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Analysis: The Law and Political Discourse

Many Americans manipulate the newsto fit their preconceived beliefs (i.e., confirmation bias). This is not necessarily a societal ill, but the danger comes when events are misrepresented to others, allowing for the societal accumulation of imprecisions and mistruths.
This week's legal developments have provided fodder for misrepresentations. In this analysis, we will consider three: (1) the reversal of a requirement that health providers extend coverage to the transgendered, (2) the Supreme Court's 6-3 decision to bar employer discrimination based on sexual orientation, and (3) the Supreme Court's 5-4 decision to prevent President Donald Trump from cancelling Deferred Action for Childhood Arrivals (DACA).
First, the Department of Health and Human Services (HHS) revoked a regulation mandating that insurers and doctors provide medical care to transgender Americans. There is a technical predicate for this move: The Obama administration contorted the text of the Affordable Ca…
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Editorial: Peaceable Assembly or Sedition?

On Friday, I drafted an editorial, "George Floyd's Death Shows Need for Change," which mourned the death of George Floyd and called for the judicial application of the Fourteenth Amendment to cases of police brutality. Now, in the wake of days of death, looting, and mayhem perpetrated in cities across the nation, I am impelled to write this followup piece on the parameters for protest, both legal and moral.

After the death of Floyd, people of all races and creeds rightfully turned out and exercised their First Amendment right to protest: "Congress shall make no law respecting ... the right of the people peaceably to assemble." Aside from the occasional hard-hitting sign, most of these demonstrations have not been divisive: From sea to sea, the nation is repulsed by the death of Floyd and this disgust crosses party lines. Some anecdotes make this explicit. In York County, South Carolina, the chairmen of the local Republican and Democratic parties protested toget…

Editorial: George Floyd's Death Shows Need for Change

Over the course of the past five years, I have spent countless hours writing and arguing in support of a limited government, one with the narrow mission of protecting life, liberty, and property. Law enforcement, so my thinking went, is essential to this undertaking, and I have been hesitant to challenge abuses of power by the police. Even amid a sequence of law-enforcement malfeasance in seemingly-disparate American geographic regions, I ignored widespread protestations of police brutality, excused their actions without studying them, and trained my eye toward misconduct in Venezuela and Hong Kong.

In other words, the question of whether law enforcement is properly oriented never entered my mind. My assumption was that police officers always aim to protect life, liberty, and property, and that misconduct is the situational and oftentimes forgivable consequence of overzealousness in implementing the law.

However, the death of George Floyd at least partially vindicates the grievances a…

Editorial: The Meaning of Memorial Day

Amid the coronavirus pandemic, millions of Americans have made material and mortal sacrifices. However, the last several months only partially put into perspective the supreme act of service, one that cannot be comprehended by us civilians: death on the battlefield, i.e., ultimate homage to the American republic and our founding values of life, liberty, and the pursuit of happiness.

This point was made by President James Garfield, then a congressman from Ohio who served in the Union Army during the Civil War: "We do not know one promise these men made, one pledge they gave, one word they spoke; but we do know they summed up and perfected, by one supreme act, the highest virtues of men and citizens. For love of country they accepted death, and thus resolved all doubts, and made immortal their patriotism and their virtue."

Recognizing and venerating the immortal patriotism and virtue of our war dead, as President Garfield so aptly put it, is the point of Memorial Day. Somethin…

The Tragedy of Michael Flynn: Addendum

In the first part of the series that FDL Review published on the investigation and prosecution of Lieutenant General Michael Flynn, there was an excerpt from the FD-302 prepared after the FBI interview with Flynn. This excerpt was regurgitated in part three to postulate that "Flynn played fast and loose with the truth in the interview."

It is important to note that this excerpt is from a document that is now heavily contested, due to modifications by FBI Agent Peter Strzok and his paramour, FBI lawyer Lisa Page. The edits refashioned the perspective of Joe Pientka, the agent who accompanied Strzok at the Flynn interview and took the notes that underpinned the FD-302.

In an article published by the Federalist, Margot Cleveland of the University of Notre Dame notes that we do not have access to the original FD-302 for the Flynn interview, and that the one available was subjected to extensive manipulation. Referencing primary-source documents released by U.S. Attorney Jeff Jens…

The Tragedy of Michael Flynn: Part Six

The title of this analysis is “The Tragedy of Michael Flynn,” and this was a deliberate choice. It is intentionally politically ambiguous, as the left would argue that Lieutenant General Michael Flynn is a tragic figure because he sold out his country by conversing with then-Russian Ambassador to the U.S. Sergei Kislyak; the right would say that Flynn is the victim of a tragically lawless prosecution by the same government that he served for over three decades. What has been attempted here is an apolitical analysis wherein readers can step away with the understanding that Flynn is not without blame, but also undeserving of the circumstances he has been subjected to.

Even those who believe that Flynn is “a traitorous Russophile who sold out both his honor and his country,” as asserted in the introductory paragraph of part one, should apply Harvard Law School Professor Emeritus Alan Dershowitz’s “shoe on the other foot” standard and consider how they would feel if Susan Rice (Obama’s fi…

The Tragedy of Michael Flynn: Part Five

There are concerns that the investigation into Lieutenant General Michael Flynn was tainted by political considerations, and that his defense was weakened by conflicts-of-interest on the part of his first set of attorneys. The immediate fodder for the former sentiment is the latest release by U.S. Attorney Jeffrey Jensen: an FBI document from 4 January 2017 and a sequence of emails and text messages sent by Agent Peter Strzok.

The FBI document examines the intentions of Crossfire Razor (i.e., the investigation into Flynn): to ascertain whether Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation.” The memo outlines the activities of the FBI—checking databases, utilizing a confidential human source (i.e., an informant), and scrutinizing travel records. However, all of this work was for naught: The FBI found “no derogatory information” on Flynn and proclaimed, “The FBI is closing this investigation” (Federal Bureau of Investigation, 2017).

The …