Archive for ‘Constitution’

12/03/2019

IMPEACHMENT AND THE CONSTITUTION

As to Presidential impeachments, the Constitution provides: “The House of Representatives…shall have the sole power of impeachment” Art. I, Sec. 2 (5). “The Senate shall have the sole power to try all impeachments.” Art I, Sec. 3 (6) “The President…shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” (Art II, Sec. 4).

Since many Americans who enlisted in the Revolution were accused of “treason,” the Founders set a very high standard of proof in the Constitution to prove it: “Treason against the U.S. shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” (Art. III, Sec. 3 (1). So much for treason.

ATTEMPTED BRIBERY

Although the Constitution also listed “bribery” as an impeachable offense, no specific definition was given, as it was widely understood as an offer of “something of value” to a public official for something in return.

The something of value offered by Trump was military weaponry owned by the U.S. government. The law appropriating money to buy it was made by Congress under their legislative powers. Art. 1, Sec 1. Although Trump often gives the false impression that he alone controls the public purse strings, it’s Congress that exercises the power to decide what funds are appropriated and where they flow. The Constitution provides:  “no money shall be drawn from the Treasury but in consequence of appropriations made by law…” Art I, Sec. 9 (7).

President Trump was to simply enforce the Ukrainian appropriations law, without interjecting his own personal conditions. He had no authority to demand “favors” in exchange for U.S. aid. More specifically, he had no right to use taxpayer dollars to extract an investigation into Joe Biden, his political rival.

When Trump took his Presidential oath, he swore: “I…will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Art II, Sec 1 (8). In doing so, he accepted the duty to: “…take care that the laws be faithfully executed.” Art II, Sec 3.

Some of Trump’s non-lawyer apologists, like the insufferable Jim Jordan of Ohio, shout out in a rage that no investigation was commenced and the aid was delivered. But what the Congressman refuses to admit is that the abandonment of a criminal scheme upon being exposed by a whistleblower is no defense. By analogy, if a murderer starts stabbing someone, but he is then stopped, and the victim survives, all is not forgotten. The charges are simply reduced from “murder” to “attempted murder.”

The Founders considered an attempted crime just as onerous as a completed one. American Jurisprudence, a legal authority, states: “An attempt to commit a crime was itself an indictable offense at common law.”

To show an “attempted bribe,” all that is required is an “overt act” coupled with an “intent.”

Here, the “attempted bribery” occurred as Tramp ordered his people to withhold the military aid to the Ukraine until the Ukrainian President first publically announced an investigation re Biden, his political rival.

When Alexander Hamilton explained in Federalist #65 that impeachment trials would be held in the Senate, he noted: “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust.” Here, since Trump was simply to deliver foreign aid as appropriated by Congress, and he instead added political conditions beneficial only to his own re-election campaign, he violated the public trust, and yes, that is an impeachable offense, which justifies removal. We simply cannot trust Donald Trump.

VIRTUOUS BEHAVIOR STANDARD

Before addressing “other” crimes and misdemeanors, the Congress must first consider the standard of conduct applicable to a President. As guidance, the Constitution sets standards for lawmakers and judges: “Each House may…punish its members for disorderly behavior and with the concurrence of two-thirds, expel a member.” Art I, Sec 5 (2). “The judges, of the Supreme and inferior courts, shall hold their offices during good behavior…” Art. III, Sec. 1. Since no Presidential standard was included in the Constitution itself, we can look to the Federalist Papers for help.

Alexander Hamilton established a “Preeminent Virtue Standard” for Presidential behavior in Federalist #68 (1788), where he wrote “…the Office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” He added: “There will be a constant probability of seeing the station filled by characters preeminent for ability and virtue.”

As to impeachment crimes and misdemeanors, they are not to be judged by what a criminal court might have done or would do. If this were the case, Trump would always get 4 of 12 on a jury to vote not guilty, no matter what facts were shown. Presidential removals do not depend on unanimous jury verdicts, for as Hamilton put it in Federalist #65, impeachments “are of a nature which may…be denominated political.” For the House to impeach, each count simply requires a majority to agree that Trump has not lived up to Hamilton’s Preeminent Virtue Standard.

OTHER CRIMES & MISDEMEANORS

Since House Democrats would be making a major mistake if they proceeded on just onecount of bribery, they should examine what the Founders meant in the Constitution when they allowed impeachment for: “other high crimes and misdemeanors.” What “other” “high crimes”? What “other” “misdemeanors”?

In addition to attempted bribery, Trump has shown a lack of virtue as to other crimes and misdemeanors, such as: 1) sexual assault; 2) adultery and prostitution;  3) invasion of privacy; 4) slanderous defamation; 5) malicious prosecution; 6) battery, as party to crime; 7) disorderly conduct; 8) witness intimidation; 9) whistleblower law violations; 10) subordination of perjury; 11) contempt of court as to subpoenas; 12) receiving foreign emoluments (illegal pay); 13) income tax concealment; 14) fraud as to Trump University students; 15) fraud against creditors; 16) abuse of bankruptcy process; 17) obstruction of justice; and 18) obstruction of Congress.

SEXUAL ASSAULTS

While being secretly recorded by Billy Bush of Access Hollywood in 2005, Trump admitted that he committed at least one fourth degree “sexual assault.” Most states have various degrees of sexual assault, ranging from first degree (rape) to fourth degree, which is usually some sort of “offensive touching.”

In talking to Bush, Trump made comments indicating a lack of virtue regarding a Palm Beach woman as he said: “I did try and fuck her. She was married….I moved on her very heavily…I moved on her like a bitch, but I couldn’t get there and she was married.”

During the same conversation, as Trump was about to exit a bus to meet Arianne Zucker, he said to Bush: “I better use some Tic-Tacs, just in case I start kissing her….I am automatically attracted to beautiful (women)….I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything.” When Bush asked: “Whatever you want?” Trump replied: “Grab ‘em by the pussy. You can do anything.”

Many woman and campaign workers have alleged Trump forcibly kissed them or grabbed them, but there is not enough room here to recite all their stories.

Although it may be news to Trump, it’s not legal to randomly kiss or grab women by the pussy, or to do whatever you want, without their prior consent.  Under Hamilton’s “virtuous behavior” standard, Trump’s admitted conduct as to women should be added to our impeachment cart before we check him out.

ADULTERY & PROSTITUTION

The fact that Trump paid at least two high-priced call-girls substantial sums of money shows a willingness to engage in “prostitution” and a lack of the sort of “virtue” Hamilton thought Presidents should possess.

On dozens of occasions during a nine-month period while Trump was a 60-year-old and married to is then 36-year-old wife Melania, he had an affair with a 35-year old Playboy supermodel, Karen McDougal. Once Trump became the Republican Presidential nominee in 2016, his personal attorney Michael Cohen recorded a conversation with Trump in which they discussed paying off McDougal to keep her quiet. But instead of making direct payments, they used a trusted friend at the National Enquirer, who worked out a plan, where the tabloid paid McDougal $150.000 on Aug. 5, 2016 for a non-disclosure agreement and the “exclusive” rights to her story. This was so they could bury it. In another recorded conversation with Cohen, Trump asked if “one-fifty” was needed and Cohen said yes. When the affair nonetheless surfaced a few days before the 2016 election, Trump instructed his campaign aid Hope Hicks to lie about it by telling the public it was “totally untrue.” But the truth wouldn’t go away. Based on McDougal’s own memoirs, the New Yorker later corroborated the affair. McDougal said when they first had sex, Trump offered to pay her and promised to buy her an apartment in New York. During the affair, to avoid evidence, Trump instructed McDougal to cover her own air flights and hotels for later reimbursement. McDougal ended the affair in April 2007, because Trump made some offensive comments to her. As for Trump’s lawyer Cohen, after he pled guilty to violating the federal campaign finance laws by paying $150,000 in hush money “at the direction of a candidate for public office,” he was sentenced to prison for three years. His guilty plea also covered the Stormy Daniels buyout.

Once again when Trump was a 60-year-old, he had another affair with a then 27-year-old Stormy Daniels, who was an adult film star. After they had sex, Daniels said she used a Forbes Magazine to spank him (not hard enough obviously). Since Trump was a public figure, news of the affair was published in 2011. As Trump started running for President, Daniels was then threatened to sign a nondisclosure agreement. In Las Vegas, as she and her infant daughter exited a car, an unknown man said: “Leave Trump alone. Forget the story. That’s a beautiful little girl. It’d be a shame if something happened to her mom.” So one month before the 2016 Presidential election, Daniels finally signed a non-disclosure agreement in consideration for $130,000. Since the money was technically an in-kind contribution to the Trump campaign, after Trump was elected, his personal attorney Michael Cohen admitted that he made a payment to Daniels for Trump and he pled guilty to illegal campaign finance contributions “in coordination with and at the direction of a candidate for federal office.” Rudi Giuliani admitted Trump reimbursed Cohen in 2017. But Trump himself continued to lie about it, as he denied having any knowledge of Cohen’s payment to Daniels. Trump’s press secretary Sarah Huckabee Sanders was instructed to perpetuate the lie, as she told the media, they had “no knowledge of any payments from the President.”

INVASION OF PRIVACY

Trump operated several beauty pageants between 1996 through 2015. At them, Trump admitted to Howard Stern in 2005: “I’ll go backstage before a show, and everyone’s getting dressed and ready and…no men are anywhere. And I’m allowed to go in, because I’m the owner of the pageant and therefore I’m inspecting it…You know, there’re standing there with no cloths, and you see all these incredible looking women…so I sort of get away with things like that..”

Just to name three of the ladies who complained, Miss Vermont Teen, Mariah Billado, described her dressing room incident this way: “I remember putting on my dress really quick, because it was like, oh my god, there’s a man in here.” Trump said: “Don’t worry ladies, I’ve seen it all before. Miss New Hampshire, Bridget Sullivan said when Trump walked into her dressing room ostensibly to wish the contestants good luck “they were all naked.” Miss Arizona, Tasha Dixon, said “(Trump) just came strolling right in. There was no second to put a robe on or any sort of clothing or anything. Some girls were topless, other girls were naked.”

Trump apparently suffers from the delusion that because he “owned” the beauty pageants that he had a legal right to invade contestant privacy by just walking in on them while they were nude. No judge or jury anywhere would agree with that twisted thinking.

SLANDEROUS DEFAMATION

Trump has routinely abused his position of trust by tweeting out a torrid of “defamatory statements” as to anyone who crosses him. He made so many false comments about so many people it’s impossible to recite them all in one article. Persons previously unknown to the public, like former Ukraine Ambassador Marie Yovanovitch, have been singled out and subjected to vile and slanderous comments.

Trump’s most widely-known slander was perhaps his insidious race-based fiction that President Obama was not born in the United States. As character assassin-in-chief, Trump headed the Birther Movement, a group of low-information right-wingers who seriously believed Obama was not an American. Their ignorance was in large part due to Trump’s non-stop lying on the issue. Since Trump professes to be a “genius,” why did he not comprehend demonstrable facts that clearly showed Obama was in fact born in Honolulu, Hawaii on Aug. 4, 1961? Why did he not accept Obama’s birth certificate or his “birth notice” published in a Honolulu newspaper in 1961? With facts readily available, why did he continue slandering Obama for years? The simple answer is Trump doesn’t care about truth and his proclivity to slander evinces a total lack of virtue.

MALICIOUS PROSECUTION

Since our Founders objected when King George III abused his power and arrested political opponents, the framers protected Senators and Representatives in the Constitution by making them “…privileged from arrest during their attendance at the session of their respective Houses…” Art. I, Sec 6 (1). For the next 230 years, it was largely considered un-American for Presidential candidates to promote the prosecution or jailing of political opponents.

Trump managed to introduce a new invective into the American lexicon as he repeatedly encouraged his mobs to join him in the malicious prosecution of Hilary Clinton. He encouraged his thugs to just “lock her-up!” Historically, such threats were only heard in places like Franco’s Spain, Mussolini’s Italy and Hitler’s Germany. Such dark chants are seriously dangerous when repeated to uncorked Trump backers.

By encouraging the malicious prosecution of political opponents, Trump put himself in legal quagmire as he took an oath of office to uphold the Constitution: “The United States shall guarantee to every State in this Union a republican form of government.” Art IV, Sec. 4.

Trump cannot on the one hand blindly promote a lawless state by telling his thugs to just “lock her up” and simultaneously carry out his Presidential duty to guarantee of a republican form of government, which by definition includes peaceful transfers of power. Trump abuses his position of trust every time he calls for another “malicious prosecution” of a political opponent. Now he is saying “lock up” Hunter Biden. If Trump is allowed to continue acting like a dictator of a banana republic, his conduct will have a corrosive effect on the future of our democracy. Trump is not the sort of man the Founders wanted to head a republic.

BATTERY, AS PARTY TO CRIME

Trump publically encouraged his hard-core supporters to engage in unprovoked physical acts of “battery” against media employees and those who merely disagree with him. He then co-conspired with his thugs by telling them he would pay their legal fees.

At a rally in Nevada in early 2016, when a detractor appeared to denounce the candidate’s racist rhetoric, Trump provoked his unbalanced supporters by shouting out: “I’d like to punch him in the face.” At another event in Kentucky the same month, Trump made it clear that if his bullies did engage in battery, he would cover their legal fees, as he shouted out: “Try not to hurt him. If you do, I’ll defend you in court.”

Armed with the knowledge that their legal fees would be covered, a white 78-year-old man in North Carolina then sucker-punched a 26-year-old black man, who appeared at a Trump rally in March 2016 to voice his opposition to Trump’s repeated use of hate speech.

When prominent public figures use their stations to egg-on supporters by promising to cover their legal fees if they engage in battery, they should be treated as a “party to the crime” to battery. Under Hamilton’s “virtuous behavior” standard, Trump failed miserably. The encouragement of battery should be added to our impeachment cart.

DISORDERLY CONDUCT

Under the same fact pattern above, disorderly conduct is often charged as lesser alternative to battery.

On many occasions, Trump engaged in “disorderly conduct” as he made hate-filled speeches and uttered comments that encouraged his unbalanced supporters to engage in physical violence. Trump tended to cause or provoke public disturbances. Since Hamilton argued impeachment could flow “from the misconduct of public men,” Trump’s disorderly style of conduct should be considered an impeachable act. No one could seriously argue Trump’s conduct is virtuous.

WITNESS INTIMIDATION

“Witness Intimidation” is a crime under both federal and state laws. Trump silenced some would-be accusers and attempted to mute others, as he used his twitter account to threaten those who dare testify against him. The list of those he as assailed is quite long, but just to name a few, he tried to intimidate his former Attorney Michael Cohen as he testified regarding the hush money paid to Karen McDougal. He intimidated Stormy Daniels in attempt to keep her quiet about their affair and the money she received. He also made intimidating tweets to former Ukraine Ambassador Marie Yovanovitch while she testified before a House committee. Trump uses this sort of intimidation anytime anyone makes any statements that might hurt him. While some brave souls have come forward to speak the truth as to his corrupt practices, others have sadly been intimidated into silence. It’s time for that to end. Witness intimidation should be added as an impeachable offense.

WHISTLEBLOWER LAW VIOLATIONS

The federal Whistleblower Act (1989) was signed into law by Republican President George H. W. Bush. It’s a good law that protects government workers who report possible violations of laws, rules or regulations. The statute prohibits any reprisal or retaliatory action against the person reporting the alleged wrongdoing.

Confidentiality exists for a reason. The legal system has used confidential informants for a long time. Arrests in drug cases, for example, often begin with a tip from an anonymous undercover agent. Their identities remain secret and unavailable to the accused. If courts exposed them, they could be endangered.

Yet the President demands the whistleblower’s name. He wants it so he can retaliate against the person who disclosed his attempted bribe of Ukraine’s President. Trump demand is without regard to the law protecting the whistleblower’s identity or safety. Although it should be obvious, someone needs to tell the President that what is demanding is a violation of the Whistleblower Act. If Trump wants to change the law, he should use proper channels. As long as the law keeps the name of the whistleblower confidential, then the President can’t have it. Period. Since Trump doesn’t care about obeying the law, our only option is to add another reason for impeachment.

SUBORDINATION OF PERJURY

When Hamilton explained in Federalist #65 that impeachable offenses could flow “…from the misconduct of public men, or in other words, from the abuse or violation of some public trust,” it’s doubtful he could have even imagined a President as untrustworthy as Trump. The President has no credibility. He’s dishonest. He doesn’t understand the difference between what is true and what is false.

Trump’s habitual lying about almost everything, including demonstrably true facts, goes well beyond normal political rhetoric. It’s to the point where he has absolutely no reputation for truth. He lost the public trust. Does anyone really think he would not perjure himself if he testified under oath? Even his most ardent backers would have to admit he’s a pathological liar.

But since his attorneys know he would commit perjury, they will likely keep him off the witness stand. But this then leads us to the President’s men. I’m not sure why some Democrats want hostile witnesses like Bolton, Pompeo or Barr to testify. While Trump will certainly tell them to lie on his behalf, there is a question as to how many will actually do it. Will they let Trump commit another subordination of perjury?

We know Trump’s former campaign manager Paul Manafort was convicted of lying to investigators and sent to prison. We also know Trump was guilty of a subordination of perjury as to Michael Cohen, who lied under oath as directed by Trump. Cohen is now in a federal prison as a result. For encouraging these acts, Trump should be impeached and removed from office.

CONTEMPT OF COURT AS TO SUBPOENAS

Since nobody else in America can simply thumb their nose at a subpoena and refuse to appear, where does Trump get off by ignoring lawful processes and by engaging in “contempt of court”? Who does he think he is? Is he suffering from the delusion that because he is President, he can disobey the law? The U.S. is not a monarchy or a dictatorship. Trump is not a king. We have a republic and the rule of law applies to everyone.

What is really impeachable is that Trump issued unlawful orders to his subordinates to disobey subpoenas. Perhaps many of them do not realize that their first obligation is to the Constitution. They do not owe allegiance to Trump. They owe it to their country.

Since Trump blatantly abused his power and violated his oath of office, which is tuphold the Constitution, he should be impeached for his frivolous conduct in disobeying subpoenas. Even the Republican-controlled Supreme Court will not accept a blanket “executive privilege” that allows him to avoid every subpoena.

RECEIVING FOREIGN EMOLUMENTS

The domestic emoluments clause says: “The President shall…receive for his services, a compensation…and he shall not receive…any other emolument from the United States or any of them.” Art II, Sec 1 (7). The foreign emoluments clause provides: “…No person holding any office…shall…without the consent of Congress, accept…any present (or) emolument…of any kind whatever from any king, prince or foreign country.” Art I, Sec 9 (8).

Trump was sued under the Foreign Emoluments Clause, because foreign governments and diplomats have been paying rents and other sums at the Trump Tower, Trump’s DC Hotel and Restaurants, and to Trump’s Golf Resorts and International Hotels. One allegation by 30 Senators and 166 Representatives was Trump violated the “without the consent of Congress” language of the emoluments clause. Congress does not know which nations are giving Trump money.

Trump appears not to understand that as President he is to serve the American people and not his own financial interests. While he need not totally divest himself of all holdings, he should have instructed his hotels and resorts to turn away all revenue from foreign countries during his Presidency. He needed to do this to stop receiving their money and to avoid even the appearance of impropriety.

But Trump being Trump, he of course does not see anything wrong with trying to profit from foreign states and leaders. He instead invites them to spend cash at his Mar-a-lago Resort. The Founders like Hamilton were concerned about foreign corruption. Trump’s failure to first get the consent of Congress is a Constitutional violation and a reason for impeachment.

INCOME TAX CONCEALMENT

Unlike all previous modern Presidents, Trump not only failed to produce complete income tax and financial records for the years prior to his election, he has also actively sought to block their release in the courts. When the House Oversight Committee sought routine information from the period before Trump became President, he balked and forced the issuance of a subpoena to his accounting firm. After a federal judge ordered the accountants to release the records, Trump appealed and the case is now in the Supreme Court.

This issue is not complicated. A virtuous President would have simply photocopied his records and disclosed them, because he would have nothing to hide. Trump’s evasion refusal to disclose rightfully makes everyone suspicious. Who does he think he is? Trump’s concealment of his records and his refusal to obey subpoenas as to their production is impeachable.

FRAUD RE TRUMP UNIVERSITY STUDENTS

“Trump University” was basically just a real estate seminar, which was sued for various illegal business practices. A class action joined by about 7.000 former students was filed against Trump alleging he defrauded them by using misleading marketing tactics. Their claims were ultimately settled for 25 million in 2016. One fraud was the illegal promotion of the business as a “university.” Since it was not licensed, chartered or accredited, Trump was not legally allowed to promote it as a “university.” He conned more than 5,000 into paying up to $35,000 to get the benefits of his “deal.” Trump was personally found liable for running the fraudulent company without a license. As a tactic to try to remove one judge, Trump said he was “Spanish” or “Mexican” and that he was a “hater.” In fact, Judge Curiel was a U.S. citizen born in Indiana. His parents were Mexican immigrants. Sen. Mitt Romney could not have said it any better, as he stated “Donald Trump is a phony, a fraud. His promises are as worthless as a degree from Trump University.” A man who profits off the backs of students has no virtue. Impeach him.

FRAUD AGAINST CREDITORS

Trump is a litigious con-artist, speculator and swindler who has for years, improperly used the federal and state court systems to unfairly defraud real estate and business creditors out of contractual sums they are owed. He has been involved in over 3,500 lawsuits, 1,900 as a plaintiff, and 1,450 as a defendant. He also cheated tax authorities by refusing to pay and forcing them to file tax liens against his properties. Trump improperly used the delay inherent in the legal system as a tactic to bully his adversaries into giving up. His long record in this regard shows a total lack of virtue.

ABUSE OF BANKRUPTCY PROCESSES

As the Founders recognized a need to allow people to escape perpetual debtors’ prison sentences, they gave the Congress the power to establish bankruptcy courts. Art I, Sec 8 (4). While there is nothing wrong with bankruptcy for those who legitimately need it, Trump is a serial filer, who has abused the processes to swindle his creditors.

Trump’s hotels and casinos declared bankruptcy a total of six time between 1991 and 2009. Trump admitted to Newsweek in 2011: “I do play with the bankruptcy law—they’re very good for me” At another time, he said: “I’ve used the laws of this country to pare debt.”

Trump’s six bankruptcy filings included the Trump Taj Mahal (1991); Trump Plaza and Casino, (1992); Plaza Hotel (1992); Trump Castle Hotel and Casino (1992); Trump Hotels and Casino Resorts (2004) and Trump Entertainment Resorts (2009). His other business failures include his New Jersey Generals football team, his Shuttle Airline, and his defunct Trump University.

OBSTRUCTION OF JUSTICE AND CONGRESS

No long explanation is needed as to the multitude of things Trump has done which justify charges for an “obstruction of justice” and “obstruction of Congress.”

SENATE VOTE 47-23 TO CONVICT

The Constitution does not require the vote of 67 Senators to convict a President on impeachment charges. They may do so with the concurrence “of two-thirds of the members present.” Art I, Sec 3 (6).

Since there are 53 Republicans, 45 Democrats and 2 independents (who caucus with Democrats), the split is effectively 53 to 47. If all 47 in the minority support impeachment, Trump could be removed if 20 Republicans join the Democrats, or if 30 Republicans purposely fail to show up for the vote. Theoretically, Trump could be removed by a vote of 47 to 23.

Although it is probable the Republican-controlled Senate will acquit or otherwise excuse Trump, this reality is no excuse not to vote for Articles of Impeachment in the House as to the above offenses.

Our apprentice President, who is unethical, unprincipled and unscrupulous, totally lacks any redeeming value or virtue, and he should be sent a clear Congressional message, perhaps even he might understand: “Donald, you’re fired!”

11/26/2019

Impeachment Under Federalist 65

When Alexander Hamilton discussed impeachment in Federalist #65, he wrote regarding a trial in the Senate: “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust.” He further stated: “…they relate chiefly to injuries done immediately to the society itself.”

The Constitution provides in Art II, Sec. 4: “The President…shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

While treason and bribery are relatively easy to understand, what did the Founders mean by the words: “other high crimes and misdemeanors”? What “other” “high crimes”? What “other” “misdemeanors”?

In addition to Trump’s attempted bribery of the Ukraine President, he committed “other” crimes and “misdemeanors,” such as repeated sexual assaults, prostitution, slanderous defamation, habitual lying and a loss of the public trust as to perjury, attempted malicious prosecutions of political opponents, co-conspiring with supporters to engage in battery, disorderly conduct, witness intimidation, obstruction of justice, obstruction of Congress, contempt of court, and willful violations of lawful subpoenas issued by federal and state prosecutors and the Congress.

Trump committed at least fourth degree “sexual assault” against a multitude of women. The evidence that he paid at least one high-priced call-girl over $150,000 shows a willingness to engage in “prostitution” and a lack of the sort of “virtue” the Founders thought Presidents should possess.

Trump routinely abused his position of trust by tweeting out a torrid of “defamatory statements.” He made so many false comments about people it’s impossible to recite them all in one article. Persons previously unknown to the public, like the Ambassador to the Ukraine, have been singled out and subjected to false, vile and slanderous comments.

Trump’s tendency to lie about demonstrably true facts goes well beyond normal political rhetoric. It evinces a loss of the public trust as to the crime of “perjury,” since the President clearly doesn’t understand the basic difference between what is true and what is false.

Trump abused his position of trust by using his powers to wrongfully encourage the “malicious prosecution” of his political opponents. Apparently unaware of how power is transferred in a republic, he recklessly threatened to lock-up his 2016 rival Hilary Clinton.

Trump at rallies publicly encouraged his hard-core supporters to engage in unprovoked physical acts of “battery” against media employees and those who merely disagreed with him. He then co-conspired with his thugs by telling them he would pay their legal fees.

Trump engaged in “disorderly conduct” on many occasions, as he tried to provoke public disturbances.

Trump silenced some would-be accusers and attempted to mute others, as he used his twitter account to engage in “witness intimidation,” a federal crime. While brave people appeared before the House to speak the truth as to his corrupt practices, he tried to silence them.

Trump is guilty of “obstruction of justice,” the “obstruction of Congress,” and of “contempt of court,” not only with respect to his tax returns, but also as to his unlawful orders to subordinates that they disobey subpoenas and their higher oath to the Constitution. He blatantly abused his power and violated his oath of office, which is to uphold our Constitutional form of government and the rule of law.

Hamilton believed the President would only be a man of “virtue.” When he wrote Federalist #68 he explained that the electors who would attend the Electoral College would not choose a President of “low intrigue.” He thought “…the Office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” He added: “There will be a constant probability of seeing the station filled by characters preeminent for ability and virtue.”

The probability that the Republican-controlled Senate will not convict or remove Trump from office is no excuse for not voting in favor of Articles of Impeachment in the House as to the offenses outlined above with respect to a man who has absolutely no virtue.

11/25/2019

Impeachment & Federalist Papers

When Alexander Hamilton wrote Federalist #68 in an effort to convince New Yorkers to ratify the Constitution, he explained that the electors who would attend the Electoral College would not be choosing a President of “low intrigue.” He thought “…the Office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” He added: “There will be a constant probability of seeing the station filled by characters preeminent for ability and virtue.”

The Founders believed that only a qualified man of “virtue” would be entrusted to hold the Presidency.

Hamilton discussed impeachment in Federalist #65. Regarding a trial in the Senate, he wrote: “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust.” He further stated: “…they relate chiefly to injuries done immediately to the society itself.”

The Framers provided in Art II, Sec. 4 of the Constitution: “The President…shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” While treason and bribery are relatively easy to understand, what did the Founders mean by the words: “other high crimes and misdemeanors”? What “other” “high crimes”? What “other” “misdemeanors”?

In addition to Trump’s attempted bribery of the Ukraine President, is he also guilty of “other” “misdemeanors,” such as sexual assault, prostitution, slanderous defamation, habitual lying and perjury, attempted malicious prosecutions of political opponents, co-conspiring with supporters to engage in battery, disorderly conduct, obstruction of justice, and willful violations of subpoenas issued by prosecutors and the Congress?

Trump committed “sexual assault” against a multitude of women. The evidence that he paid at least one high-priced call-girl shows a willingness engage in “prostitution” and a lack of “virtue” of the sort the Founders believed a President should possess.

Trump routinely abused his position of trust by tweeting out a torrid of “defamatory statements.” He made so many false comments about people it’s difficult to list them all. Persons previously unknown to the public, like the Ambassador to the Ukraine, have been singled out by him and subjected to false, vile and slanderous comments.

Trump’s tendency to lie about demonstrably true facts goes well beyond normal political rhetoric. It evinces a mindset willing to commit “perjury,” since he appears not even to understand the basic difference between right and wrong.

Trump abused his position of trust by using his powers to wrongfully encourage the “malicious prosecution” of political opponents. Unaware of how a democracy works, he recklessly threatened to lock-up his 2016 rival Hilary Clinton.

Trump at rallies publicly encouraged his hard-core supporters to engage in unprovoked physical acts of “battery” against media members and those who merely disagree with him and he then co-conspired with his thugs to pay their legal fees.

Trump engaged in “disorderly conduct” on many occasions, as he tried to provoke public disturbances.

Trump is guilty of “obstruction of justice,” the “obstruction of Congress,” and of a “contempt of court.” As he ordered subordinates in the Executive Dept. to disobey House subpoenas, he blatantly abused his power and violated his oath of office, which is to uphold our Constitutional form of government.

The probability that the Republican Senate will not convict or remove Trump from office is no reason not to support Articles of Impeachment in the House of Representatives.

11/13/2019

Avery Probably Murdered Halbach

Like many Netflix viewers, upon watching the series: The Making of a Murderer, I was left with many lingering doubts about the guilt of Steven Avery with respect to the disappearance of Teresa Halbach. Recently, however, a friend asked me to read Indefensible, by Michael Griesbach, which advances a contrasting viewpoint, and after I read it, I’m now convinced that Avery in fact murdered Theresa Halbach.

As a retired lawyer, I treated Griesbach’s book somewhat like a trial transcript. As I read through it, I put myself in the position of a Court of Appeals judge and asked myself whether I would affirm or reverse Avery’s conviction. From the book, I logged every relevant fact, put them in chronological order, and proceeded to write my own opinion. The source of everything I have written in this article is from Griesbach’s book.

PRIOR BAD ACTS & CHARACTER

Griesbach correctly noted that juries are not allowed to hear unrelated or unproven prior “bad acts” committed by a defendant. However, since Avery had several in his background, they were mentioned in the book to give us a more complete picture. From them, I learned Avery’s character was not as pure as depicted in the Netflix documentary.

When he was 20 in 1981, Avery tortured a cat by throwing it into a fire after he had first poured gasoline all over it. While that act of cruelty doesn’t prove he committed a murder some 24 years later, such behavior does indicate a serious behavioral problem. Another prior bad act was raised by a 42-year-old woman named Harris, who said Avery fondled and forcibly had sex with her when she was 18 in 1982. Since that incident was not reduced to a conviction, it was of course not mentioned during the murder trial.

After Avery was released from prison in 2003 (for a crime he did not commit), he lived with Jodi Stachowski for roughly 18 months. She said they had sex sometimes as much as five times a day. She recalled that they experimented with bondage and said there were times she was tied down to the bed. Just a few weeks after their relationship began, Jodi was already calling the cops to report that he pushed her into a chair, strangled her until she lost consciousness, and threatened to shoot her. She said he also ripped the phone out of the wall to keep her from calling. Instead of pursuing criminal charges, Jodi asked the police to just give him a non-criminal disorderly conduct ticket. Jodi later said she was abused by Avery on three or four other occasions. After Jodi and her daughter locked themselves in a bathroom one time, the child was sent to live with her grandmother. Later, on the Nancy Grace show, Jodi called Avery a Dr. Jekyll and Mr. Hyde. She said he thought all bitches owed him, because of the one who sent him to prison.

In 2003, upon Avery’s release from prison at age 42, he also found the time to rape his 17-year-old niece on her cousin’s bunk bed. The niece didn’t have her uncle prosecuted, because he threatened her. As a consequence, that “bad act” did not result in a criminal conviction. In another incident the day before Halbach disappeared in 2005, Avery asked his nephew’s teenage ex-girlfriend Melissa to come to his trailer, so they “could have a little fun” by letting “the bed hit the wall real hard.”

Ex-con Ron Rieckhoff shared what he knew about Avery’s character on March 9, 2006. He said Avery hated all women and he said that when he was released he wanted to kill the bitch that set him up on the rape charge.

PRIOR CONVICTIONS

In addition to Avery’s sexually-related “bad acts,” he had two burglary convictions on his record. He also had two felony convictions arising out of an incident with Sandra Morris, the wife of a Manitowoc County Deputy Sheriff. The felonies were “Endangering Safety by Conduct Regardless of Life” and “Possession of a Firearm by a Felon.” Morris was Avery’s second cousin, who lived up the road with her husband Bill, a deputy sheriff. Beginning in 1984, as Morris would drive by, Avery began exposing himself to her. At least once, he stood outside and masturbated. The final incident regarding Morris arose on Jan. 3, 1985, as she drove by his house. Avery rammed his Ford Ltd into Morris’ Plymouth and ran her off the road. He then used his rifle to hold her at gun point, while he ordered her to get into his vehicle. Because she had a baby with her, he finally let her go, and he was soon arrested. He confessed to endangering safety and possession of a firearm by a felon and he was sentenced to six years for each count, as a habitual offender. Since the sentences were to run concurrently, he got a six-year prison term.

Before Avery went off to prison on the Morris conviction, another crime occurred in Manitowoc County as Penny Beerntsen was sexually assault on the Lake Michigan beach on July 28, 1985. While jogging, she was grabbed, dragged into the woods, and beaten. She was left for dead after an attempted rape. Deputy Judy Dvorak, a friend of Sandra Morris, interviewed the victim at the hospital and jumped to the conclusion that it must have been Avery. Sheriff Tom Kocourek also leapt to the same conclusion. Although Penny;s description of the assailant didn’t match Avery, he was brought into custody, where the deputies had Penny ID him. At that point, there was no turning back.

Although Avery was not exactly a good guy, they had arrested the wrong man as to Penny. The real perpetrator was Gregory Allen. Allen had previously been charged with lunging at a woman along the same Lake Michigan beach in 1983. He was then prosecuted by Manitowoc County Dist. Atty. Dennis Vogel. When Penny was attacked on the same Lake Michigan beach in 1985, just two years later, many in the District Attorney’s Office correctly assumed Allen did it. Even though Vogel knew of Allen’s record, as he had placed a copy of Allen’s 1983 complaint in the 1985 file, he nonetheless followed the Sheriff’s lead and prosecuted Avery instead. Vogel would later say he thought Allen was in Door County at the time and that he would have an alibi. After Avery was convicted of the sexual assault in 1985, Judge Hazelwood sentenced him to a very long prison term. Avery would first serve the six years for the Morris conviction and then he would begin serving time for Penny’s assault.

After Avery completed his six year imprisonment for Morris in 1991, he remained in prison to commence his lengthy incarceration for Penny. About a year later, in 1992, Officer Jim Colborn began working as a corrections officer at the Manitowoc County Jail. Three years after that, in 1995, Penny’s real assailant, Greg Allen, committed another sexual assault in Green Bay and he received a 60-year sentence. Once he was behind bars, he confessed to the assault on Penny in Manitowoc back in 1985. A Green Bay detective then called Colborn at the Manitowoc Jail in 1995 and told him that Allen confessed to the crime Avery had been convicted of 10 years earlier. Colborn said he passed the information on to higher-ups, but nothing was done to free Avery. The next year Colborn took a job as a Manitowoc County Deputy Sheriff. Meanwhile, Avery continued serving that long prison term for a crime he did not commit.

AVERY’S EXONERATION & CIVIL SUIT

Asst. Dist. Atty. Griesbach received a call from Sherry Culhane of the State Crime Lab on Sep. 5, 2003, during which she informed him that DNA from the 1985 incident matched sex offender Greg Allen, and not Steve Avery. This was eight years after Manitowoc had actual knowledge of Allen’s confession. Although Avery was properly in prison for the Morris offense from 1985 through 1991, the 12 years he had served since 1991 as to Penny’s constituted a wrongful imprisonment. Upon learning of the DNA, Griesbach pulled Avery’s 1985 file and found a copy of Allen’s 1983 sexual assault complaint inside of it. DA Vogel apparently considered prosecuting Allen instead of Avery in 1985. The DNA findings prompted Avery’s release from prison on Sept. 11, 2003. Avery would sue for 12 of the 18 years he spent behind bars. His public defender however warned him to be careful in Manitowoc County, as she felt the police and prosecutors would continue keeping an eye on him. Instead of leaving town, Avery filed a 35 million dollar lawsuit against the former sheriff, former DA and the County. Avery’s civil case was still pending the day Teresa Halbach disappeared in 2005. Deputies Colborn and Lenk gave their deposition testimony in 2005, just a few days before Teresa Halbach disappeared.

AVERY’S FIRST MEETING WITH HALBACH

“Auto Trader” was a business that employed photographers to take snapshots of cars for advertisements. Avery’s Salvage Yard used the services of Auto Trader from time to time. When Allison Lang took photos at the salvage yard in Jan. 2005, Avery asked her to enter his trailer, but she decided he was too creepy and she wisely remained in her car.

Teresa Halbach took over for Lang as the photographer for Auto Trader in the spring of 2005. Before Oct, 10, 2005, Avery contacted Teresa directly to set up a photo shoot. The day before, Avery purchased leg irons, which were later found in his trailer. After Teresa took photos for Avery on the 10th, she shared with her receptionist the sexual nature of the encounter. Teresa said Avery came out of his trailer wearing only a towel. After his provocative behavior, Avery knew Halbach would not likely come back for any additional work, but Avery wanted to see her again, so he devised a diabolical plan

AVERY’S 2ND APPOINTMENT WITH HALBACH

Avery cleverly arranged a second appointment by using the name of his sister Barb Janda, who lived right next to him in the Salvage Yard. He would use her van, which wasn’t even for sale. While talking to the receptionist to schedule the appointment, Avery used a muted female voice to say he was “B Janda.” He gave Barb’s telephone number and requested “that photographer who had been out here before.” Halbach assumed she would be meeting B Janda that day. She did not know Avery would be lying in wait for her. There appears to be no doubt Avery lured Teresa to the property to at least rape her.

HALBACH’S DISAPPEARANCE

On the day she disappeared, Halbach first visited the Zipperer residence at 2:15 p.m. on Oct. 31, 2005. Shortly afterward, Avery called her cell phone using the #67 function at 2:25 p.m. and again at 2:35 p.m. Since the #67 function disguises the caller ID, Halbach didn’t take either call. But Halbach did call her receptionist at Auto Trader at 2:27 p.m.to tell them she was on her way to Avery’s Salvage. Halbach arrived at the property at 2:45 p.m. on Oct. 31, 2005. Everyone agreed she drove her RAV4 to Avery’s on Halloween.

Bobby Dassey, who was Brendan Dasseu’s older brother, told the police that he saw Halbach drive up from his window. He said he watched a girl walk towards Avery’s trailer at 2:45 p.m. on Oct. 31, 2005. This also happened to be Halloween.

Since Halbach is deceased and Avery remained silent, neither of them can be a source for what happened next. But Brendan Dassey did enter the story at that time and though his statements raise as many questions, they do fill in the picture.

BRENDEN DASSEY’S MURDER CONFESSION

Brenden Dassey was just a 16 at the time. Avery was his uncle. They lived next door to each other in the Salvage Yard. In Jan. 2006, about two months after the homicide, 14-year-old Kayla, one of Brenden’s cousins, approached her school counselor, because she was concerned about some things Brenden was saying. She said Brenden was very depressed. She noted Brenden lost 40 pounds and that he would just sit there, stare into space, and then cry. Kayla, who was afraid of her uncle Steve, relayed some of the things Brenden said about Halloween night. He told her he saw Halbach pinned down in Avery’s trailer. He said they burned some things that Halloween and that he saw body parts in the fire. The counselor went to the police with the information.

Dassey actually gave the police four statements. His first was in Nov, 2005. Two more were on Feb. 27, 2006. He then gave a 4-hour videotaped confession on March 1, 2006. He was questioned by detectives Wiegert and Fassbender. Dassey was a reluctant witness whose story changed often. The detectives asked this intellectually slow 16-year-old a number of leading questions. Legal issues arose as to whether the interview was truly “voluntary.” Judge Fox ruled the confession was in fact voluntarily given.

Dassey said that as he approached his uncle’s trailer on Oct. 31, 2005, he heard a woman screaming “help me.” As he reached Steve’s trailer, Avery opened the door, partially dressed, and invited him inside. Brenden saw Teresa tied naked to the bed in cuffs and leg irons. She started begging him to help. Avery admitted he had sex with Halbach and invited Dassey to join him. (probably as a means of insuring he would remain silent) Brenden foolishly got on top of her and also raped her. As a 16-year-old, he told the detectives he wanted to know how it felt. Avery then talked about killing Halbach. Dassey said Avery stabbed her in the stomach (this is doubtful since no blood or other evidence of such an assault was found on the mattress or in the bedroom) Avery gave Dassey the knife and told him to cut her throat (Avery would again be creating another murder defendant to keep him quiet) Brenden said he cut her throat, but she did not die (this is also unlikely since there was no blood on the mattress or in the bedroom–why didn’t she die if her throat was cut) Brenden said Avery made him cut her throat. Dassey said Avery then strangled her. (this makes no sense if her throat was already cut) Dassey said Avery punched her. (this could be true, but perhaps earlier when she was being taken into the trailer) The boy said they then removed the shackles and tied her. (why tie her after she is dead?) They then took her to the garage where Avery shot her in the head ten times with a rifle, (shooting her 10xs is overkill and it makes no sense)

(What probably happened is Avery captured Halbach usng a knife. When she struggled to get away, he cut himself and he punched her. He took her inside the trailer, stripped her naked, and shackled her to the bed. After he raped her, Brenden arrived, and he raped her too. This was before he realized his uncle would have to kill her to keep her from talking) They didn’t spill any blood in the bedroom. They tied her up alive and took her into the garage. This is probably where they first stabbed her in the stomach and tried to cut her threat, but then realized they didn’t have the nerve to murder a struggling person that way, so Avery switched to a rifle and he shot her twice in the head.)

AFTER THE MURDER

After the murder, the defendants needed to do several things: 1) destroy the body; 2) hide the car (or destroy it); 3) clean the blood from the car (if they didn’t destroy it); 4) gather the shell casings and bullet fragments; 5) clean the blood from the garage floor; 6) clean the weapon (or destroy it): 7) remove all fingerprints, hair samples and DNA from the bedroom; 8) wash their cloths and shower up; 9) create cell phone alibis; and 10) act like they never met the victim that day. Avery and Dassey would have from Oct 31 to Nov 5 to do these things, before the police would arrive with a search warrant. Allan Avery, Steve’s dad, said after the warrant, they were kicked out of their houses for eight days.

BURNING THE BODY IN THE FIRE

Dassey said they burned her body by throwing it onto a fire pit 20 yards from Avery’s bedroom. Halbach’s charred remains were found in the fire pit behind his garage. DNA showed bone fragments in fire pit belonged to Halbach. They found almost every bone below her neck there. They found a tibia, some pieces of skull, and teeth fragments. They also found metal rivets that matched the blue jeans she was wearing.

To spread the blame, Avery made sure some body parts were destroyed in burn barrel #2, 100 feet behind Dassey’s trailer. Four types of bone fragments were found in that burn barrel. A skull section found there showed she was shot twice in the head. From those remains, they were able to ID a human female, not older than 35.

In Dassey’s Feb, 27 statement, he said he saw Halbach’s body parts in the bonfire, most notably her toes. (he was apparently haunted by that image) As he gazed into the fire, he also saw hands, a belly and a forehead, all images that apparently troubled him deeply. As to all of this, his uncle told him to keep his mouth shut as Avery threatened to stab him if he said anything.

There were many witnesses to the large bonfire on Halloween. Barb Janda, Brenden’s mom, came home at around 5 p.m. and noticed a fire about three feet high. Fabian saw smoke coming from a burn barrel. Blaine Dassey saw a huge bonfire after he returned from trick or treating.

Dassey said a few days later, Avery broke up the bones and buried some of them a few feet from the fire. Some of the other remains were moved to a quarry pit on a steep hill known as Randandts. The police found a third burn site in the nearby quarry.

HIDING THE VEHICLE

Dassey said Avery drove the RAV4 to the edge of the salvage yard and hid it from view. After the plates were removed, why didn’t Avery immediately take steps between Oct 31 and Nov 5 to drain the fluids, remove the VIN number, and destroy the vehicle in his car crusher, located on the premises? Was he so stupid that he thought he could sell it?

Deputy Colborn made a controversial call on Nov. 3, when he asked dispatch to run license plate SWH582. This was two days before the vehicle was actually found. The dialog was: “Can you run Sam William Henry five eight two?” Dispatch replied: “Shows that she’s a missing person and it lists to Teresa Halbach.” The conversation makes it sound like Colborn was reading off the license plate. It did not sound like he was asking dispatch to verify a license number he already had, so he could begin searching for it.

At any rate, Pam Sturm and her daughter found the RAV4 at the edge of the junkyard near the woods on Nov. 5, 2005. If anyone but Avery or Dassey had driven it to that location, it would have been difficult to go sight unseen past all the Avery trailers.

CLEANING THE BLOOD FROM THE VEHICLE

Six spots of blood were found in the car. They were near the ignition switch, on the dash, on the CD case, and in the rear passenger area. The state argued they matched Avery’s DNA. Dassey’s comment that Avery stabbed Teresa while she was in the RAV4 doesn’t make much sense. If he stabbed her in the stomach or cut her throat inside the car, there would have more blood inside the vehicle than they could possibly have cleaned. It’s more likely the blood found on the hood and in the car came from Avery’s cut finger.

Also, why did Dassey say they placed Teresa’s body in the RAV4? That doesn’t make a any sense either. If she was murdered in the garage, and burned in the pit right behind Avery’s trailer, why would they need to put her in the car after she was bloodied?

The Netflix documentary suggested the blood in car was planted from a vial that had been filled when Avery was booked in 1985. They pointed out the Sheriff’s Dept. had access to clerk’s office, where the vial was stored. The fact that the evidence tape on the 1985 file was broken was insignificant, since the Wis. Innocence Project had done that to do some additional DNA testing. The documentary pointed out that the hole on rubber stopper at top of the vial appeared to be punctured by a syringe, but again that was not shocking since that’s how blood is put in these vials in the first place. They stick a syringe through the top to insert the blood. Also dried blood between the stopper and vial is not unusual. Not even Avery’s attorneys argued these points at trial.

Judge Willis allowed the defense to make a blood planting argument regarding the bloodvial. EDTA is like an anticoagulant added to blood vials so they don’t degrade. While blood in a vial should contain EDTA, blood found in the car, allegedly from Avery’s finger, should not. The state’s FBI expert said he did not find any EDTA on the blood samples in the car. The defense expert said the fact that EDTA was not detected doesn’t mean it wasn’t present, because when you swab the stain, you dilute it, and the detection level isn’t low enough to read it.

GATHERING SHELL CASINGS & FRAGMENTS

As to the number of times Halbach was shot, Dassey’s confession was unreliable, because at one point he said Avery fired 5 to 10 times and at another he said she was shot just twice. There is a big difference between two and ten. Dassey’s admission that she was shot “outside” or more precisely “in the garage” with a .22 caliber weapon was more credible. Avery certainly would not have wanted to leave a bloody mess on his mattress or in the bedroom. It also makes sense that no shell casings were found on the floor in the garage during the initial inspection by four officers on Nov. 6, 2005. Avery certainly would have picked up any loose visible shell casings. If Halbach was shot 10xs, there is the possibility that some didn’t exit her body. A .22 caliber bullet does not have the energy to exit a skull bone. If it passes through soft tissue, it may carry DNA.

Once Dassey confessed, four months after the killing, the police returned to the garage with specifics. This is when they found the bullet fragments. One was lodged inside a crack in the concrete and another was underneath an air compressor. They determined the air compressor bullet was fired from Avery’s gun and that it had Teresa’s DNA on it.

CLEANING THE GARAGE FLOOR

Dassey said he and Avery used Halbach’s clothing to wipe up the blood in the garage and then burned them. They used bleach to try to wipe clean any traces of blood.

On the day of the murder, Avery’s girlfriend Jodi was in jail. All calls to and from the jail are recorded. Avery telephoned Jodi at 8:57 p.m. on Oct 31, 2005. During that conversation, he said he and Dassey had done some cleaning that day. Brenden’s mother Barb gave a statement in which she said her son said he and Avery cleaned the garage.

After the police arrived on Nov. 8, 2005, they did some luminal testing in the garage, but reached no conclusions. This was before they knew the shooting occurred there. After Dassey’s March 2006 confession, in which he said she was shot in the garage, the judge issued a new warrant to search it. During that inspection, they noted a bluish white glow in some areas, which matched the body location sketched by Dassey. The luminal test done that evening showed a glow consistent with Dassey’s diagram.

CLEANING THE WEAPON

What about the murder weapon? If Avery used his rifle to kill Halbach, why didn’t he throw it into a lake or bury it? Was he that stupid? During the initial search, upon finding that Avery had a Marlin rifle in his trailer, he was arrested on Nov. 9, 2005 for being a felon in possession of a firearm.

As to the murder, Sherry Culhane of the crime lab didn’t find any of Avery’s DNA on rifle trigger. Nor did she find any blood on rifle barrel. Had Avery simply done an excellent job of cleaning?

CLEANING THE BEDROOM

Avery clearly cleaned and rearranged his bedroom. His girlfriend Jodi was shown a depiction of how the bedroom was laid out when the police searched it. She said it was not previously laid out that way. She said Avery moved the bedroom furniture around. Jodi would have put the bed in the same place Dassey had it on his sketch.

But not a single drop of Teresa’s blood, or strand of her hair, was found in the bedroom when the police conducted their searches. Again, this points to the probability that Halbach was not stabbed in the stomach there or cut along the throat in the bedroom, and that Dassey’s statement in that regard was unreliable.

KEY IN THE BEDROOM

Why would Avery hide the key to RAV4 in his bedroom? This would have been the absolute dumbest and most incriminating location of all. Was Avery that stupid? During the initial police searches of the bedroom, they found no key anywhere, and certainly not out on the floor in plain sight. How could it possibly have been missed?

The key was found there on Nov. 8, 2005 while Manitowoc County Deputies Colborn and Lenk were in the bedroom. Since Manitowoc County was being sued by Avery, and the criminal case was being handled by another County due to a conflict of interest, why were the Manitowoc officers there? It was Manitowoc County Deputy Lenk who pointed to the floor and exclaimed: “There’s a key here.”

The deputies explained that the key wasn’t seen earlier, because it apparently was tucked into the back of a bookcase. Officer Kucharski explained “We believe it either fell out of the cabinet, or from some place hidden inside the cabinet, or underneath the cabinet, or in back of the cabinet.”  How could it fall from “inside” the cabinet? How could it fall “out of” the cabinet? But the testing of the key showed bloodstains on it that matched Avery’s DNA. If the key was planted, wouldn’t the police officer’s DNA be on it?

SHOWERING UP

Earl Avery and his brother-in-law Robert Fabian arrived on Oct. 31, 2005 between 4:30 and 5:00 p.m. They noticed Avery had just showered. That was an unusual time for him to have showered up. It is however consistent with cleaning up everything including his own body. Avery apparently missed a shirt during his clean-up, as the state found some hair on one shirt that was consistent with the hair of the victim.

CREATING DIVERSIONARY PHONE CALL

In an apparent attempt to create diversionary evidence, Avery called Halbach’s cell at 4:35 p.m. on Oct 31, 2005. Phone records however showed that no cell site was communicating with her phone at that time. The inference is that her phone was already destroyed in the fire and that Avery was simply making it appear that he was wondering where she was. The problem with that story is he had arranged for Halbach to meet “B Janda” and not himself. So the call to her phone at that time made no sense at all.

CONTRADICTIONS ABOUT SEEING HER

Avery told some people Halbach never showed up. Fabian overheard Avery say the photographer did not arrive. Avery told Chuck and Earl the photographer didn’t show. Avery called Auto Trader on Nov 3 and told them their photographer never made it to the scheduled appointment. However, in an interview with Deputy Colborn on Nov 3, Avery said he saw Halbach through his window taking pictures on Oct 31, but he denied talking to her that day. In an interview with Deputy Lenk on Nov 4, Avery contradicted himself again as he said he engaged in small talk with her and paid her for the job.

ALTERNATE SUSPECTS

Who else would have had a motive or an opportunity to kill Halbach? What about another member of the extended Avery family? Chuck Avery is Steve’s older brother. His former wife accused him of rape and of an attempt to strangle her. Chuck was on the premises when Halbach disappeared. Earl Avery is Steve’s younger brother. Earl was convicted of battery and sexual assault in 1992. He had also attacked his current wife. Earl was on the premises when Halbach disappeared.

What about Halbach’s boyfriend Ryan Hillegas? Could he have done all the things that were done on the Avery property? There was no evidence to support that theory.

What about other customers at the salvage yard? Sophie and Wolfgang Braun lived six miles from Avery’s Salvage. Wolfgang was a German national illegally in the United States. He had previously been in four mental health hospitals in Germany and Pittsburgh. Sophie charged her husband with domestic violence on Nov 6, 2005, just 18 hours after Halbach’s RAV4 was found six miles away. She told the authorities that the Nov 6 incident was not isolated. She said he once beat her so severely that he shattered her eardrum. She was terrified of her husband and afraid that he would kill her. Manitowoc County filed charges against Wolfgang.

Sophie also told Manitowoc that Wolfgang visited an auto salvage yard on Oct 31, 2005, the day Halbach disappeared. Wolfgang said a stupid female photographer wanted to take photos of their property. Sophie said he cut on his finger that day and she saw scratches on his back that night. She said her husband said he burned something. She found a gas can with blood on it. She also found a pair of women’s jeans, a pillowcase and a pair of women’s panties with red stains. As to the suggestion Wolfgang was involved with Halbach, Sophie was met with resistance by detectives who told her they already had their suspect and had no time for her nonsense. Nine days after Wolfgang was released from jail, he appeared at Sophie’s door in violation of his “no-contact” bail conditions. Sophie later said she no longer believed her husband was involved in the Halbach case.

JURY VERDICT

 A six-week trial began on Feb. 5, 2007. Jury selection took a full week. During the trial, the prosecution presented 50 witnesses and 500 exhibits. The jury deliberated for three days before reaching a verdict. The initial vote was 7 to 5 for an acquittal. They ultimately unanimously found him guilty of 1st degree intentional homicide and the mutilating of a corpse. After the Netflix series aired, 500,000 people signed pardon petitions, which were denied by President Obama, since he had no jurisdiction, and by then Wis. Gov. Scott Walker.

NETFLIX DOCUMENTARY

Netflix filmmakers Laura Ricciardi and Moira Demos made it appear like the police planted evidence. Griesbach argued viewers were shown only one side of the evidence. He referred to it as a propaganda piece disguised as a documentary.Griesbach argued the logistics of framing Avery would have been a nightmare. Not just one, but many pieces of evidence would have to have been planted, including body fragments, the RAV4,  the license plates, blood and DNA in the car, the ignition key in the bedroom, the bullet fragments in the garage, as well as Halbach’s phone and camera found in the burn barrel.

10/03/2019

IMPEACHMENT OF DONALD TRUMP

The United States Constitution provides the following procedures for impeachment:

“The President…shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Art. II, Sec. 4.

“The House of Representatives…shall have the sole power of impeachment.” Art. I, Sec 2 (5).

“The Senate shall have the sole power to try all impeachments. Art I, Sec (3) (6).

“When the President of the United States is tried, the Chief Justice shall preside…”Art I, Sec 3 (6).

“…No person shall be convicted without the concurrence of two-thirds of the members present.” Art I, Sec 3 (6).

“Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the U.S.…” Art I, Sec 3 (7).

The Constitution states the oath Donald Trump took in Jan. 2017:

“Before he enter on the execution of his office, he shall take the following oath or affirmation: Art II, Sec. 1 (8)

“I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Art II, Sec 1 (8)

(Note: The Founders did not include the words “so help me god” in the Constitution and that language is not part of the oath, though many recent Presidents like Trump have included them)

Among the various Presidential duties set forth in the Constitution is the obligation that: “he shall take care that the laws be faithfully executed.” Art II, Sec 3.

The duty to “take care that the laws be faithfully executed” requires the President to enforce all federal laws and implicitly bars him from violating them. Since the President is not above the law, any act that is illegal for ordinary Americans, is also unlawful if committed by the President. Since it is illegal for ordinary Americans to combine or conspire with foreign governments or officials to interfere in American elections, it is likewise unlawful for the President to do it. The President is not exempt from the very laws he is constitutionally obligated to enforce.

12/26/2016

WHAT WILL TRUMP DO AT HOME?

Abortion: Trump will soon have the power to nominate Supreme Court Justices. One constitutional issue remains a woman’s lawful right to an abortion. At one point in the campaign, Trump was of the opinion that women who have abortions should be jailed. While that will not happen, the Court is now likely to further restrict 5th and 14th Amendment liberty rights as to abortion. On top of that, the Republican Congress will cut funds for Planned Parenthood, even though 90% of their activities have nothing to do with abortion.

Campaign Finance: With a Republican Congress, there is no hope any useful legislation restricting big money in politics will be enacted. Nothing will change. Lobbyists will continue to inhabit the swamp. Big money will not be drained out of it, as Trump promised.

Cities: Nothing much will change in black inner cities. The Republican Congress doesn’t care much about them and Trump himself knows little about how poor people actually live. Trump said blacks would have to be crazy not to try something new with him, but they knew better, and most voted for Clinton. While Ben Carson and other token blacks will be paraded around by Trump, nothing much will improve in minority communities.

Citizenship: Trump said he wanted to end constitutionally protected “citizenship by birth.” With regards to persons born in the U.S., the 14th Amendment makes it crystal clear that they are both citizens of the U.S. and the state where they reside. Trump apparently doesn’t understand how difficult it is to amend the Constitution. Outlawing citizenship by birth will never happen.

Economy: Trump talks about creating a 6% to 7% growth rate. I don’t think he knows what he’s doing. He’s not going to be able to stimulate such high growth. The greater fear is that his lack of understanding of international trade may trigger another recession or depression.

Environment: There is no doubt the oil and coal industries will benefit under Trump. With an Exxon chief running the State Dept., they will get what they want in global trade. Environment treaties that are in the way will be abrogated. The Keystone Pipeline will be completed. Any Native American who gets in the way will be dealt with the same way the U.S. has always dealt with Indians.

Government: Like most Republicans, Trump said he would eliminate some government agencies and departments. Sadly, the Republican Congress will only propose eliminating the most effective and useful regulatory bodies, and they’ll expect Trump to sign such bills. Since I doubt Trump will actually read any law presented to him, he’ll probably just go along with whatever they give him.

Guns: There is no hope during the next four years that anything useful will be done regarding the proliferation of guns, or the massacres they routinely generate. The Supreme Court will uphold the right wing’s twisted view of what the Founders intended by the Second Amendment.

Health Care: Trump repeatedly said he would repeal and replace the Affordable Care Act. The question is with what? He said he opposes the more efficient single-payer model. So, if we continue using private insurance, how are we going to keep working people insured without subsidies? The only alternative is to regulate prices in the health care industry. Since “regulation” is a dirty word to most Republicans, no useful law will come out of this Congress. Health savings accounts are not going to cover galloping inflation rates in the health care industry. There is also little chance a Republican Congress will break up the virtual monopolies that exist in the health care delivery system, or in the pharmaceutical sector. Without subsidized insurance, people will either just die, or they’ll return to the more expensive government-subsidized emergency room.

Presidency: Since Trump has not previously been elected to anything, not even dog catcher, he will be on a tremendous learning curve. He will soon learn that the 435 House members and 100 Senators collectively have much more power than he does. While he can use the “bully” pulpit (a description that certainly fits), Congress controls the purse strings, and nothing happens without money. To be sure, Trump will continue to blame everyone but himself, but in the end, he may be forced to deal.

Religion: The U.S. Constitution endorses no religion. It doesn’t even mention the word “god” or “Christianity.” It speaks of religion in only two places. First, it bars all religious tests, and second, it prohibits an establishment of religion, such as Christianity. A Muslim U.S. Citizen, who happens to be a follower of Islam, is fully protected under our Constitution. Trump cannot do anything to them based on faith alone. He is not going to round up Muslims, or make them register, or do any such things to American citizens.

Retirement: During the campaign, Trump said he would not touch the retirement age. The problem is the Republican Congress doesn’t appreciate how much ordinary elderly people need their Social Security checks, and they will propose to raise the age. If this happens, I would hold Trump to his word and ask for a veto.

Supreme Court: While campaigning, the Republicans made Trump sign a paper promising to nominate one of 11 pre-approved right-wingers to the Supreme Court. Any one of them will be readily accepted by the Republican Senate. As a result, for perhaps another generation, the Court will remain conservative, particularly if Kennedy, the remaining Republican swing vote, or one of the four Democrats retires or dies.

Taxes: Like a typical Republican, Trump promised to lower everyone’s taxes. I’m sure the Republican Congress will gladly give him several tax reduction bills, and he will sign them. As a real estate tycoon, Trump will first and foremost help the real estate industry (as if they need additional tax breaks). He will also cut taxes for big business. The problem with taxes is the Republicans love to spend on costly military adventures, but they fail to raise taxes to pay for them. One thing is almost certain, Trump will not even begin to move us towards a balanced budget, or a lower national debt. The debt will almost certainly get much worse under Trump. I’m still hoping that some whistle-blower at the IRS discloses Trump’s tax records, so we can finally see who he’s been dealing with, and what if any taxes he’s paid.

Transportation: Although the Republican Congress has no use for public works projects that might put regular people to work (as evidenced by their failure to support Obama’s Great Recession proposals), they will throw Trump a bone, and they’ll give him something to sign creating some jobs, fixing roads and bridges in rural areas. This will be so he can say he did something.

Wages: While Trump acknowledged that working people have not had any real wage increases in a long time, there are only a few ways to increase incomes. One is to raise the minimum wage, which is something the Republican Congress will never do. Another is to strengthen unions, which again the Republicans will not do. So, it is unlikely wages will improve under Trump. The only possibility is that they go up due to supply-and-demand employee shortages. If this occurs, it won’t have anything to do with Republican policies or Trump.

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02/14/2016

OBAMA ENTITLED TO COURT APPOINTMENT

Since the death of Supreme Court Justice Antony Scalia, the Constitution requires a replacement nominated by the President. Assuming an academically qualified nominee, the Senate should approve. The fact that President Obama is in his last year is irrelevant and no reason for the Senate to refuse to consent.

During President Washington’s eighth and final year, he named two Justices to the Court, Samuel Chase on Jan. 27, 1796, and Oliver Ellsworth on March 4, 1796. President John Adams sent Chief Justice John Marshall on Jan. 31, 1801. This was after he lost the Nov. 1800 election to Thomas Jefferson and before the President-elect was sworn-in in March.

In 1836, President Jackson’s final year, Justices Roger Taney and Philip Barbour both started on March 15. Jackson also elevated Justice John Catron on March 8, 1837, after President Van Buren won the Nov. 1836 election and while Jackson was packing his bags. President Tyler picked Justice Samuel Nelson for the Court on Feb. 14, 1845. This was after President Polk won the 1844 race and Tyler was going home.

In his last year, President Hayes presented Justice William Wood to the Court on Dec. 21, 1880. He did this after President-elect Garfield won the Nov 1880 election and Hayes was a lame duck. President Cleveland put two Justices on the Court in 1888, namely Justice Lucius Lamar on Jan 16, 1888, and Justice Melville Fuller on Oct. 8, 1888, just one month before Benjamin Harrison defeated Cleveland.

During his final year, Republican Ben Harrison named Justice George Shiras on July 26, 1892. He also added Justice Howell Jackson, on Feb. 18 1893, after losing the Nov. 1892 contest. During his last year, President Taft sent Justice Mahlon Pitney on March 13, 1912. President Hoover elevated Justice Benjamin Cardozo on March 2, 1932, before being soundly defeated in November.

President Franklin Roosevelt picked Justice Frank Murphy on Jan. 18, 1940, during his eighth year, and before announcing an intent to seek a third term. During the last year of his first term, President Nixon appointed Justice Lewis Powell and Justice William Rehnquist, both on Jan. 7, 1972. President Reagan nominated Justice Anthony Kennedy, who assumed the bench on Feb. 18, 1988, during Reagan’s eighth and final year.

We had elections in 2008 and 2012 as to who should name our Supreme Court Justices. Obama won both. We don’t need or want another referendum. The fact that Republican leader Sen. Mitch McConnell of Kentucky vowed to deny Obama his constitutional right to replace Scalia is frankly no surprise. McConnell is a crusty old Southern obstructionist, born in Alabama. Some bad attitudes just never die.

While Wis. Sen. Tammy Baldwin, a Democrat, can be relied on to consent to Obama’s nominee, the same is not true of Republican Sen. Ron Johnson. If he joins McConnell and obstructs the will of the people, this November, every Wisconsin voter should help former Sen. Russ Feingold drive Johnson from office.

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12/24/2014

Constitution of U.S. in 1750 Words or Less

The U.S. Constitution created a House and Senate. (1-1-1) House terms are for two-years. (1-2-1) House members are directly elected by the people. (1-2-1) Representatives must be at least 25 and citizens for at least seven years. (1-2-2) House seats are apportioned equally based on a census taken every 10 years. (1-2-3) Washington DC receives one House seat. (A-23) Vacancies are filled by elections called by state executives. (1-2-4)

Senate terms are for six years. (1-3-1) Senators, initially chosen by state legislatures, are also directly elected. (A-17) Senators must be at least 30 and citizens for at least nine years. (1-3-3) Each state is entitled to two Senators, regardless of population. (1-3-1) Senators are divided into three classes; one-third are elected every two years. (1-3-2) The Vice-President serves as the President of the Senate (1-3-4)

The time, place and manner of elections is determined by Congress. (1-4-1) Citizens 18 years of age may vote. (A-26) Those born in the U.S. or naturalized are citizens. (A-14) Congress may write rules for naturalization. (1-8-4) No one may be denied the right to vote due to race or sex. (A-15, A-19) No poll taxes are permitted. (A-24)

No member of Congress may be subjected to a religious test. (6-3) Members are compensated. (6-1) Pay changes cannot become effective until after the next election. (A-27) The House and Senate determine if those elected met the qualifications for office (1-5-1) Members may not simultaneously retain other offices. (1-6-2) They cannot accept gifts or titles of nobility from foreign states. (1-9-8) Senators and representatives may be disciplined for disorderly behavior and expelled if two-thirds agree. (1-5-2)

Congress convenes on Jan. 3 and is in session at least once a year. (1-4-2) A majority constitutes a quorum. (1-5-1) While in session, neither body may adjourn for more than three days. (1-5-4) Members may not be questioned about their House or Senate speeches or debates. (6-1) They are privileged from arrest. (6-1) A journal records all proceedings and votes. (1-5-3) The Vice-President votes only to break a tie in the Senate. (1-3-4)

The President must be a natural-born citizen. (2-1-5) He must be at least 35. (2-1-5) Each state receives Electoral College electors equal to their number of representatives and Senators. (2-1-2) Elections are held on the same date in every state. (2-1-4) A majority of electors choses the President. (2-1-3) If no candidate receives a majority, the House elects the President. (2-1-3)

The Presidential oath of office, written into the Constitution by the Founders, makes no reference to god. (2-1-8) The President may not be subjected to a religious test. (6-3) The President is entitled to compensation. (2-1-7) He is elected to a four-year term that begins on Jan. 20 (2-1-1). He can serve no more than two terms. (A-22) If he already served more than two years of another’s term, he is limited to one term. (A-22)

The President defends the Constitution. (2-3) He is Commander-in-Chief of the army and navy. (2-2-1) He may use the militia to suppress insurrections and enforce the laws of the union. (1-8-15) He appoints ambassadors, officers, and Supreme Court Justices. (2-2-2) He fills vacancies, including Vice-President. (2-2-3) He may grant pardons. (2-2-1) He gives a State of the Union address, which recommends legislation. (2-3) He can make treaties. (2-2-2) No state may sign treaties. (1-10-1) The President may veto bills (1-7-2)

The President may be impeached for treason, bribery, or high crimes and misdemeanors. (2-4) The crime of treason must be supported by two witnesses or a confession in open court. (3-3-1) The House has the sole power to file impeachment charges. (1-2-5) The Senate has the exclusive power to try and convict cases of impeachment. (1-3-6) The Vice-President becomes President if the President dies or is removed from office. (2-1-6)

The House and Senate have legislative powers. (1-1-1) Congress has several enumerated powers. (1-8) They may also pass laws necessary for carrying out the delegated powers. (1-8-18). They may legislate for the District of Columbia. (1-8-17) They may make rules for U.S. territories. (4-3-2) They may admit new states. (4-3-1) They may initiate constitutional amendments by a vote of two-thirds in both bodies. (5) Presidential vetoes may be overridden by a two-thirds majority in both bodies. (1-7-2) The Senate may ratify or reject treaties. (2-2-2)

All revenue bills begin in the House. (1-7-1) Congress has the power to lay and collect taxes. (1-8-1) They may use income taxes. (A-16) Direct taxes must be proportional (1-2-3) Congress, but no state, may coin money. (1-8-5, 1-10-1) They may punish counterfeiters of U.S. coins and securities. (1-8-6) They may borrow money. (1-8-2) They may pay the debt. (1-8-1) They may write uniform bankruptcy rules. (1-8-4) Money from Treasury must be appropriated. (1-9-7)

Congress may regulate commerce with foreign nations and among the several states (1-8-3). They cannot tax exports (1-9-5) There shall be free trade within the U.S. from state to state, without preferences or tariffs imposed on ships (1-9-6) States cannot impose tariffs on imports from abroad or exports headed overseas. (1-10-2)

Congress may promote the progress of science and useful arts by protecting inventors and authors. (1-8-8) They may build post offices and postal roads. (1-8-7) They cannot prohibit intoxicating liquors. (A-21) They may provide for the general welfare. (1-8-1)

Congress provides for a common defense. (1-8-1) They may declare war. (1-8-11) They may raise and support armies for two-year periods. (1-8-12). They may create a navy. (1-8-13) They may organize the militia to repel invasions. (1-8-15, 1-8-16) Militia members cannot be denied a right to bear arms. (A-2) They may grant letters of marque and reprisal. (1-8-11) States may not. (1-10-1) Individual states may not maintain troops. (1-10-2) Congress may erect forts, arsenals, and docks, (1-8-17) but may not quarter soldiers in homes. (A-3)

The Congress may make rules for land and sea forces. (1-8-14) They may make rules for enemies captured on land and water. (1-8-11) They may punish offenses against the Law of Nations. (1-8-10) They may punish felonies on the high seas. (1-8-10)

The Constitution created a Supreme Court. (3-1-1) Tribunals inferior to it may be created by Congress. (1-8-9) Supreme Court Justices serve for good behavior. (3-1-1) They must be compensated.

The judicial power extends to cases where the issue involves the U.S. Constitution, federal law, a treaty, an ambassador, admiralty or maritime law, where the U.S. is a party, two states sue each other, or citizens of different states are involved. (3-2-1) Federal courts cannot hear cases between a state and citizens of another. (A-11) The Supreme Court has appellate jurisdiction, and only a limited degree of original jurisdiction. (3-2-2)

Each state is guaranteed a Republican form of government. (4-4) States cannot grant titles of nobility. (1-10-1) They cannot enter into confederations with other states (1-10-1) They cannot enter into agreements with foreign powers or other states. (1-10-3)

Federal law is the supreme law of the land. (6-2) States reserve only those powers not delegated to the federal government, or barred by the U.S. Constitution. (A-10) States may initiate amendments to the Constitution, if two-thirds of the state legislatures agree. (5) A constitutional amendment becomes law, if three-fourths of the states ratify it. (5)

States must grant full faith and credit to the laws and judgments of the other states. (4-1) They cannot impair the obligations of contracts. (1-10-1) If they take private property for a public purpose, they must pay just compensation. (A-14) In civil cases at law, jury trials cannot be denied. (A-7) States cannot deny citizens the privileges and immunities of citizens of the other states. (4-2)

States cannot deny liberty, which encompasses many freedoms. (A-14) Liberty includes a freedom from religion, as well as the free exercise of it. (A-1, A-14) The government cannot deny free speech, or a freedom of the press. (A-1, A-14) They cannot deny a right to assemble to petition for a redress of grievances. (A-1, A-14)

The Founders made possible the abolition of the slave trade by inserting a provision that allowed it to be terminated in 1808, which is exactly what Jefferson did as soon as he could. (1-9-1) Slavery itself was ended by Lincoln’s efforts in 1865. (A-13) Persons cannot be denied the equal protection of the laws. (A-14) The enumeration of certain rights in the Constitution, does not mean others retained by the people are denied. (A-9)

Neither Congress nor any state may single out a person and convict them through a Bill of Attainder (1-9-3, 1-10-1) Neither Congress, nor any state, may change the rules of the game after the fact by passing Ex Post Facto laws. (1-9-3, 1-10-1)

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized. (A-4) One state may ask another to extradite an alleged fleeing felon. (4-2-2)

A person accused of a crime may not be denied liberty without the due process of law. (A-5, A-14) He is entitled to the assistance of counsel. (A-6) Writs of Habeas Corpus, which bring the accused out of a jail and before a judge, cannot be suspended, except in times of rebellion (1-9-2) While awaiting trial, the accused may not subjected to excessive bail. (A-8)

One accused of a felony must be indicted by a grand jury, or a judge must find probable cause to bind him over for trial. (A-5) He must be provided with the information that sets forth the nature of the accusation. (A-6) He is entitled to a speedy trial (A-6) He is entitled to a trial by jury. (3-2-3) The jury must be impartial. (A-6)

The trial must be held in the state where the alleged offense occurred. (3-2-3) The trial cannot be conducted in secret and must be open to the public. (A-6) The defendant cannot be compelled to be a witness against himself; in other words, he has a right to remain silent. (A-5) He has the right to confront witness against him. (A-6) He has the right to use the compulsory subpoena process to obtain witnesses for his defense. (A-6)

If a jury finds the defendant not guilty, he cannot be subjected to same offense twice (A-5) If the defendant is found guilty, he cannot be subjected to excessive fines, or exposed to cruel and unusual punishment. (A8)

05/11/2013

Immigration: 200 Years of Law

Although immigration is once again being debated, it’s an issue that’s been discussed on and off since the founding of our nation. Before Congress and the President pass another bill, perhaps it’s time to review the federal laws previously enacted.

Let’s start with the U.S. Constitution. The score here is one right and one wrong. The Founders got it right when they delegated to Congress the power over Naturalization and Citizenship and thereby federalized the issue (Art I, Sec. 8). It would have been a mistake if they had allowed each state to write their own laws.

The Founders, however, got the idea of Citizenship wrong when they counted only 3/5ths of slaves and initially limited immigration to only free white persons (1790).

Congress got it right as they required immigrants to first reside in the U.S. for five years before they could become citizens (1795). They got it wrong by extending residency to fourteen years (1798), but then corrected the error, by returning to five (1802).

Congress got it right in the mid-1800s, when they ignored the Know Nothing Party and their Protestant members, who wanted Irish immigrants excluded, simply because they were Catholic.

America got it right after the Civil War when the 14th Amendment made all persons born or naturalized here, Citizens of the U.S. and of the state where they resided. Citizenship by birth, regardless of the nationality of their parents, was the right thing to do.

Congress got it wrong as they passed laws that excluded Chinese and other Asians based on nothing more than race (1875-92)

Congress got it right when they made some knowledge of the English language a condition of citizenship (1906). There is nothing wrong with requiring English reading tests (1917). Some civics is also not too much to ask from someone who wants to become a U.S. Citizen.

Congress got it wrong after WWI when they limited entry of newcomers to small numbers, by establishing quotas based on the nationalities of those already in the U.S. (1921-24). Ironically, the exclusion of foreigners, willing to work for low wages, helped organized labor in the U.S., by giving American citizens more job opportunities and greater bargaining power during the roaring 20s.

America got it right after WWII, when millions of homeless and orphaned displaced persons were taken in from war-torn Europe.

Congress got it wrong in the McCarthy Era (1950s) as suspected subversives were deported, and blacklisted people, like future Canadian Prime Minister Pierre Trudeau, were kept out.

Congress got it right in 1965 when they abolished the nationality quotas established in 1924, and started focusing instead on immigrant work skills, regardless of country of origin.

Congress got it right in 1986, as they imposed sanctions against employers who hired illegal immigrants. But they got it wrong by giving amnesty to three million illegal-aliens, as this had the unintended effect of encouraging even more to enter unlawfully.

Congress got it right in 1990 when they increased the annual number of legal immigrants from 500,000 to 700,000.

Congress got it right in 1996 when welfare and immigration reform made immigrants here illegally ineligible for most forms of federal assistance, including many types of Social Security.

We’ve learned from history the federal government, and not the states, have exclusive jurisdiction over immigration policies. These laws should not reject people on the basis of race or religion. Immigration policies must properly require newcomers to learn civics and to read and write English. People with useful skills should be allowed to enter the work force, as the U.S. needs a steady flow to insure a gradual rise in population. Caps on the annual flow are needed, however, so unemployed American citizens are able to find jobs, and not be displaced by excessive foreign labor, willing to work for less. Employer sanctions must be enforced, so everyone pays into the Social Security System. The underground economy must be destroyed to end cash payments under the table, so everyone contributes income taxes.

04/23/2013

Boston Bomber To Use Civilian Court

Since the Boston Marathon Bombings, some have advocated processing the surviving defendant in a Military Tribunal, but since he is a U.S. Citizen, and a civilian, he will be indicted and tried in the ordinary American criminal court system.

Whether someone is to be tried as a civilian, or as a combatant, depends on the circumstances. The following is a review of the various categories.

Civilian U.S. Citizens, who are not combatants, alleged to have committed a crime in the United States, are given access to the civilian courts, with all the rights of the accused, provided in routine jury trials. If they are found “guilty,” they can be sentenced to prison or to death if the offense and the jurisdiction allows it, but if the verdict is “not guilty,” they must be released. An example in this category is the domestic terrorist, Timothy McVeigh, the Oklahoma City bomber, who was convicted in our civilian court system, sentenced to death, and executed.

Combatant U.S. Citizens, enlisted in the U.S. military, and charged with an offense, would be entitled to Courts-Martial proceedings, under the Uniform Code of Military Justice, again with all the due process rights and privileges provided by our Constitution. An example would be U.S. Lt. William Calley, who was charged with massacring hundreds of defenseless Vietnamese women and children, and convicted by U.S. combat officers, who served as a jury of his peers.

Enemy Alien Combatants, captured in the field, who may have killed our soldiers, but who did not violate any of the Laws of War, would be entitled to Prisoners-of-War status, and can held for the duration of the conflict, provided they are granted prisoner rights, under the Geneva Conventions. For example, thousands of ordinary German soldiers, taken prisoner by the U.S. in WWII, were entitled to this status, as they were held and later released to go home.

Unlawful Enemy Alien Combatants, captured in the field, would initially be treated as prisoners-of-war, but if evidence surfaced they had committed illegal acts in violation of the Laws of War, they could be subjected to a trial by a Military Commission to answer for their illegal acts. For example, many Japanese commanders in WWII, who had executed defenseless civilians in the Philippines and elsewhere, were tried in Military Commissions, convicted, and executed.

The Boston Marathon Bomber is not a member of the armed forces of another nation. He was not for example an Afghan Taliban captured in the field or a member of the Iraqi Army. He has no status as a enemy combatant, and cannot be tried in a Military Commission. Moreover, he is not an alien, but rather a naturalized American citizen. His status as an American guarantees him all of the Constitutional rights allowed under our civilian judicial system.