Cosmic Irony: Kash Patel Confirmed to Lead FBI

It will be an uphill battle to finally end J. Edgar Hoover’s toxic legacy.

By Scott D. Cosenza, Esq. Feb 21, 2025 @ Liberty Nation News Tags: Articles, Opinion, Politics

Kash Patel, like Robert F. Kennedy Jr. and Tulsi Gabbard, threatens not just to disrupt the status quo but to fundamentally change the agency he now leads and, perhaps, the country. Kashyap Pramod Vinod Patel was confirmed as the FBI director on Thursday, February 10, by a 51-49 vote in the US Senate. President Trump signed the commission shortly afterward, making him the ninth director of the agency. Patel promised to devote himself to remaking the FBI into a highly regarded protector of Americans rather than an establishment goon squad. He commented via a newly formed Twitter account: @FBIDirectorKash:

“The FBI has a storied legacy—from the ‘G-Men’ to safeguarding our nation in the wake of 9/11. The American people deserve an FBI that is transparent, accountable, and committed to justice. The politicalization of our justice system has eroded public trust—but that ends today.

“My mission as Director is clear: let good cops be cops—and rebuild trust in the FBI.”

In an appearance on Shawn Ryan’s self-titled show, Patel said: “I’d shut down the FBI Hoover Building on day one and reopen it the next day as a museum of the ‘deep state.’” It’s a remarkable statement to come from the man now heading the agency. For conservatarians and true liberals, Patel’s appointment should give cause for great optimism. While he served Trump’s first administration in various intelligence and national security roles, his earlier work history is somewhat shocking for an FBI director: Mr. Patel spent nearly a decade as a public defender.

FBI: Weaponized Justice for Generations

Patel will have to turn the clock back pretty far to a time when the bureau didn’t regularly violate the rights of the people it was instituted to protect. J. Edgar Hoover, the agency’s first director, held the position for 37 years. G. Gordon Liddy, the infamous Watergate burglar, claims to have learned his illegal breaking-and-entering skills as an FBI agent in the 1950s. In his autobiography, Will, he confesses that a disregard for the law was institutionalized then and that “black-bag” illegal break-ins were a regular and approved method of operation.

Bored? Check This Out!

Liddy also detailed the “extensive files he [Hoover] had on anyone with political power.” And that “anyone with any kind of power or national celebrity was represented and the quality of detail was remarkable.” Some of the bureau’s low-lights in the political world include a devoted effort to induce Martin Luther King Jr. to commit suicide and the running of COINTELPRO, a series of programs undertaken between 1956 and 1971 devoted to damaging Hoover’s political enemies and including all manner of official crimes.

Not Their Kind of Minority

Mr. Patel is a first-generation American whose federal service started as a DOJ attorney during the Obama administration. He followed that with a job working for Devin Nunes, a House member from California, when Nunes, a Republican, chaired the House Intelligence Committee. Patel was the primary author of the 2018 Nunes memo detailing FBI lies to the FISA court in service of surveilling Donald Trump’s campaign. He told Shawn Ryan: “My version of accountability is a little different than maybe what most people would think. I don’t have a hitlist, I don’t have a revenge march I’m on. I simply want the Constitution to be applied to everybody, in government, and outside government.”

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Supreme Consequences: How Many Justices Will the Next POTUS Appoint?

Elections have consequences, especially at the Supreme Court. 

By Scott D. Cosenza, Esq. | Oct 28, 2024 @ Liberty Nation News, Tags: Articles, Law, Opinion

Perhaps the most consequential impact Donald Trump’s presidency has had on the lives of Americans is from his Supreme Court nominations. While only serving one term, he got to appoint three justices. Not since President Reagan did a commander-in-chief make so many successful appointments. How many will the next president get, and who might they be? Let’s look at the reality a President Harris or President Trump might face regarding the Court.

The next president will have at least one Supreme Court nomination. That’s a reasonably safe prediction because only five presidents in US history haven’t appointed anyone to the Court. Even Gerry Ford got one nomination during his 2.5-year term in office. The average age of those currently serving on the bench is almost 64 (63.8). The three oldest are Clarence Thomas, 76; Samuel Alito, 74; and Sonia Sotomayor, who is 70. These three are the most likely to leave the Court in the next four years, depending on who’s occupying the White House.

Supreme Chess

The Court schedule may seem less than intense because it takes a three-month break from hearing cases each year. That’s deceiving, however. Any justice who wishes to stay on top of the Court’s work must be fully engaged with all they have to take in and analyze. That’s just on the surface, though. A critical question is who will replace them. Donald Trump has appointed three, and it stands to reason that any new appointments would look similar to those already chosen. That’s likely a comforting thought to Justices Thomas and Alito but probably fearsome to Justice Sotomayor. And the obverse must be valid in the event of a Kamala Harris victory in November.

If Trump wins, Justices Thomas and Alito are solid bets for retirement. Trump can only serve one more term – so if either wants a replacement who is likely to share some of their core beliefs about the Constitution, they can step down with some confidence. Both of their families have been the subject of vicious attacks by progressives, and both have faced ongoing campaigns against their characters. The prospect of seeing younger, similar judges replace them, who could serve for the next 30 years, might be quite appealing.

Should Kamala Harris be sworn in this coming January, Justice Sotomayor will probably consider her legacy. While 70 is getting younger every year, Sotomayor, unfortunately, has some more profound health challenges than most, i.e., type 1 diabetes. Harris would have four years, but then, who knows? There could be a two-term Republican after that. Based on her opinions and statements outside of court, Justice Sotomayor seems most motivated by politics, so she would be more likely than not to time her exit based on who might replace her. She has been accused of monetizing her position more than any justice in history. She discovered a writing talent later in life, making millions off of book sales, all after joining the High Court.

Ruth Bader Ginsburg: Conservative Hero?

A hero of the left, Justice Ruth Bader Ginsburg, delivered right-wing and libertarian legal advocates their most significant victory in a generation with her decision not to retire. Justice Ginsburg refused to resign in 2014 when she was 81, Obama was president, and Democrats held the Senate. Dorothy Samuels, the legal editorial writer for The New York Times, said: “I was struck by how many people I spoke with, including friends, acquaintances, and former clerks, felt she should have resigned at the time and that her staying on was terribly self-centered – a view I share.”

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Supreme Court Win on Free Speech and Qualified Immunity

A muckraking menace to corrupt officials scores a big SCOTUS victory for free speech. 

By Scott D. Cosenza, Esq. | Oct 16, 2024 @ Liberty Nation News Articles, Tags: Law, Opinion, Politics 

Laredo’s “Lagordiloca” won a victory for freedom of speech and struck a blow against official oppression and police-qualified immunity. Much like Donald Trump, Priscilla Villarreal was prosecuted by authorities, who disliked her threat to their power, via a novel application of the law. It was used in a preposterous way to punish behavior that is not even objectionable, much less criminal. She was prosecuted for asking a government official to comment on a story. The shocking thing is, there’s not more to it than that. Her case was tossed around until Tuesday, Oct. 15^, when the Supreme Court, without dissent, came down with a pro-freedom ruling.

‘Lagordiloca’ is a Journalist

Ms. Villarreal does her reporting via social media posts. The New York Times called her “arguably the most influential journalist in Laredo, Texas” and a “swearing muckraker.” Her style is free-form, without editorial oversight, and ranges from profane gossip to hard-hitting exposés of local officials. That criticism – and officials’ willingness to weaponize their offices in opposition to it – led eventually to Tuesday’s Supreme Court order. Instead of cleaning up their own behavior and offices, the officials, including two prosecutors and the police chief, conspired to manufacture her arrest.

Laredo police regularly harassed the reporter at the encouragement of police chief Claudio Treviño. District Attorney Isidro Alaniz and an assistant DA, Marisela Jacaman, poured over the statute books with Trevino to find any possible way to use some law to punish Villarreal. They came across a 23-year-old statute that local officials had never enforced. It was designed to prevent government corruption by prohibiting people from soliciting non-public information for their gain.

Texas Penal Code § 39.06(c) creates a felony for those who, “with intent to obtain a benefit,” “solicits or receives from a public servant information that . . . has not been made public.” For instance, you can imagine that a senior government regulator in the oil and gas sector could reveal information to a market player they could trade on to great fortune. Here, though, it was used against a reporter asking for a comment. She asked a police source for information on stories she covered – information that wasn’t publicly published – as any journalist would.

Supreme Court Puts Police in Check

Laredo police snapped cellphone pictures of her in handcuffs while mocking and laughing at her as she turned herself in after learning she was wanted. Ms. Villarreal beat the criminal charges when a state court judge found the statute unconstitutionally vague. Then came the battle for civil damages. She sued her persecutors in Federal Court for violating her First, Fourth, and Fourteenth Amendment rights. The district court granted the defendant qualified immunity, cratering her case.

Qualified immunity gives government officials immunity from suit if the way they violate someone’s rights isn’t “clearly established.” It is also maddening to individual rights advocates who see it as a judge-made law granting a free pass for the government to trample the people’s rights.

The Fifth Circuit Court of Appeals disagreed – denying the defendants qualified immunity, with an opinion stating, “If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.” That wasn’t the end of it, however. A judge on the Fifth Circuit didn’t like that decision and got their colleagues to agree to re-hear the case en banc, where, instead of a three-judge panel randomly chosen from all the appeals court judges in the circuit, all the judges might participate. There were sixteen at re-hearing, where the vote was 9-7 to grant the defendants qualified immunity.

No Dissenters

Villarreal appealed that decision to the Supreme Court, which sent down an order vacating the qualified immunity ruling. They did not have a trial; the Court simply issued an order doing away with the en banc ruling, allowing the lawsuit for the civil rights violations to proceed. Lagordiloca’s case was filed by the Foundation For Individual Rights and Expression, which has now replaced the ACLU as the nation’s preeminent civil rights law firm.

Dig Deeper into the Themes Discussed in this Article!

Liberty Vault: 303 Creative L.L.C. v. Elenis

Liberty Vault: United States v. Alvarez

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Texas Declares War – State Overreach or Self-Defense?

What the Constitution says about state action at the national border.

by Scott D. Cosenza, Esq. | Feb 1, 2024  @ Liberty Nation News  Tags: Articles, Law

(Photo by John Moore/Getty Images)

This week, Congress put the border skirmish between Texas and the Biden administration through the lens of our Constitution. While the House Homeland Security Committee moved Secretary Alejandro Mayorkas’ impeachment along, another committee hearing focused on Texas’ declaration of war. Is Governor Greg Abbott on sound legal ground for acting independently to secure the international border with Mexico? As the House Judiciary Committee heard, that may depend solely on the word invasion and what it means.

Don’t Mess with Texas

Abbott claims he was forced to act because “President Biden has instructed his agencies to ignore federal statutes that mandate the detention of illegal immigrants.” The governor said he declared an invasion, triggering Article 1, Section 10, Clause 3 of the US Constitution, invoking Texas’ right of self-defense. The Compact or Invasion Clause of the Constitution prohibits states from engaging in foreign policy or acting independently regarding foreign relations – but there’s a caveat:

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Mark Brnovich, a Serbian immigrant and former Republican Attorney General of Arizona, was the first witness. He supports a reading of the Constitution that authorizes state action to secure the border. Brnovich said that the word invasion used in our founding charter includes the cartel capture of the Southern border. He draws his understanding from the Federalist Papers and arguments made by the father of the Constitution, James Madison. During a ratification debate, he proclaimed Virginia had the right to act against pirates and smuggles off her coast. Mr. Brnovich testified: “The courts have never said that states do not have the ability to protect themselves, that states do not have the ability to stop or repel an invasion.”

Subcommittee Chairman Chip Roy, a Republican from Texas, said, “The people of Texas have a right to defend themselves, just as I have a right to defend my home and my family if it is under attack.” The ranking minority member, Mary Gay Scanlon (D-PA), said the operative clause “refers to protection against armed hostility from a nation-state or organized political entity, not people fleeing danger in their home country and seeking protection under international and U.S. asylum laws….”

Never Let a Crisis Go to Waste

Democrats on the committee attacked the majority for milking the border crisis for political gain. “They want to grandstand in camo at the Rio Grande and impeach officials so they can campaign on bluster and boogeymen rather than doing the hard work of actually solving problems,” Ms. Scanlon said. The committee leadership also tossed out accusations of racism and that the fuss at the border was the stuff of Republicans’ racial animus. Meanwhile, Secretary Mayorkas is on his way to being impeached, and Democrats seem desperate to make a deal.

The legality of Governor Abbott’s actions is being litigated in the federal courts. The United States Supreme Court gave the Biden administration a win over Texas; however, the ruling was a short-term victory by a close 5-4 vote. It was decided on an emergency basis and only applies until the lower courts process the competing governments’ claims. Oral arguments in Department of Homeland Security v. Texas before the Fifth Circuit Court of Appeals (our country’s most conservative) are scheduled for February 7.

 

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David v. Goliath: Should Supreme Court Defer to Govt Agencies?

Chevron deference, a court-made rule favoring big government, is poised to fall.

by Scott D. Cosenza, Esq. | Jan 18, 2024 @ Liberty Nation News, Tags:Articles, Good Reads, Law, Opinion

(Photo by Drew Angerer/Getty Images)

The Supreme Court heard arguments Wednesday, January 17, on pitting the little guy against big government. The cases challenge the “Chevron deference,” a decision shifting power away from courts toward executive agencies. It is a pillar of administrative law and one that small government and individual liberty advocates have been hopeful the Court will overturn. Oral arguments gave them no reason to expect a different result.

Supreme Court Shifts Power Balance

Chevron v. Natural Resources Defense Council is the name of the 1984 case now being revisited. It challenged a Clean Air Act law requiring lengthy, complicated, and costly EPA review of new sources of pollution. What counted as a new source? Was it one particular machine or component of a factory or a new factory? The Court ruled that when Congress passes laws with ambiguous language, it delegates interpretive power to the administrative agency. It was an odd 6-0 decision, described here by Columbia Law professor Thomas Merrill:

 “Justices William Rehnquist and Thurgood Marshall were recused for health reasons, and Justice Sandra Day O’Connor was recused because of a financial interest in one of the parties. This left only Chief Justice Warren Burger and Justices William Brennan, Byron White, Lewis Powell, Harry Blackmun, and John Paul Stevens participating.”

This decision has become a “foundational precedent,” according to Solicitor General Elizabeth Prelogar. And it is hated by those skeptical of government power. Even if a court believes an agency interpretation of the law is wrong, it should rule in favor of the agency interpretation if the law is ambiguous. That may soon change.

Right-Wing Wrecking Crew

Justice Clarence Thomas has written critically of Chevron, and Justice Neil Gorsuch delivered a withering rebuke of the Chevron deference from the bench last year. He was at it again this week in pushing back Biden administration arguments delivered by Prelogar. She made the case that Chevron was valuable because it produced predictability and stability. Gorsuch pointed out that, far from bringing stability and reliability, the opposite was true. He said as the political winds blew in new administrations, instability resulted “because each new administration can come in and undo the work of a prior one.”

Gorsuch joked that both interpretations must be reasonable because the elected leaders directed them: “They’re all reasonable. I mean, my goodness, the American people elect them. Of course, they’re reasonable people.” Justice Brett Kavanaugh added: “The reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in, whether it’s communications law or securities law or competition law or environmental law, and goes from pillar to post …”

There are two plaintiff names for this single issue, with Loper Bright Enterprises and Relentless, Inc. suing Secretary of Commerce Gina Raimondo. The Supreme Court merged the cases to answer a single question:

“Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

The common perception is that judges on the right oppose Chevron while those on the left favor it. None of the colloquies by left-bloc Justices Elena Kagan, Sonia Sotomayor, or Ketanji Jackson led the audience to believe they would support overturning Chevron. They seem to be in the “mend it, don’t end it” camp if they agree it needs changing. Will there be five votes to cancel this precedent? The Court is expected to issue a ruling by June.

 

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