Patterico's Pontifications


Dean Kagan Eliminated Con Law (Updated x2)

Filed under: Education,Law — DRJ @ 10:16 pm

[Guest post by DRJ]

President Obama’s Supreme Court nominee Elena Kagan made several changes as Dean of Harvard Law School. Many commentators have focused on her ban on military recruiting but CNS news reports on another major change — eliminating U.S. Constitutional law as a required course:

“As dean, Kagan won approval from the faculty in 2006 to make major changes to the Harvard Law’s curriculum.

“My understanding is that she instituted three new courses to the required curriculum and, in so doing, got rid of a requirement to take constitutional law,” Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, told

“Currently, at Harvard, constitutional law is not required for first-year law students, or even for graduation,” Alt added.

Indeed, according to Harvard documents, constitutional law is not listed among the law school’s academic requirements, though the catalogue for 2010-2011 does list more than a dozen elective courses dealing with some form of constitutional law.

But in a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.

“Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.”

American law students trained in the “global sphere … as context for U.S. law” instead of in U.S. Constitutional law? I don’t know what they call that in Boston. In Texas, we call that BS.


UPDATE: Media Matters points out an error in the CNS report because Harvard Law School had already dropped its Con Law requirement prior to Dean Kagan’s curriculum changes. As noted here, the prior curriculum encouraged students to take Con Law but it was not a required course.

UPDATE 2: My thanks to pizzathehut for his tenacity on this topic. The title of the post is in error since, unlike most of its top-tier brethren, Harvard Law did not require Con Law so the course wasn’t “eliminated” as a required course by Dean Kagan or her immediate predecessors. My apology for the error.

Sestak Timeline

Filed under: Obama,Politics — DRJ @ 8:13 pm

[Guest post by DRJ]

Doug Ross posts the Sestak Timeline, including a link to the Larry Kane interview question that started it all:

“So how did it happen? How did a straightforward question and blunt answer bring anxiety to the White House? I’ll tell you the story.For over three months now, friends and others have asked me to recount the events of February 18th of this year, when a single question from me to Congressman Joe Sestak unleashed a controversy that remains to this day. Is it a political issue? Is it illegal? I can’t answer those questions, but I can tell you how casually it all happened, and what basis I had for asking the question,

“Were you ever offered a job to get out of this race? (The contest against Arlen Specter).

Sestak didn’t flinch .

“Yes,” he answered.

“Was it Navy Secretary?”, I asked

“No comment.”

He proceeded to talk about staying in the race but added that “he was called many times” to pull out.

Later, I asked, “So you were offered a job by someone in the White House?”

He said, “Yes.”

When the taping stopped, Joe Sestak looked surprised .

“You are the first person who ever asked me that question.”
I called the White House Press Office. I played the interview for the individual who answered the phone. She said someone would call me back. A few minutes later, another individual called. She said the White House would call back with a reaction “shortly.” That was 3:45 in the afternoon.

The report aired all night without a White House response.

At 6:45 the next morning, 15 hours later, a Deputy Press Secretary called. She said, “You can say the White House says it’s not true.”

As Kane asks, why did it take the White House 15 hours to issue a denial?


“He Wanted to Die for Something”

Filed under: War — DRJ @ 5:22 pm

[Guest post by DRJ]

The 1,000th American serviceman has died in Afghanistan:

“An Associated Press tally shows Leicht is the 1,000th U.S. serviceman killed in the Afghan conflict. The first death — nearly nine years ago — was also a soldier from the San Antonio area.

“He said he always wanted to die for his country and be remembered,” said Jesse Leicht, his younger brother. “He didn’t want to die having a heart attack or just being an old man. He wanted to die for something.”

The AP bases its tally on Defense Department reports of deaths suffered as a direct result of the Afghan conflict, including personnel assigned to units in Afghanistan, Pakistan or Uzbekistan.

Other news organizations count deaths suffered by service members assigned elsewhere as part of Operation Enduring Freedom, which includes operations in the Philippines, the Horn of Africa and at the U.S. detention facility at Guantanamo Bay, Cuba.

Leicht’s brothers told the AP that the military also told the family that his death put the toll at 1,000.

When military officers went to tell Leicht’s parents that their adopted son had died in combat, sheriff’s deputies had to help navigate them to the 130-acre family ranch tucked impossibly deep in the Texas Hill Country.

It was here that Jacob Leicht chopped thick cedar trees and hiked the rugged limestone peaks, growing up into an imposing 6-5, 200-pound Marine with a soft heart. He watched “Dora the Explorer” with his brother’s children and confided to family that he was troubled by the thought of young civilians being killed in battle.”

Leicht — who was born on July 4th — had just returned to the front line after spending 2 years recovering from injuries inflicted by an Iraqi IED. He wrote letters begging to be sent back and was finally cleared to return just over a month ago.

Apparently the desire to serve runs in this family. His brother Jesse enlisted in the Marines 9 days ago.

MORE: Michael Yon says “ AfPak shows every indication of becoming far worse than Iraq ever was.”


Website Update (Updated)

Filed under: Blogging Matters — DRJ @ 2:42 pm

[Guest post by DRJ]

As Patterico mentioned recently, his website changed hosts and I think we’ve all noticed an improvement in performance. However, you don’t need me to tell you that there were problems yesterday because one of Patterico’s posts generated significant traffic from several big links.

Fortunately, the new website host took these problems as a challenge and is working diligently to resolve them. The changes they already implemented made a big difference on the administrative side, and I think the website loads better overall. Now we’re down to dotting the i’s and crossing the t’s.

Once again, we’re calling on you for help in this process. Please use the comments to list problems you are having now — not yesterday’s or prior problems, but current problems or things you notice in the coming days.

And thank you very much.


UPDATE: I forgot to mention the timeframe for this post. The host will be working on these issues between now and Tuesday or Wednesday. Thus, you may not see improvements until next week but they are working on it.

Obama’s Strengths (Updated)

Filed under: Obama — DRJ @ 1:58 pm

[Guest post by DRJ]

John Hinderaker at PowerLine compares the cerebral, non-emotional qualities of Dick Cheney to Barack Obama:

“I think I finally understand what Obama’s supporters have meant all this time when they call him “cerebral.” He just doesn’t do emotion well. I’m sympathetic to him on that one, as I was to Cheney. But Americans, unfortunately, have come to expect emotional resonance from their presidents. The lack of it could prove a significant liability to Obama.”

It’s a jarring comparison but it makes sense when you read the whole thing. Like Cheney, Obama has a calm, cool, cerebral demeanor — although Clarice Feldman questions whether he’s really that smart or well-educated.

To put in terms my 1970s brethren understand, Obama may be like Spock without the smarts.


UPDATE: Dana Milbank was not impressed with President Obama’s lack of strength at his Oil Spill press conference:

“In a sense, it’s refreshing to have a president who is candid about shortcomings. Yet Obama’s news conference may have been the weakest hour of his presidency.

As I sat in the fourth row on Thursday, I was struck by the weirdly passive figure before me. He delivered lawyerly phrases and spoke of his anger about the oil spill but showed none in his voice or on his face. He was, presumably, there to show how aggressively he has handled the disaster, but he seemed cool, almost bloodless.”

Bloodless? Hmmm. Maybe Milbank thinks Obama is Spock, too.

Top Kill Failed? (Updated: Apparently So)

Filed under: Environment — DRJ @ 11:51 am

[Guest post by DRJ]

BP hasn’t made an official announcement but the New York Times reports a technician confirms BP has stopped pumping mud and is trying to plug the hole with junk:

“BP engineers failed again to plug the gushing oil well on Saturday, a technician working on the project said, representing yet another setback in a series of unsuccessful procedures the company has tried a mile under the sea to stem the flow spreading into the Gulf of Mexico.

BP made a third attempt at what is termed the “junk shot” Friday night, a procedure that involves pumping odds and ends like plastic cubes, knotted rope, and golf balls into the blowout preventer, the five-story safety device atop the well. The maneuver is complementary to the heavily scrutinized effort known as a “top kill,”which began four days ago and involves pumping heavy mud into the well to counteract the push of the escaping oil. If the well is sealed, the company plans to then fill it with cement.

The technician working on the project said Saturday pumping has again been halted and a review of the data so far is under way. “Right now, I would not be optimistic,” the technician, who spoke on condition of anonymity because he is not authorized to speak publicly about the effort. But he added, that if another attempt at the junk shot were to succeed, “that would turn things around.”

It looks like a lot of oil gushing out on the live feed. My guess is BP is pinning its hopes on the relief well.


UPDATE: The New Orleans Times-Picayune reports BP will announce today that the top kill measure failed:

“A source told The Times-Picayune that officials would announce the failure of the top kill option at a 4 p.m. Saturday briefing in Robert .

BP is expected to announce that it will move on to its next option, known as LMRP. The procedure involves cutting off the failed, leaking riser at the top of the Lower Marine Riser Package on the blowout preventer to get a clean-cut surface on the pipe.

Then the company will install a cap with a sealing grommet that would be connected to a new riser from the Discoverer Enterprise drillship, with the hopes of capturing most of the oil and gas flowing from the well.”

Sestak’s Job Options

Filed under: Obama — DRJ @ 10:23 am

[Guest post by DRJ]

Yesterday we learned that former President Bill Clinton was the go-between who made Rep. Joe Sestak a job offer he could refuse. But yesterday was also the day White House attorney Bob Bauer released a statement that more than one job opportunity was dangled for Sestak’s consideration:

“Top White House lawyer Robert Bauer conceded that “options for Executive Branch service were raised” for Sestak, but insisted that administration officials did not act improperly. He characterized the attempt to influence Pennsylvania’s Democratic Senate primary — ultimately won by Sestak — as no different from political maneuvers by past administrations from both political parties.
Bauer stated in the memo that efforts “were made in June and July of 2009 to determine whether Congressman Sestak would be interested in service on a presidential or other Senior Executive Branch Advisory Board, which would avoid a divisive Senate primary, allow him to retain his seat in the House, and provide him with an opportunity for additional service to the public in a high-level advisory capacity.”

Sestak would not have been paid for any advisory work, Bauer insisted.

Emanuel “enlisted the support of former President Clinton who agreed to raise with … Sestak options of service,” Bauer said. Sestak declined the suggested options, he said.”

What were the other job options, Mr. Bauer? And why was Rep. Sestak ineligible for the unpaid job Clinton admitted to yesterday?


Fraying Alliances in BP Oil Spill

Filed under: Environment,Obama — DRJ @ 10:23 am

[Guest post by DRJ]

To date, the Obama Administration has championed the efforts of BP to contain the oil spill — in part because BP may be doing all it can but also because the White House doesn’t have many alternatives. Instead of engineers and geologists, MMS’ leaders are lawyers Birnbaum and Ishee. Birnbaum has already been sacrificed.

However, the seams of the alliance between BP and the Obama Administration may be fraying:

“Federal regulators complained in a scathing internal memo about “significant deficiencies” in BP’s handling of the safety of oil spill workers and asked the Coast Guard to help pressure the company to address a litany of concerns.

The memo, written by a Labor Department official earlier this week and obtained by McClatchy , reveals the Obama administration’s growing concerns about potential health and safety problems posed by the oil spill and its inability to force BP to respond to them.”

This NRSC video suggests the media and political alliances may be fraying, too:


Destroyed by Court Order: The Footage of a Landrieu Staffer Admitting the Senator’s Office Had No Problem With Their Phones

Filed under: ACORN/O'Keefe,General — Patterico @ 9:35 am

I recently reported that the judge in James O’Keefe’s criminal case ordered the destruction of the footage of James O’Keefe’s entry into Senator Mary Landrieu’s offices. O’Keefe has confirmed on Twitter that the Government returned his recording equipment, but deleted the footage from inside Sen. Landrieu’s offices.

This is especially concerning in light of the recent publication of court documents in which the Government admits that a member of Landrieu’s staff had told O’Keefe’s companions, on tape, that there had been no problem with the phones:

One of Senator Landrieu’s staff members (WITNESS 1) told BASEL and FLANAGAN that she did not report any phone problems and that the office was not experiencing any issues with the phone system.

I’m interested in the First Amendment implications of a court ordering the destruction of a copyrighted work with possible political relevance — with no apparent statutory authority, plea agreement provision, or national security concern to justify it.

I know of no law that justifies destruction of the taped footage. The federal forfeiture statute has no application. It applies only to crimes “punishable by imprisonment for more than one year” — in other words, felonies. Instead, O’Keefe pled to a misdemeanor punishable by a maximum sentence of 6 months. The forfeiture statute does not apply to such misdemeanors, and did not provide the Government with authority to retain the footage.

Surrendering the footage was not part of the plea agreement. You can read the plea agreement here. It contains no provision requiring surrender of the footage.

Finally, there is nothing in the footage that would be dangerous if leaked. O’Keefe has confirmed to me that he and his companions accessed only the public reception area of Landrieu’s office. Any member of the public could walk into the places that they walked. There are no deep dark secrets that the terrorists would learn upon viewing such footage.

In addition to the lack of justification for destroying the footage, we have a positive reason that it should have been turned over long ago: namely, this was potentially exculpatory evidence in O’Keefe’s criminal case. The Government has now admitted, in court documents signed by the Government lawyer, that the evidence shows O’Keefe’s intent was “not to actually tamper with the phone system, or to commit any other felony” but rather “to orchestrate a conversation about phone calls to the Senator’s staff and capture the conversation on video.” This means that the tape recording made by O’Keefe, when viewed in the light of O’Keefe’s history as an undercover video journalist, did not support the Government’s original charge that O’Keefe entered with the intent to commit a felony.

It sure sounds like the tape was exculpatory evidence, which the Constitution requires prosecutors to turn over immediately. Instead, they held on to the tape, and agreed after about two months to reduce the charge to a misdemeanor, which is all they could ever prove anyway.

It seems fairly obvious to me that the First Amendment would prohibit the judge from returning the footage to O’Keefe, and then ordering him not to publish it. Yet he managed to accomplish the same thing in ordering its destruction.

Now, the public will never learn what was on that footage. The footage would have revealed much about the soundness of the Government’s charges against O’Keefe. And, as the Government admits in court documents, it would have shown a member of Sen. Landrieu’s staff denying that there was any problem with the phones.

What possible justification is there for destroying such evidence? Any First Amendment experts want to weigh in?

UPDATE: Thanks to Instapundit for the link. Readers might also be interested in James O’Keefe’s first full public account of the New Orleans events, which I have published here.

Plenty more recent news on this story breaking in my ACORN/O’Keefe category.

James O’Keefe Gives His Side

Filed under: ACORN/O'Keefe,General — Patterico @ 9:02 am

The following is a document that James O’Keefe sent to me last night and has authorized me to publish. It is O’Keefe’s version of events in New Orleans. I believe this is the first time anywhere that he has publicly given his full statement of what occurred.

The document was drafted by lawyers based on O’Keefe’s statements, and was intended to be offered as the factual basis for his plea. O’Keefe confirmed for me that this document is an accurate account of what happened.

What Really Happened in New Orleans

Factual Basis

On January 25, 2010, Messrs. James O’Keefe, Stan Dai, Joe Basel, and Michael Flanagan (collectively “Defendants”) entered the Hale Boggs Federal Building located at 500 Poydras Street, New Orleans, Louisiana (“Hale Boggs Building”), with no intent to commit a felony, but rather an intent to engage in political speech with respect to pending national healthcare legislation (the “Healthcare Bill”). During the several days before their entry to the Hale Boggs building, Defendants discussed opportunities to engage in independent journalism and political advocacy. One of the ideas raised during those discussions was a method to test the truthfulness of Senator Landrieu’s statements as to the reason for the inability of Tea Party members and other Louisiana constituents to contact her staff on the telephone to discuss her vote on the Healthcare Bill. The Defendants were advised that this was a recent story in the news in New Orleans.

Prior to the Defendants’ arrival in New Orleans there had been picketing of the Senator’s office by Tea Party Members and others. The controversy about Senator Landrieu’s phones was described in a prior news article as follows:

“We were stunned to learn that so many phone calls to Senator Landrieu have been unanswered and met with continuous busy signals,” Perkins said. “We asked them to call their Senators. They could get through to Senator Vitter, but not Senator Landrieu.”

“Our lines have been jammed for weeks, and I apologize,” Landrieu said in interview after giving a speech on the Senate floor Tuesday.

As a result, the Defendants devised what was, in retrospect, a poorly thought out plan to test the veracity of Senator Landrieu’s statements. The plan settled upon was for two of the Defendants to dress as telephone repairmen and, wearing an audio and video camera hidden in one of the hard hats they wore as part of their disguise, enter Senator Landrieu’s office and interview her staff while a third Defendant recorded the interviews using a second audio and video camera.

The group devised a plan involving disguises because they believed that if they simply entered Senator Landrieu’s office and identified themselves as journalists they would not likely receive truthful answers. They thought it likely that Senator Landrieu’s staff would be more candid with a repairman than a reporter. Looking back, the Defendants now recognize clearly that this plan was imprudent, and produced unintended security concerns and consequences that none of the Defendants anticipated. The Defendants agree that they should have anticipated these consequences and regret that they decided to proceed in that fashion.

Upon entering the Hale Boggs Building, the Defendants presented their real drivers license identifications to security officials and were not questioned as to the purpose of their visit to the Hale Boggs Building or where in the Hale Boggs Building they were going. Before passing through security, the Defendants placed all of their equipment (including all recording and video devices) through the security x-ray machines, as requested by the Hale Boggs Building security employees.

After passing through the Hale Boggs Building security checkpoint, the Defendants proceeded to the 10th floor, where Senator Landrieu’s office is located. Senator Landrieu’s office was and is open to the public and the Defendants entered through its open door. They spoke with members of Senator Landrieu’s staff, then separately left the Senator’s office and exited the Hale Boggs Building.

A short time later, the Defendants were “detained” by Federal Marshals. They believed they would be released when the US Marshals realized that they were journalists and immediately explained to the commanding US Marshal that they were journalists investigating whether Senator Landrieu wasn’t answering her calls.

Despite truthfully explaining, in detail, to the FBI and Federal Marshals that their purpose was solely to ask questions (and record the questions and answers) of Senator Landrieu’s staff regarding recently published statements by constituents that calls to Senator Landrieu’s staff concerning her vote in favor of the pending Healthcare Bill were not being returned and about the Senator’s public statement that her office phones had been “jammed,” Defendants were charged in a criminal complaint with a felony:

by false and fraudulent pretense enter and attempt to enter real property belonging to the United States of America with the intent to commit a felony: to wit, willful and malicious[s] interference with a working and use of a telephone system operated and controlled by the United States; in violation of Title 18 United States Code Section(s) 1036(a)(1), 1362, and 2.

At approximately 8 pm, the Defendants were taken from the Federal Building to the St. Bernard Parish Jail. The Defendants remained in jail overnight and were then transported the next afternoon in red jumpsuits and hand and leg irons back to the Hale Boggs Building where they were “arraigned” before Magistrate Judge Louis Moore, Jr., who released them on personal bonds of $10,000.

O’Keefe clarified to me that he and his companions entered only the public reception area of Sen. Landrieu’s office.

O’Keefe’s attorney Michael Madigan is scheduled to appear on Fox News Sunday tomorrow morning to discuss the prosecution.

More to come later today, including a post about the First Amendment implications of the judge ordering the destruction of the footage of O’Keefe’s foray into Landrieu’s offices, and a post about New York Magazine‘s retraction of the errors I highlighted here the other day.

UPDATE: My post about the court-ordered destruction of footage of a Landrieu staffer admitting there had been no problem with the Senator’s phones, here.

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