January 30, 2009

From the Desk of Judicial Watch President Tom Fitton:

Judicial Watch Files Lawsuit Challenging Hillary Clinton Appointment

On Thursday, Judicial Watch filed a lawsuit against newly sworn-in Secretary of State Hillary Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel. (Click here to read the lawsuit. Click here to read a statement from our client.)

This is our argument in a nutshell: Hillary Clinton is constitutionally ineligible to serve as Secretary of State and Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States.

You’ll likely recall we tried to warn members of Congress a few weeks ago that the Constitution prohibits Mrs. Clinton from serving as Secretary of State until 2013, when her second term in the U.S. Senate expires, but they didn’t listen. She was confirmed 94-2 and sworn in on January 21st.

Here’s the constitutional issue at play:

Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to whomever occupies the office, increased during the term for which the Senator or Representative was elected.

Specifically, article I, section 6 of the U.S. Constitution provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time…" The text of the provision is an absolute prohibition and does not allow for any exceptions.

According to Judicial Watch’s lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton’s most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton’s recent resignation.

Members of Congress, well aware of the "emoluments clause," attempted to evade this clear constitutional prohibition with a so-called "Saxbe fix" last month, reducing the Secretary of State’s salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, allowing Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior.

Judicial Watch’s lawsuit, however, points out that the legislation "does not and cannot change the historical fact that the ‘compensation and other emoluments’ of the office of the U.S. Secretary of State increased during Defendant Clinton’s tenure in the U.S. Senate…" The U.S. District Court for the District of Columbia is required to give expedited consideration to the lawsuit.

This is an historic legal challenge. Our goal is to remind politicians of both parties that the U.S. Constitution is not to be trifled with. We hope the courts will put a stop to these end runs around the Constitution and affirm the rule of law.

To finish, let me quote from our client David Rodearmel’s statement:

"I am bringing suit to finally resolve this issue and to seek compliance with the manifest tenor of the Constitution. To detach ourselves from the text of the Constitution is a true slippery slope that would negate the rule of law. If the Constitution needs to be changed, it should be done by the means the Constitution provides.

"This is not a partisan, political or personal issue. I have faithfully served under six prior Secretaries of State of both parties, and under eight Presidents since first taking the oath to uphold the Constitution as a young Army officer cadet. During a prior assignment as State Department representative on the faculty of a U.S. service academy, we taught our cadets: "Officers serve the Nation for one and only one purpose: to support and defend the Constitution." As a commissioned State Department Foreign Service Officer, a retired Army Reserve Judge Advocate Officer, and as a lawyer, I consider it my Constitutional duty to bring this case to the courts."

Did the Bush Administration Freeze Deportation of All Illegal Aliens to Protect Obama’s Aunt During the Presidential Campaign?

Did the Bush administration freeze the deportation of all illegal aliens just to protect Obama’s aunt during the presidential campaign? That’s what Judicial Watch aims to find out with a new Freedom of Information Act lawsuit, filed on January 26th.

Let me back up a second so we can put this all in context.

On November 1, 2008, just a few days before the presidential election, The Associated Press outed Barack Obama’s Kenyan aunt, Zeituni Onyango, as an illegal alien who had quietly been living in Boston, Massachusetts, evading deportation. (Onyango came to the U.S. in 2000. Her request for asylum was denied by a judge in 2004. She then went into hiding until the AP discovered her in Boston public housing project.)

As surprising as this revelation was at the time, it pales in comparison to what happened next behind closed doors: The Bush administration reportedly ordered immigration officials to effectively freeze all illegal alien deportations for 72 hours.

According to the Associated Press, the Homeland Security Department distributed "an unusual nationwide directive within Immigration and Customs Enforcement requiring any deportations prior to Tuesday’s election to be approved at least at the level of ICE regional directors."

However, according to immigration officials on the ground, the directive went even further. One ICE official told columnist Michelle Malkin: "The ICE fugitive operations group throughout the United States was told to stand down until after the election from arresting or transporting anyone out of the United States. This was done to avoid any mistakes of deporting or arresting anyone who could have a connection to the election, i.e., anyone from Kenya who could be a relative. The decision was election-driven."

On November 13, 2008, Judicial Watch filed a Freedom of Information Act (FOIA) request with ICE to get to the truth in the matter. Here are the documents we requested:

• Any and all records pertaining to a "directive" (to include but not limited to other terms for policy guidance – i.e., order, memo, etc.) requiring arrests to be approved at least by a Field Office Director (or their deputy).
• Any records of a 72-hour-cease-and-desist order on fugitive apprehension (including but not limited to memos, correspondence, emails, assessments, reports, statistics, briefings, etc.).
• Records detailing the requirement for Field Office Directors to certify on proposed operations plan)s) language to the effect of: "I certify that arresting this alien will not cause media or congressional interest."

Of course, ICE failed to respond as required by FOIA — prompting Judicial Watch’s lawsuit.

If the details described above bear out, the Bush administration put the entire nation at risk by freezing the deportation of illegal aliens. And for what? To save Barack Obama the embarrassment of having his aunt deported during a political campaign. Stay tuned.

Obama Ethics Pledge Already Meaningless?

On January 21, Barack Obama signed an Executive Order effectively banning lobbyists from serving in his administration, among other things. Barely a day later, Obama made the order seem like a bit of a joke by naming William Lynn III, the former top lobbyist for Raytheon, to the position of Deputy Secretary of Defense, the number two position at the Defense Department.

First, let’s take a look at the pertinent section of the Executive Order. Under the section entitled "Revolving Door Ban," the order clearly states: "If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 2, I will not for a period of 2 years after the date of my appointment…seek or accept employment with any executive agency that I lobbied within the 2 years before the date of my appointment."

Clearly, Lynn as the top lobbyist for a major defense contractor has lobbied the Defense Department heavily over the last two years.

As The Washington Post put it: "Lynn…lobbied the Pentagon on so many Raytheon projects — acquisitions policy, space, intelligence and command and control, among others — that it might be hard to find an area within the department that was untouched by his previous work."

So how did Obama get around his own Executive Order? Obama calls it a "waiver." I call it loophole.

Snuck into his ethics pledge – which the Obama administration hailed as the most sweeping ethics rules in American history – is a disclaimer that provides that the administration "may grant to any current or former appointee a written waiver of any restrictions contained in the pledge" if it is in the "public interest."

In other words, the pledge isn’t worth the paper it’s written on. It can be violated at will by President Obama any time he sees fit.

And, in fact, according to Politico, the pledge has been violated at least a dozen times:

President Obama promised during his campaign that lobbyists "won’t find a job in my White House."

So far, though, at least a dozen former lobbyists have found top jobs in his administration, according to an analysis done by Republican sources and corroborated by Politico.

The article includes a list of the "Big 12," which includes Eric Holder, Obama’s pick for Attorney General (click here for JW’s thoughts on this horrible appointment) and Cecelia Munoz, who lobbied for the radical Chicano organization, "National Council of La Raza." She now serves as Obama’s White House Director of Intergovernmental Affairs.

The "lobbyist ban that isn’t a lobbyist ban" shows the silliness of the whole idea. Banning lobbyists does little to change the fundamental problem of Big Government encouraging rent seeking and corruption. President Obama can address the problem of the undue special influence in Washington by scaling back the size of the federal government – rather than increasing this levithan government to a scale barely imaginable.

Until next week…

Tom Fitton
President

Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, click here.