, Colin Kaepernick had a quarterback rating of 90.7, completed 59.2 percent of his passes, and threw for 16 touchdowns with only four interceptions. These numbers, other than the touchdown passes to interceptions ratio, aren’t outstanding. However, they suggest that Kaepernick is one of the 32 best quarterbacks in football and certainly one of the best 64.

Yet, as of today, none of the NFL’s 32 teams have a spot for Kaepernick, either as a starter or a backup. This almost certainly is due to the fact that he expressed anti-police and other hard-left political views, and refused to respect the National Anthem when it was played before his games. (Kaepernick now says he will stand for the Anthem.)

I strongly disagree with Kaepernick’s views and I’m offended by his failure to stand for the National Anthem. But the quarterback’s offensive expression of unpopular views shouldn’t cost him employment opportunities. NFL teams have the right not to hire Kaepernick because of his ideology and the way he expresses it. However, something valuable is diminished when they exercise that right — the freedom powerfully to express unpopular political views.

The Baltimore Ravens are considering bringing in Kaepernick. Their starting quarterback has been battling injury. Their backup has never demonstrated Kaepernick’s quality.

Baltimore’s coach, John Harbaugh, and its general manager, the legendary Ozzie Newsome, reportedly have recommended signing Kaepernick. However, team owner Steve Bisciotti has hesitated.

He solicited fan opinion and asked for prayers. That was about a week ago. Kaepernick remains unsigned.

Bisciotti’s response strikes me as ridiculous. There’s no need for prayers or a plebiscite. Either follow the advice of your football men and sign the guy or say you don’t want Kaepernick on your team, as is your right.

But stop with the Hamlet crap. This isn’t a decision about whether to go to war.

There is evidence, though I don’t think it’s conclusive, that the refusal of some players to respect the National Anthem cost the NFL television viewership last season. However, as noted, Kaepernick has said he will respect it this year. I think images of him standing for the Anthem will be salutary, as long as he doesn’t back down from his underlying opinions.

I hope he gets the opportunity to stand for the Anthem.

  

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