Category: Cline on the Constitution

Cline on the Constitution

Cline on the Constitution

Cline on the Constitution, Impeachment Chronicles, Part Four

As of this writing, Senators are availing themselves of the opportunity to take to the floor of the Senate to explain how they will vote regarding the impeachment of the President. And why.  Their speeches at this point it is all about home district consumption. 

While District Attorney, I traveled to Washington D.C. a few times to work with members of Congress on legislation and to secure funding for important projects like the Rural Crime Program.  More often than not we were working in the Capitol building at night and I was always struck by the ever-present T.V. broadcasting speeches from the floor when the only person present on the floor was the member talking.  Turned out those speeches were being filmed for the constituents back home so they could see how their congressman or Senator had taken to the floor in support or opposition of whatever it was they were supporting or opposing.  Given the angle of the camera, it mattered little there was no one on the floor listening to all the fine talk.

Though there has been a swirl of activity during the impeachment trial with arguments by the House Managers and President’s counsel, much of it has been repetitive and little new ground has been plowed from a Constitutional perspective.  Most of it has been covered in prior posts.  I discussed the inadequacy of the Articles of Impeachment and the modern dangers presented by slip-shod one-party impeachment attempts being employed to weaken a President politically. Kenneth Star surprised me with his eloquence in addressing this very issue.  And, as I predicted, the pattern and practice of attempting to influence the proceedings by placing and perfectly timing the release of “bombshells” continued.  This one involved John Bolton and his book.  

In regard to the Bolton issued, Senate Majority Leader, Mitch McConnell, showed once again he is the Master of the Senate.  Knowing a little about politics and political maneuvering, I marveled at how one of his best friends just happened to show up as one of the four Senators whose views were soft enough to have the media and the other party salivating over the prospect they would vote against their party and open up the Senate trial to Bolton and an endless series of “bombshell” witnesses.  And then I smiled as his friend brought one of the other three with him to vote down the proposal.  Mighty Mitch won again.  

As for the performance of the presenters, it was the usual mixed bag.  For the House Managers, Adam Schiff was the worst.  He reminded me of a lot of defense attorneys I tried cases against over the years.  Flamboyant to a fault, there was never a fact they wouldn’t embellish, never a legal point they wouldn’t overstate, never a comment about an opposing view they wouldn’t exaggerate.  Many a client of theirs was impressed. And they shared how good a show their attorney had put on in their trial.  Usually to their cellmates. Because the attorney’s perfidy inevitably leaded through as the true facts of the case came out, they just as inevitably lost.  

On the other hand, Congresswoman Zoe Lofgren of California was very effective. She was low key, respectful but precise and persuasive.  She had actually participated in one capacity or another in all three impeachments we have seen in our lifetime.  Her experience and maturity showed.

For the President’s team, the worst was professor Dershowitz.  And erstwhile Constitutional Law professor he got way out over his skis and fell flat.  Like so many of his colleagues in Academia he got lost in the weeds.  He was so intent on winning his debate with another Constitutional Law professor, Lawrence Tribe, he forgot the proceeding were not about him.  He stretched his argument so far it provided fodder for the other side to color him in the tones of a fool.

The best on the President’s side was the steady one, Philbin.  Precise, measured, careful of his own credibility, he knew not only his case, but the opponent’s case so well all their bluffs and puffery went “Poof!” when he walked to the podium and spoke.  He’s the type that wins.  And he wins big.

On reflection, there were a couple of issues in the Constitutional Law field that were touched upon that are worthy of discussion.

The President’s Power over Foreign Affairs is paramount.  The President derives his power implicitly from the language of the Constitution, practically through historical practice and explicitly from decisions of the Supreme Court.  Modernly, both Congress and lower federal courts frequently attempt to intervene and frustrate Presidential actions in foreign affairs, but their acts are eventually deemed unconstitutional when challenged. 

As to the Constitution, the President is granted the power over making treaties on behalf of the U.S., appointing ambassadors and ministers, receiving foreign ambassadors and ministers, and his command over military affairs are intimately tied to the conduct of foreign affairs, 

In 1936, the Supreme Court in the case of U.S. v. Curtiss Wright Export Corp., upheld the actions of the President in prohibiting the sales of arms to combatants in South America in a situation similar to what occurred with Ukraine.  

The Court said, “The President alone has the power to speak or listen as a representative of a nation . . .  The President is the sole organ of the nation in external relations, and its sole representative with foreign nations.” 

There is a rationale for this recognition of Presidential power.  The Court explained, “[the President], not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war.  He has his confidential sources of information. He has his agents in the form of diplomatic, consular, and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.”

Given, the power over Foreign affairs, Does the President have the power to withhold funds appropriated by Congress for the use of Foreign nation?  

Article 2 of the Constitution, provides that the President “shall take care that the laws be faithfully executed.”  

Seems straightforward enough.  However, the courts have recognized that there is an element of executive discretion in the enforcement of laws.  Like District Attorney’s nationwide the President possesses Prosecutorial Discretion, that is he has the power to decide whether and when to investigate, prosecute, settle, and appeal individual cases.  For example, President Obama ordered U.S. Attorneys not to prosecute violations of federal marijuana statues.  Similarly, if the President determines a law is unconstitutional, he can either refuse to enforce it or refuse to defend it in Court like what was done in the Defense of Marriage Act (DOMA), regarding the inheritance rights of Gay couples.

But does he have the discretion to withhold funds appropriated by Congress?  There is a significant history of Presidents taking actions to impound funds appropriated by Congress when the President decided to exercise his discretion and not spend the funds. Though the cases are relatively few the general rule is that if it is a domestic appropriation the President’s refusal is an interference with the fiscal powers expressly delegated by the Constitution to the Congress.  On the other hand, if it deals with foreign relations then the Presidential prerogative is more persuasive.  For example, Congress would be encroaching on the Presidential powers by funding an embassy in a nation from which the President has withdrawn diplomatic recognition.  Congress did, a few years back, pass an Impoundments act to restrain Presidents from such exercises of discretion, but its constitutionality has been denied by all Presidents since its passage. 

So, while there was a dispute over why the President delayed releasing the funds to Ukraine.  It seems clear, the Constitution delegated to him the power to do so.  

Impeachment Part Three

Impeachment Part Three

Cline on the Constitution – Impeachment Chronicles, Part Three – On to the Senate!

Last week, members of the House of Representatives finally showed up in the Senate to pursue the Impeachment of President Trump.

I followed the proceedings in the Senate, with an idea of picking out various constitutional issues to discuss.  What the week in the Senate brought home, however, is that this is not and has never been an Impeachment by the Congress.  It is, instead, what the Framers warned against.  It is an Impeachment by one party in Congress, the Democratic Party. 

Although I prefer to not discuss party affiliation concerning Constitutional issues, the process in the House, crystallized by the presentation in the Senate, was so partisan it is unavoidable. And now, regrettably, that same extreme partisanship appears to have bled over into the Senate.

First it is reflected in the weakness of the Articles themselves. Although the Articles, as written, purport to describe “High Crimes and Misdemeanors,” they do not.  There is no attempt to allege a crime nor criminal conduct.  As I have outlined in previous posts, misfeasance, malfeasance, maladministration and the like were explicitly rejected by the Framers who wanted only the narrowest of grounds to seek removal of the President, only those that would constitute direct criminal conduct against the United States government.  Alleging, without any direct evidence, it was all done “to benefit his re-election” does not rise to that level. The use of innuendo, speculation, opinion, hearsay and inference doesn’t cut it. And, were this not an exercise by one party and only one party it would not be allowed. 

Suggesting a foreign leader to look into rumored corruption in his country that impacts the United States is neither a High Crime nor unusual, unless it is filtered through a partisan prism. Although a couple of the presenters went to pains to proudly repeat their new axiom, “If this is not impeachable, nothing is.” the opposite is more apropos. “If this is impeachable, then everything is.”  

Especially is the partisanship apparent in the overlay of what has become today’s playbook in the politics of personal destruction.  The coordinated disclosure of “new” information from sources whose credibility is questionable designed to drive the new cycle.  We last saw this in the Kavanaugh hearings. One might call this the “Avenatti Maneuver” named after the disgraced and crooked attorney who became a CNN media star and erstwhile presidential candidate by peddling lies and distortions.  

Finally, it can’t be ignored that no one, in or out of government, expects a conviction on either article of impeachment and the fact there are no members of the House Republican caucus, none from the other party, who support or even stand neutral about this attempt to impeach this President, we are left with the inevitable conclusion that despite the elevated paeans to high Constitutional principles the only possible motive in this pursuit of the removal of the President are purely political, to cripple his chances of re-election and/or gain control of the Senate.  

This is also a consideration in the “Obstruction of Congress” Article.  It is not Obstruction of congress to refuse to kneel before the Hangman.  Only Democrats, not Congress as a whole, sought to breach the traditional confidentiality of the Executive Branch.  And they took procedural shortcuts which made their attempts subject to legal challenges.  They knew the failings and consequently refused to seek redress in the courts when their target refused to send bullets to his firing squad who already had publicly avowed to execute the prisoner. 

And, again, were this not an exercise that was completely partisan they may have been persuaded to follow the law and take the time necessary to it right. And when you seek to remove the President from office, one wants to do it right.

As the House argued their case in the Senate, though mind numbingly repetitive, there was a couple of issues that I found interesting.  I will just touch of one in this post and save others for later.  

First, is it Constitutionally proper for the President to exercise Executive power when 1) subordinates disagree or 2) outside “experts” disagree?  

President Trump, to the consternation of detractors, wanted to know if rumors he heard about Ukraine being involved in the 2016 election were true and if evidence like a missing server might be located there.  Extensive time and effort were expended in attempting to establish this was a “debunked” theory and, therefore, his wishing to know was corrupt. It was emblematic of how many of his actions were questioned.  The real issue is who gets to decide what the President thinks is important or true?  Ambassadors, Career Service Officers, outside “Experts” or him? Dare he ignore their collective wisdom and act on his own?  

Article II provides that “The Executive Power shall be vested in a President of the United States of America.”  It was placed there to correct a weakness in the original Articles of Confederation by which the nation was governed before the Constitution was ratified by the States. Is the term “Executive Power” just window dressing? 

The power of the nation’s Chief Executive is just that. He doesn’t have to listen to or believe subordinates or others.  Even if it is more prudent to do so. Even if the “experts” and “careerists” find it insulting that he dares act inconsistently with their understanding of “current” practice or past “policy.” That is in the nature of being an Executive.  Consensus, a majority vote, accepted theory is not necessary for an Executive to ask. And opposing the actions of a Chief Executive, due to a misunderstanding of who owns the power, can be detrimental to a subordinate.  

I will cite just one example from my own experience at running a large public department.  When I assumed the office of the District Attorney, I was very anxious to bring online new programs that I thought were needed. One was a Consumer Fraud unit.  I personally selected a Deputy D.A. who I thought would be well fitted to head up the program and he worked out. For a while.  

At the same time, I had delegated to an Assistant D.A. the task of bringing together dozens of policies and practices the office had been following into one Policy Manual.  He completed his work and I had him circulate the manual for all personnel to sign off that they had read and understood the contents of the manual.  By then the Consumer Fraud attorney had, in his own mind, carved out a special position which he believed made him exempt from compliance with general orders applicable to the rest of the staff.  He declined to read or sign off on the manual.  He registered his dissent on a Thursday.  I was notified on a Friday.  Monday morning, he was doing misdemeanor calendars in a different part of the county and I had a new Consumer Fraud attorney.  He grieved, he complained, he appended a few choice descriptors to my name and heritage, but that was too bad.  I had indeed acted brutally, swiftly and didn’t wait to build a consensus about what was appropriate and not offensive.  I was the Chief Executive of my department and it was my decision to make and his job to comply.

The problem with the Deep State is that they get in their mind they own the outfit and the Executive must have their permission, their buy in, their sign off to act in contravention of their views.  

It’s never been true, not in business and not in government.  And when a President acts on his own beliefs and priorities, their disagreement is not evidence of an impeachable offense. 

For more writings by Phil Cline, visit philcline.com.

Lord Byron and Perfection

Lord Byron and Perfection

Cline on the Constitution

Lord Byron and Perfection

So, what does Lord Gordon Byron have to do with the interpretation of the Constitution?  Well, it’s a stretch. Let’s see if I can get there.

Justice Antonin Scalia said, “The notion has somehow gained currency, . . . that if something is intensely bad, it must be prohibited by the Constitution; or if intensely desirable, it must be required by the Constitution.”

Neither is true. First, the actual Constitution is about governance not what should be or should not be.  And second, in an age of rampant self-righteousness, those who preach about the document’s “imperfections” misapprehend the nature of the document and the Amendment process built into the Constitution 

Most people, when they think of the Constitution, think first of Rights.  And mostly those rights enshrined in the Bill of Rights and later amendments passed after the Civil War.  But the Bill of rights was adopted separately from the Constitution, in fact, ratified by the States a couple of years after the Constitution.  

The original Constitution is not about rights but about governance.  It’s about a structure that delegates the power to get things done but defuses that power to protect against tyranny.  It jealously grants only so much power to the federal government as is felt necessary to the do the job and then splits it between departments of government so they can act as checks on each other.

As Justice Scalia put it:

“ . . . the bill of rights has value only if the other part of the Constitution – the part that really “constitutes” the organs of government – establishes a structure that is likely to preserve, against the irradicable human lust for power, the liberties that the bill of rights expresses. . . . So, while it is entirely appropriate for us Americans to celebrate our wonderful Bill of Rights, we realize (or should realize) that it represents the fruit, and not the roots, of our Constitutional tree.”

He goes on to state “. . . it is those humdrum provisions – the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, “ambition against ambition,” and make it impossible for any element of government to obtain unchecked power- that convert the Bill of Rights from a paper assurance to a living guarantee.”

You can find in the “Constitutions” of the Communist China, and Socialist Russia paeans to individual liberty every bit as inspiring as our own bill of rights.  What you won’t find is a structure prevents the government from taking away those rights at its will and pleasure. 

More and more from those who live to criticize all things American, its culture, its history, its leaders, past and present, you hear the raspy gasps that the Constitution is an imperfect document because it does not meet their own self-deluded modern standards.

It is fatally flawed in their view because it is imperfect when in fact imperfection is the permanent state of mankind and all human affairs. 

Which brings me around to Lord Byron.

A distinguished scholar made this observation about the hangover in despair after the French Revolution 

Of those who invested in the blind belief that the French Revolution would solve all of societies inequities: “ . . . the disappointment that came with the failure of the French Revolution to user in the brotherhood of man and to end the abuses in government and in social and economic life; the disillusionment of those who . . . had hitched their wagons to the star of perfectibility and an idealized human nature and who were forced to resign themselves at last to the sad spectacle of man’s irrationality and imperfection.” 

It was that awakening to the reality of human nature which gave rise to the Romantic hero, the loner who follows his own code despite the corruption and imperfections he encounters everywhere.  Byron’s Don Juan was the earliest version.  The mythic wandering cowboy of the old West and Clint Eastwood’s Dirty Harry Callahan are later-day embodiments.      

The Framers were well-grounded in the history of the French Revolution and the literature and philosophy of the time.  They recognized the imperfection of man and, more importantly, the imperfection in themselves. They knew what they brought forth, though better than what had ever been done before (or since) was not perfect, but it had within it the means to adjust, to revise, to get better, even to experiment. 

Yes, they knew about the flaws regarding slavery.  And, yes a few even regretted that universal suffrage was not on the table, but they knew change was possible and even desirable. They knew neither they nor the instrument they produced could ever be infallible. Something modern day critics can never admit about their own teachings.

In their genius the Framers built into the Constitution a process by which it could be amended.  

Article 5 of the Constitution states, 

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to the Constitution, or on the Application of the Legislatures of two thirds f the several states, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”

Although there are two methods described, only one (that of initiation by Congress) has ever been used. Congress may establish the time frame under which the Amendment may be ratified and has the ultimate authority to decide if in fact was ratified by the States. In 1992 the Twenty Seventh was ratified after 203 years (was part of original twelve amendments proposed and prohibited pay raises for members of Congress during their terms) By contrast the Twenty-Sixth Amendment lowering the voting age to 18 was the fastest adoption of all.

The Constitution is not a perfect document.  However, it is the greatest formulation for the governance of a free society ever put to pen. Debated and drafted by a group of men, who were in the words of Thomas Jefferson, a gathering of demi-gods they made real a vision wider than our modern racial and gender myopia.  They were aborning a nation and sought to build into its fabric a means to insure as much as possible it would defeat attempts to turn its government against the citizens it governed.     

So, no it’s not perfect.  But, Mister, it’s damn good.

(Coming soon, “Evolving Standards? Living Constitution?  That’s what we want? Well, Isn’t it?”  Of course, this assumes I won’t get distracted by more madness on the impeachment front.)

For writings by Phil Cline visit philcline.com

Cline on the Constitution

Cline on the Constitution

Impeachment Chronicles – Part III

I admit to being somewhat mystified. 

My goal in writing these posts is to make the Constitution understandable to the citizens to whom it belongs.   However, even for someone steeped in the more intricate elegance of the Constitution and the Bill of Rights, the events of the last couple of weeks have been, — well, I really can’t find another word for it, — weird.

So rather than taking my usual Eagle’s eye view, I decided to focus on a few basic aspects of the Constitution in the context of what’s been going on in Washington. Keep at ground level so to speak.  It always pays rich dividends to go back to the original language.

Events in the House of Representatives.

Article I, Section I of the Constitution states: “The House of Representatives shall choose their Speaker and other Officers: and shall have the sole Power of Impeachment.” 

Okay so far  

Article II, section 4 specifies the grounds for impeachment:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Two elements here.  The removal from office can only be made after two events occur.  First, an impeachment and Second, Conviction of the specific offenses.

That’s it.  There are no other procedures.  And there are no other grounds.  Those three.  Nothing else.

First as to grounds, some commentators, relying on Hamilton’s explanation in the Federalist Papers of high crimes and misdemeanors as addressing “the misconduct of public men . . . from the abuse or violation of some public trust,” contend no crime is required.  That, however, is not what the Constitution says and is not what Hamilton said.  The historical context of the phrase “high crimes and misdemeanors” makes it clear there has to be a crime, and it must be a crime committed against the State.  

The other two grounds for impeachment are Treason and Bribery.  There was some talk about those.  Even by the so-called expert Constitutional law professors testifying before the Judiciary committee.  However, the case was too weak and no allegation of either was included in the Articles of Impeachment passed by the House.

Another aspect to impeachment provision, which we ignore at our peril, is its applicability to other civil officers.  This includes federal judges, including members of the Supreme Court. More on that later.

The Actual Articles of Impeachment passed by the House (after a mind-numbing day of inane commentary doled out in precious guarded minutes to the members of the House) are first, “Abuse of Power” and second, “Obstruction of Congress.”

The Articles failed to allege any of the Constitutional grounds for impeachment.  

An ironic consequence of not adopting Articles which are based on actual grounds specified in the Constitution is that it theoretically invites a constitutional crisis the Majority party say they fear though never very convincingly. There may be an actual threat here.  

Hypothetically if, in fact there was a conviction in the Senate, it would, on its face, be Unconstitutional.  For the millions of supporters of the President it would be illegitimate.  As the only remedy is removal from office, what if the President said No?  

It’s the difference between the legal authority to do something and the actual raw power to do something. It’s a distinction not well understood by many of those in Congress who have no experience in what it is like to project power as opposed to just endlessly talking about it.  For the vast majority of citizens, it’s one thing to be convicted after a legitimate trial. The expectation is the average citizen says, “well, I don’t like it, but he had his day in Court and he lost. Time to move on.”  It’s quite another for them to be faced with the indisputable notion that the conviction is tainted and fraudulent.

There is also a problem with Vagueness. What do the terms Abuse of Power mean?  What does Obstruction of Congress mean?

A little know aspect of Due Process is known and used by law students and lawyers when challenging a law or a regulation. It is the Void for Vagueness doctrine. It seems like the simplest concept in the world.  A person charged with an offense must have knowledge of the what constitutes violating the law beforehand.  If it is too vague to understand how are they know how to conform their conduct to the requirements of the Law? When a charge or offense is Void for Vagueness it is unconstitutional. 

There has been a significant amount of discussion concerning rules and precedents within each chamber. i.e. what was done in the past, what were the rules used before? 

Article I, Section 5 of the Constitution states “Each House may determine the Rules of its Proceedings, punish its members for disorderly Behavior, and with the Concurrence of two thirds, expel a Member.”

That means the House and Senate get to make their own rules and Courts have no power, no authority to intervene if they are unfairly applied.  Simply because a rule says something or there was some parliamentarian precedent doesn’t mean the rule can’t be changed by the majority.  The only restraint on the rules is Comity.  A high-sounding word mostly observed out of fear that what you do to the minority party will be, someday, done to you if you lose the majority.  

One of the Congressmen did make a point that stuck home with me.  As many have said and as I warned in my last post there is a real danger if impeachments become a routine political tool used to remove a President whom a majority in the Congress object to.  But is there a further danger?  

This Congressman compared the danger of routine impeachments to what has happened to Senate Confirmation battles over appointments to the Supreme court. Before Ted Kennedy led a brutal assault against Justice Bork (see previous posts) confirmation hearings were formal, and dignified affairs.  Since then they have devolved to scurrilous and baseless character assassinations as was done to Justice Thomas and Kavanaugh.  Are we on the verge of seeing a similar development as to Presidents and will that lead to using the same tool being against other civil officers such as sitting federal judges including Justices of the Supreme Court?

And what’s more the Court’s don’t get to interfere.  Other than the Chief Justice presiding, the courts can’t influence impeachment proceedings.  In the case of Nixon (the judge not the President) vs. U.S. decided in 1993 it was held that whether the Senate had properly tried the impeachment of a federal judge was not judicially reviewable.  Fair or unfair, the courts could not stop it.

On to The Senate

Article I, Section 3 states: “The Senate shall the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside:  And no Person shall be convicted without the Concurrence of two thirds of the Members present.

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 United State: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to law.”

Two things here.  Nothing says the Senate has to try an Impeachment.  Having sole power means the ability to proceed as desired or not at all.  And there is nothing requiring a physical transfer of the Articles nor any rule requiring the Senate to hear from the House at all. As to an oath: one is required, but it is not defined.

The maneuver taken by the House majority in holding back the Articles reminded me of my days as a District Attorney when a high-profile crime received a great deal of press attention.  There were always a few a Police Chiefs and even a Sheriff’s captain or two who sought to shift responsibility for the case to my office before they did necessary and sometimes difficult investigation which was required to actually prove the case.  Their assumption was that the political pressure of doing an arrest would require us to file the case before it was ready to be filed.  They recklessly wagered I would not want to face the public fall out by seeing the arrestee released by refusing to file the case before the evidence was nailed down. 

They learned different.  I considered it a cheap trick and I told them so to their face and showed them I knew how to surf the political winds of making difficult intensely scrutinized decisions as well as they. They learned not to short circuit their investigations and to do their job before they submitted a case.  

It seems that the Majority didn’t learn that lesson.  They rushed their investigation, got a little cute with their charges and then thought they could use the case as leverage to require another entity to do their work for them.  And take responsibility for it.  I don’t know if Leader McConnell will fall for it or if his razor thin majority will hold. It’s easy to talk about but facing down a hostile press and taking the long view in a critical political situation isn’t easy. I had absolute control as a chief executive of a department with plenary power.  McConnell’s situation is more nuanced. 

But he’s a wily old fox. 

Good luck.

Impeachment continued

Impeachment continued

Cline on the Constitution

Impeachment Chronicles – Part Two

The Judiciary Committee of the House of Representatives held a hearing last week. It was a yeoman’s attempt to underpin all the speculations and opinions being passed off as facts with legal speculations and opinions on whether all the speculations and opinions would be enough to rid the country of the awful man in the White House.  All in all, it was a sad attempt. 

The panel was made up of four Constitutional Law Professors.  Three were selected by the controlling party and one by the minority party.  

Of the three; heavyweights as far as academic credentials go, lightweights as far as real life credentials go; they had their minds made up years ago that this President had to go.  They had staked out their position long before the matter of Ukraine entered the general consciousness. To a tee they acted out their role of elite patricians talking down to the plebeians, the mob, the rest of us common wretches who might dare to question why Congress was expending so much time and money on a fool’s errand.   

John Healey, a columnist for the L.A. Times wrote of the three, “None showed a glimmer of doubt making them seem at times more like ideologues than academics. It would have been better to have professors more interested in gray areas and who acknowledged the possible existence of other explanations for Trump’s behavior. That sort of witness might have prompted committee members to abandon their prepared statements, put down the leading questions prepared by their staffs and engage in a real back and forth exploring the Constitutional principles.”

Indeed. Their bias was so extreme it could only be termed bitter.  Even mean. One of their number so consumed with her disdain she thought nothing of causing the public humiliation of the President’s 14-year-old son.  As professors of law the three turned out to be poor examples.   Maybe on other subjects related to the law, they can brilliantly recount case decisions and relate them to unique fact patterns, but on the subject of impeaching this President their bitter and overreaching bias led them to contentions ludicrous to anyone with a basic grounding in Constitutional law.

The Fourth member of the panel, Professor Jonathan Turley of George Washington University Law School was more circumspect.  He reaffirmed principles I outlined in my last blog concerning the limited meaning of “High Crimes and Misdemeanors,” and the danger that proceeding to impeachment on such a thin record the House has produced to date with such, as he put it, “a paucity of evidence” is a mistake with far reaching consequences.  It will inevitably lead to the routine use of impeachment as a political tool.  Something the framers had specifically warned against.  He also urged everyone to put down the hate and anger and engage in a civil discussion of such weighty issues.  I knew this meant trouble for him.

As I sat in my comfortable living room with my nice hot cup of coffee, I thought to myself, “Oh no, John, the Brownshirts of the Left are going to come after you, Son.”  And they did.  His home and office were already receiving death threats and hate filled messages while he was still seated at the table in the hearing room.  I predict they aren’t through with the poor bastard yet.  Expect lies, deception, and attempts to destroy his career.  A professor, in today’s environment on college campuses, arguing it would be better if everyone put aside their anger and act rationally?  Yeah.  Good Luck with that, John.

The attorneys for the Majority and Minority who did most of the questioning were little better.  As my coffee grew cold, I was thinking, “My God, is the best my profession can muster for as important enterprise as this?”  

Alan Dershowitz, himself a Harvard professor of Constitutional Law, wrote, “Wednesday’s House Judiciary Committee impeachment hearing squandered an opportunity to educate the public about the criteria for impeaching a president. Instead of each side cross-examining opposing witnesses, Democrats and Republicans mostly threw softballs at their own witnesses. There were a few momentary exceptions, but for the most part what we heard from four legal scholars were prepared lectures that repeated what the witnesses had previously written.”

He went on to say that because the witnesses were allowed to “express their rehearsed views without having them challenged by adversarial questions, they studiously avoided the facts and kept their comments conclusionary as if their elite academic status brooked no challenge from such small concerns as the true facts and actual evidence.”

He concluded with a bit of prescient wisdom concerning the abject failures of the Attorneys hired to assist with questioning. 

“Our nation is deeply divided over the impeachment issue. There is far too little reasoned dialogue and there have been too few constructive exchanges about these different views. Effective cross-examination can force advocates to modify extreme views and to bridge differences. Perhaps neither side wanted that. Their bases demand the uncompromising advocacy of extreme positions. But the American public is entitled to nuance and narrowing of differences. Had the Democratic experts been effectively cross-examined, they would have had to justify their contention that the governing criteria for impeachment include abuse of office, corruption, violation of public trust, maladministration, bad conduct, placing partisan interests above national ones, and other vague, open-ended criteria of the kind the framers explicitly rejected.”

There was discussion of proposed grounds for impeachment articles reportedly drafted before the hearing opened.  I discussed “High Crimes and Misdemeanor” in my last post.  “Bribery”, a further ground delineated in the Constitution and “Obstruction” nowhere mentioned were also discussed though the points being made were difficult to follow through the fog of posturing and self-serving obfuscation.

Two relevant Supreme Court cases were mentioned.

The first case reference people might have heard but not understood was to McDonnell vs. United States. The Pro-impeachment professors avoided discussing it because they wanted to expand the definition of the crime of bribery when in the McDonnell case the Supreme Court had specified it was limited.  

In the case, the governor of Virginia, Robert McDonnell and his wife were indicted and convicted by a jury of accepting over 175K in loans, gifts, and benefits from a Virginia Businessman.  These included buying 20K in designer clothes for the wife, 15K to help pay for daughter’s wedding and a 50K loan to help with their financial situation. The businessman had developed a nutritional supplement made from a compound found in tobacco.  He wanted to have his product researched by public universities and hoped the Governor would facilitate his obtaining those studies.   The Governor had arranged meetings between the businessman and government officials, hosted events featuring the product at the governor’s mansion and made numerous contacts with university and pubic officials concerning the research studies the businessman wanted done.

The U.S. dept of Justice, contended that all the efforts made by the Governor were “official acts” done on behalf of the businessman and fit within the bribery stature that made illegal receiving any sort of gift, loan etc. in return for an official act.  The Court of Appeal had upheld the conviction.  But the Supreme Court reversed and threw out the conviction.  And the vote was unanimous.

The opinion was written by Chief Justice Roberts.  

The court found that the Department of Justice had given such an expansive definition to an “official act” that it raised significant constitutional concerns.

In the context of the Ukraine imbroglio the term quid pro quo has been much bandied about.  In the McConnell opinion, Roberts wrote that under the government’s interpretation “nearly anything a public official accepts from campaign contributions to lunch counts as a quid and nearly anything a public official does – from arranging a meeting to inviting a guest to an event counts as a quo.”  And such an interpretation is unconstitutional.

Sounds familiar.

The danger, an old one: The attempt to politicize the criminal law or criminalize politics

The court said “we decline to construe the (Bribery) statue in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of good government for local and state officials.” 

As to “Obstruction,” an effort was made by some on the committee to equate non-compliance with a subpoena from Congress as Obstruction of Justice. It is not. The differences in opinion were largely based on procedural notions.  Some contended just the act of denying a Congressional Subpoena is Obstruction.  It is not until there is an attempt to enforce it which requires taking the matter to court.  And when the Congress goes to Court, they must overcome justifications for the Executive Branch not complying such as the assertion of Executive Privilege. 

What is Executive Privilege and what is 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.

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 Warren Burger stated in U.S. v. Nixon, the case referenced in the hearings, but which remained unexplained.

Burger in the U.S. v Nixon described 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.”

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.

However, the ruling was qualified.  It was 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 is a clear implication that if such an assertion had been made, the court may have upheld the declaration of Privilege.  

One more interesting aspect to this:  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.  Good thing.  One must question whether Congress any longer contains men and women who can be entrusted with confidential information. 

And on it goes.  So far, we have seen little that measures up to the standards we would expect for an exercise of a serious Constitutional power like Impeachment. 

But, we ain’t done yet. 

For more writings by Phil Cline you are invited to visit philcline.com   

Impeachment

Impeachment

The Impeachment Chronicles-Part One

Demands for the impeachment of President Trump have come from various quarters since before he was sworn into office.  Any pretext has sufficed.  If one turned out to be groundless, another has been quickly adopted.  There are two major characteristics in the demands.  

The first is that there is an intense desire to remove him from office by any means necessary or at the very least to undermine his ability to use the power of his office.  Understandable.  He’s brash, boastful, bombastic, the proverbial bull in the delicate china shop of “politics as usual.”  Many believe breaking a few dishes, nationally as well as internationally, has long been needed, others are horrified at all the broken pieces of their assumptions littering the floors and hallways of their previously impenetrable government sinecures.

The second, and much more important development, is a consistent lack of respect for the Constitution and time hallowed legal principles in the increasingly desperate desire to bring to him down.

As I’ve monitored the recent hearings on the “Impeachment Inquiry” I find myself shaking my head at how easily otherwise intelligent, and supposedly learned individuals have spread misinformation about the Constitutional basis for Impeachment. Many of them should know better.  The empty-headed opinion purveyors in the media are one thing, but to see individuals with backgrounds in the law, perpetuating legal canards is disappointing.

There are many examples to list.  Because my space is limited, I will touch upon just two.  

The first is the conduct of the Impeachment hearings and the questioning by legal counsel for both the majority and the minority.  Though the bug-eyed chairman, Adam Schiff, once a lawyer, consistently perverts the truth, from him it is expected.  And, of course, the individual congressman in their five-minute rounds are congenitally wired to preach rather than engage in meaningful inquiry. Some are just stupid. One of their number even suggesting hearsay evidence is the best evidence one can have. Okay, our expectations for such people in how to develop evidence is low.

Not so for the staff Counsel.  They know better than to ask for second and third hand hearsay, for speculation, inadmissible personal opinions outside a witness’s field of expertise, answers to hypotheticals without bothering to prove the facts that make up the premises for the hypotheticals, and to misstate evidence and mischaracterize the context of oral statements.  In a real court of law, the actual admissible evidence produced in these hearings over days and weeks would have taken, at the most, one productive morning.  In short, little of the questioning we’ve seen was designed to get at the truth. The obvious reason was because the questioners weren’t really after the truth. They were after putting language in the mouths of the witnesses, true or not.  And there was no Judge or Magistrate to keep their efforts within reasonable bounds. The hearings so far have been a legal wasteland.

Rules of evidence, developed over hundreds of years, are designed to get at the truth and limit admissible evidence to only what is trustworthy.  We ignore these rules at our peril.  You don’t have to be a lawyer to know how false and destructive unfounded rumors and second-hand information can be.  It’s doubly so in a legal proceeding.  And Congress is where laws are supposed to be made.  Yet basic principles of law seemingly had no place in the hearings just concluded.  And, consequently, little that came out of the hearings had the hallmarks of trustworthiness.  

The second characteristic I wanted to discuss is the perversion of the Constitutional basis for Impeachment.  The grounds for impeachment are actually expressly specified in the Constitution and they do have meaning.  Real meaning.  Treason has an actual meaning.  Bribery has an actual meaning.  (Though the term Bribery was used from time to time, since there was a paucity of evidence to support it, no serious effort was made to match actual evidence with the definition of the crime.) And, lastly High Crimes and Misdemeanors has an actual meaning.  And about the latter one a much cited misinterpretation of its meaning needs to be put to rest.  High Crimes and Misdemeanors is NOT whatever a majority of Congress says it is.

I even read an article by a UC law professor, respected in many quarters, who though he has a an oft expressed hatred for the President and his policies, quoted Gerald Ford for the axiom that High Crimes and Misdemeanors can mean anything a majority of Congress says it is. It’s one thing to quote Hamilton. One thinks of the elegance of the Federalist Papers.  It’s quite another for a law professor of all people to quote Gerald Ford who makes one think of a clumsy interior lineman from Michigan.  Nice man, but certainly no constitutional scholar.  

The pundits and even some members of congress have been quoting the same aphorism. They look into the camera and nod wisely. One expects them to wink at any moment.  

Well, it’s not true and when those who swore to uphold and defend the Constitution blithely disregard the Constitution, one wonders at the messages sent to our fellow citizens much less to our youth who should be watching the process and to the teachers we would expect to lead their discussions.    

What does the Constitution actually 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 of 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. The Presidency would be severely weakened.  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.”  It was meant to be a narrow definition not a broad one.

“High Crimes and Misdemeanors” does not refer to routine crimes.  For example, a common Drunk Driving charge is a misdemeanor.  And stealing a car is a felony (at least everywhere but California). Those are not the kind of crimes 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 grounds for removal of the President are narrow. They were designed precisely not be what some majority decides they will be.  Taking such a tack is injurious to our Constitution and our ability to effectively govern ourselves.

As was seen in the impeachment of Bill Clinton, petty politics by petty venal politicians (that time by the other party) usually won’t result in the removal of the President.  It won’t this time either, but the damage done to the public’s understanding of the law and their Constitution may be irreversible.  

Impeachment was, for the wrong reasons, done to Clinton. The first impeachment of a President in a century.  It’s being done to Trump only a few years later.  And the time frame, if we continue to misapprehend the impeachment process will get shorter and shorter until we can expect the Impeachment of a President to be routine when one party controls the congress and wants the power of a presidency controlled by another party.

And we will be a weaker nation for it. 

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

Right to Confront Witnesses

Right to Confront Witnesses

In 1603, Sir Walter Raleigh, one of the most celebrated men of his era, was brought to trial for treason based upon accusations generated by the Spanish Ambassador. The evidence used against him was testimony taken in secret and a letter by an alleged accomplice, a man named Cobham.  Raleigh demanded the witness against him be brought forward so that his motives to lie could be examined in public.  He proclaimed, “Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.”  Raleigh suspected that if the witness was called to the stand before the judges he would recant. Raleigh demanded that the judges require the witness to appear, arguing that “[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face ….”  

His request was refused.  He was convicted, sentenced to death and beheaded.  One of the judges at Raleigh’s trial later said of the proceedings, “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”

The injustice of Sir Walter’s case was recalled by Justice Antonin Scalia in Crawford v Washington, a case decided by Supreme Court in 2004, which reversed a conviction because the accused had been denied his right to confront and cross-examine the witnesses against him.  It is the leading case on the Right to Confront and Cross-Examine the Witnesses against you.

As impeachment fever has spread through our body politic, proceedings in Washington remind one of Sir Raleigh’s case.  Secret proceedings and testimony, the use of anonymous informants posing as whistleblowers, denial of the right of cross-examination, documentary evidence hidden from the accused, threats by members of Congress to arrest and hold members of the rival political parties in Cages.  The head spins with the implications.  The procedures employed resemble nothing so much as the Star Chamber, used in Merry Ole’ England to eliminate political opposition.  

As I have written in the past, it is indisputable that our most precious rights, from Freedom of Speech to Freedom of Religion to Due Process are not granted by the Constitution nor given to us by the Bill of Rights. Instead our rights exist apart from those documents, though they are protected by them. To the Framers our rights were given us, not by men, but rather by our Maker.  They are human rights to which everyone is entitled.  Nevertheless, the great men who gave birth to our nation, thought it wise to specify rights requiring special protection.  And that, in turn, enshrines them as universal values in our society.

The Sixth Amendment provides, inter-alia, that “the accused shall enjoy the right to a speedy and public trial, . . . ,and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.”

While legislative actions of Congress are not judicial proceedings once they step outside the legislative role, such as in impeachment proceedings, they are, as Hamilton said in the Federalist Papers, engaging in the nature of a judicial proceeding. There is an indictment procedure, a trial and conviction or acquittal.  And as such questions of Due Process, Right to Counsel, Right to Examine evidence and the Right of Confrontation are very much at issue.  

What we don’t have from past cases or practice is a clear picture of the scope of these rights in impeachment proceedings. I will most likely comment on issues as they arise in the coming weeks and months, but it will be helpful to just address one issue at a time. What is clear is that our values are reflected in respect for concepts such as the Right to Confront the Witnesses.  And if we are to honor or discount them in the coming such values in future proceedings will be meaningful in what we are saying to the public, our fellow citizens, indeed our children who ready or not are going to inherit and be responsible for our way of governing ourselves.

The right to confront one’s accusers is a concept that dates back to Roman times.

A few decades after Sir Walter Raleigh lost his head, the Courts of England accepted the justice of the concept to a civilized society. In 1696, The question was debated at length during infamous proceedings against Sir John Fenwick on a bill of attainder. Fenwick’s counsel objected to admitting the examination of a witness who had been spirited away, on the ground that Fenwick had had no opportunity to cross-examine.  He said, “[N]o deposition of a person can be read, though beyond sea, unless in cases where the party it is to be read against was privy to the examination, and might have cross-examined him …[O]ur constitution is, that the person shall see his accuser”.

By 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases.

During the debates over the drafting of the Constitution, A prominent writer criticized the use of untested evidence.  “Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of the facts in question. [W]ritten evidence … [is] almost useless. . . . and very seldom leads to the proper discovery of truth.”

The First Congress responded by including the Confrontation Clause in the proposal that became the Sixth Amendment.

As Scalia proclaimed in the Crawford case, “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” The constitutional text, like the history underlying the common-law right of confrontation, “thus reflects an especially acute concern” with an out-of-court statement.

The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.

“Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” 

As we edge ourselves along a dangerous precipice for our nation and our way of governing ourselves, it is well that we be open to how our actions are reflecting our values.  The use of secret proceedings and untested witnesses is dishonorable and has no place in as important a judicial proceeding as Impeachment of a President.  

Cline on the Constitution

Cline on the Constitution

Cline on the Constitution – the Census Question and the Politization of the Court

Summer vacation is over, and the Supreme Court’s traditional opening for the new term the first week of October draws nigh.  With a brutal campaign for President unfolding the stage is set for what could be a turning point for the Supreme Court. Will it continue on its current path or return to its role of a fair and unbiased interpreter of the Law?  And will its path be selected on legal principle or out of fear of the consequences of its decisions?

We will attempt to answer this question over the next few months as decisions come down.  For now, I’m going to spend longer than usual on my opening piece setting up a peek through the window into the politicization of the Federal Court System.    

Two strains of popular wisdom concerning the role of the Judiciary exist. 

The first is that the Court is above politics, decides cases only on the law and eschews the political power contests entrusted by the Framers to the Congressional and Executive branches.  Judges and Justices are fond of propounding this idealized version of their role in society.  

The second is that the Court is just as apt to have their finger in the air testing the political winds as a small-town southern Sheriff. Increasing numbers in both the population at large and (though they prudently would never say it out loud), the legal profession ascribes to this view.  

The first view, that the Court is an unbiased arbiter of the law is a canard.  It has never been completely true. However, the Court for most of the Republic’s history tried to keep federal courts from being overtly political.  Their efforts were aided by adherence to self-imposed rules of restraint in which they insisted Federal courts defer to the political branches, the Congress and Presidency, when they were tempted to step into areas in which unelected Judges have little expertise, and absolutely no competence.  

Last term it became clear there is no curtain to hide behind anymore.  The decisions of a great many Federal District and Appellate Courts were consistently political and biased.  And the Supreme Court is gradually being sucked down into the same quicksand.  In my opinion, it’s no one’s fault but their own.  

Chief Justice John Roberts, someone I have long admired, has proved surprisingly susceptible to being compromised.  To use his own term his decisions on high stakes political cases are merely a “pretext” to avoid having himself or his Court labeled too Conservative.  And like most conservative thinkers who make sincere attempts to compromise it is never good enough for those who want their very soul. It is inevitably a Faustian bargain.

One incident last term highlighted the hypocrisy.  Chief Roberts called out the President for implying federal court decisions could be predicted based upon which President appoints the federal judge.  

This was only shocking to the unthinking and willfully uniformed.  Even the News media reports who appointed the federal judge when a decision is published. 

What made it controversial is the Chief jumping into the fray and maintaining the opposite. He said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.  That independent judiciary is something we should all be thankful for.” 

Only were it true. 

Before the ink dried federal courts provided persuasive evidence to the contrary.  In response to yet another challenge to the President’s fruitless attempts to address illegal immigration, on one side of the country, a federal judge refused an application for a nationwide injunction on newly propounded asylum rules.  On the other side of the country a federal judge was only too eager to do the opposite and grant the injunction. 

Guess which one was appointed by Obama and which one was appointed by Trump.  If you know the answer without asking, then maybe the President had a point.

And then there are the Members of the United States Senate who not only have adopted character assassination into its Advice and Consent role, as it did with the Kavanaugh and Thomas hearings, but now overtly threatens the Supreme Court with consequences if it decides a case in a manner the Senators disagree with. These same members of the Senate actually filed court briefs and issued a public warning to the Supreme Court not to decide a pending case by upholding the Second Amendment to the Constitution. They expressly threatened to restructure the Supreme Court if the Court decided the case contrary to the Senator’s wishes.  

If one has lived an honorable distinguished life in the law only to be placed under the most scurrilous attacks by false accusations, do you not think the individuals would take such threats seriously? Is there a chance they may modify their decisions out of fear? Would it surprise anyone?  Is not instilling fear the ultimate goal of confirmation by destruction?

Our Chief Justice, whom I have long admired for his intellect and legal mind may in fact be the latest example of what the threats will do to otherwise reliable conservative voices on the Court.  

His latest opinion on the issue of a census question invites the conclusion that the Court will engage in the most political of decisions and damn settled law along the way. And in the process open the Court to even more fervent political manipulations in the future.

In Department of Commerce vs. New York the easy compromise of legal precedent and principle in service to political expediency is on stark display. 

The issue involved in the case was whether a question would be propounded in the next census about the citizenship of persons being surveyed.   

First the basics.

The Constitution requires an “Enumeration” of the population every 10 years to be made “in such Manner” as Congress “shall by Law direct.”  Congress, in turn delegated the task of conducting the decennial census to the Secretary of Commerce “in such form and content as he may determine.” 

The Supreme Court has repeatedly recognized that the census has been used to gather information on race, sex, age, health, education, occupation, housing and military service as well as other subjects as varied as radio ownership, age at first marriage and native tongue. The Census Act obliges the Secretary to keep individual answers confidential, including from other governmental agencies.

In the 22 decennial censuses from 1790 to 2000 a question about citizenship or place of birth had been asked.  

In 2010, the question was not asked.

In March of 2018 the Secretary of Commerce, Wilbur Ross, announced the question would be reinstated in the 2020 census.

While, there was much gnashing of teeth, the most strident argument was over whether the question would depress response rates from non-citizens.  Given the fact that untold millions of illegal aliens reside within the United States and untold billions of dollars as well as dozens of Congressional seats would be allocated by the demographic information collected in the census, there was an understandably intense interest in banning the question from being asked if there was a chance it would change the bottom lines.

Secretary Ross in writing maintained that he “carefully considered” the possibility that reinstating the question would depress response rates, but that after evaluating the “limited empirical evidence”, he concluded it was not possible to “determine definitively” whether inquiring about citizenship in the census would materially affect response rates. He went on to note the long history of the citizenship question on the census as well as the fact that all major democracies such as Australia, Canada, France, Indonesia, Ireland, Germany, Mexico, Spain and the United Kingdom inquire about citizenship in their censuses.

One may not agree.  But it was his call to make and he made it. So far so good. 

Then the legal challenges began.  And the Federal Courts were only too pleased to intervene.  “Hold on” they in effect said.  “You can’t govern, you can’t make decisions without getting our august approval first.” 

And that is the real rub to the case. The import of the decision was not whether the Secretary made the right call.   Rather it is what roll the framers envisioned for the Courts in such situations? 

By a 5 to 4 vote, with Chief Justice Roberts penning the majority decision the case was returned to the lower court for further proceedings to clarify the decision-making process of the Secretary.  Everyone, including the justices on the Court, knew that ordering such an action killed the question because there was too little time to fight the legal battle and meet the statutory deadlines for conducting the census. 

Contrasting the Roberts opinion with the opinion of the dissenting justices leaves little doubt that the decision was a political one. 

Leading off, the Court declined to involve itself in the question regarding the depression of response rates. “We may not substitute our judgement for that of the Secretary, but instead must confine ourselves to ensuring that he remained within the bounds of reasoned decision making.”  So, yep, the Secretary can make the decision like the law empowers him to do, but the reasoning better be up to the Court’s standards.

The Court felt it had to address two questions. 

The first was whether his course of action was supported by the evidence before him. The Court found it was.  Remember that.  At this point the Court has said the Secretary’s action was legal and constitutional and had an evidentiary basis to take the action he did.   The court said, “The choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make. He considered relevant factors, weighted risks and benefits, and articulated a satisfactory explanation for his decision.”  What, pray tell, could be the problem?  

It’s in the second question which is the strange one.  Whether the Secretary’s rationale was “pretexual”?

Chief Justice Roberts noted that the lower court had found the evidence established the Secretary had made up his mind to reinstate a citizenship question well before he took office. And he the Chief agreed that there is nothing objectionable or even surprising in this.  At least, as Roberts says, “up to a point.” 

The Court said, “It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy.  The record here reflects the sometimes-involved nature of Executive Branch decision making, but no particular step in the process stands out as inappropriate or defective.”

Yep.  This is how the art of governing works.  So, what’s the problem?

Evidently, something didn’t sound quite right to the Chief Justice. After reviewing thousands of emails and over 12000 pages of other documents, he said, “We are presented with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision-making process.”

He felt that the Court “must demand something better than the explanation offered for the action taken in this case.”

Huh?  Talk about overreach!

The dissent led by Justice Thomas, Gorsuch and Kavanaugh was brutally direct in their criticism of majority decision.

The dissenting opinion states, “The Court . . . for the first time ever . . . invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.” 

And they went on say the decision echoes “the din of suspicion and distrust that seems to typify modern discourse.” In other words, the Court has now got down in the mud with everyone else. 

The Justice continued, “The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions.”  And a warning is issued about future cases and the impact that they will have on the Court.  “It is not too difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest-group pressure, corruption, and animus.  Crediting these accusations on evidence as thin as the evidence here could lead judicial review of . . . to devolve into an endless morass of discovery and policy disputes.”

And here is the key problem with Roberts decision.  The dissenting Justices say, “Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding the at he must not be telling the truth.”  He goes on to say, “The Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion.”

There is one last acknowledgement of how governing actually works in real life.  “None of this comes close to showing bad faith or improper behavior. Indeed, there is nothing even unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape.”

Well, yes.  That’s why we elect people in the political branches! And why unelected federal judges should confine themselves to the law.

Otherwise the prophesy left us by the dissenting justices will surely come true.  

They said, “With today’s decision, the Court has opened a Pandora’s box of pretext-based challenges in administrative law. . .  Having taken that step, one thing is certain: This will not be the last time it is asked to do so.  Virtually every significant agency action is vulnerable to the kinds of allegations the Court credits today.”

And he continues, 

“Now that that the Court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them.  Moreover, even if the effort to invalidate the action is ultimately unsuccessful, the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay and distraction.  The Court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws.”

Fear.

He ends with a forlorn hope. About this decision he says since it is such a departure from traditional principles of administrative law, “Hopefully it comes to be understood as an aberration — a ticket good for this day and this train only.”

I’m afraid not.

For more writings by Phil Cline visit my secure website at philcline.com

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!”