Category: Blog

Double Jeopardy

Double Jeopardy

The Supreme Court recently, and for the first time in a hundred years, issued a definitive opinion on Double Jeopardy.  A close reading, however, leaves an impression that the opinion was about more.  As privacy issues (such as the “right” to an abortion) make their way back to the Court, this case may provide a road map as to how the Court may reach different conclusions than in the past.

But first the basics about Double Jeopardy.   

In 1991 four LAPD officers were filmed using force to subdue Rodney King.  The video convinced a large portion of the public that the force used was excessive and that Mr. King was beaten unnecessarily.  Criminal Charges were filed against the officers in State court and, after a trial, they were acquitted.  The acquittal led to wide spread rioting resulting in significant property damage as well as loss of life.  The Federal Government then brought charges against the officers in Federal court based upon the same conduct.  The officers were again tried for beating Rodney King, but this time under federal civil rights statues.  While two of the officers were acquitted, two were convicted. 

The Fifth Amendment states no person “shall be twice for the same offence to be twice put in jeopardy of life or limb.”

Which in law means they cannot be twice tried for the same offense.  

As an aside I have always been struck by the inclusion of the phrase “or limb”. Did that mean the framers contemplated that a criminal’s limb, i.e. his hand, foot or arm, could be cut off as punishment for a criminal offense?  Hmmm?

But back to the meaning of the Fifth Amendment.  Rodney King’s police assailants could be tried twice for the same offense because one trial was conducted in State Court for offenses against the state penal code, and the other in Federal Court for offenses against the federal penal code. Same acts.  Same conduct.  Why shouldn’t the officers have prevailed in arguing the Federal government’s prosecution was twice placing them in jeopardy?  A plain reading of the amendment would seem to indicate the government doesn’t get two bites of the apple.  But then that is the key to understanding Double Jeopardy.  The cases were prosecuted by two different governments. State and Federal.

It’s one of those places in the Constitution where the principles of Federalism (specific powers delegated to State and Federal government- the horizontal Separation of Powers) live on.  Each of the government entities, State and Federal Government, is considered a separate sovereign.

The Supreme Court calls this the “dual sovereignty” doctrine. Under the doctrine, a State may prosecute an individual under state law even if the federal government has prosecuted him for the same conduct under a federal statue.  And, of course, vice versa.  The key to understanding is to focus on the use of the term “offence” in the Fifth Amendment.  

The amendment does not refer to an act or conduct. Instead, it uses the term “offense” which by definition must be proscribed by a government, (a sovereign).  Therefore, the Federal government and the State government, two separate sovereigns under our Federalist system, can outlaw the same conduct as different “offenses” under two separate system of laws, Federal and State. 

This principle was re-visited (for the first time in over a hundred years) in the case of Gamble vs. the United States.  Gamble was convicted in Alabama state court of being a felon in possession of a firearm. Then the Federal Government brought charges under the Federal “felon in possession of a gun” statue.  Gamble moved to set aside the Federal indictment on Federal gun charges for the same conduct which led to his conviction in Alabama’s State court.  Gamble’s appeal argued that the Dual Sovereignty doctrine should be overruled as being contrary to the intent of the framers.

In an opinion by Justice Samuel Alito, the Dual Sovereignty Doctrine was re-affirmed.  

Does the doctrine have application in a modern context?  As I like to point out, our Constitution is constantly in play both on a local scene like when a criminal violates a gun law, but also in situations of national significance.  

Consider for a moment the plight of Paul Manafort, who for a brief time served as the President’s Campaign Manager.  From public comments, one can extrapolate that the President believes Mr. Manafort has been unfairly persecuted by government agents. In his view the authorities are using every tool at their disposal in order to break Manafort down and force him to provide damaging testimony against the President.  In similar situations in the past, Presidents, including Bush, Clinton, Obama and others have pardoned the offender.  But in this case, because of the Dual Sovereignty doctrine, Manafort cannot be saved from State authorities by a Presidential Pardon which only applies to Federal crimes. Double Jeopardy would not apply.

Okay.  But these principles are well-established.  There is nothing of landmark significance in the Gamble holding.  Why did the Court take it for review at all?  

I’ll use a phrase that has been repeatedly used by nominees to the Supreme Court when facing questioning by Senators on issues like abortion and the future viability of cases like Roe v. Wade and its progeny.  “It is settled law.” 

So why?  

The legal team in Gamble case got their case heard, in my opinion, due to their efforts to trace back hundreds of years through dusty musty past to old English common law cases to argue that the framers never intended to preserve the Dual Sovereignty doctrine to defeat the Double Jeopardy rule.  

In swatting down the arguments as “feeble” and “dubious” Justice Samuel Alito penned an extensive decision on the value of Stare Decisis and Precedent.  He wrote a detailed and lengthy analysis of the arguments made by the Gamble legal team only to come to the conclusion that the cases they had dug up where of no value as Precedent. That is, Stare Decisis which is the legal principle by which a Court is compelled to follow the decisions of a prior Court which has already ruled on the same issue.

When batting aside Gamble’s stare decisis arguments based on ancient law, he wrote, “this objection obviously assumes that precedent was erroneous form the start, so it is only as strong as the historical arguments found wanting.” If the proposition is stated from the other way, however, if the underpinning of precedent is found wanting, then the principle may not stand. In more concrete terms if the underpinnings of a case like Roe v Wade is found to be incorrect, its value as precedent is at an end.

The Gamble case at its heart is more about the proper role of the Judiciary and legal precedent than it is about Double Jeopardy.  

Justice Clarence Thomas, in a concurring opinion, wrote a remarkable paragraph which calls out the Federal Judiciary for its activism.  He urges federal judges to return to their proper role.  He said, “I write to address the proper role of the doctrine of stare decisis.”  

He states, “It is always tempting for judges to confuse our own preferences with the requirements of the law . . . and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents.”  

Thomas signals that if past cases went beyond the proper role of the Courts and were decided wrongly, they must be overruled.   Even if “settled law.”

“By applying demonstrably erroneous precedent instead of the relevant law’s text–as the Court is particularly prone to do when expanding federal power or crafting new individual rights–the Court exercises “force” and “will”, two attributes the People did not give it.”  In support Thomas cites passages from the Federalist papers.  By “force” the framers meant the power to execute the law and by “will” they meant the power to legislate.  Those powers are vested in the President and the Congress. Not the Courts! 

He goes on to say, “We should restore our stare decisis jurisprudence to ensure we exercise ‘mere judgement’ which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying.  In my view, anything less invites arbitrariness into judging.”

One only has to follow the arrogant and daily intervention of federal judges into every attempt to govern the country (and its borders) by the Executive and Congressional branches.

After describing how our judiciary acts differently under our system than the judges under common law, he makes no bones about how precedent if based on faulty reasoning or wrong facts must be overruled no matter how “settled.”  

“A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the Supremacy of the Constitution and perpetuates a usurpation of the legislative power.”

He concludes by stating, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”  Following it, he says, is an unconstitutional usurpation of the powers vested in the other branches of government.  “This view of stare decisis follows directly from the Constitutions’ supremacy over other sources of law—including our own precedents.”

As we look back over a panoply of new “rights”, including abortion, recognized by the Court since the 1960s, if the precedent those cases established are found at some future point to have been based on incorrect premises, then those cases may be found unconstitutional.  

So, yes, Roe v Wade, and its progeny, is “settled law.” Does that mean it couldn’t be changed if the argument could be made the cases were wrongly decided in the first place; if the scientific basis for the decision is proved wrong?  As “settled law” is Roe v Wade inviolate?  

I wouldn’t bet on it. 

Cline on the Constitution

Cline on the Constitution

While I was on vacation the Supreme Court began to wind down their current term and issue opinions on a few highly anticipated cases.  

As usual there were a few smart opinions and a few stupid ones.  And following the trend over the past decade, a lot of 5-4 votes.  Though there has been some discussion that the split wasn’t always between liberal and conservative, in truth, when it wasn’t split along ideological lines, the Court was invariably punting on the issue by rejecting a case for review or returning it to a lower court for further proceedings.  

Overall there were no major surprises or radical departures from established precedent.  Most of the interesting action was in dissenting opinions both from the Court’s liberal as well as conservative wings. Strong dissenting opinions are often harbingers of the Court’s future direction.  I’ll touch on a few of the more important ones over the next few segments of Cline on the Constitution.

The first case I will review is a Freedom of Speech case. 

Iancu v Brunetti is a prime example of how even Supreme Court Hustices can get twisted up in the bedsheets of their own arcane legalize and leave our society a little less livable. 

The Court ruled that a federal rule barring trademark registration for a line of clothing emblazoned with vulgar words because the words were deemed “immoral or scandalous” resulted in “viewpoint discrimination.” 

One doesn’t have to be a prude to lament how cheap, vulgar, profane and disrespectful major aspects of our society have become.   In college we were all taught to admire the courage of Lenny Bruce and his exploration of the profane.  His legacy? Just take your five-year-old with you to the mall or a ballgame, or just turn on the television any time of the day and be confronted with the most tawdry, shameless, embarrassing language and images. 

The Iancu decision, while not earth-shattering, lays one more stepping stone on the path to the coarsening of America. It’s an example we often see of Justices ignoring the needs of the People they are to serve and of them becoming more Pharisee than wise and prudent arbiters of Law.   

In the Iancu case, a man founded a “clothing line” in which he wanted to print in large letters the word F U C T. 

And, yes, it was meant to be read, as the Supreme Court noted, “as the equivalent of the past participle form of a well-known word of profanity.”   

He was denied a trademark for the use of the term on his products under federal rules passed by Congress which allowed the rejection of trademark registration for terms that were “immoral or scandalous.”  

Justice Sotomayor, like the other justices was aware that their decision would have a negative impact. “The Court’s decision today will beget unfortunate results, with the (rule) struck down as unconstitutional viewpoint discrimination.  The Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.” 

Justice Breyer says, “While some consumers may be attracted to products labeled with highly vulgar or obscene words, others may believe that such words should not be displayed in public spaces where goods are sold and where children are likely to be present. They may believe that trademark registration of such words could make it more likely that children will be exposed to public displays involving such words.  To that end, the Government may have an interest in protecting the sensibilities of children by barring the registration such words.”

In the majority opinion, however, penned by Justice Elena Kagan, the court focused not on the harm to society, but on a completely hypothetical possibility that to reject F U C T was not about the government drawing the line at trademarking “lewd, sexually explicit or profane,” material which the Court admits it is, but that the term “immoral or scandalous” adopted by Congress may include other, unknown, remote, but possible protected speech. 

While some justices argued for a narrow reading of the word “Scandalous,” the majority, in the most politically correct fashion, could not ignore the use of the word “moral.”

The word “Moral” to them “connoted a preference for rectitude and morality over the opposite.” 

The Court fears if they uphold a rule because it opts for the moral over the immoral, the immoral viewpoint is discriminated against. That, they maintain, is unconstitutional.  

We must, they say, again in the manner of the Pharisees, give the immoral their due. Justice Kagan does the mental gymnastics necessary to argue that “immorality” somehow means all conduct that offends the majority. That is not what it means, and I suspect she knows it. Like the most common of lawyers, she just wishes to win the technical argument.  And, neither she nor the other justices will admit of any responsibility for what their rulings leave the rest of us to face.  

Finding the statue “overbroad” The Court, after detailing a number of hypothetical scenarios not before the Court.  Justice Kagan states,  “There are a great many immoral or scandalous ideas in the world and the (Act) covers them all.  It therefore violates the First Amendment.” 

Okay.  

But does that mean we and our children have to see them on tee shirts protected by the trademark laws of the United States?  

As the guys said on ESPN said, (when it used to be all about sports), upon seeing an unbelievable play on the football or baseball field, “Come on, Man!”   

Synapses and Ganglia

Synapses and Ganglia

Wednesday’s poetry rendering

Synapses and Ganglia

What demon incarnation is this

That strides back and forth

Over the world, steps across oceans, 

Traverses mountains and continents, 

Tempts man with gifts, fears, anger, and rage,

Persuades to lust and jealousy, 

To theft and fraud and mendacity,

Who stands bestride the world 

Crowned in cruelty and brutality?

But a brief electrical pulse, 

One signal passed one synapse to another to another

Among millions, billions, trillions of blinks?

Whence comes the hero

Who braves the fire, 

The empathic who cries

For all the lost children she never knew;

How now comes the piano player 

To stage a symphony at the concert hall, 

The painter in his wonderfully messy studio, 

The poet on the hill as the sun rises?

But an accident of genetics?

From where wells up

Belly laughs at funny falls, 

All the harmless folly, 

Endless foolishness, ironies,

And more? 

 And too why

The quiet one in the poorest of robes, 

The most worn of sandals 

Who walks unhurried across the hot sand,

Who heals the sick, straightens 

The curled limbs of the lame?

Who absolves with

His elegant preachments 

Down across the centuries,

With promises becomed miracles?

But mere pulses 

Between synapses 

Down among the ganglia?

For more writing by Phil Cline,

Visit http://philcline.com/

Wednesday Poetry Rendering

Wednesday Poetry Rendering

The Space Between

                    by Phil Cline

The space between is where life is, 

Where emotion is, where feeling Is,

The space

Between fists raised in furious rage, 

Held, poised, awaiting, 

Brutality’s rapture,

And 

Poor arms pale, splayed

Underneath. Weak, 

Inadequate.  

In that space

Between. 

In that, time, no time, 

Before the hit 

Where Dread resides, 

Where Fear presides,

Where all is cringed and crimped, 

Where the head’s bent down, 

Angled, bowed, covered, 

But not enough, 

It is never enough,

For the cowering 

Humiliated child,

Living, 

Trying to live,

In that small space, 

Between

                    2

The In Between of Spaces

       by Phil Cline

Like meadows of flowers

In the shadow of 

The great granite mountain,

And the seething, bubbling

Cauldron beneath 

The valley’s crusted floor,

Where air cannot offer a breath,

Where clean cannot wash tears from cheeks,

Where screams start, but sound is not yet,

Not yet

The shouted “NO!”, the “Please Don’t!” 

The “I’m Sorry!”, the “I won’t do it again!” 

The helplessness of a promise, 

An apology, for a transgression,

Vaguely understood; 

The ignorance of not knowing 

Why it happened at all

Yet it must be my fault, 

Be Wary, 

Always wary of life

In between spaces,

In the space between the evening’s fatigue 

And a favorite dish on the table,

The comfort of the smell, the way it will taste 

When the bite is lifted across

The expanse between spaces 

To be savored. 

In the new spaces 

Between your touch 

And the smiling pretty girl.

She, trouble free 

From your guilt and nausea,

The knowledge of your hurt.

Across expanses, the in between space

Between my body where I must live, 

And another being,where she must live

Among the others, 

Walking on the bridge, 

Before the touch or hit, 

After, alone yet among, 

Inviolate but a second, 

A moment.

I can see out, hear, 

But can’t touch

From my life in the 

In Between 

Of Spaces.

For more writings by Phil Cline, visit philcline.com

Cline on the Constitution – Interpretation

Cline on the Constitution – Interpretation

In November, President Trump referred to a federal District Court Judge as an “Obama judge.”  Uncharacteristically, Chief Justice of the Supreme Court, John Roberts, rebutted the President in a public statement.  He said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges, . . . (an) independent judiciary is something we should all be thankful for.”  

Characteristically, the President would insist on having the last word.  He said, “Sorry Chief Justice Roberts, but you do indeed have “Obama judges,” and they have a very different view than the people who are charged with the safety of our country.  It would be great if the Ninth circuit was indeed an ‘independent judiciary’, but if it is why,” he asked, are so many of the cases opposing the administration’s border and safety policies “filed there and a vast number are overturned?” 

Well, whose right? And, while we are at it, why on earth do certain judges and justices decide cases the way they do?

We have a lot of interesting decisions coming out of the Supreme Court, but I thought this might be a good time for an interlude to talk about legal interpretation.  

I recently read a column by renown appellate lawyer, Myron Moskowitz.  He began his discussion by drawing a distinction in his approach to arguing appeals as between being a “legal formalist,” and a “legal realist.” Ah . . . now there’s stuff to feed every lawyer’s appetite for legal legerdemain! 

But Uggg!  Do we, you may be asking, have to go into such arcane legal terminology? 

Just wait and hang in there for a few minutes. What he was really talking about was winning.  How to win your case; how to get a judge or justice to rule in your favor. There’s something we all understand.  At its core the actual practice of law is more about winning and losing than the legal niceties contained in high-minded phrases like “due process” and “justice for all.”   

And I admit, that wasn’t the first time I’ve heard those terms in the context of winning and losing an appeal.   

A few years back, I was fortunate enough to be invited to participate in a week’s long course on appellate advocacy at the National Advocacy Center on the University of South Carolina campus. I, and prosecutors from across the nation, spent days practicing orally arguing cases to multiple panels of justices.  Some of the panelists were from state supreme courts, others from intermediate federal appeals courts.  As lawyers we were there to learn not only the formalities of how to present oral arguments, but how to be effective. In other words, how to win our case.

The most useful sessions, from an advocate’s perspective, were the debriefings after we argued our cases and the rulings were made.  In those sessions, the justices offered criticisms and suggestions on how to be more effective in the presentation of cases.  It was the first time I heard terms like Formalism and Realism applied to the nitty gritty in the actual practice of law.  

When applied to an appellate justice, the terms get to the essence of what approach on a particular case will most likely persuade a justice to rule in your favor.  Will the men or women draped in their severe black robes along with healthy dollops of self-righteousness and self-importance rule in accordance with the dictates of the law or will he or she find a way to rule so that a result the judge favors even if the logic of the law would seem to require a different answer.  

Moskovitz quoted a judge as defining “legal formalism” as treating the law “as a compendium of texts, like the Bible, and the task of the judge . . . is to discern and apply the internal logic of the compendium.  He is an interpreter, indifferent . . . to the consequences of his interpretations in the real world.  He is not responsible for those consequences; if they are untoward, the responsibility for altering them though a change in law falls to the “political branches.”” The “political branches” are supposed to be the Legislative and Executive branches of government. 

This is how law is traditionally taught in law schools.  And it is what most lay persons, unschooled in the law, think justices are doing and should be doing when they decide a case.  A judge’s job, most people think, is to apply the law and, yes, on occasion, the law can be a hard task master. But if the law needs changing it’s not a judge’s job to change it.  Changing the law is the responsibility of the duly elected representatives in the legislative and executive branches of government.  

But the reality is many, too many, justices see the law through a different prism.  

That prism is “Legal Realism”, the other term Moskovitz uses which places emphasis on “the consequences of judicial rulings.”  The justice who is inclined in this direction, pays little deference to precedent, none to the traditions of judicial restraint. What matters to them is “doing the right thing,” reaching a result that is “fair.” As Moskovitz says, “Pragmatism usually trumps over formalism.”  But to do so, a justice often must be clever. He or she ends up looking for a way to bend the words of a statute or “reinterpret” an established case precedent to get to a result they prefer. And if an advocate knows that is the inclination of the judge or justice, they fashion their arguments to circumvent the law and reach a preferred result which translates into a win.

As Moskovitz says, if you want to win in front of these justices, then dump the formalism and adopt the realism arguments. Play to what the judges want to happen, not what the law requires.

It is here I will move beyond the strategic thinking by Moskovitz to the impact of his ineluctable theory on law, justice and the politization of the judiciary.  

Beyond knowing what arguments to press in pursuit of a win, there is another problem. It leads inevitably to that result justices themselves give so much lip service to wanting to prevent, that is the politicization of the judiciary.  And the loss of that precious commodity “Judicial Independence.”  

President Trump’s statement implied the outcome of important cases could be predicted based upon which President appointed the judge or justices deciding them.  Chief Justice Roberts disputed the notion.  He contention is that federal judges are “neither Democrat nor Republican.”  

Although it pained him to admit it, Moskovitz, certainly no fan of the President, concluded “Trump is right.”  As much as I admire Chief Justice Roberts, I must agree.  The Chief’s statement, given the tendencies of the federal judiciary over the last few decades was just plain silly. 

But there is another perspective, and which adumbrated the reason the Judicial branch has become as politicized as the Executive and Legislative branches.

Just who are these Judges and Justices to decide what is fair?  What gives them such Solomonic judgement that they can ignore the law?  

In reality judges and justices are fallible human beings, just as venal, just as biased in their thinking and instincts as the rest of us and, even more dangerously, imbued with a false sense of wisdom from their robes, their rituals, their honorifics, and the deference in which they are treated in their courtrooms. The inclination of the “realism” approach is always going to be toward siding with the individual and his or her personal “rights”.  And the loss is usually to the needs for order in a society.   

And, furthermore, when the accumulation of such decisions finally undermines the confidence of the public that a judge or justice is only an impartial interpreter of the law, is it any wonder that the confirmation process for the ultimate judicial body, the United States Supreme Court has become so hard and bitterly fought?  

If it is acceptable to superimpose one’s personal views on what is fair or right on the rest of society, in spite of the law, of course the members of the political branches will fight tooth and nail to place on the court one of their own, ones they expect to rule in accordance with their political agendas. Soon, very soon, despite Chief Justice Roberts protestations, we have courts made up of easily identifiable Obama justices, Bush justices, and, yes, Trump Justices. 

There is no better proof of this than at current confirmation hearings for Justices appointed by the President.  Questions are not designed to focus on the legal and analytical skills of the candidate, but rather to glean from past writings, past clients, past positions taken in lawsuits whether they can be fair to this constituency of the party of the Senator posing the question.  

Two justices were just confirmed the Ninth Circuit Court of Appeals over the objections of the two California senators from the Democrat party.  Their objections?  One justice had written op eds back in college (not law school), decades ago, our senators viewed as “controversial.”  And as attorneys these two, whose legal qualifications to serve no one questioned, had represented clients on the sides of the cases disfavored by our Senators. They weren’t always representing the downtrodden or the current flavor of self-declared victims of society. 

One may say, that despite their protestations, the judges and justices largely brought this on themselves.  Because they arrogantly believe they know better than everyone else how to correct societies wrongs as they see them, in spite the law. 

Whence, Judicial Independence? 

It’s gone in the rise of “Legal Realism” and the death of “Legal Formalism.”

Reckless Kings

Reckless Kings

Nothingness to nothing,

Returned my King. 

Reckless his good deeds, 

Legend his evil deeds,

Augmented, layer by layer, atop

Vaults too deep for excavation, among

Rows of tombs, Subterranean 

Cellars, protected 

From jocund birds, raucous,

Gossiping in the tree tops

Amid mornings aborning. 

Returned my King,

Nothingness to nothing.

Vexed by bumps and bruises,

Staggered toward home, 

Stumbled, fallen, failed,

Weighed under packs of sin, 

Burdens of ambition, 

Unkind advancements,

Chest full of achievements 

Clutched off currents of air

Before they floated away, 

Evaporated.

Returned our king, and we cried

“Nothingness to nothing!”

For our king murdered 

His loyal soldiers 

To spite the world.

Executive Privilege

Executive Privilege

This week’s edition of Cline on the Constitution

Executive Privilege

It seems every year we have at least one descriptive term that evolves into a sacrosanct badge of being politically correct.  We’ve had “diversity”, we’ve had “homeless”, and a number of others it wouldn’t take long to conjure. The terms are over-used, frequently misused and so ill-defined they end up obfuscating reality. Their introduction into a conversation demand thoughtfulness be suspended. After a while, one develops a sense of nausea whenever the terms are uttered; truly they become an insult to the ear of anyone who chooses to not define society in accordance with numerical niceties.      

And now we have “transparency.” 

What exactly is transparency?  To some it means disclosure of all information all the time to every living soul regardless of who is hurt, what is diminished, and whether the information is accurate or complete.  Private conversations, the frank exploration of ideas, is considered anathema to the God of “Transparency”.

For anyone in leadership, especially in an executive position, whether it is government or business, there is a basic need to have private conversations with trusted staff. The ability to try out new concepts, to explore radical solutions, whether the ideas are adopted or not, is part of the creativity we should expect of leaders.  However, in these times of instantaneous opinion, the quickest death to good ideas can be “transparency.” Some conversations, some orders, some plans need to kept private, indeed they need to be kept, yes, let’s use that other much maligned term, (gasp!)“Secret.” (Gasp again!)    

This is what Executive Privilege is all about and it is recognized in the realm of constitutional law.

The President has asserted Executive Privilege regarding certain portions of the Mueller Report as well as the underlying evidence for the Muller Report.  Breathlessly certain members of Congress who demanded the information are crying out that we are, as a result, in a Constitutional Crisis.  

Well, not really.  

Let’s explore Executive Privilege and its Constitutional basis.

Article II of the Constitution vests in the President of the United States the “Executive Power.” Contrary to some loose commentary, Congress does not have “oversight” of this function.  There is no constitutional basis for an assertion that one branch of government has “oversight” over a co-equal branch of government regarding their core powers. They may investigate.  They may hold hearings. Within limits.  But they do not have “oversight” of the exercise by the President of the “Executive Power.”  

And in the exercise of the Executive Power, the Supreme Court recognizes the existence of an “Executive Privilege” over confidential material and an unwarranted intrusion upon Executive Privilege violates the Separation of Powers.

As will be shown later, however, the Privilege is not absolute, no more than any power vested in a branch of government is absolute.   However, the Privilege is entitled to “great deference” as Chief Justice Burger stated in U.S. v. Nixon.

Burger went on in the U.S. v Nixoncase to describe the basis for the Privilege:

“The valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”

One has to pause and contemplate the damage to such processes done to the President by leaks of confidential conversations even with heads of state by unscrupulous government employees virtually from the President’s first day in office.  One of Attorney General’s Barr’s comments during the hearings before the Senate and his description of the motives of leakers is apropos.  It is one way, he said, for subordinates to control their superiors on matters of policy. Consider the impact on the ability of any Executive, much less a President, to carry out his policies if every word uttered in private finds its way to the headlines the next morning.

Chief Justice Burger went on to say, “The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity of protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making.  A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”  

And those considerations, Justice Burger says, provide the basis for a “presumptive privilege” for Presidential communications.

United States v. Nixon, decided in 1974, grew out of the infamous “Saturday Night Massacre.”  A special prosecutor sought tapes of conversations that occurred in the oval office.  President Nixon ordered him fired.  The Attorney general refused, and he and his assistants resigned rather than comply.  Robert Bork was third in line at the Department of Justice and he carried out the orders to fire the Special Prosecutor. A new one was appointed, but then he too demanded the material and took the matter to the Supreme Court.

The primary issue for the Supreme Court was whether the courts could decide the case at all without violating Separation of Powers. Harkening all the way back to Marbury v. Madison, decided at the beginning of the Jefferson administration, the Supreme Court ruled they could, indeed, decide the issue as a question of law without infringing on the Separation of Powers. But in reaching this conclusion they spent considerable time assessing the basis and scope of Executive Privilege. While there have been other cases which addressed the issue, U.S. v Nixon is still the leading case on the principle.  

The court used a balancing test assessing the need of the criminal justice system against the assertion of an “absolute” privilege. 

However, their ruling was qualified.  They repeatedly pointed out that the assertion of Executive Privilege by the Nixon administration was a general one and that the President had not claimed confidentiality based upon a need to protect “military, diplomatic or sensitive national security secrets.”  (There’s that word again!)

There is a clear implication that if such an assertion had been made, the court may have upheld the declaration of Privilege.  

There are two more interesting aspects to this:  First, the Court appended a proviso that a federal court would take care that the information was reviewed and assessed in camera, out of the public eye, where the confidentiality of the material could be protected.  And second, in that case the interests of a criminally accused was in play and that brought about considerations of Due Process and the other Constitutional rights of someone charged with a crime. 

As it relates to the Mueller report, there are a few distinctions:

First Congress is pursuing a civil subpoena process which takes the balancing test for criminal matters off the table.

Second, the information is actually from a Special Prosecutor.  It is not being withheld from him like in the Nixon case.  Second, a Court, not the Congress, may have the right to inspect the confidential material, assuming the President doesn’t provide justification, such as national security. In the later instance, since it is a core Presidential function, even the Court could be excluded from examining the information under the Separation of Powers doctrine.  

Lastly, regarding the Mueller report, at the very least, the Court may find that while confidential Grand Jury information may be assessed by the Court, that does not mean that a leaky Congressional Committee, where confidentiality goes to die, has any right to pierce the Privilege. 

For more articles on the Constitution and other writings by Phil Cline, visit philcline.com     

Impeachment

Impeachment

The Impeachment of a President

Calls for the impeachment of President Trump have been circulated since before he assumed office. Any pretext seems to suffice.  If one is shown to be groundless, another is quickly adopted.  

With the Democrat party now in control of the House of Representatives, and a lineup of committee chairpersons right out of the Star Wars Bar Scene, reckless talk of impeachment in the halls of Congress and on the cable opinion shows have reached a fevered pitch. While much of the talk is silly and petty, the subject is serious business.

What does the Constitution say about impeachment?

Impeachment was debated on and off through the four months of the constitutional convention in Philadelphia where the framers of our constitution were creating a government of Checks and Balances.  Not only did these wise men insist on the Separation Powers to obviate the concentration of power in too few hands, but they also wanted a means for one branch of government to be able to Check the power of another branch. 

The impeachment process was a means to Check the power of the Presidency.  The drafters wanted a strong president but not a king and authorizing the impeachment of the President, even if limited to the rarest of circumstances, insured we would never have a king. 

For historical reasons the framers adopted a specific structure for the use of the impeachment procedure. For impeachment to occur the House of Representatives must vote articles of Impeachment.  The members of the House then present the articles to the Senate. The Senators serve as jurors in the Trial of the President presided over by The Chief Justice of the United States. If convicted of any article there is one and only one punishment. The President is removed from office.

The Federalist Papers inform us Alexander Hamilton and James Madison had two main concerns about the impeachment procedures. 

First they worried about the political process.  Having the matter tried in the Senate they were concerned about the character of a jury made up totally of elected officials.  In other words, politicians.  If the impeachment of the President devolved to a political exercise it would make the President permanently subservient to the Senate. And the need for a strong executive was one reason the original Articles of Confederation were abandoned in favor of the Constitution. 

Their solution was the requirement that articles of impeachment could only originate in the House and fully two thirds of the Senators had to vote for conviction.  In the 1990s Bill Clinton had 54 votes cast in the Senate for his impeachment on one count and 50 on another.  Were it not for the two thirds requirement he would have been removed from the Presidency.  Similarly, Andrew Johnson was acquitted by one vote in 1868.

Second.  The Framers also sought to circumscribe the process by proscribing very narrow grounds for impeachment. The grounds are limited to “Treason, Bribery, or Other High Crimes and Misdemeanors.” The phrase “Other High Crimes and Misdemeanors” confuses even some members of Congress.  What is clear is that the framers abhorred the idea of impeachment being used as a political tool, a process by which the dominant party in Congress removes Presidents because they have the votes and they perceive it is in their political interests to do so.  Establishing a political revolving door of Chief Executives would defeat the very purpose for which the office was created.

The debate concerning the article about impeachment over those hot summer months in 1787 saw the framers consider and reject a number of proposals concerning grounds for impeachment including misfeasance and malfeasance as well as corruption. Each revision served to narrow the definition. And finally they settled on “Other High Crimes and Misdemeanors.”  

“High Crimes and Misdemeanors” does not refer to routine crimes.  For example, a common Drunk Driving charge is a misdemeanor.  That is not the kind of crime the framers were talking about. The term High Crimes and Misdemeanors was taken from old English law.  It was used to describe political offenses against the Crown. 

High Crimes and Misdemeanors contemplate a crime against the State.  The original clause actually said High Crimes and Misdemeanors “against the United States.”  The phrase “Against the United States” was dropped for stylistic reasons by a special subcommittee because it was thought to be a redundancy. 

The road to impeachment is narrow and straight up hill.  It is meant to be difficult and it is.  

As was seen in the impeachment of Bill Clinton, petty politics by petty venal politicians (that time by the other party) won’t result in the removal of the President.  

In pursuing Bill Clinton and after spending 50 million dollars on a special prosecutor, after interrupting the lives of countless people, shaming and vulgarizing society by discussing a stained blue dress in a trial on the Senate floor presided over by the Chief Justice, not one count resulted in a conviction.  It was an ill-advised and unsuccessful attempt to remove a President. And it was an embarrassment for the nation in front of the entire world.

No doubt there are those who wish to see it all happen again.  For the nation’s sake let’s hope not.  Probing every member of the President’s family, including his minor children, all his past business dealings, and, yes, his sexual peccadillos seem to be an obsession of some members of Congress.  Senator Dale Bumpers, during his arguments on the Senate floor defending President Clinton, paraphrased H.L. Mencken.  He pointed out that H. L. Mencken said, “When someone says it’s not about the money, it’s about the money.”  As related to Clinton’s trial in the Senate, Bumpers, said, “When somebody says, it’s not about the sex, It’s about the sex.”  And I, in turn, will paraphrase Dale Bumpers: “When someone says, it’s not about the politics, it’s about the politics.”

There are more pressing matters, at home and abroad, that demand the attention of our nation’s leaders. They need to wake the hell up, quit torturing definitions, and get to it.

For other articles and writings by Phil Cline, visit philcline.com

Electoral College

Electoral College

The Electoral College

In the last segment I addressed the proposal by some candidates for the Presidency to pack the Supreme court. In this segment I will discuss the Electoral College.  There are various proposals by the same candidates to modify it or eliminate it altogether. 

While any proposal to change the Constitution or amend it should be approached with extreme caution, changing or modifying the Electoral College is one idea worthy of debate.

The current proposals regarding the Electoral College can be understood in the context of the 2016 presidential election. 

President Trump penetrated the vaunted “Blue Wall”, a collection of states in the East whose electoral votes had gone to the Democrat nominee dating back to 

Ronald Reagan.  His feat was unexpected, defied conventional wisdom and left much of the country laughing at pundits, pollsters, and “professional” journalists.  He won the election in the Electoral College, while his opponent managed to secure the popular vote by running up huge margins of votes lodged on her behalf in heavily populated California.

In modern times we have seen three presidents elected with less than a majority of the popular vote. Bill Clinton (43% in 1992), George W. Bush (48% in 2000) and Donald Trump (47% in 2016).  

This would have been of little concern to the framers of the Constitution.  They constructed the Constitution with a healthy skepticism about the wisdom of the universal suffrage, much less entrusting the election of critical offices to the direct vote of the populace.  For example, it was not until 1913, with the passage of the 17thAmendment that U.S. senators were elected by voters in the respective states. Until then it was an appointed position. And the wise men who drafted our Constitution would have been scandalized at the notion of granting felons the vote must less as some democrat candidates and Speaker of the House Pelosi of San Francisco has suggested, sixteen-year-old kids. In passing I find it ironical that the legislature of Speaker Pelosi’s home state determined that the same juveniles she wishes to enfranchise can’t be held fully responsible for the brutal and violent crimes they sometimes commit because brain science supposedly supposedly established the judgement centers in their brains haven’t’ fully formed.  

Most citizens understand the President is not elected by a direct, popular vote.  Rather the Constitution in Article II, Section One, states he or she is to be elected by a system of electors, known as the Electoral College.  Each state has a group of electors equal to the number of state representatives in the house and senate.  Plus the District of Columbia has three.  That means there are 538 electors and it takes 270 to elect the president.  A president is elected not by how actual votes of citizens are distributed. It is done by how the Electoral College votes are distributed in what are 51 separate elections.

When the framers developed this means of selecting a Chief Executive, it was a novel approach.  From their historical perspective the Chief Executives of most nations were chosen by bloodline, military power, or legislative selection.  The Electoral College was, in some scholars’ views, an experiment.  The reviews regarding its success have been mixed.

There are two additional aspects to the Electoral College that need to be understood.  

First, the Constitution delegates to the States, the appointment of the Electors “in Such manner as the Legislature thereof may direct.”  

And it this regard, most states employ a “winner take all” system.   That means that if a state has 20 electoral votes available and one candidate receives 10 million actual votes, but the other candidate receives 10 million votes plus one, all 20 electoral votes go to the winner and none to the candidate who had millions vote cast for him or her.  

California is a prime example.  It has 59 electoral votes, the largest number of electoral votes of any state.  Almost 20% of the number of electoral votes needed to be elected president.  Yet California as it relates to the Electoral College (and barring the emergence of a Reagan like figure) is a one-party state.The registration advantage of one party is so lop-sided, it is felt there is no need for the nominees to even come to California other than to drop in on the swells in San Francisco, L.A., and Silicon Valley to pick up campaign funds. 

Texas has, until recently, had a similar imbalance in favor of the other Party. 

Looked at another way, a candidate can take just 3 states of the 50, California, Illinois and New York and be well on the way to victory.  In a presidential election, there is never a real contest in any of these states, yet they account for 105 electoral votes, more than one third of what it takes to be elected.  Yet, again, there is no need for either candidate to campaign in any of these three states. And the margins that the candidate from the dominant party run up is of little consequence.  

The second aspect of the Electoral College to be considered is that most of the arguments that originally undergirded the Electoral College system have long ago melted into history. 

In the federalist papers it was argued that the election of the president should be by “a small number of persons, selected by their fellow-citizens from the general mass,(who) will be most likely to possess the information and discernment requisite to such complicated investigations.”  Those noble sentiments notwithstanding, Electors, modernly, are just party representatives. They are not these so-called persons of discernment, if such a person ever existed. And what is even more concern is that nothing in the Constitution requires the electors cast their ballots in accordance with the votes of their states.  The problem of the so-called “faithless elector.”  Many states, however, have laws to obviate this loophole.

The Federalist papers also contended that the Electoral College was a means to keep foreign influences from “an improper ascendancy in our councils.” The fearful Russians notwithstanding that is hardly a concern in today’s world.

The one idea that hasn’t lost its currency was the thought that an Electoral College would ensure all the states in the nation had a say in the selection of the Chief Executive. Individual States, during the formation of the Republic, were jealous of their prerogatives and of each other.  They didn’t want a single populous state or region to put forth a favorite son who would represent his region to the detriment of the smaller states.  

Does the operation of the Electoral College have to be this way?   Is it required by the Constitution?  

The answer to both questions is No.  

Even if it would be too difficult, politically, to amend the Constitution and replace the Electoral College with the direct popular vote for President, there is nothing in the constitution that requires that the Electoral College votes in the states be “winner take all.”   In fact two states award electoral votes proportionally based upon the voting in individual congressional districts. Those two states are Maine and Nebraska.

Nationwide, were other states to change from a “winner take all” model it might lead to a real campaign in many more states than the so-called swing or battleground states.  

Even if the minority party registration in individual states were only 30% or 40%, it would behoove candidates to campaign in congressional districts so that those electoral votes could be added to others in other regions of the country.  That 30% or 40% in California would translate into the same number of electoral votes as Pennsylvania, which turned the tide in the 2016 election. It might rival Florida that, in my opinion, gets way too much attention every 4 years.  

In the nascent movement to replace the Electoral College, there are some States seeking to circumvent its provisions by awarding all their electoral votes to the winner of the national count.  Such an approach is shortsighted.  It’s a formula by which the state itself is disenfranchising the state’s own voters.  For example, even though an overwhelming majority of, say New Mexico’s voters cast their ballots for one candidate, because California and New York with their huge populations favor a different candidate, New Mexico’s voter’s ballots would be completely wiped out. 

As to eliminating the Electoral College altogether and awarding the election to the person who wins the most popular votes nationwide, its best to remember the old saying of “be careful what you wish for.”  The framers of the Constitution possessed a certain genius for avoiding crippling ideas. There is a reason they insisted on a majority of electoral votes.  Had they opted for popular vote not only would the smaller states have been disenfranchised in favor of the bigger ones, but the Presidency could be won by a plurality of votes. 

Consider for a moment that there are two dozen men and women running for the democrat nomination. Three quarters of them have little to recommend them in terms of judgement, experience or proven leadership. Many of them are adopting socialistic principles without fully understanding the implications.  There is little loyalty in the group for even the traditional values of the democrat party.  Is there any reason to believe that if it was possible to win an open election, that same number of persons would not run for the Presidency itself?  If a dozen or so ran for President, is it possible that with a disciplined campaign someone with 30%, or 25% or less of the popular vote could be elected President? 

Those questions and others need to be answered before any change, not after. 

For more articles on the Constitution and writings by Phil Cline, visit philcline.com

Packing the Supreme Court

Packing the Supreme Court

Packing the Supreme Court or “The Switch in Time That Saved Nine”

A number of the announced candidates for the democrat nomination for President, have proposed changes to the current structure of our government.  Some are foolish, some wild, some weird, some have been tried before. Such as Packing the Supreme Court by adding more justices.    

One particularly looney proposal is to have a 10+5 make up.  Ten appointed by the President and five by the Supreme court themselves. There is one minor problem.  The Constitution provides that the President appoints Supreme Court Justices.  They don’t appoint themselves.  But those type of moronic ideas aside, could the number of Justices by increased from the traditional nine?

The answer is yes.  

In 1935, Franklin Roosevelt had just been re-elected President by the largest landslide in history. The country was looking to him and his programs to lift them out of the Great Depression.  They gave him an unquestioned mandate to do what needed to be done.  And they gave him a Congress to help him.  After the election, his party dominated both houses of Congress, by large margins. 

But he was worried. He had the mandate and the agenda, and two branches of government under his effective control.  However, a reactionary Supreme Court was threatening to lay waste to the programs he had steered through Congress to lift the nation out of the Great Depression. 

He was right.  

Over the next few months the Court found over a half dozen of Roosevelt’s programs unconstitutional. In private he accused the Supreme Court of adopting a “horse-and-buggy definition of interstate commerce.”And it appeared his new Social Security and National Labor Relations Acts would suffer the same fate.

Roosevelt reacted. He came up with a plan.  A Court Packing Plan.  Within two months of the inauguration, he struck.  In a surprise move he asked Congress to authorize him to appoint a new justice to the Federal Courts for every justice over the age of seventy.  The average age of the Justices was seventy-one.  His plan would give him six new Supreme Court appointments and over forty new lower court Justices.  

His proposal was and is Constitutional.  Nothing in the Constitution requires that the number of Justices be limited to nine.  It has, at different times in our history, been more and been less than nine.  Nor does the Constitution specify any standards regarding qualifications to serve as a Supreme Court Justice.  Only that the “judicial power of the United States be vested in One Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.”  

Over the next six months there was a very public battle.  Almost every editorial writer in the country opposed Roosevelt’s court packing plan and of course the legal community rushed to protect the “independence” of the judiciary.

Nevertheless, it appeared, given his political power, Roosevelt’s plan would pass.  Then, unexpectedly two important New Deal programs were narrowly upheld by the Court.  One concerned the minimum wage and the other the National Labor Relations Board.The Supreme Court and one justice in particular had switched how they were ruling on cases involving Roosevelt’s New Deal programs. And after the rulings, the President doffed his trademark smile, backed off and let Congress drop the Court packing plan.

Revisionist historians, many from the legal profession, as is their métier, argue the change in rulings was not a result of Roosevelt’s court packing plan.  Their explanations are facile. The results were clear.  From that point forward, no other New Deal program was overturned by the Supreme Court.  Roosevelt, was all too willing to lose the battle, but win the war.  My favorite biography of FDR is aptly titled “The Lion and the Fox.”  The great man was both.

The results of the Court Packing Scheme and what commentators called the “Switch in Time that saved Nine” are noteworthy from a constitutional perspective as well as the impact the proposal had on the decisions of the Supreme Court.

Regardless of later revisionist history, it was clear that the Supreme Court and at least some justices switched how they were ruling out of political expediency.   They sensed that they had gotten severely out of step with the Public and a President sent to the Washington to get things done.  And in this confrontation with the Executive Branch, they saw they were going to ultimately lose.  They switched their rulings to save their institution from change. 

The current proposals to stack the Supreme Court are also political, but of a different order.  Unlike Roosevelt who was intent on pulling the nation out of economic quicksand, and had the mandate to do so, the current crop of candidates propose tampering with our Supreme court to satisfy a few narrow social justice interest groups who wish to impose their goofy ideas on the rest of us. They see packing our Supreme Court as a sure-fire way of accomplishing their goals. And if they understand history, they know just making the threat has a chance of changing critical votes on a Court where many important decisions are coming down 5-4.

And make no mistake about it, the Supreme Court is watching. After FDR’s attempt to pack the Court, not only did all of his New Deal Programs pass constitutional muster from that point forward, but for the next sixty years the Supreme Court never reversed one, not one, case involving an expansion of federal powers under the Commerce Clause. 

The result was the creation of vast administrative agencies and millions of pages of regulations that intrude on virtually every aspect of our daily lives.  

Whether the proposals ever come to fruition, the election of someone who, as President would attempt to pack the Supreme court can have extremely long-term consequences for every one of us.  

Whether their plan gets through or not.