Sunday, February 12, 2017

Could the 9th Circuit “Travel Ban Case” Judges Be Removed from the Bench?

Impeachment of President Andrew Johnson Ticket
A  Public Policy Polling survey released Friday showed that  46 percent are for impeaching the 45th president and the same percentage are against the extreme measure.  Of course, Public Policy Polling has been intelligently criticized for it poor polling practices and extreme liberal bias. I think this is particularly true on a poll asking non-legally trained individuals about “impeaching” the President.  Clearly, President Trump can only be “impeached” pursuant to the U.S. Constitution Article II, §4 which states: “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.”

Even those most vehemently opposed to President Trump have not claimed that he has committed treason which is defined at18 U.S. Code §2381 as “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.”  President Trump is not leveeing “war” against the United States.  Just as clear, no one is alleging that President Trump has accepted “bribes” as President.  

Which leaves the question of whether by any stretch of the imagination President Trump has committed any “other high crimes and misdemeanors.”  The phrase "high crimes and misdemeanors" is not defined in the Constitution or in statute. It was however used in many of the English impeachments, which were proceedings in which criminal sanctions could be imposed upon conviction. See: Federal Impeachments, 64 U.P.Law Review 651, 676-695 (1916). Thus, under the broadest possible definition of “high crimes and misdemeanors”, President Trump would have to be accused of some sort of criminal infraction.  This, of course, is an accusation that no one is credibly making. 

Hence, for the Public Policy Polling to ask “Would you support or oppose impeaching Donald Trump?” is akin to asking: “Do you hit your wife with your right hand or your left?”  It assumes facts that are not present in order to evoke an emotional response to the end of supporting a public narrative for political ends.

Which brings me back to the Ninth Circuit Court of Appeals Judges William Canby, Richard Clifton and Michelle Friedland and the now-pertinent question: “Can these judges be removed from their judicial offices?”  I believe they could – and should – be removed and here is why:

The U.S. Constitution at Article III, §1 states: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour. . .” Thus, if Judges Canby, Clifton and Friedland engaged in the opposite of “good behaviour” – or stated another way for convenience, “misbehavior” they could be removed from their judicial offices.

“In England, the Crown was obligated (presumably by custom) to lend its sanction to forfeiture [of judicial office] cases when a private citizen complained of misbehavior.” 4 Matthew Bacon, A New Abridgment of the Law, 416 (London, Worrall 3rd Ed. 1768).  English law provided a  proceeding to forfeit the office by a writ of scire facias. An act “contrary to what belongs to his office” resulted in forfeiture of the office appears in the Abridgments of Viner and Bacon and in the Digest of Cromyns, which faithfully reflect these cases. Did Judges Canby, Clifton and Friedland, by entering their Travel Ban Order, act “contrary to what belongs to [their] office”?

I say: Yes. “What belongs to” a judicial office was clearly laid out in in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) where Chief Justice Marshall for the U.S. Supreme Court stated: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.. . .This is of the very essence of judicial duty.”

Here, the statutory provision President Trump cited as the legal basis for his order – 8 U.S. Code §1182 – requires the President to give a reason for suspending visas. Such reasons can include anything from individuals having spreadable diseases to them posing a risk to the American public's safety. 

However, in their Travel Ban Order, Judges Canby, Clifton and Friedland ignored 8 U.S. Code §1182 as apparently inconvenient to their politically-motivated decision. This ignoring of their "judicial duty" to decide on the “operation of each” – here 8 U.S. Code § 1182 and their claimed First  and Fifth Amendment concerns – breaches their Marbury duty.

Thus, I argue that Judges Canby, Clifton and Friedland have “misbehaved” and thus are subject to an action to forfeit their judicial offices. Otherwise, judges can usurp power not delegated to them and act like an unelected, super-legislature and decide cases and create law without any reference to conflicting and settled principles of law and statutes.

This is, of course, the very definition of tyranny. But that is just my opinion.


Thursday, July 21, 2016

A New Social Network

For the past few weeks I have been working on a project that diverges significantly from my prior efforts.  That project is a new type of Social Network platform found at Alt19.co (not ".com").

Today, I am launching this Social Network.  The target audience is those who find the censorship which is rampant in the exisiting social media platforms unacceptable in a society of free speech. 

Notably, Twitter, Facebook and Reddit among others have all decided they have the "right" to determine what can be said and what cannot be according to their "moral" code.

I believe just the opposite.  That a free society can only grow as a result of enduring the "free speech" of idiots, trolls and the like as the alternative is an enforced-from-above idealogy that can only trend towards tyranny of thought, word and then deed.

That is why Alt19.co is a private, uncensored social network. Say what you like.  Our "Privacy Policy" is that we have no "Privacy Policy".  The site will be unmoderated and a post will not be removed because it offends someone.  If you don't like what you are reading, leave.

There are too many serious issues facing the Republic to not have a public space to discuss those issues without fear of censorship.  My hope is that Alt19.co will serve that end.  I invite you to explore Alt19.co and join the unmoderated discussion of the issues that are important to you.


Tuesday, July 5, 2016

The DC Madam, CarMax and the American Bar Association

There is not just one reason why the sealed-from-the-publc D.C. Madam Escort Service records I possess should be released before the Democratic & Republican Conventions coming up this month. There are several, and here is another:  On June 22, I gave testimony regarding those records before the National Advisory Committee on Institutional Quality and Integrity (NACIQI) of the U.S. Department of Education.  

In that 3-minute presentation, I tie together: (i) the D.C. Madam records, (ii) CarMax  -- my former employer who terminated my employment when I raised on the CarMax email system wage and working condition issues with 5,800 of my fellow CarMax employees (see KMXCollective.com for more information) -- and its 1,000 lawyer law firm that bills $.5 billion/year and (iii) the abysmal state of the legal profession and the lack of access to Justice that 65 years of the American Bar Association running the legal profession like a medieval guild has produced.

I recognize that success has a thousand fathers and failure is an orphan, but at least I was there raising my voice.  The result: Is the ABA on Verge of Losing Law School Accreditation? 

These are the issues that I believe are vital to be raised and discussed during to the Presidential and Congressional campaigns that are underway:
  • Access to legal counsel and the courts;
  • The Administration of Justice; and 
  • The gross disparity between multi-billion dollar corporations and the working person when conflicts over employment arise. 
Take your choice: They all need to be discussed in the coming days until we elect a new President and Congress.