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Joke Becames Federal Case? – WSJ

4/29/2020  WSJ

I’m under federal investigation for making a joke on Twitter.

In June 2019, employees at the left-liberal Vox Media Inc. walked off the job demanding a new collective bargaining agreement. As the publisher of a conservative website, the Federalist, I found the clash ironic. I tweeted: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”

Although Twitter leftists were enraged, my employees were amused. They joked about selling branded salt-shakers and writing sympathetic vignettes about union rebels from Federalist salt mines.

Then things took an unfunny turn. The National Labor Relations Board informed me that the leftist writer Matt Bruenig had filed a formal complaint about my tweet. He withdrew it, but Joel Fleming, a Massachusetts lawyer, filed another.

Mr. Fleming alleged I had violated Section 8(a)(1) of the Wagner Act, which states that “it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7”—namely the rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The accusation was laughable. No employee had expressed a desire to unionize. If anyone had, my joke wouldn’t have stood in the way. Mr. Fleming was an interloper anyway—he had no association with the Federalist. But according to the NLRB, anyone can file such a complaint against any company.

The NLRB proceeded to invade our publication, heedless of the freedom of the press. Members of my staff were subpoenaed to testify in New York, where none of them lived and we had no office. The NLRB attempted to subpoena all emails and communications between staff members going back years—including about editorial decisions, hiring decisions, and confidential sources during our coverage of the Russia-collusion hoax.

Help arrived in the form of the New Civil Liberties Alliance, a nonprofit set up by legal scholar Philip Hamburger that defends constitutional rights against overreach by the administrative state.

The NLRB proposed a settlement: I delete the joke, I post information on the rights of employees to unionize, and the complaint goes away. I said no.

That meant the NLRB’s case against me would be adjudicated by an NLRB employee, Administrative Law Judge Kenneth Chu. As expected, we lost. The board called no witnesses. It submitted my tweet and printouts of Federalist articles and asserted we were not a publication but an “anti-union website.”

The government lawyer claimed that “the editorial positions of the website are reasonably . . . understood as Mr. Domenech’s own,” even though we publish thousands of conflicting opinions under various bylines. Federalist employees filed affidavits stating they viewed my tweet as a joke. Mr. Chu dismissed their opinions as subjective and irrelevant.

Eventually we’ll get to a real court, where we’ll be able to assert our rights and prove our case. Why bother when the stakes seem so low? Because they aren’t. It’s a matter of principle.

It is my good fortune to know many brilliant lawyers who are willing to stand up against abuses of the administrative state. Most people aren’t so lucky. What happens when another small-business owner on social media makes a similar joke? When a neighbor decides to make a federal case out of an impolitic Facebook post? What happens if freedom of speech is only worth what the common business owner is willing to pay in legal fees, missed work and the cost of flying employees to other states to testify in front of bureaucrats?

It’s understandable that those who can’t afford to fight often bend the knee. But in that America, the bureaucrats, and the trolls who use them to shut down speech they don’t like, will keep rolling on until someone stands up and says no.

Mr. Domenech is publisher of the Federalist.

https://www.wsj.com/articles/how-my-joke-on-twitter-became-a-federal-case-11588113551?mod=opinion_lead_pos5

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Mr. Schiff’s Impeachment Opus

 WSJ 12/4/2019

These columns warned that once the machinery of impeachment was up and running, it would be impossible to stop. And so on Tuesday Adam Schiff released his House Intelligence Committee report on Ukraine that finds President Trump guilty of playing domestic politics with foreign policy. But it’s clear the President’s real sin is being the willful, undisciplined Donald Trump voters elected.

The bulk of Mr. Schiff’s 300-page opus is a prosecutorial account of Mr. Trump’s four-month attempt to persuade new Ukraine President Volodymyr Zelensky to announce investigations into corruption and Ukraine’s role in the 2016 election. It is not a flattering tale, and it would make a compelling plank in a 2020 campaign indictment of Mr. Trump’s character and poor judgment.

But Mr. Schiff’s report casts himself and his cause as much grander. He is Adam at the bridge of our republic, heroic defender of American democracy. His introduction is worth quoting at length to capture his pretensions to nonpartisan statesmanship.

“The decision to move forward with an impeachment inquiry is not one we took lightly. Under the best of circumstances, impeachment is a wrenching process for the nation. I resisted calls to undertake an impeachment investigation for many months on that basis, notwithstanding the existence of presidential misconduct that I believed to be deeply unethical and damaging to our democracy,” he writes.

But in the end he heard the call of duty: “In making the decision to move forward, we were struck by the fact that the President’s misconduct was not an isolated occurrence, nor was it the product of a naïve president. Instead, the efforts to involve Ukraine in our 2020 presidential election were undertaken by a President who himself was elected in 2016 with the benefit of an unprecedented and sweeping campaign of election interference undertaken by Russia in his favor, and which the President welcomed and utilized.”

Here Mr. Schiff reveals the real impeachment motivation: Mr. Trump never would have won in 2016 without Vladimir Putin’s help, but Robert Mueller failed to prove that. So Democrats are settling for the lesser melodrama of Ukraine, an unchained Rudy Giuliani, and Joe and Hunter Biden. The details may not add up to much more than Mr. Trump obsessing about what he thinks Ukraine did in 2016, but it’s all the Democrats have.

The report’s summary sentence reveals the weakness of its case with overstatement: “The president placed his own personal and political interests above the national interests of the United States, sought to undermine the integrity of the U.S. presidential election process, and endangered U.S. national security.”

Yet every President seeks some political advantage in pursuing foreign policy. That includes Barack Obama when he asked Dmitry Medvedev to tell Mr. Putin to go easy on missile defense until after the 2012 election.

As for undermining election integrity, that was Bill Clinton when he vacuumed foreign campaign contributions from the Riadys and multiple other foreigners in 1996. Or Hillary Clinton in 2016 when her campaign financed Christopher Steele to spread Russian disinformation on Mr. Trump to the media and FBI.

Mr. Trump, in his reckless way, asked President Zelensky for the “favor” of investigating Joe Biden and tried to delay military aid. But as Senator Ron Johnson relates in his recent letter that is a more even-handed account of events, Mr. Trump’s attempts were resisted across Washington and ultimately failed.

None of this undermined elections or “endangered” U.S. national security because there was no investigation and the aid was never withheld. Even if aid had been withheld, that would merely have put U.S. policy back to where it was when Mr. Obama denied Ukraine lethal military aid for several years until Mr. Trump provided it.

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The Starr report laid out irrefutable evidence that Mr. Clinton lied to a grand jury and tampered with witnesses. Those were criminal offenses. The evidence that Richard Nixon obstructed justice was also clear once the tapes became public. By contrast, Mr. Schiff’s report mentions no specific crime and is full of too many inferences and overbroad assertions to provide a convincing impeachment case.

This explains why Mr. Schiff’s report won’t gather a single Republican vote, and why this impeachment will remain partisan. On this score, we had to smile at Mr. Schiff’s high-toned invocation of the Founding Fathers’ fear of “excessive factionalism.” He claims to be defending “democracy’ against “the power of faction” that would dare defend Mr. Trump against impeachment. Like the President, Mr. Schiff lacks the virtue of being self-aware.

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How much are we sacrificing in this impeachment?

I cannot believe the recklessness of the Democrats in their illogical pursuit of impeachment.

Tensions ran high 20 years ago as we stood in the well of the Senate before Chief Justice William Rehnquist, all 100 senators and the nation. As House impeachment managers, we presented our case against President Clinton. We were somber but confident, knowing that we had afforded Mr. Clinton every due-process right to defend himself.

Now we find ourselves on the verge of another presidential impeachment. But this time the process is so fundamentally unfair that justice cannot be served. For the past two months, House Democrats, led by Intelligence Committee Chairman Adam Schiff, have conducted a sham investigation with predetermined conclusions. It will do unthinkable damage to the credibility of the House and to the nation.

Since President Trump took the oath of office, Mr. Schiff has led a quest to overturn the 2016 election. We have both worked with Mr. Schiff on the Judiciary Committee, and one of us (Mr. Sensenbrenner) has managed two judicial impeachments (of Samuel B. Kent and G. Thomas Porteous Jr.) alongside him. While in those cases he was fair and reasonable, here he has let his blind hatred of the president poison his conduct and destroy his credibility.

For more than two years, Mr. Schiff misled the public about having clear evidence that Mr Trump colluded with the Russians to steal the election. Special counsel Robert Mueller found no such evidence. Mr. Schiff then set his eyes on the next “scandal.” A seemingly too-good-to-be-true report appeared, accusing the president of improper action. Mr. Schiff took to cable news to propagate the new narrative, but it soon began to crumble. We learned that the biased “whistleblower” had contacted Mr. Schiff’s committee before filing his report, and Mr. Schiff lied about it.

Nevertheless, Speaker Nancy Pelosi decreed the House to have begun an impeachment inquiry and Mr. Schiff launched three weeks of closed-door hearings. He played judge and jury, selectively leaking private testimony to fuel a smear campaign. In blatant disregard of congressional practice, he has prevented elected members from asking certain questions of his “star witnesses.”

We were on the House prosecution team. Unlike Pelosi and Schiff, we safeguarded due process.

The American people saw through this charade, and Mrs. Pelosi brought the rules for this process up for a vote last week. But it’s too little and too late.

The rules resolution falls woefully short of the Constitution’s due-process standard. Every American has the right to hear all evidence presented against him, face his accuser directly, and mount a defense. We made sure to afford Mr. Clinton these rights in 1998-99.

The president’s counsel must have the right to participate in all impeachment proceedings. The congressional minority must have an equal right to call witnesses, subpoena documents and cross-examine witnesses.

Last week’s resolution is an absolute failure to protect those rights. It permits Mr. Schiff to continue with his closed-door depositions, and it grants him sole authority to decide which information is relevant, which witnesses can testify and which evidence will be transferred to the Judiciary Committee. When the Intelligence Committee turns over the proceedings to the Judiciary Committee, Chairman Jerry Nadler will then have the authority to deny the president’s counsel access to evidence, the ability to cross-examine witnesses and the full ability to participate in other ways. It’s laughable to claim that’s fair or impartial.

Americans should be concerned about the denial of fundamental constitutional rights to the president of the United States. If it can happen to him, whom can’t it happen to?

From day one, the Democrats have had their sights set on impeachment and have charted a process that could only lead to that end. By denying due process to this president, Democrats have delegitimized the House and its constitutional powers, and have done irreparable damage to the country.

Messrs. Sensenbrenner and Chabot, both Republicans, represent Wisconsin’s Fifth and Ohio’s First congressional districts, respectively.

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Identity politics, at the gates

It is almost beyond belief what prestigious universities are coming to. Well, in light of the lack of integrity of their admission programs, perhaps we are not to be surprised.  Administrations have absolutely, yes, ABSOLUTELY no idea how to use life’s events as teaching moments.

And where is that great agent of ‘change’, President Obama? He doesn’t even seem able to lead from behind anymore.

It is shockingly sad.  And does not bode well for our future, either.

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Harvard has opened an investigation into law professor Ronald Sullivan, who earlier this year joined Harvey Weinstein’s criminal-defense team. Some undergraduates complained that Mr. Sullivan’s decision to represent Mr. Weinstein, who is charged with rape in New York, puts them at risk. By taking the complaint seriously, Harvard puts its commitment to identity politics above the core tenets of due process.

Student backlash was immediate when the New York Post reported in late January that Mr. Sullivan would be representing Mr. Weinstein. A visual and environmental studies major started an online petition to remove Mr. Sullivan from his position as faculty dean of Winthrop House, one of Harvard’s 12 undergraduate residential houses. Mr. Sullivan’s choice of client was “deeply trauma-inducing,” and shows that Mr. Sullivan doesn’t “value the safety of students,” the petition announced. Would Winthrop residents “really want to one day accept [a] Diploma,” the petition asked, from someone who “believes it is okay to defend” Mr. Weinstein?

Six Harvard dorms held “listening sessions” attended by emissaries from the university’s Office for Sexual Assault Prevention and Response, whose website urged trau- matized students to seek mental-health services and other help from Harvard’s massive Title IX bureaucracy. Harvard’s dean of students and its lead Title IX coordinator attended a student protest outside the main administration building, where the ubiquitous Office for Sexual Assault Prevention and Response doled out hot chocolate.

Still-unidentified vandals spray-painted #MeToo slogans such as “your silence is violence” on Winthrop House. The record reveals no condemnation from Harvard officials and requests for comment were not returned at press time. The Association of Black Harvard Women complained that Mr. Sullivan (who is black) had “failed” female African-Americans at Harvard and had compromised his ability to support “survivors . . . as they deal with their trauma.”

This student agitation could have been an opportunity for a lesson in the values of Western democracy. Harvard’s administrators could have explained that a lawyer who defends someone accused of a crime doesn’t thereby condone crime. Rather, he is upholding the principles that all defendants, even guilty ones, have a right to legal representation and that the state may criminally punish someone only after proving his guilt in a rigorously contested adversarial process.

History shows that without such a requirement, state power slides toward tyranny, Harvard’s adults could have said. Mr. Sullivan’s representation of Mr. Weinstein embodies the highest ideals of the law—that every accused person, no matter how reviled, is entitled to a defense in court.

Instead, the administration kowtowed to hysterical students. Rakesh Khurana, dean of Harvard College and a business school professor, launched a review of “concerns about the community’s overall climate” at Winthrop House. As part of the investigation, Harvard’s Office of Institutional Research would administer an anonymous survey, and a former freshman dean would speak privately with Winthrop House residents.

The fact of the climate review is bad enough. It validates the idea that there is something to investigate in Mr. Sullivan’s decision to represent an unpopular client. And the administration’s rhetoric smacks of a re-education camp. The Harvard Crimson reported that Mr. Khurana was “actively” communicating to Mr. Sullivan what he was hearing from “members of the community and what they’re describing their needs [sic] so that Professor Sullivan can adjust to those needs.” Mr. Khurana said he has also “communicated that the College believes that more work must be done to uphold our commitment to the well-being of our students.” In reality, Mr. Sullivan has done nothing to jeopardize the well-being of Harvard’s students.

The dean of Harvard’s Faculty of Arts and Sciences, Claudine Gay, was ominously noncommittal regarding Mr. Sullivan’s ability to rehabilitate himself. Mr. Sullivan’s efforts to date to reassure the community about his commitment to its safety have been “insufficient,” said Ms. Gay, who is also a government and African-American studies professor. Echoing Mr. Khurana, Ms. Gay asserted that “there’s more work that needs to be done,” and hopes for a conversion: “I am hopeful that Professor Sullivan is prepared to be a partner in that work.”

The anonymous climate survey arrived in Winthrop House members’ email boxes this month. Predictably, it asked if the house was “racist” or “homophobic” and whether it has a “strong commitment to diversity, equity, and inclusion.” Harvard might as well close up shop if there is any doubt in 2019 that the answers to these questions are no and yes, respectively. And what do racism and homophobia have to do with the Weinstein case anyway?

In a twist of identity-politics delirium, Mr. Sullivan is now playing the race card against the administration. In a New Yorker interview, he said of the climate survey: “It’s absolutely never happened before, and I do not believe that it would happen again to any non-minority faculty dean.” That racism allegation is as preposterous as the claim that Winthrop House residents are unsafe because of Mr. Sullivan’s criminal-defense work.

The victimhood ideology Harvard is stoking is inimical to education. The zealotry of the Believe Survivors movement, the insistence that identity-based victims uniquely possess the truth, the claim that testing such truth in the marketplace of ideas or a court of law constitutes further victimization—all work against the so-called critical thinking that colleges such as Harvard pride themselves in fostering.

The Sullivan episode represents the toxic union of identity politics with the consumerist model of education, whereby the student is a customer and therefore is always right. Even if Mr. Sullivan ultimately keeps his job at Winthrop House—or at Harvard—Harvard’s graduates will carry with them into the world a profound ignorance of the principles that safeguard American liberties. As they assume positions of power and influence, that will put everyone’s freedom at risk.

Ms. Mac Donald is a fellow at the Manhattan Institute and author of “The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine Our Culture.”

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