Another IRS free-speech scandal

By David B. Rivkin and Randall John Meyer

November 23, 2018, in the Wall Street Journal

The Internal Revenue Service infamously targeted dissenters during President Obama’s re-election campaign. Now the IRS is at it again. Earlier this year it issued a rule suppressing huge swaths of First Amendment protected speech. The regulation appears designed to hamper the marijuana industry, which is still illegal under federal law although many states have enacted decriminalization measures. But it goes far beyond that.

The innocuously named Revenue Procedure 2018-5 contains a well-hidden provision enabling the Service to withhold tax-exempt status from organizations seeking to improve “business conditions . . . relating to an activity involving controlled substances (within the meaning of Schedule I and II of the Controlled Substances Act) which is prohibited by federal law.” That means that to obtain tax-exempt status under any provision of the Internal Revenue Code’s Section 501—whether as a charity, social-welfare advocacy group or other type of nonprofit—an organization may not advocate for altering the legal regime applicable to any Schedule I or II substance.

Marijuana is a Schedule I substance, meaning the Food and Drug Administration has found it has “no currently accepted medical use and a high potential for abuse.” Schedule II drugs include such widely prescribed medications as Adderall, Vyvanse, codeine and oxycodone. The IRS can deny tax-exempt status to any organization that seeks to improve the “business conditions” of a currently prohibited activity involving these medications. That could include simply advocating for a change in the law or regulation forbidding the possession, sale or use of marijuana or other Schedule I substances. It would also encompass advocacy for relaxing the regulatory regime currently governing the production, distribution or prescription of Schedule II medications.

The rule does not apply to all speech dealing with the listed substances, only that involving an “improvement” in “business conditions,” such as legalization or deregulation. Efforts to maintain restrictions or impose additional ones are fine by the IRS. This is constitutionally pernicious viewpoint discrimination. As the Supreme Court stated in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”

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Iranian Sanctions with an Extra Bite

Saudi Probe Is Not a Job For the U.N.

By David B. Rivkin Jr. and Lee A. Casey

October 24, 2018, in the Wall Street Journal

The murder of Jamal Khashoggi has justly triggered international outrage. Yet calls for a United Nations-led investigation are neither justified nor prudent.

Those urging the U.N. to investigate argue that with so much at stake, no sovereign state can be trusted to conduct a full and fair probe. And there is a potential for bias—by the Saudis, whose officials are implicated; by Turkey, a rival of Riyadh; and by the U.S., the Saudis’ longstanding strategic partner. The same is true of many other states, including Britain, France and Germany, all of which have economic and strategic interests in the region.

But this objection proves too much. There are numerous instances in which countries have been accused of terrible crimes, including torture and extrajudicial killings. The list includes the U.S. and every other permanent member of the Security Council. This standard would disqualify virtually every U.N. member.

The general rule is that sovereign states both have the authority and the obligation to put their own houses in order by investigating and prosecuting alleged offenses. Only in the most extreme circumstances can an international inquiry be justified—such as when the state concerned is incapable of undertaking the investigation, or when the alleged offenses rise to the level of widespread international crimes, for which international law prescribes individual criminal responsibility.
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Democrats Abandon the Constitution

By David B. Rivkin Jr. and Lee A. Casey

October 16, 2018, in the Wall Street Journal

Brett Kavanaugh’s appointment to the Supreme Court has sparked a firestorm of outrage and recrimination on the left. Some attacks seem aimed at intimidating the justices into supporting progressive causes. “The Court must now prove—through its work—that it is worthy of the nation’s trust,” Eric Holder, President Obama’s attorney general, tweeted Oct. 6.

Yet the attacks go beyond ideology. Detractors of Justice Kavanaugh and President Trump are denouncing the Constitution itself and the core elements of America’s governmental structure:

• The Electoral College. Mr. Trump’s opponents claim he is an illegitimate president because Hillary Clinton “won the popular vote.” One commentator even asked “what kind of nation allows the loser of a national election to become president.” The complaint that the Electoral College is undemocratic is nothing new. The Framers designed it that way. They created a republican form of government, not a pure democracy, and adopted various antimajoritarian measures to keep the “demos” in check.

The Electoral College could be eliminated by amending the Constitution. But proposing an amendment requires two-thirds votes in both houses of Congress, and the legislatures of three-fourths, or 38, of the states would have to ratify it.

• The Senate. The complaint here is that the 50 senators who voted in Justice Kavanaugh’s favor “represent” fewer people than the 48 who voted against him. But senators represent states, not people.

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Kavanaugh’s Foes Politicize the FBI

By David B. Rivkin Jr and Kristi Remington

October 1st, 2018, in the Wall Street Journal

The bipartisan bonhomie occasioned by the reopening of Judge Brett Kavanaugh’s background investigation dissipated quickly. By the weekend, Senate Democrats—who had demanded the investigation by the Federal Bureau of Investigation—were challenging its credibility, objecting to its scope and focus, and lamenting that the White House had any involvement in shaping the process.

The reopened investigation, according to Sen. Lindsey Graham—reflecting the White House’s view—potentially entailed interviewing Deborah Ramirez, who claims that Judge Kavanaugh committed lewd conduct while a freshmen at Yale, and the three purported witnesses named by first accuser Christine Blasey Ford—Mark Judge, P.J. Smyth and Leland Keyser—all of whom have attested they have no memory that would corroborate her accusation. Julie Swetnick’s sordid and implausible claims were to be left out, and if any new allegations against Judge Kavanaugh were to emerge, these also wouldn’t be investigated.

President Trump told reporters Monday: “The FBI should interview anybody that they want within reason, but you have to say within reason.” That qualification is crucial. It is clear that Judge Kavanaugh’s opponents are clamoring for an open-ended fishing expedition that, probably by design, would go on much longer than a week. They are insisting that the FBI investigate Judge Kavanaugh’s drinking while in high school and college and interview anyone who might know about it. Two such people have already come forward, and there are no disincentives for new claimants, possibly driven by partisan or personal animus, to emerge.

Sen. Patrick Leahy (D., Vt.) tried to justify his demand to broaden the FBI investigation by claiming that heavy drinking was “directly relevant” to the sexual-assault allegations. If this approach were adopted, the FBI would have to interview a very large pool of witnesses about Judge Kavanaugh’s alcohol intake, and possibly many other personal traits, over many years. Never mind that alcohol use is a standard FBI question, certainly asked in the course of Judge Kavanaugh’s previous six background investigations.

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Kavanaugh hearing antics showed Dems’ contempt of Congress

By David B. Rivkin Jr.

Sept. 9, 2018, in The Hill

Democrats like to pillory President Trump for destroying American institutions and breaking the norms of conduct. Yet, during the Supreme Court confirmation hearing for Judge Brett Kavanaugh, Democrats blatantly and flippantly violated Senate norms, rules and traditions — and inflicted in the process considerable damage on the institution.

Sen. Kamala Harris (D-Calif.) interrupted the very first sentence of Senate Judiciary Committee Chairman Chuck Grassley’s (R-Iowa) opening statement. Protesters constantly interrupted questions asked by senators of both parties, as well as Kavanaugh’s answers; they were challenged only by Republican senators. But even in this chaotic atmosphere, Sen. Cory Booker’s (D-N.J.) decision to violate the committee’s confidentiality agreement with the executive branch, pursuant to which the committee received documents that otherwise would have been withheld, was particularly egregious.

On Wednesday night, Booker asked Kavanaugh about an email exchange dating to the aftermath of the 9/11 terror attacks. He quoted a committee confidential document — that is, a document that no senator had the authority to make public, and which Kavanaugh did not have in front of him.

Early Thursday, to ensure that  Kavanaugh and the American public would be able to see the emails for themselves, Grassley worked with the Department of Justice and former President George W. Bush’s attorney to release several committee confidential documents, including the one Booker had quoted. They were taken off the “committee confidential” roster at 4 a.m.

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