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05/15/2017

CoA Institute Demands Secretary of State Recover All of Sec. Clinton’s Unlawfully Removed Email Records

Revelation of FBI grand jury subpoenas raises more questions than it answers

Washington D.C. – Cause of Action Institute (CoA Institute) filed its opposition to the government’s motion to dismiss a case brought against the Secretary of State and the U.S. Archivist. The lawsuit seeks to compel the defendants to fulfill their legal obligations under the Federal Records Act to initiate action through the Attorney General to recover all of Hillary Clinton’s email records that were unlawfully removed from the State Department.

In December, 2016, the D.C. Circuit Court of Appeals ruled in our favor, overturning an earlier opinion by the District Court that dismissed the case as “moot.” Despite the court’s rebuke, the Secretary of State and U.S. Archivist continue to refuse to perform their statutory obligations to recover Secretary Clinton’s email records by initiating action through the Attorney General.

One new piece of information publicly revealed for the first time in the government’s motion to dismiss was that during its investigation, the FBI issued grand jury subpoenas related to Secretary Clinton’s BlackBerry email accounts. The subpoenas confirm that the FBI investigation of Secretary Clinton was criminal in nature, but details about the scope of the subpoenas remains unknown.

CoA Institute President and CEO John Vecchione: “None of the information provided by the government establishes that the federal records at issue do not exist or cannot be recovered. The government presented fundamentally the same arguments the Court of Appeals already rejected last year. It is the agencies’ statutory duty to institute proceedings through the Attorney General to recover these records. Why the agencies are fighting so hard to avoid this obligation is unexplained.”

In its cross motion filed with its opposition, CoA Institute requests the Court to grant discovery for more information about the grand jury subpoenas that could be essential to the case. The government failed to introduce any evidence to show that the results of those subpoenas establish that Secretary. Clinton’s BlackBerry emails are not recoverable through forensic means.

Read the full pleading here

 

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05/12/2017

Dear President Trump: It’s Time to Release the Watchdogs

You’re unlikely to hear much about it, but today marks an important yet troubling milestone. The Department of the Interior has gone 3,000 days—over eight years—without a permanent IG, or “Inspector General.”  And according to the Project on Government Oversight’s “Where Are All the Watchdogs?” tracker, there are eleven other IG vacancies, including empty spots at the Central Intelligence Agency (832 days), the Department of Defense (489 days), and the National Security Agency (346 days). It was inexcusable for President Obama to neglect to fill these vacancies with qualified candidates.  It is similarly irresponsible for President Trump to continue to ignore these vital appointments.

IGs serve as the internal watchdogs of the Executive Branch agencies. They are tasked with identifying and combatting waste, fraud, and abuse at their respective entities.  To accomplish this, they conduct important investigations, inspections, and audits.  They are intended to operate independently of agency leadership—a sort of internal check on the operation of the administrative state.

The absence of permanent IG appointees to these vital roles is concerning for numerous reasons. First, it reflects the Administration’s lack of commitment to transparency and accountability in government.  Moreover, acting IGs lack true independence.  As Senator Ron Johnson has commented, “[t]hey are not truly independent, as they can be removed by the agency at any time; they are only temporary and do not drive office policy; and they are at greater risk of compromising their work to appease the agency or the president.”

There has been a renewed push to highlight the crises in IG appointments in recent weeks. The House Oversight and Government Reform Committee, for example, called on President Trump last month to fill the numerous vacancies, describing IGs as “essential to the functions of federal government.” A bi-partisan group of members of the Senate Homeland Security and Governmental Affairs Committee did the same: “[T]he lack of a permanent IG can create the potential for conflicts of interest and diminish the essential independence of IGs.”

President Trump still has a long way to go in appointing qualified candidates to fill the Executive Branch, and it is admittedly early in his Administration. But selecting qualified, independent, and committed individuals for these vacant watchdog spots should be a top priority.

Ryan Mulvey is Counsel at Cause of Action Institute.

 

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05/11/2017

Court Orders Dismissal of D-Link Corp. from FTC Data Security Case

SAN FRANCISCO – U.S. District Judge James Donato has instructed the Federal Trade Commission (“FTC”) to dismiss Taiwan-based D-Link Corporation (“D-Link Corp.”) from a case brought by the FTC in the U.S. District Court for Northern District of California involving unfounded allegations as to security practices for routers and IP cameras. On April 3, 2017, D-Link Corp. filed a motion to dismiss the case because the Court lacked jurisdiction over the company. FTC’s dismissal of D-Link Corp. renders that motion moot. The case will now proceed with California-based D-Link Systems, Inc. as the sole Defendant.

Cause of Action Institute Assistant Vice President Patrick Massari: “The FTC sued a Taiwanese-based corporation without any factual predicate or consumer victims, real or imagined, exceeding the bounds of its regulatory authority. We are grateful for the Court’s directive and pleased with this resolution of issues raised by D-Link Corp.’s motion to dismiss.  We look forward to continuing to vigorously defend this case on behalf of D-Link Systems, Inc.”

Background:

In early January, the FTC filed a complaint against D-Link Systems Inc. and D-Link Corp. The complaint makes vague and unsubstantiated allegations, without asserting a single data breach of any product sold in the U.S. by either company. Instead, the FTC’s complaint relies on unspecified press reports and mere speculation that consumers were placed “at risk,” but fails to allege, as it must, that consumers suffered or are likely to suffer actual or substantial injury. D-Link Systems continues to stand behind its products and maintains a robust range of procedures to address potential security vulnerabilities.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

 

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05/10/2017

Cause of Action Institute Signs Coalition Letter Opposing Congressional Interference with the FOIA

Cause of Action Institute signed a coalition letter yesterday that urged Jeb Hensarling, the Chairman of the House Financial Services Committee, to rescind his recent direction to the Department of Treasury and other agencies to treat all records exchanged with the committee as “congressional records” not subject to FOIA, i.e. the Freedom of Information Act.

As I outlined in a recent op-ed published in The Hill, the mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.”  The law instead requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA.

Chairman Hensarling’s letter employs sweeping, generalized language in an ineffective yet blatant attempt to frustrate public access to records of Congress’s dealings with the Executive Branch.  As the coalition letter explains, such “assertions improperly restrict the ability of the public to use FOIA” and indicate a dangerous departure from a commitment to transparency and good government.

Ryan Mulvey is Counsel at Cause of Action Institute.

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05/9/2017

It’s Time to End the Federal Government’s Cash-for-Visas Program

The Washington Post rightly called on the Trump Administration yesterday to end the government’s controversial EB-5 visa regime and, in particular, its Regional Center Program, which was recently extended until the end of September 2017. In most cases, the “Immigrant Investor Program,” or Employment-Based Preference Five (“EB-5”) cash-for-visa program, permits foreign nationals to apply for a conditional visa by investing $500,000 in an area of “high unemployment.”  Once certain job creation requirements are satisfied, the visa holder can apply for a green card (i.e., for permanent residence).  Although advocates contend that EB-5 is good for the economy, the program has been beset with controversy.  Most recently, President Trump’s son-in-law, Jared Kushner, came under scrutiny for his family’s efforts to “push” EB-5 visas to wealthy Chinese investors.

Cause of Action Institute’s (“CoA Institute”) investigation into various aspects of the EB-5 cash-for-visa program and the Regional Center Program have shown that these initiatives are continually abused for political or fraudulent purposes—a fact now acknowledged by the Government Accountability Office.

  • CoA Institute published a comprehensive report detailing how Virginia Governor Terry McAullife’s former company, GreenTech Automotive, used his political connections to garner millions of taxpayer dollars in loans and tax incentives. GreenTech remains embroiled in an investigation by the Securities and Exchange Commission for its involvement with EB-5. The Inspector General for the Department of Homeland Security reported that McAuliffe and friends—including Anthony Rodham, brother of former Secretary of State Hillary Clinton—benefited from political favoritism in the administration of the visa program.
  • CoA Institute’s report on Forest City Enterprises explained how corporate interests and state and local government worked together to take advantage of weak and ambiguous regulations governing EB-5—manipulating census data to create “targeted employment areas” and relying on questionable job prediction models to meet green card conditions. CoA Institute also discovered that Forest City contracted the same immigration lawyer and economist as GreenTech.
  • CoA Institute filed an ethics complaint against former Senator Harry Reid, who contacted officials at the U.S. Citizenship and Immigration Services in an attempt to influence the approval of EB-5 visa applications for a casino development project owned by Reid’s donors and represented by his son. The Senate Ethics Committee ignored the request, claiming that it never received a copy despite evidence to the contrary.
  • In the wake of the DHS Inspector General’s report, CoA Institute called on the Department of Justice to investigate a number of government officials for violation of federal laws.

Simply stated, the EB-5 Program operates as a cash-for-visa scheme. Whatever economic advantage it might offer is outweighed by the corruption it engenders and negative influence it has on national security and good government.  Congress should end the program or work to reform its governing rules to prevent continued abuse by the political class.

Ryan Mulvey is Counsel at Cause of Action Institute

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05/8/2017

The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

By Ryan Mulvey, Opinion Contributor

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Read More

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05/5/2017

Make the FDA small again

FDA regulation doesn’t just inconvenience Americans – it puts their lives at risk

Back in January, President Donald Trump vowed to cut the Food and Drug Administration’s (FDA) regulations by 75-80 percent, a dramatic policy shift from his predecessor who oversaw regulatory costs skyrocket to more than $100 billion annually. As debate centers on Dr. Scott Gottlieb, the president’s nominee to be the next FDA commissioner, Americans should follow this process closely.

No drug can be marketed in the United States without FDA approval. Over the years, the FDA kept numerous drugs off the market that were approved in other developed countries. According to an article published by the CATO Institute, one doctor estimates that these drugs could have prevented 200,000 American deaths over the last 30 years. One example is pirfenidone, a drug to treat pulmonary fibrosis, which didn’t get approved in the United States until 2014 even though it was marketed in Japan in 2008, Europe in 2011, and Canada in 2012. The FDA was advised by its own advisory committee to approve the drug in 2010, but the agency waited another four years after demanding yet another study on the matter.

Between 2010 and 2014, 150,000 Americans died from idiopathic pulmonary fibrosis, a disease that may have been treatable with this drug. Patients should not be banned from trying experimental medication if they and their doctors believe it is the best choice. The best way to speed up the process is for the FDA to allow the free market to function. The more power we give the FDA, the higher the risk of the agency cracking down on states that allow more freedom to terminally ill patients to make decisions for themselves.

This isn’t a conservative or liberal issue. This is an issue of saving lives and allowing sick Americans the right, with appropriate counseling on the risks, to make informed choices about trying experimental therapies.

The Boston Globe reported a troubling story about a woman who had two sons, both diagnosed with the terminal disease muscular dystrophy. The FDA allowed one of her sons to improve with the help of an experimental new drug, while forcing her to watch idly as her other son’s condition continued to worsen. Her younger son, Max, nine years-old at the time, qualified for a clinical trial of the experimental drug eteplirsen, while her older son, Austin, 12 at the time, did not. After 16 weeks, Max began to improve, which caused her to try to speed the FDA’s approval process for the drug.

The mother submitted an application for Austin again in 2013, and he was finally allowed to participate in a trial beginning in 2014. The FDA, however, didn’t approve the drug for everyone else for another two years.

Americans want safe drugs, but no one wants a bloated bureaucracy at the FDA to decide which terminally ill patients can and cannot benefit from a medicine that seems to be working. Giving this medicine to both sons earlier would have allowed them to improve together, but FDA regulators took away the right of this family and their doctor to make that decision.

There are many more examples. As the CATO article reports, individuals with Alzheimer’s were denied THA, individuals with cardiac problems had to wait for beta-blocker approval, individuals with kidney cancer were denied Interleukin-2, and AIDS patients died while the FDA debated whether AZT was cost-effective.

Multiple surveys by the Competitive Enterprise Institute show that medical professionals disapprove of the FDA’s slow pace in approving promising new drugs. A majority of Orthopedic Surgeons have said FDA’s approval process is too slow and hurts patients. A staggering 70 percent believe the current law should be changed to allow physicians access to unapproved therapies.

This debate is over whether individuals should have autonomy to make informed decisions about medical procedures, or whether an overly cautious federal agency can prevent them from trying what their doctor thinks is best. The solution is to get the federal government out of people’s lives and drastically cut the FDA’s role. Unelected bureaucrats who don’t know the individuals involved or the unique circumstances of the impacted families should not be making life-and-death decisions.

President Trump has signaled he wants to reform and streamline agencies’ regulatory power. In February, the president signed an executive order that requires all federal agencies to create a task force to help “alleviate unnecessary regulatory burdens placed on the American people.” The FDA is a prime target for such reform.

In 2012, Dr. Gottlieb, said that the review culture at the FDA needs to change to encourage innovation. He has also long been supportive of deregulation. Let’s hope he follows suit with what President Trump has promised to do and implements common sense reforms at FDA to give patients more freedom to make decisions for themselves.

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