The Highs and Low of Today's Wall Street Journal
By David Henderson
The November 29 issue of the Journal has some great editorials and one bad one.
The Wall Street Journal‘s 3 editorial pages are 3 of my favorite pages of any newspaper.
I want to highlight one excellent, one very good, and one misleading editorial.
The excellent: Holman W. Jenkins, Jr., “Seven Days in November.”
Jenkins, one of my favorite Journal columnists, uses the title of his piece to remind readers of the famous coup attempt in the fictional movie “Seven Days in May.”
In a Putinesque move, Ms. Warren removed herself from consideration as the agency’s [Consumer Financial Protection Bureau] head and encouraged President Obama to appoint one of her protégés, Richard Cordray.
Flash forward to a new and hostile administration of the opposite party. Mr. Cordray, with one year left on his statutory term, announces his resignation. He also, citing a passage in the agency’s founding statute, asserts his right to name his own successor, which he does in the person of Leandra English, another Warren loyalist.
Ms. English immediately launches a lawsuit to nullify President Trump’s presumed power, under a separate law, the Vacancies Act, to name an acting director to replace Mr. Cordray. Now if Ms. English can prevail in court and Senate Democrats can block a new appointee after Mr. Cordray’s term expires next year, presumably Ms. English can remain acting director as long as she wants, with power to name her own successor.
Voilà, an agency of the federal government becomes the dynastic possession of Ms. Warren and her designated cronies. Vladimir would be impressed.
Pretty creepy. Jenkins goes on to point out how Cordray went beyond his statutory powers to indirectly regulate auto dealers.
The very good: Jim Harper, “Is It Unreasonable to Expect Cellphone Privacy?”
Harper, formerly at the Cato Institute and now vice president of the Competitive Enterprise Institute, often writes very good pieces on privacy. This piece is no exception.
An excerpt from near the end of the piece:
Gauzy appeals to privacy expectations only complicate what ought to be straightforward: Searching is searching; seizing is seizing.
Cellphone privacy policies give consumers many rights to control their telecommunications data. Essentially these are property rights, which on their own should require that the government obtain a warrant before searching and seizing digital records. In Carpenter the court may find that such contracts help create an “expectation of privacy.” Or it may find that there isn’t a reasonable privacy expectation. Seizing data and examining its contents would become neither seizure nor search, giving government agents a free hand.
The misleading: “Fourth Amendment Showdown.”
To their credit, the editors ran the Harper piece. I say to their credit, because their own unsigned editorial “Fourth Amendment Showdown” takes the opposite position. Unfortunately, the editorial doesn’t even mention, let alone contend with, the Harper piece on the opposite page.
Why is it misleading? The editors emphasize the heinous crimes (a string of armed robberies) that the defendant, Timothy Carpenter, engaged in. In doing so, they’re setting it up so that the reader will not be sympathetic to the guy. I’m not. And then at the end of the editorial they write:
It’s also important to know that Congress created the legal framework for getting this data. Police must present “specific and articulable facts” showing that the records are “relevant and material to an ongoing criminal investigation.” A judge must sign off. If more protections are needed, Congress can add them. But where is the process misused today? If the threat of abuse is as large as privacy activists claim, they ought to be able to find a better champion than Timothy Carpenter.
But of course Carpenter is not a good choice for a champion. Imagine that the police access your cell phone records, without a warrant, to figure out your location and then find nothing. You won’t be charged with anything and so your case will never come up before the Supreme Court: you won’t be the “champion.”
Whose case will come up? Someone who’s guilty as sin. The records were used to find Carpenter’s locations–they corresponded with where the robberies were–and then and only then did the police get a warrant. His only way to fight, once found guilty and after exhausting other appeals–is to make a Fourth Amendment unreasonable search and seizure claim. So it’s often–and actually, almost always–going to be the case that you will find the defendant not a very attractive champion.
The Journal editors know all this.