Drain The Swamp, But Stock The Pond At FTC (John Vecchione Opinion-Forbes)

Drain The Swamp, But Stock The Pond At FTC

 By John J. Vecchione, President of Cause of Action Institute

 Efforts by the Trump administration to reduce regulatory burdens on American businesses would be enhanced if the president acts quickly to fill vacant positions at the Federal Trade Commission (FTC).

 My organization, Cause of Action Institute, recently wrote to the president to urge immediate action to appoint commissioners. New leadership could help rein in the agency’s pattern and practice of regulatory overreach, and allow the pursuit of innovation, without fear of abusive and unconstitutional enforcement actions.

Read the full article at Forbes.com


CoA Institute Urges Court to Reveal Evidence Regarding the FBI Clinton Email Investigation

Journalist files declaration supporting public interest in release of FBI declaration

Washington D.C. – Cause of Action Institute (“CoA Institute”) has made a filing in support of its motion with the U.S. District Court for the District of Columbia, urging the judge to disclose the full contents of a redacted FBI declaration that was filed so that only the judge can review the entire statement.

The government characterized the declaration as containing new, undisclosed details about the scope of the FBI’s investigation into Hillary Clinton’s email practices as Secretary of State. Specifically, the government said the declaration includes “additional details about the grand jury process . . . as well as about other sealed proceedings” and was submitted to provide “further details of the subpoenas to establish to the Court’s satisfaction the thoroughness of the inquiries made in this regard.” As a result of this litigation, the government revealed for the first time early this summer that the FBI issued grand jury subpoenas in its criminal investigation into Clinton’s email practices.

Cause of Action Institute President and CEO John J. Vecchione: “The FBI’s revelation that grand jury subpoenas were issued during its investigation of Secretary Clinton’s emails revealed a criminal component. Details of these subpoenas could be critical to our case to recover those emails. Unfortunately, the government has taken a step back behind the curtain and submitted a supplemental declaration, in camera and ex parte, meaning only the judge and the government’s lawyers are allowed to see it. We can only surmise the declaration shows that the FBI issued subpoenas to the service providers in search of Ms. Clinton’s BlackBerry emails. Without access to the un-redacted declaration, we cannot know the scope of those subpoenas, nor will we be able to contest the relevance of new facts.

“The public interest in learning the extent of the government efforts to recover unlawfully removed records and basic notions of fair play outweigh the need to protect grand-jury secrecy, the existence of which the government has already revealed.  The government should not be permitted to use the grand jury information as a sword and also shield it from public view. Anglo American law frowns on litigation through secret filings. Accordingly, the Court should require the government to open the curtain, so we can properly respond to the new evidence.”

Matthew Continetti, editor in chief of the Washington Free Beacon, an independent news publication based in Arlington, Virginia, submitted a declaration urging full public disclosure of the government’s filing.  As Mr. Continetti explained:

This matter is one of intense public interest given Secretary Clinton’s nomination in 2016 by the Democratic Party for the presidency of the United States, high-profile positions in government, and continued involvement in public life…

It is essential for the public to understand the full scope and breadth of the FBI’s investigation into Secretary Clinton’s email server for the public to make an informed decision about what transpired during Secretary Clinton’s service to the State Department.  I believe the information sought by Plaintiffs would be of significant public interest and of interest to the readers of the Washington Free Beacon.

The Plaintiffs’ reply in support of its motion is available here.

Mr. Continetti’s declaration in support of the Plaintiffs’ motion is available here.

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


GreenTech Automotive, Terry McAuliffe, and crony capitalism


GreenTech Automotive, Terry McAuliffe, and crony capitalism

By John J. Vecchione and Ryan Mulvey | Jul 22, 2017

A politically connected “green energy” vehicle company that never delivered on its promises is finally being taken to task. A state auditor in Mississippi is demanding GreenTech Automotive repay its public loans after taxpayers were taken for a proverbial ride — though certainly not in one of the company’s elusive vehicles.

Read the full column at Richmond Times-Dispatch

CoAI to President Trump: Appoint Commissioners to FTC

Letter urges swift action to break deadlock, free U.S. businesses from unwarranted, abusive enforcement actions

Washington, D.C. – Cause of Action Institute (“CoA Institute”) sent a letter to President Trump, imploring him to move quickly to appoint one or more commissioners to fill current vacancies at the Federal Trade Commission (“FTC”). The letter suggests that just one additional commissioner could break deadlock to halt the agency’s pattern and practice of regulatory overreach and rein in recent unconstitutional enforcement actions that harm the economy and the rule of law.

The letter states that although the FTC’s acting chair, Maureen Ohlhausen, “has done a commendable job of addressing the excesses and lawlessness that plagued the agency, the acting chair cannot fully right the ship unless and until you appoint one or more commissioners who share her commitment to advancing economic liberty and believe that responsible businesses should have the freedom to succeed, unfettered by rogue regulators chasing chimerical harms.”

The letter states:

“The acting chair’s ability to promote competition and protect the free market and consumers from overregulation and overreach is hamstrung by the current gridlock on the Commission. Although Congress intended for the Commission to be an independent, bipartisan, five-member administrative body, there are currently only two commissioners: Acting Chair Ohlhausen, a Republican, and Commissioner Terrell McSweeney, a Democrat.

“Because a majority of commissioners must vote to approve most Commission actions, and because only one of the two current commissioners shares the administration’s commitment to cutting bureaucratic red tape to grow the economy, the Commission is hopelessly deadlocked on important policy issues affecting the entire private economy, such as the FTC’s controversial efforts to regulate data security, technology, and privacy for all U.S. businesses citing its authority under Section 5 of the FTC Act to prohibit ‘unfair’ or ‘deceptive’ business practices.”

The letter highlights several controversial “midnight” enforcement actions initiated just before the Trump administration began, that were undertaken in the absence of proven consumer harm. For instance, as the acting chair explained in her dissent from one such “midnight” enforcement action:

“[I]n the Commission’s 2-1 decision to sue Qualcomm, I face an extraordinary situation: an enforcement action based on a flawed legal theory (including a standalone Section 5 count) that lacks economic and evidentiary support, that was brought on the eve of a new presidential administration, and that, by its mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide. These extreme circumstances compel me to voice my objections.”

The letter concludes, “[T]he acting chair should not be the lone (and thus powerless) voice of reason and sound economic policy on the Commission. For these reasons, we respectfully ask that you expeditiously appoint one or more Commissioners to the FTC at your earliest convenience to assist the Acting Chair in furtherance of this Administration’s efforts to reduce regulatory burdens and improve Americans’ liberty to create.”

The letter was signed by John J. Vecchione, president and CEO of CoA Institute. The full letter is available here

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

LabMD and the FTC–Rough Day for the Government

On January 21, 2017 LabMD v. FTC, a case where we here at Cause of Action Institute weighed in with a friend of the Court brief on behalf of affected medical professionals [see brief here], was argued.  You should listen to it here.

CoA Institute also represented LabMD in the FTC proceedings and in collateral federal court actions seeking to halt the FTC’s administrative prosecution in the U.S. District Court for the Northern District of Georgia and in the U.S. Court of Appeals for the Eleventh Circuit. The arguments made here, and seemingly grasped by the 11th Circuit at oral argument, have been made by CoA Institute for quite some time.  This case was heard before three experienced jurists Gerald B. Tjoflat, Charles R. Wilson and Senior U.S District Court Judge Eduardo C. Robreno. (Interestingly, Judge Robreno is within the Third Circuit but sat on the 11th here).

Suffice to say it was not a good day for the ham-handed actions of the FTC in this case. The Court focused on the fact there appeared to be no harm to anyone from the action sued upon.  “A tree fell and nobody heard it, that’s the case we have here,” said Judge Tjoflat (if my memory for voices is accurate).  A nice summary of some of the more pungent comments from the bench were listened to, are found in Westlaw, and transcribed here:

“Counsel, let me put it this way. What the aroma that comes out of this case is that Tiversa was shaking down private industry with the help of the FTC, with the threat of going to the FTC. If you don’t cooperate, we will go to the FTC. It may well be how they got some of their clients…

“That’s an aroma, with falsifications to the commission. The administrative law judge just shredded Tiversa’s presentation, just totally annihilated it.”

In this case, the FTC with no consumer complaints, and no evidence of injury, and with no prior standards issued by the FTC for data security, put a company many physicians relied upon completely out of business. This is so even though the medical privacy act embodied by HIPAA was not violated.

The FTC relied on false information from Tiversa. “Oh, Come on!” said Judge Tjoflat responding to the assertion the FTC did not rely on that information to prosecute the matter.   Their own ALJ heard the facts (presented by CoAI) and destroyed the case and the Commission just overruled it; an appeal to Power and not Reason.  Judge Wilson specifically asked how LabMD would know it’s procedures would violate any standard.

The 11th Circuit already stayed the FTC Order with an Order of its own that bodes ill for Government.  Now we have this oral argument where the FTC was completely friendless.

Douglas Meal of Ropes & Gray, who argued the matter for LabMD, deserves kudos for a job well done. as does the rest of the Ropes & Gray team.  I will also note that Patrick Massari and Michael Pepson did a splendid job on the amicus brief which argument was also mentioned by the Court.

John J. Vecchione is President and CEO of Cause of Action Institute.

John Vecchione discusses FBI’s involvement w/ Trump dossier on The John Fredericks Show

FBI “Can Neither Confirm Nor Deny” Existence of Records About Payment to Trump Dossier Researcher

Washington D.C. – The Federal Bureau of Investigation (“FBI”) has declined to confirm the existence of records responsive to a lawsuit filed by Cause of Action Institute (“CoA Institute”) in April 2017 for records about the relationship between the agency and  Trump dossier researcher Christopher Steele, a former British spy who made headlines after he was identified as the lead author of the infamous dossier.

According to a news report, the Trump dossier researcher entered an agreement with the FBI a few weeks before the November 2016 election to investigate then-candidate Donald Trump while, at the same time, he was employed by an opposition research firm to collect information for Democratic presidential nominee Hillary Clinton.

In part, the FBI’s response states:

“The nature of your request implicates records the FBI may or may not compile pursuant to its national security and foreign intelligence functions. Accordingly, the FBI cannot confirm or deny the existence of any records responsive to your request, as the mere acknowledgment of the existence or nonexistence of such records would, in and of itself, harm national security interests and reveal intelligence sources and methods.”

This so-called Glomar response gained notoriety in the CIA’s use of the Glomar Explorer to recover a downed Soviet submarine.

CoA Institute President and CEO John Vecchione: “The FBI is circling the wagons by claiming potential harm to national security if it discloses its relationship with Christopher Steele. Regardless of whether a payment was ever made, the FBI’s affiliation with a political opposition researcher in the midst of a presidential election deserves scrutiny. The FBI should be forthcoming about whether and how the agency was relying upon a former foreign spy who, in the pay of private parties, compiled a report of salacious accusations intended to harm the reputation of then-candidate Donald Trump.”

On March 7, 2017, CoA Institute sent a FOIA request to the FBI seeking access to records into whether the FBI paid money, or had plans to pay, Mr. Steele for any purpose.

The FBI’s full response can be found here.

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