Combs Spouts Off

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Posts Tagged ‘law’

Popehat explains why it’s (almost) never RICO

Posted by Richard on June 19, 2016

If you’re like me, you probably don’t know much about the Racketeering Influenced and Corrupt Organizations (RICO) statute. You probably don’t think you need to, and you’re right (unless you’re one of those people who wants to use RICO for this, that, or the other thing that upsets you). And you undoubtedly think reading about RICO would be tedious, dull, and boring for anyone who isn’t a lawyer, and maybe even for them. Well, there you’d be wrong.

What if I told you that you could learn all about RICO and its uses and misuses while being thoroughly entertained and amused?

Don’t believe me? Check out Ken White’s marvelous Lawsplainer: IT’S NOT RICO, DAMMIT. I’ll accept your apology for doubting me when you’re done.

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Can the Obama administration simply ignore federal laws it doesn’t like?

Posted by Richard on February 22, 2012

That’s the question at issue, according to Van Irion, in U.S. v. Arizona. His Liberty Legal Foundation recently filed an amicus brief with the U.S. Supreme Court in this case.

Arizona’s S.B 1070 says that when state law enforcement officers have legitimate reasons for detaining an individual, they should request information about the individual’s immigration status from the INS. The Obama administration ordered the INS not to provide such information, in violation of Federal law (8 U.S.C. §1373), which states in subsections (a) & (b) (emphasis added by Van Irion):

“Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual…no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) …requesting or receiving such information from, the Immigration and Naturalization Service”

In Federal District Court, the Obama administration asked for and received an injunction prohibiting Arizona law enforcement agencies from requesting immigration status information from the INS. They cited subsection (c) of that same law (8 U.S.C. §1373), which requires the INS to respond to such requests. And they argued … well, I’ll let Irion explain (emphasis in original):

… You see, the Arizona Court and Obama both reason that because subsection (c) requires the INS to respond, if Arizona police make too many requests, then the INS will be too busy to “pursue other priorities,” as determined by Obama.

To summarize the argument: Because Federal law requires us to do this, if you make us do it we won’t be able to not do it. And that argument won the day.

This argument essentially asks the Judicial branch to validate the Executive branch’s decision to ignore the Legislative branch’s mandate. Do you see the danger to our entire form of government?

The amicus brief is quite short, simple, and commendably clear. I urge you to read it (PDF).

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Making felons out of bloggers

Posted by Richard on June 3, 2011

Copyright law in this country is already pretty screwed up, and it's obvious that the entertainment industry has Washington wrapped around its little finger. But who would have thought that a bill like S.978 would be given serious consideration?

From time to time, I embed YouTube videos in my posts. As Mike Masnick noted, doing so if this poorly drafted bill passes could get me five years in the slammer:

If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link… you could be facing five years in jail. This is, of course, ridiculous, and suggests (yet again) politicians who are regulating a technology they simply do not understand.

This is so wrong in so many ways. First of all, as Masnick pointed out, the drafters seem to know little or nothing about such things as streaming, linking, and embedding, and they throw in an undefined phrase like "performing by electronic means" without a clue as to what the consequences are.

Secondly, what happened to fair use? When I embed a video on this blog, I don't charge people to watch or listen. How is what I'm doing any different from inviting some people over to my house and playing the same song or video? Or will that soon be a crime, too?

Thirdly, even if this is legitimately a copyright infringement, how in the world does it rise to the level of a felony with punishment comparable to burglary or bank robbery? Why isn't it simply a civil matter?

And furthermore, there's the issue of mens rea. It used to be a well-established (hundreds of years of common law precedent) principle of the law that, to be guilty of a criminal act, you have to have criminal intent. 

The critics of mens rea often pompously declare that "ignorance of the law is no excuse." Nonsense. With laws and regulations with the force of law now running into the millions of pages, how can anyone not be ignorant of the law (or at least a large portion of it)?

The "reasonable person" test should apply. If a video is posted on YouTube and hasn't been taken down at the request of the copyright holder, a reasonable person (like me) can reasonably presume that either it's not subject to copyright or the copyright holder has chosen to allow its dissemination.

S.978 deserves to die an ignominious death. Contact your senators and let them know what you think of this ridiculous bill. 

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The crime of failing to be omniscient

Posted by Richard on May 29, 2011

A disturbing idea has taken root in the Western world in recent decades: that whenever anything bad happens to anyone, someone must be blamed. And made to pay. This may be the most bizarre application of that idea that I've encountered:

ROME (AP) — Seven scientists and other experts were indicted on manslaughter charges Wednesday for allegedly failing to sufficiently warn residents before a devastating earthquake that killed more than 300 people in central Italy in 2009.

Italian media quoted the judge as saying the defendants "gave inexact, incomplete and contradictory information" about whether smaller tremors felt by L'Aquila residents in the six months before the April 6, 2009 quake should have constituted grounds for a quake warning.

I'd like to think that this bit of nonsense is an aberration that will soon go away. But nowadays, who knows? Meanwhile, the defendants are no doubt racking up legal bills. Will we soon see liability insurance policies marketed to geologists, vulcanologists, meteorologists, … ?

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Punishing Christian speech, embracing Sharia law

Posted by Richard on November 11, 2010

Publicly professing a belief in Christianity or inviting others to learn about it are punishable offenses in more places than you might think. But the severity of the punishment varies considerably.

In Pakistan, they sentence you to death. And sometimes just shoot you on the spot.

In Dearborn, Philadelphia, and Wichita, they just throw you in jail for a while. Don't count on the ACLU and other human rights organizations to help.

Any statement suggesting that Islam is not the one true religion or that Islamic law shouldn't govern everyone everywhere is considered either "blasphemy" or "defamation" by the Islamists, and they're waging a worldwide campaign to criminalize (or silence through intimidation) such statements. They have the UN on their side.

Last week, Oklahoma voters — 70% of them — adopted a constitutional amendment barring judges from relying on Sharia or international law for court rulings. They were perhaps motivated by the Islamists' war on free speech and the growing trend in Europe of bending to Sharia, as evidenced by:

  • court decisions in Italy and Germany acknowledging the right of Muslim men to beat their wives and daughters.
  • the establishment in Britain of a Sharia court system parallel to the English courts and supplanting them for members of the Muslim community.
  • the criminal prosecution of Geert Wilders (Netherlands), Elisabeth Sabaditsch Wolff (Austria), Jussi Halla-aho (Finland), and Brigitte Bardot (France), among others, for criticizing Islam. 

The will of Oklahoma voters has been thwarted for now by a restraining order granted to the Islamist group CAIR (an offshoot of the Muslim Brotherhood and unindicted co-conspirator in a terrorist funding case). Ironically, this ruling protecting the right of Muslim men to claim that Sharia law authorizes them to beat women — and to silence those who criticize them for that — was issued by a judge who was once a prominent women's rights advocate.

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Whose money is it?

Posted by Richard on November 5, 2010

On Wednesday, the Supreme Court heard oral arguments in another important Institute for Justice case, Wynn v. Garriott. I haven't been keeping up with all of IJ's fine work lately and was unfamiliar with this case, which made its way to the Supremes after the 9th Circuit reversed a ruling that the suit was frivolous.

But over at Big Government, Adam B. Schaeffer made it clear why this case is extremely important: 

The 9th Circuit’s reasoning arrogates to the state all property , dissolving the distinction between public and private funds as well as public and private choices. It is a disturbing, dangerous decision.

They assert that tax cuts are the equivalent of government funds, a conclusion possible only if one assumes that all personal income belongs by default to the state rather than to the individual who earned the money. It asserts as well that when taxpayers and parents privately choose to support religious educational organizations, they are in violation of the First Amendment. This reasoning blatantly ignores the logic and plain meaning of the 2002 Zelman decision upholding school vouchers, among others.

Here is a prediction; the court will have their absurd ruling on an Arizona education tax credit program posted on the wall of judicial shame like so many others issued from their Circuit.

But I want more from the Court. This ruling is so awful that I can only pray SCOTUS rules beyond the questionable standing of the plaintiffs and comprehensively dismembers this most egregious 9th Circuit decision.

The Obama administration has weighed in on the right side, according to the WaPo article linked above. But I suspect their motives. Acting Solicitor General Neal K. Katyal (to the apparent surprise of his former boss, Justice Kagan) argued that the taxpayers challenging Arizona's tax credit for private education donations didn't have standing to bring their suit.

I'll bet dollars to doughnuts that the Obama administration fervently hopes this case is decided on the standing issue and not on the merits because a decision on the merits is almost certainly going to go against one of their cherished, bedrock philosophical beliefs: that the government ultimately owns and controls everything.

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Journalists and legal scholar agree: government should shut down Fox News

Posted by Richard on July 22, 2010

JournoList was a private email list of leftist news and opinion journalists started and run by the Washington Post's Ezra Klein. Klein shut it down (ostensibly) after the Dave Weigel scandal. Leaked JournoList emails revealed that Washington Post reporter Weigel, who covered the conservative movement, loathed conservatives and used his reporting to undermine and discredit them at every opportunity.

In recent days, additional JournoList archives have been leaked to the Daily Caller, and they contain some eyebrow-raising revelations: journalists plotting to cover up the Jeremiah Wright story and take steps to protect candidate Obama from negative news, arguing in favor of smearing some right-wing pundit ("Fred Barnes, Karl Rove, who cares") as a racist in order to "raise the cost on the right of going after the left," and wanting to watch Rush Limbaugh die of a heart attack because "he deserves it." 

Any number of commentators have weighed in on this ongoing story, like John Fund, James Taranto, Greg Gutfeld, and Alexander Marlow. The latter focused on the latest Daily Caller story's "far-from-shocking revelation" that the JournoList folks really hate Fox News. The discussion of how to control or shut down Fox News, which included people from Time magazine, the Guardian, and the New Republic, is interesting. But the part that really struck me was this: 

Jonathan Zasloff, a law professor at UCLA, suggested that the federal government simply yank Fox off the air. “I hate to open this can of worms,” he wrote, “but is there any reason why the FCC couldn’t simply pull their broadcasting permit once it expires?”

Broadcasting permit?? Fox News is a cable network. It doesn't broadcast. So it doesn't have or need an FCC license (not permit). Even ABC, CBS, and NBC don't have FCC licenses, only their local affiliates do. Because the networks themselves don't broadcast over the "public airwaves," only their affiliates do. I'm stunned that an apparently respected professor at a purportedly prestigious law school doesn't know this.

(Of course, the situation could change if FCC chair Julius Genachowski's "net neutrality" scam becomes the camel's nose in the tent regarding FCC regulation of non-broadcast communications.)

I wondered how Prof. Zasloff came to be so incredibly ignorant. Well, according to UCLA Law School, this is how:

Jonathan M. Zasloff
Professor of Law
B.A. Yale, 1987
J.D. Yale, 1993
M.Phil. International Relations, Cambridge, 1988
M.A. History, Harvard, 1990
Ph.D. Harvard, 2000
UCLA Law faculty since 1998

Wow. I'm feeling smugly superior, and damned glad I was never intellectually crippled by an Ivy League education.

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Punishing the victim

Posted by Richard on July 9, 2010

Here's a local story I would have missed if it hadn't been for Sharp as a Marble (I'm tempted to link-leech his Rage-O-Meter):

WHEAT RIDGE, Colo. – Admitted thieves are going free, while an elderly Wheat Ridge man is facing the possibility of spending the rest of his life behind bars, all, he says, for trying to defend his property and his life.

Here's the story in a nutshell: Back in February, two illegal aliens with lengthy criminal records stole a trailer from 82-year-old Robert Wallace. He saw them and ran out with his handgun to stop them. They tried to run him over, and he fired. One of the perps was injured. 

The Jefferson County DA has now charged Wallace with 12 felonies, including four counts of attempted murder. (How does shooting at two people, whatever the circumstances, result in four counts of attempted murder?) He could spend the rest of his life in prison. 

The two perps, one of whom is allegedly part of a "major auto theft ring," were let go and not charged with anything. 

Unbe-frickin-lievable. Does JeffCo DA Scott Storey think this is Great Britain? If you think this is outrageous, you might want to drop him a note about it.

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Supporting financial jihad

Posted by Richard on May 20, 2010

In Supreme Court nominee Elena Kagan's thin resume, Frank Gaffney found evidence of something troubling (emphasis added):

It turns out that, at the very moment Ms. Kagan was pushing aggressively to remove military recruiters from the Harvard Law School campus during her tenure as its dean, she was very supportive of having what amounted to Saudi recruiters ensconced there for the purpose of enlisting some of the nation’s finest young lawyers to work for the industry known as Shariah-Compliant Finance (SCF).

The first insight this record suggests is that Ms. Kagan’s true motivation in barring the armed forces was, indeed, an animus towards the military, rather than concern about its supposed mistreatment of homosexuals.  After all, the theo-political-military-legal code that authoritative Islam calls “Shariah” and that is the law of the land in Saudi Arabia is infinitely more homophobic than the Pentagon’s efforts to enforce the U.S. statute that prohibits avowed gays and lesbians from serving in uniform.  The former requires the murder of homosexuals; the latter simply kept them out of the ranks.

Ms. Kagan’s troubling tolerance of Shariah would, of course, have vastly more far-reaching implications should she reach the Supreme Court.

The promoters of Sharia-Compliant Finance and their dupes in the media explain it with some hand-wavy blather about not charging interest and not investing in "impure" things like alcohol and pork. But it's much more than that, and it's a 20th-century invention.

Sharia-Compliant Finance was created by the Muslim Brotherhood in the 1940s as another tool to promote its goal of imposing radical Islam throughout the world. To be Sharia-compliant, you have to pay the zakat — a "charitable" donation that, more often than not, ends up in the hands of organizations promoting jihad or trying to rid the world of Jews. The Holy Land Foundation, a Muslim Brotherhood front group convicted in 2008 of conspiring to fund terrorist organizations, was an example. 

To be Sharia-compliant, you also have to get the approval of a "Sharia authority": 

Unfortunately, every one of such individuals embraces not only the supremacy of authoritative Islam’s Shariah.  Without exception, they aspire to its ultimate objective: a global theocracy in which a ruler (the “Caliph”) governs in accordance with Shariah.

Thus, the coterie of Shariah authorities now employed by most of the Western world’s financial institutions – including many in the United States – unfailingly champion a seditious program that has at its core the overthrow of the alternative legal systems like the U.S. Constitution and the government it empowers.

One of the most prominent of these authorities is Sheikh Yusef al-Qaradawi who sits on numerous SCF advisory boards and those of Persian Gulf sovereign wealth funds.  He also has his own television program on Al Jazeera, which he uses week after week to inveigh about and call for violence against infidels, the United States, Israel, apostates and, yes, homosexuals. Interestingly, Qaradawi has called zakat, the Muslim charitable donation required by SCF, a form of “financial jihad.”

According to Gaffney, Kagan's promotion of a Sharia-compliance project at Harvard helped the proponents of financial jihad gain significant power and influence in the finance industry and in government regulatory agencies.

Government involvement in promoting Sharia is the subject of a pending federal lawsuit. The Supreme Court may one day be asked to rule on whether such government promotion of Islamic law violates the Establishment Clause. Care to speculate on how a Justice Kagan, who helped make Harvard University "a major beachhead of Shariah in America," would vote in that case?

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Do as they say, not as they do

Posted by Richard on May 14, 2010

Let me see if I've got this right: the administration that vociferously condemned Arizona for telling its cops to inquire into the immigration status of people whom they have reason to believe have committed a crime has taken into custody three men whom they believe may have some peripheral connection to a crime … for "immigration violations."

Wow. My irony meter is pegged. 

I'm sure that in the next few days, various administration officials will once again be congratulating each other and crowing about what a great job they're doing protecting us from terrorists. Like they did after they cleverly prevented that bomb in Times Square from exploding. And when they brilliantly stopped that airliner from being blown up at Christmas. And when they bravely saved all those soldiers at Ft. Hood from being gunned down … Oops, that last one didn't end so well — but that wasn't a terrorist attack, it was just some lone nut.

Oh, wait. Those other two were just lone nuts, too, weren't they? Tea partiers disgruntled about taxes or something? 

I'm so confused. Too many narratives! What's the narrative today? I can't keep all the narratives straight.

I know — today's narrative is that ICE is doing a great job and this administration is right on top of that big illegal Pakistani immigrant problem in the Northeast. I wonder if those three Pakistani guys were Mirandized

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Good news and bad news on McDonald

Posted by Richard on March 2, 2010

The Supreme Court heard oral arguments today in McDonald v. Chicago. The good news is it looks like incorporation of the Second Amendment, extending its reach to the states, is just about a done deal. The bad news is that it's likely to be done by means of the nebulous and endlessly-interpretable-by-judges "substantive due process" concept instead of via the "privileges or immunities" clause of the 14th Amendment.

In the Wall Street Journal, Randy Barnett has an excellent column in which he explains why the latter would be far preferable to the former, points out that the 14th Amendment's "privileges and immunities" clause was clearly intended to address (among other things) specifically the right to bear arms, and argues that the 1873 Slaughter-House ruling trashing that clause (right up there with Dred Scott as one of the worst Supreme Court rulings ever) ought to be reversed. 

The "wandering discussion" Barnett cited illustrates the vast gulf that separates Scalia, Alito, and Roberts from Clarence Thomas, even though they're often lumped together as "conservative" or "originalist" justices and often vote together.

I wish this time Thomas had abandoned his habit of listening without questions or comments. I wish Janice Rogers Brown were sitting on that bench instead of Roberts or Alito (or better yet, instead of Breyer, Stevens, Ginsburg, or Sotomayor).

And I wish we had five justices with the courage, principles, and good sense to overturn Slaughter-House.

Sigh. But getting the Second Amendment incorporated is progress. And not insignificant, even though doing it through substantive due process will certainly temper the victory and leave lots of wiggle room for "sensible" regulations.

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Socialized legal care

Posted by Richard on September 5, 2009

Via another friend, I learned of "A Doctor's Plan for Legal Industry Reform," a wickedly funny Wall Street Journal op-ed by Richard B. Rafal, M.D. (emphasis added):

At a town-hall meeting in Portsmouth, N.H., last month, our uninformed lawyer in chief suggested that we physicians would rather chop off a foot than manage diabetes since we would make more money doing surgery. Then President Obama compounded his attack by claiming a doctor's reimbursement is between "$30,000" and "$50,000" for such amputations! (Actually, such surgery costs only about $1,500.)

Physicians have never been so insulted. Because of these affronts, I will gladly volunteer for the important duty of controlling and regulating lawyers. Since most of what lawyers do is repetitive boilerplate or pushing paper, physicians would have no problem dictating what is appropriate for attorneys. We physicians know much more about legal practice than lawyers do about medicine.

RTWT. I especially like the idea of having committees of doctors determining what legal procedures are necessary and setting the fees.

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Chrysler deal lives, Rule of Law is dead

Posted by Richard on June 10, 2009

This is terrible news. The Supreme Court has turned its back on Chrysler's secured creditors:

In a victory for the Obama administration driving the restructuring of bankrupt Chrysler, the court denied a request from Indiana pension funds to delay the sale to a group led by Fiat, a union-aligned trust and the U.S. and Canadian governments.

The White House welcomed the high court's action.

The Supreme Court decision followed a one-day stay issued by Justice Ruth Bader Ginsburg that prevented the Chrysler/Fiat deal from closing on Monday as planned. The Fiat option was the only one pursued to save Chrysler from collapse.

The pension funds said the bankruptcy and appeals courts are moving too fast and contended that Chrysler's sale would unlawfully reward unsecured creditors ahead of secured lenders.

They also said that the plan amounted to an illegal reorganization and that the Treasury Department overstepped its legal authority by using financial bailout funds for Chrysler when Congress had intended the money for banks.

The Treasury has dedicated more than $12 billion for Chrysler and roughly $50 billion for GM as part of the government's bailout of stricken U.S. automakers.

From now on, whenever Tim Geithner and Barack Obama shout "It's a crisis! We have to act right now!" they're free to shred existing contracts, stiff secured creditors, and redistribute to their friends what's rightfully owed those creditors. So long, Rule of Law; hello, Peronism. 

So tell me, are you more or less likely to invest in corporate bonds knowing that Washington can wipe you out or give you pennies on the dollar with a wave of the hand?

What about Treasuries? This administration has now demonstrated that it has no respect for the contractual obligations entered into by others — and the Supremes have decided that it's expedient not to stand in their way. Does that make you more or less confident that the government will stand behind its own debt obligations? How do you think it makes the Chinese and Europeans feel about that?

This is a very sad day. Our president is a lean, cool, charismatic version of Hugo Chavez, and he's turning this country into a banana republic. And no one dares to stand in his way. 

I'm disgusted. 

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Audit Congress update

Posted by Richard on February 16, 2009

Last Monday, I posted about the new site, AuditCongress.com. I hope you checked them out. Now they've got a petition up, and I enthusiastically support it (I suspect I was one of the first to sign it). So please visit (or revisit) AuditCongress.com, click the link, and sign their petition. Here's the entire text of the petition:

Whereas the Citizens of The United States of America have officials elected and appointed to offices of the highest power and responsibility, and whereas these same officials are human, and subject to the same faults as are all humans, and whereas recent history has shown that members of our Congress as well other high government officials may not have paid the taxes for which they are responsible:

We the undersigned Citizens of The United States of America hereby call upon both houses of the Congress of the United States, the President of the United States, as well as the President's appointees, to immediately volunteer to be audited by the Internal Revenue Service of the United States. Further, we call upon them to make public, in summary, the results of that audit. We further call for an annual audit for all of these named officials to be completed no later than June 30 of the following year, again making the results public within 30 days.

We petition the President to direct the Secretary of the Treasury to conduct audits for all volunteers immediately and to publish the summary results.

We petition the President to within the calendar year 2009, author and offer legislation to Congress enacting into federal law an annual income tax audit process for all of Congress, the President, and all of the President's appointees. We call on the President, The Secretaries of the Cabinet, and members of Congress to actively promote this legislation within the Congress on behalf of the American People until such time as it becomes the law of the land.

I love this idea and think supporting it is a no-brainer. I've got a suggestion for the next step: Dan and Peter should draft a candidate's pledge of support for the Audit Congress idea and ask potential candidates for Congress in 2010 to sign the pledge. Let's see which candidates are willing to say, "I'm squeaky clean and have nothing to hide." And let's let the public know who isn't.

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Audit Congress

Posted by Richard on February 10, 2009

It's come to my attention recently that we seem to have quite a few elected officials and appointees to high government office who forget to declare all their income or can't understand even the relatively simple parts of the tax code. Yet, when their past failings and "oversights" come to light, they usually suffer no consequences other than having to pay up — and usually without any penalties.

This state of affairs has at least two deleterious consequences: 

  • It breeds cynicism among the citizenry and undermines confidence in and commitment to the rule of law.
  • It suggests that there are elected and appointed officials, possibly in sensitive positions, who may be susceptible to blackmail and extortion. 

Dan Murphy and Peter Langlois have an idea for correcting this corrosive situation, and they've set up AuditCongress.com to promote the idea: 

This site is dedicated to a simple proposition.  If you serve the public in a position of high responsibility, you deserve to submit to an IRS audit annually.  If you lobby congress, hold a cabinet position, or serve any federally appointed position, feel free to get in line at the IRS.  Consider it "table stakes" for establishing fiduciary credibility.  We can't afford tax cheats as Congressman and Senators, nor as federal attorneys, prosecutors, or administrators.

When you're finished cheering, go check it out.

If you have some ideas on the subject, contact them about getting posting rights on the blog and a list of topics they'd like someone to address.

But check out the guidelines first. These guys are pretty determined to keep the discussion civil, and they're just a wee bit paranoid about things like defamation and their potential legal liability. Understandable, I suppose — the law doesn't generally cut us ordinary citizens as much slack as it does our rulers public servants.

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