So the Department of Justice has finally decided to stop wasting its time chasing escort service owners and that clown governor (oh, that’s right – they’re still after HIM) and moved on to really important matters: prosecuting Roger Clemens for allegedly lying to Congress about whether he used performance enhancing drugs or not. Big stuff. I mean, clearly the question of whether baseball had a steroids problem in the recent past (note to Congress ; we all know that it did), and whether or not the likes of Mr. Clemens were among the malefactors are issues that fully warranted a Congressional investigation, and now a costly prosecution by the United States Attorney’s office. I’m not really a Roger Clemens fan, and never really have been. But I have to say that the notion of prosecuting him for lying to Congress about whether or not he used steroids is more than a little bit silly. I don’t mean to make light of the obligation to testify truthfully. But I have to question whether chasing down a guy who supposedly perjured himself during a Congressional investigation that was a waste of time and money in the first place is really a wise use of prosecutorial resources and taxpayer dollars. I guess after hounding the D.C. Madam to death these guys need something to do

Update 8/23/10: Jonathan Tobin of Commentary is equally skeptical as to the wisdom of the federal government’s investigation and prosecution of Clemens, and of Barry Bonds, as I am. As Tobin observes, correctly in my view, you might think that Roger Clemens is little more than a liar and a cheat. But it does not follow from such judgments that the federal government’s actions in this case are either warranted or wise. The feds have, in fact, engaged in nothing more than a colossal waste of taxpayer money. Why don’t they find another escort service owner to hound to death?

Seems a little absurd, no? But apparently prosecutors are considering looking into whether Ms. Campbell violated South African law by possessing – just possessing – so-called “blood diamonds”. It seems that in September of 1997, while visiting South Africa, Ms. Campbell was given 3 stones that turned out to be diamonds by associates of former Liberian President Charles Taylor. Mr. Taylor is currently on trial for war crimes relating, in part, to his funding of the insurgents in the civil war in Sierra Leone in the 1990′s. Among the charges against Mr. Taylor are that he used diamonds mined in Sierra Leone to fund the insurgency. The 3 diamonds given to Ms. Campbell, supposedly, were among those mined in Sierra Leone – the so-called “blood diamonds”. The trouble for Ms. Campbell is that is is apparently a violation of South African law to possess such diamonds with the knowledge that it is illegal to do so. Whether or not Ms. Campbell had such knowledge I have no idea. But the notion of prosecuting her seems foolish to me in any event. Even assuming that she knew the origin of the stones, and assuming that she knew it was unlawful to possess them, what choice did she have once they were given to her. She couldn’t very well avoid possessing them for at least a brief period of time – which in fact turned out to be the case – at least until she could turn them over to authorities. Its also clear that she didn’t do anything, consciously or otherwise, to aid either Mr. Taylor or the Sierra Leone insurgents. What purpose would pursing such a prosecution serve, aside from grabbing a few headlines? Absolutely none. Ms. Campbell may be a horrible person. She may throw things at her maid and have a violent temper. But she’s not a war criminal by any stretch of the imagination, and prosecuting her for possessing these diamonds would be a travesty and a waste of time. Perhaps these prosecutors should spend their time on something really important – like figuring out whether Roger Clemens used steroids and lied about it.

Like Lord Voldemort, the embodiment of pure evil from the Harry Potter stories, Charles Bennison, the once defrocked Episcopal Bishop of Pennsylvania, is back. The Episcopal Church’s top appelate tribunal, the Court of Review of the Trial of a Bishop, last week issued an opinion that in effect exonerated Bennison of charges that he covered up the sexual misconduct of his own brother.

What is most remarkable to me about this story is that Bennison, during the time he served as Pennsylvania’s bishop, made a series of statements questioning fundamental tenets of Anglican faith, as embodied in the Nicene Creed, sufficiently frequently that one would be justified in questioning whether Bennison was fit to be called a Christian, let alone to serve as a bishop. But he was never called to answer for his apparent apostasy. And when he was finally brought up on charges that he had, years before being elected to lead the Diocese of Pennsylvania, concealed his own brother’s sexual improprieties – a prosecution that seems akin to charging Al Capone with tax evasion – he dodged the ultimate eccesiastical penalty on a legal technicality. The Court ruled that the statute of limitations had run out on the conduct forming the basis for the concealment charges.

The Bennison case tells us much of what we, I suppose, already knew about the Episcopal “Church”. That Bishop Bennison can repeatedly and publicly question foundational principles of the faith without fear of reprisal is bad enough. That the church hierarchy cares more about technical legal niceties than it does about whether its own bishops are in fact believers confirms that the Episcopalians have forfeited their right to claim to be any kind of church.

UPDATE: Many thanks to those visiting from Stand Firm and Transfigurations for checking in here.

According to one of the British tabloids, looks like Lindsay Lohan will be released from jail soon, having likely served not more than 9 days of a 90 day sentence imposed last week for her for violations of the terms of the probation she was serving for various prior offenses, including charges for drunk driving and possession of cocaine. I know many will express outrage that the mediocre actress will serve so little time. Frankly, I am not particularly concerned. Whatever her prior offenses, Lohan didn’t kill anyone, she didn’t hurt anyone (except maybe herself). The girl doesn’t need to serve a lengthy jail sentence. She needs help. And the government needs to spend its resources pursuing real criminals who have committed real crimes. Guys like Roger Clemens.

The United States Supreme Court took a substantial step toward doing just that yesterday when it vacated Skilling’s conviction under the federal “honest services” wire fraud statute, and remanded the case to the 5th Circuit Court of Appeals to determine whether Skilling’s conviction on other charges against him was so tainted by the government’s reliance on the “honest services” theory that they all must be dismissed. Tom Kirkendall, Larry Ribstein and Stephen Bainbridge, all of whom have blogged extensively on the Enron case and the over-criminalization of business over the years, have more details on their various sites.

Skilling’s case – which is perhaps the most egregious example of the criminalization of business conduct in the most recent generation of ani-business prosecutions – now heads back to the lower courts and further litigation. In addition to the honest services question now put into play by yesterday’s ruling, there remain issues relating to Skilling’s sentencing and his motion for a new trial based upon prosecutorial misconduct to resolve. It would certainly appear that the convictions that the government managed to claim are but a house of cards waiting to topple. Here’s hoping that yesterday’s ruling is a further step toward not only freeing Jeff Skilling, but to also reigning in the nonsensical criminalization of bad business decisions and poor judgment.

According to the Wall Street Journal, among the documents that the Senate Judiciary Committee has posted relating to the Kagan nomination are handwritten notes that the nominee made for a speech she was to deliver to Princeton University alumni in 2003. The notes, according to the Journal’s account of their contents, reveal Kagan’s misgivings about the Supreme Court’s decision in the Bush v. Gore election case. Kagan’s observations on that case, and related views on the notion of judicial restraint, raise significant questions that Senate Republicans should pursue vigorously during the hearings on Kagan’s nomination:1. Kagan evidently opines that judges “necessarily [and] inevitably” take into account “political [and] policy questions …” when deciding cases. Does Ms. Kagan really believe this? Does she really believe that it is inevitable – and appropriate – for judges to  give weight to political and policy concerns when deciding disputes? Is it really proper for a court to make a decision based other than on the facts of the case and the applicable law? There are many – including, presumably, the GOP members of the Judiciary Committee – who think that political and policy views most definitely DO NOT have any place in the judicial making calculus. If Ms. Kagan really believes that judicial decisions may properly be based upon policy or political principles, there is substantial question as to whether she is qualified to sit on the Court.

2. Kagan further observed that courts should “defer to the political branches” and exercise judicial review “with caution.” Assuming that Ms. Kagan believed that the Supreme Court had not shown proper deference to the “political branches” in Bush v. Gore, and had failed to exercise its review function with something other than caution, it bears asking what was (is?) her view on the various decisions of the Florida Supreme Court in the 2000 election debacle. What was the Supreme Court to do when presented with the decisions of a state tribunal that had not only not deferred to the legislative and executive branches proper exercise of their authority, but had in fact wholly ignored the considered decisions taken by the political branches and arrogated to itself functions that were solely and exclusively within the province of the political branches? Does her preference for deference to the political branches lead her to believe that the Florida Supreme Court acted in anything but a lawless manner? Somehow I think that we know the answer to the question, but it bears exploration.

3. Does Ms. Kagan believe that reviewing courts should show deference to the political branches when, for example, legislative enactments plainly violate express provisions of the Constitution? Does she believe that the Supreme Court failed to show such deference when it overruled the preferences expressed by the political branches in cases such as Roe v. Wade, the various Bush era terrorism cases? What are the limits of the deference to which she believes the political branches are due, and does that deference end with matters that reflect her own political and policy preferences?

Senate Republicans have an obligation to probe Ms. Kagan on thee matters, and to oppose her confirmation if they are not satisfied with the answers that they receive.

Once I have had the chance to fully review the notes in question, I may post an update with additional thoughts and questions.

As I’ve been following the semi-furor over Eric Holder’s revelation before a Congressional committee that he hasn’t read the Arizona immigration statute – a law that he’d earlier suggested he’d have the government sue to invalidate – I’ve been wondering how such an approach would work in private practice. In that context, not having read the staute is beyond inexcusable. It is incompetent, a firing offense, and borderline malpractice.I can picture the scenario. New client comes to the office, upset about a dispute over a contract or some such, and wondering what his recourse is. I tell him to leave the documents, that I’ll look them over and we’ll talk in a couple of days. Three or four days latervthe client calls and asks what ai think. “Oh, this is outrageous. You’ve got a slam dunk case. We need to file a lawsuit,” I tell him. “Really?” he asks. “You read the contract and think I have a case?” “I didn’t read it,” I tell him “but I am aware of it. I’ve skimmed it. And you have a dead solid case.”

In the real world, the client would probably fire me. If I went ahead and filed the case, I might be subject to sanctions. If I screwed it up because I’d not done the due diligence, I might be liable for malpractice. As a lawyer, making judgments about a matter withiut reading the relevant documents and gathering the appropriate information is siimply not acceptable. But in the Obama White House, it seems to be the norm.

I understand that the Attorney General is busy. He can’t read everything. But for him to appear on national television and threaten legal action to invalidate a properly enacted piece of state legislation without more than a passing familiarity with the statute s no more acceptable than what I proposed in my hypothetical. Let’s be honest, making a judgment without having read the document, as the Attorney General did, is not legal analysis. It is the expression of a political opinion. An opinion based upon a personal distaste for the content of the statute. We deserve more – and better – from our nation’s chief legal officer. Eric Holder is either incompetent or dishonest, and he should resign now.

In a great post on Philadelphia Magazine’s Philly Post, former news anchor Larry Mendte asks why there isn;t more outrage here in Philadelphia in response to the significant tax increases that City Council has dumped on us in what will surely be a losing effort to try and shore up the City’s woeful fiscal situation. Where, asks Mendte, is our Rand Paul? Mendte is right. At a time when the City is teetering on a fiscal precipice, with a shrinking tax base and a miserable business climate that os getting worse, Council and the Mayor decide to hike taxes. Brilliant. I suppose it is completely lost on the geniuses on City Council and in the Mayor’s office that the City is in the mess its in NOT because those of us who live here and do business here are taxed too little. Philadelphia is a basket case because it is probably the most inhospitable place in which to do business this side of Caracas. Instead of jacking up property taxes and heaping more costs on the City’s productive citizens, or looking more closely for ways to reduce the size of government and run its operations more efficiently, the City should be looming to expand its tax base by making itself an attractive place in which to start and run a business. An expanding tax base will provide more than enough revenue to run the City. But not here. Instead, Mayor Nutter and the dopes on City Council choose to perpetuate discredited and failed fiscal policies, to all of our detriment. Until the City government realizes that its tax and regulatory structure have made it too expensive and complicated to start and run a business here, and do something about it, Philadelphia will continue to deteriorate and circle the drain. I only hope that its not too late when we find our Rand Paul.

One of the longest running debates in American politics – and one on which the conservative side has fairly consistently prevailed – involves the proper role of the courts in our Constitutional system. Polls have consistently shown that a solid majority of the electorate agrees that the courts should limit themselves toppling the law, and should refrain from creating rights. The latter is a function that is, under traditional American political theory, properly reserved to the legislature. This notion – that courts should not involve themselves in creating new positive rights – has often been labeled with the shorthand term “judicial restraint.” Recognizing that they’ve lost the debate as currently framed, and fearful that the more ambitious aspects of the “progressive” agenda may not fare so well in the courts, the Obama Administration, and its friends in legal commentary circles, are now seeking to change the terms of the debate, or, perhaps more accurately, to change the meaning of the terms about which we are debating.Obama’s new riff, designed to make himself appear to be the true “conservative” and to paint the current Supreme Court as radical activists, is that “judicial restraint” requires courts to defer to the legislature when reviewing duly enacted legislation even, presumably, when the legislation under consideration plainly violates the Constitution. Jeffrey Toobin, a consistent Obama ally, adds his voice to the left’s newfound love for “judicial restraint” in a piece in the May 24 issue of The New Yorker.

Toobin quotes Obama to the effect that “an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” Toobin then opines that the Roberts Court has betrayed itself as an “activist” court through its decisions striking down portions of the McCain-Feingold law, certain pieces of local legislation imposing quotas in public school enrollment and the District of Columbia’s ban on handgun ownership. The clear objective of Toobin, and those who write in a similar vein, is to discredit these decisions and the jurisprudential principles underlying them, as “activist,” and to lay the groundwork for a defense of the “progressive” agenda in part based on a plea for judicial restraint. Toobin – and Obama – however, are advancing a flawed argument, and are doing so disingenuously.

The left’s notion of judicial restraint, revealed through his definition of “activist,” might hold truck – might – where the legislature takes seriously its own independent responsibility to faithfully interpret the Constitution and to refrain from enacting into law measures that plainly violate rights expressly bestowed by the Constitution. None of the matters for which Toobin takes the Roberts Court to task, however, meets this definition. All were plainly violative of explicit limitations on legislative powers set forth in the Constitution and were rightly invalidated. Substantial portions of Obama’s health care opus may well be deemed to be similarly flawed which is, of course, the entire point to the left’s recent attempts to claim the mantle of “judicial restraint.” Restraint is indeed a quality to be encouraged where the legislature has taken its obligations seriously and has acted with restraint itself and shown due deference to the rights bestowed upon the people and the States. Where Congress, or any other legislative body, has plainly overstepped its bounds and enacted a measure that plainly violates the Constitution, the Obama notion of “restraint” should cease to govern. In such circumstances, the courts have an independent obligation to vindicate the rights of the people as expressed in the Constitution by invalidating the offending legislation. Such decisions are by no means “activist,” in the way that the efforts of the Warren Court or Justice Kennedy to create new positive rights out of whole cloth were, and the act of deferring to the legislators who pass such laws is not “restraint,” it is cowardice.

If Obama, and Toobin, were willing to decry the kinds of activists who find in the Constitution “rights” that appear nowhere in the text and which cannot be understood to be Constitutionally protected under any legitimate interpretive theory, then they would, on that point, find me an ally. But I wouldn’t hold my breath waiting for them to take that leap. Those kinds of activists are just fine by them, so long as the “rights” that are being created square with the progressive agenda.

During last night’s installment of celebrity apprentice, that’s what Sharon Osborne told Trump when he asked her why she was so emotional during the boardroom confrontation at the end of which Osborne was fired. It happens that the charity for which Osborne was playing was very personal to her, and thus her plea that it wasn’t just business to her. Setting aside the obvious – that all of the players on the NBC show are competing to benefit causes that are in some way important to them personally – Osborne hit on what is, or ought to be, a deeper truth for all of us who are engaged in serving clients or customers. Business SHOULD BE personal. We should identify with our clients’ needs as keenly as we do with our own. We should engage with them on a level where their success matters as much as our own, and where we feel it as sharply as they do when they fall short. As Tom Peters might say, its all about empathy. I don’t mean to suggest that you become so involved with your clients’ issues that you lose objectivity or the ability to provide clear headed analysis. But if you can’ empathize, and don’t understand where the customer is coming from, your advice or service will be at least somewhat lacking. We all should strive to make our clients needs as personal to us as Sharon has her charitable works.