Live from Music Row Friday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed the original all-star panelist Crom Carmichael to the studio to discuss how federal employees should be regulated to prevent an administrative abuse of power and in case of guilt should face jail time.
Leahy: We are joined in studio as we almost always are every Monday, Wednesday, and Friday Crom Carmichael. Crom, good morning Crom.
Carmichael: Good morning, Sir.
Leahy: Well, I understand that you found our conversation with the General Counsel for the Southeastern Legal Foundation of great interest.
Carmichael: Yes, I did. And here’s why. And here’s what concerns me when you have and this tends to happen more frequently when you have Democrat administrations than when you have Republican administrations.
But I’m not going to say it doesn’t happen with Republican administrations. I just can’t think of the issues. Officials at the EPA, these are human beings at the EPA, apparently did.
Leahy: Waters of the USA.
Carmichel: There was a bill passed in Congress.
Leahy: They promulgated a rule that twisted the law so that, in essence, the Environmental Protection Agency could come into anyone’s land and take it over if they had a creek on it, that they didn’t like the way that the water was flowing.
Carmichael: Right.
Leahy: In essence.
Carmichael: Right. And what did you say? Did you say a ranch or a farm?
Leahy: There was a particular case that had a guy who needed to put a pond up somewhere out West, and he did it. And the EPA went after him hammer and tong for about 10 years and almost destroyed him.
Carmichael: Here’s what I want to get at here. We now know that what they did was unconstitutional. What the EPA did. What the human beings that the EPA did.
Leahy: In the promulgation of that rule.
Carmichael: Yes. We know, therefore, what they did was against the law. If an individual who’s not part of government breaks the law and by doing so, destroys somebody’s property, and in this case, almost broke the guy, which is a form of breaking their properties.
It’s like stealing money. That a person goes to jail. If a government official does it, they have protections. I think we need to change that. I think back to when Nifong prosecuted the Duke lacrosse player…
Leahy: The county attorney who basically has subsequently been disbarred.
Carmichael: Yes. But he should have gone to jail because he broke the law. And in so doing, he tried to put young men behind bars for 30 years. When a government official uses a position knowingly and breaks the law. And there’s no question that Nifong knew that he was withholding information.
Leahy: He was also jailed for a period of time.
Carmichael: Okay, that’s a good thing. How long was he in jail? And what was the charge?
Leahy: On September 7, 2007, after already have been disbarred, he served a wait for it one-day jail sentence.
Carmichael: That’s meaningless. He was trying to put people in jail for 30 years. Prosecutors who abuse, and I’m talking about I’m not talking about just a judgment call here. I’m talking about where it’s clear that they abuse their position. They should go to jail for the length of time that they were trying to sentence the other person.
That’s what should be the penalty. And an EPA official or a government official abuses their position and tries to destroy the life of somebody else and then loses, that person should go to prison.
Leahy: No, I don’t disagree with you. However, Crom, I think you would be at the forefront of new interpretations of administrative law if you did that.
Carmichael: Of course I am.
Leahy: Of course!
Carmichael: Because otherwise, it would be happening already.
Leahy: I don’t disagree.
Carmichael: And this wouldn’t be administrative law. We should pass a law. We should pass a law that says that if a government official abuses their power, and you can put something like in doctors with malpractice. There are certain levels of malpractice that it has to rise to in order for it to be malpractice.
Leahy: This would be very interesting, and I think it’s worth pursuing Crom. And I think you would get it and I’ll tell you who’s been writing about this. What you’re getting at is the abuse of the Administrative Procedures Act.
Carmichael: Exactly.
Leahy: Passed by Congress and 1950s. And there is it’s a funny last name, but I think you can get some support Crom from an academic Professor at wait for it…Columbia University. His funny last name, Philip Hamburger. He’s been writing about this for, like, 20 years.
Carmichael: Okay, well, hot dog! (Laughter)
Leahy: That is good. (Laughter)
Carmichael: But let me say this, Michael. One thing I love about you is it doesn’t take much to make you laugh, (Leahy laughs) so that makes me feel even better.
Leahy: But you’re funny. Our listeners come and tell me and say, that Crom is funny.
Carmichael: Well, thank you. I have a son who does everything he can to not laugh at any of my jokes. And he does a really good job. He just stares at me. But this goes to the point of Biden’s nominee for the ATF, David Chipman. I want to read this here. This article says that law-abiding ‘gun owners’ can potentially become violent, so further restrictions on all gun owners are necessary.
Leahy: This is ludicrous.
Carmichael: Well, it is ludicrous, but it’s worse than ludicrous. And that is that no human being should be able to use a position of government to break the law. They shouldn’t be able to. They should be able to decide what they think is the law and just break it.
If he can’t go to Congress and get Congress to pass a law that says that law-abiding citizens can’t own guns and then get that upheld by the courts, then he has no business taking away people’s guns from law abiding citizens.
He has no business doing that. And it should be a criminal offense for him to do that. I’m not saying we need to pass a law to make it criminal. He ought to be arrested. If an ATF person came to Tennessee and tried to take away somebody’s gun in the state of Tennessee, the state of Tennessee should arrest that person.
And the state of Tennessee should put that person in jail and indict that person and try that person in a court of law and see if a jury in Tennessee believes that a federal employee, whether or not a federal employee should be held criminally responsible for essentially stealing someone’s lawfully owned firearm.
Leahy: Good point.
Carmichael: Because what else can they steal? If they can steal my lawfully owned firearm can they steal my car because it has gasoline and because it’s an SUV? Can some administrative person decide that what I’m doing is destroying the planet on their own and then come in and steal my car?
Can they do that? Can they come in and tear down my house because they think my carbon footprint is too large? Can they do that? And these are questions that are legitimate questions because when you look at what the left has been advocating for 20 or 30 years ago, some of the things they advocated, I thought were ridiculous. Well, they’re here now.
Leahy: They are.
Carmichael: And they’re here now because they advocated and advocated and advocated. Now let me read a great quote. This is from and I sent this to you from an organization called CrimethInc.
Here’s what they wrote. And they’re Antifa related group. Here’s what they wrote. And they’ve got a website with all kinds of doctrine on the website. ‘You put yourself in a weaker bargaining position by spelling out from the beginning the least it would take to appease you.
No shrewd negotiator begins by making concessions. It’s smarter to appear implacable. So you want terms, make us an offer. In the meantime, we’ll be here blocking the freeways and setting things on fire.’
Now that’s what they do. Now, let me say this. The 9-11 January sixth thing, how much damage was done to the capital?
Leahy: Not a lot.
Carmichael: Not a lot. Was there a fire?
Leahy: No.
Carmichael: Was there anybody who was killed there by any of the so-called insurgents?
Leahy: Not by the insurgents?
Carmichael: No. Not one. Not one person by the so-called insurgents, by the so called. That’s why I said by the so-called insurgents. And so what you have here is you’re going to have this commission that essentially labels anybody who even supports the notion that Trump was cheated out of the election, is somehow a bad person, and might even have criminal sanctions imposed against them certainly should be canceled.
Certainly should be canceled. Should lose their job, blah, blah, blah. All of these different things. And so this is what I’m saying is. And this is how these people act. They act with impunity and they do whatever it is that they want to do, and they don’t negotiate. Well, the question is, are they, terrorists? Are people who act like that terrorists?
Leahy: We’ll talk about that when we get back.
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Photo “Crom Carmichael” by Crom Carmichael.
Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Tim Pagliara CIO of Cap Wealth Management to the studio to discuss the Supreme Court case that will address violations of the Administrative Procedures Act and the two issues of constitutionality and whether it will go back to the trial court for damages that shareholders are entitled to.
Leahy: Our guest is Tim Pagliara, author of Another Big Lie: How the Government Stole Billions From The American Dream of Homeownership and Got Caught. By the way, Tim, thanks so much for coming down to our Studios on Music Row. It’s kind of fun, isn’t it?
Pagliara: It’s a blast.
Leahy: I know you love radio, t0o. Everybody loves the radio.
Pagliara: I got a face for radio.
Leahy: So do I. I mean, you know, I get here at 5:05 a.m. in the morning. I don’t look, you know, not ready for prime-time cameras. I’ll tell you that for sure. So we’re talking about this case. Your book fantastic book – doing very well. It’s on Amazon and is number one in banking and finance right now.
Pagliara: Yes.
Leahy: And by the way, go get the book right now at Amazon.com. Just check out Another Big Lie. You’ll be able to order it and have it in your house in a day or two.
So what I find interesting about this: September 2008 is when the government, George W. Bush made the bad decision, as you said, to place Freddie Mac and Fannie Mae the mortgage purchasing institutes of qualified governmental institutes into conservancy. Then in 2013, ’14, the Feds say, ‘Let’s keep it in the conservancy,’ and misrepresented really how well those organizations were doing.
Pagliara: Yes.
Leahy: The lawsuit doesn’t get filed until 2015 because the people that had their money basically taken away the investors.
Pagliara: Actually, the first lawsuit was filed in June of 2013, the Collins case.
Leahy: So there was a whole bunch of cases. Now, how much money do the plaintiffs, how much have they had to spend to get this case up to the Supreme Court? And how long is it? What’s the path been?
Pagliara: If you take all of the lawsuits collectively, my estimate is those plaintiffs have spent almost 100 million dollars.
Leahy: And just in legal fees.
Pagliara: Just in legal fees.
Leahy: How much of their money has been taken by the federal government, would you guess?
Pagliara: $350 billion?
Leahy: $350 billion?
Pagliara: Yes.
Leahy: Wow.
Pagliara: Big numbers.
Leahy: And going to, I don’t know, fund Obamacare? Things like that”
Pagliara: That’s one of the places that the money went. Treasury Secretary Mnuchin on Maria Bartiromo show admitted that. He wouldn’t pinpoint exactly where the money was spent. But it went for a variety of non-budget, appropriated purposes.
Leahy: Wherever they wanted to just have their little…fund not known to the public go.
Pagliara: That’s right. Exactly. And they were battling Grover Norquist. They were battling the constraints of the Budget Control Act, and they acted in their best interest in violation of the property rights of shareholders. This is a big case. They can take the assets of Fannie Mae and Freddie Mac. You can imagine what Elizabeth Warren can concoct with wealth taxes and just taxing individuals.
Leahy: That’s all in the works right now. These are the kinds of things that they’re contemplating, right?
Pagliara: Yes.
Leahy: So in this particular case, Collins versus Yellen. And Yellen versus Collins.
Pagliara: This case came to the United States Supreme Court after an en banc hearing in the Fifth Circuit.
Leahy: So the first step is to go to a district court.
Pagliara: That’s right.
Leahy: Then it goes to the Fifth Circuit court.
Pagliara: It went to the Court of Appeals. So the plaintiff lost at the district court level. They went to the court of appeals, and it was a split decision. The plaintiffs appealed to the entire circuit in an en banc hearing.
Leahy: So the way it works is in the Fifth Circuit, they would assign what, three judges to look at it?
Pagliara: Yes.
Leahy: And they lost there.
Pagliara: It was a mixed decision. So there was enough confusion between the three judges.
Leahy: So the Fifth Circuit, we have 11 circuits courts of appeal in the country, of course, the worst being the ninth out in California, where they’re all a bunch of lefties. It’s getting better. Tell us a little bit about the Fifth Circuit Court of Appeals here in our federal court system. Pretty good reputation?
Pagliara: Excellent reputation. They addressed civil rights in the 60s. They’ve had a reputation for taking on tough issues, being leaders, and thinking outside the box. And they decided to take this on in an En banc hearing.
Leahy: Now Let’s just stop and explain what an en banc hearing is for the Circuit Court of Appeals. What is that?
Pagliara: That’s when you take all of the justices and the different circuits, and they all come together collectively as a group, and they will hear additional arguments following a court hearing.
Leahy: So an en banc hearing of the Fifth Circuit would include 20 judges or something like that?
Pagliara: 16.
Leahy: 16 judges. And the Fifth Circuit covers Texas…
Pagliara: Parts of Louisiana.
Leahy: So here we go. There’s a sort of a split decision when the three-judge panel first reviews in the Fifth Circuit Court of Appeals, it goes en banc to all 16. What happens there?
Pagliara: Well, there are two issues before the court. One was whether or not the federal housing finance administrator, which was overseeing the conservatorship of Fannie Mae and Freddie Mac whether he was appointed constitutionally. Whether it was a constitutional appointment. And the Consumer Finance Protection Board case, which occurred earlier. The court found that that was unconstitutional.
Leahy: And by the way, it’s just for our listeners, the Consumer Financial Protection Board.
Pagliara: That’s a mouthful.
Leahy: It really was unconstitutional when passed in the Dodd-Frank Bill 2010 – the brainchild of wait for it – our favorite Native American Senator, Elizabeth Warren. That’s her brainchild. And so that key element of that particular law was found unconstitutional.
Pagliara: And so they did the same thing. The director of the Federal Housing Finance Administration, which was overseeing the conservatorship, was appointed in exactly the same way as the CFPB.
Leahy: Got it.
Pagliara: And this is where you get into that fourth branch of government. The issue there was they wanted to create an agency that the executive branch of government couldn’t remove the director. That’s what they did with the CFPB. That’s what they did with FHFA. And in the CFPB, the court ruled that that was unconstitutional. It had to be removable.
Pagliara: That’s right.
Leahy: And that’s why when Biden got elected, they got a new head of the CFPB.
Pagliara: So with the Fifth Circuit, the first issue is constitutionality. The Fifth Circuit already ruled that it was unconstitutional. They were split on the remedy. The issue before the Supreme Court is whether or not the plaintiffs are entitled to prospective or retroactive relief. If retroactive relief…
Leahy: It’s a lot of money.
Pagliara: It’s a lot of money.
Leahy: It’s like $350 billion.
Pagliara: Most legal scholars don’t believe that the plaintiffs, the shareholders, will get retroactive relief. They’ll get prospective relief and the President will be able to remove the Director immediately at will. It will be an at-will appointment like any other cabinet appointment.
Leahy: Too bad this case wasn’t decided before January of 2021, I think.
Pagliara: Well, President Trump honored the rule of law, and he waited for this to happen. And so he actually did a very good job with that. Now, the second issue before the court is called the Administrative Procedures Act [APA].
Leahy: 1950 act that sort of was the beginning of the decline of the legislative branch here in America because it’s been abused so much by the rulemaking procedures of various departments, cabinets, and agencies.
Pagliara: And so the violation of the APA, this is the governor that regulates the 10,000-pound gorilla being the federal government. the federal government tends to crush everybody that they get into litigation with. In fact, you can’t even get an injunction against it.
Leahy: So if the Department of Justice decided to go after somebody, for whatever reason, just even if you were totally innocent of any of these charges or claims, your legal fees would be, what? A half a million bucks, at least a million to defend?
Pagliara: Millions.
Leahy: Not exactly a fair deal.
Pagliara: It’s not a fair deal. So the court ruled that the government violated the APA, violated the very statute that they’re supposed to enforce that has been remanded to the trial court.
Leahy: Sent back.
Pagliara: And so the Supreme Court intervened, and they’re going to weigh in on this. So they got the two issues. They got constitutionality, and they have the whole issue of whether this goes back to the trial court for damages that the shareholders are entitled to.
Leahy: This will be fascinating to follow when we get back. I know you’re not in the land of being a predictor, but we’ll want to look at a couple of the possibilities that will come down in this very interesting Supreme Court decision.
Listen to the full third hour here:
Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Tim Pagliara in studio to discuss the upcoming May Supreme Court decision regarding Collins v. Mnunchin.
Leahy: In studio, our good friend Tim Pagliara author of Another Big Lie: How the Government Stole Billions From the American Dream of Homeownership and Got Caught. So, Tim, the Supreme Court is going to hand down its decision sometime in what, May, you think?
Pagliara: Typically, what happens you can count it down 84 days after oral argument, which would put the decision sometime in May. So they’re in the deliberation phase right now. They’re reconciling the different opinions that the judges have towards this. The more difficult the decision, the longer it takes. But sometime around the first of May.
Leahy: So 84 days, have you studied this? And you know that over the course of the past decade, it’s about 84 days from oral argument.
Pagliara: That is it’s the number that’s the number. You leave nothing to chance Tim. That’s very interesting. Let’s speculate now, do you think the oral argument was in December?
Pagliara: December 9.
Leahy: So are they in that big room right now just deliberating or are they writing their own separate opinions on it? What’s the likelihood? We are at March 23 today?
Pagliara: My understanding is they go through a series of caucuses and depending upon how hot the issue is and how divided the court is, they will try and come together and reconcile. That’s how you get 5-4 opinions, 7-2. I think one of the most recent opinions was 8-1.
Leahy: And John Roberts being the only dissenter. Don’t even get me started on John Roberts. So based upon my read of how the more liberal members of the court weighed in on this, I would not be surprised at a 9-0 opinion, which would be incredible.
Leahy: In favor of the prentice.
Pagliara: Or 7-2 or something along those lines and on the two counts. I think the constitutional claim is a slam dunk, but I don’t think the plaintiffs are going to get backward relief. I think they’ll get forward relief.
Leahy: The backward relief, is that just a matter of just the scale of the amount of money involved, or is it the legal principle?
Pagliara: It’s both. But also it has rippling implications for a lot of other federal agencies where you have appointed and you’ve got acting directors, you’ve got different issues related, and typically the court will take an easier route out. And I don’t think they’ll address that difficult issue because it opens up a Pandora’s box. Now, for the same reason, I think they will come down with a very, very strong opinion on the APA claim and theft.
Leahy: The Administrative Procedures Act claims to be unconstitutional the way it’s being implemented.
Pagliara: Usurps their authority.
Leahy: Usurps their authority. That’s a common phrase for the federal government, and they
Pagliara: I think there’ll be some teeth, because, as we were talking about in the previous segment, there’s not just one. This is not just one case. This is the one that hit the Supreme Court. There are other cases. For example, Judge Lamberth in the D.C. Circuit. He’s got a case that’s going to go to trial. And this is the one that will put a dagger through the Justice Department’s heart.
They filed a false AFFE affidavit in a lawsuit and they lied to a federal judge. They said that these companies were in a death spiral, and they had just been briefed by the chief financial officer and the outside auditor. It’s on the record. It’s indisputable that they were entering a golden age of profitability.
Leahy: See, here’s the thing, though, there was an FBI agent lawyer who filed the false affidavit with the FISA court got a slap on the wrist.
Pagliara: Well, here’s how this is different. Tell me you remember that commercial, ‘It’s not nice to fool with Mother Nature,’ you know? Well, it’s not nice to fool with a federal judge. They lied to a federal judge. Different than a FISA court judge, to some degree. And this federal judge now controls these proceedings.
And when the case was remanded back to him, he was embarrassed because his ruling where he dismissed the case in 2014, he was a domino. People respected him for his opinion, and a lot of them just fell back on their good friend Royce Lamberth’s judicial prowess. So when they came back to him and he knew they had lied to him he had to set the stage for what the government was going to have to be tried for. The government has to answer in front of a jury whether they complied with the covenant of good faith and fair dealing that’s embedded in every contract.
Leahy: Very interesting.
Pagliara: They cannot win. And so the judge set the government up to fail. And he’s just sitting back, watching now. He’s intently curious as to who’s going to certify a trial record with a perjurious affidavit that they’re taking discovery. So they want to end this because it is not going to end well for them.
Leahy: On the Supreme Court case when they rendered their decisions are the attorneys and the plaintiffs like every day in May when they get up, do they file at 10 am in the morning and just hit the refresh button every day?
Pagliara: Every day.
Leahy: Is that what happens?
Pagliara: That’s what happens. And I know all the attorneys. I’ve worked with every one of them. David Thompson, who did the oral argument, he and I’ve become good friends.
Leahy: He’s got a little blurb on your book that he talks about how this was the largest and most brazen expropriation of private property in the nation’s history. David Thompson, managing partner of Cooper and Kirk.
Pagliara: You remember Charles Cooper? Charles Cooper represented. He was one of the attorneys in Bush versus Gore.
Leahy: It’s a very high-powered law firm. But all the clerks, the young associates are there hitting refresh. But every day in May, right?
Pagliara: It’s like waiting for your wife to have a baby.
Listen to the full third hour here:
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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
