Sunday, January 19, 2020

Happy Birthday Dr. Martin Luther King, Jr.

Dr. Martin Luther King, Jr. Civil Rights Era in the United States of America - A Brief History

Martin Luther King, Nobel Peace Prize 1964

African American civil rights leader Dr. Martin Luther King, Jr., is awarded the Nobel Peace Prize for his nonviolent resistance to racial prejudice in America. At 35 years of age, the Georgia-born minister was the youngest person ever to receive the award. History

Born: 15 January 1929, Atlanta, GA, USA
Died: 4 April 1968, Memphis, TN, USA
Residence at the time of the award: USA
Role: Leader of "Southern Christian Leadership Conference"
Prize share: 1/1
For Civil Rights and Social Justice

Martin Luther King dreamt that all inhabitants of the United States would be judged by their personal qualities and not by the color of their skin. In April 1968 he was murdered by a white racist. Four years earlier, he had received the Peace Prize for his nonviolent campaign against racism.

King adhered to Gandhi's philosophy of nonviolence. In 1955 he began his struggle to persuade the US Government to declare the policy of racial discrimination in the southern states unlawful. The racists responded with violence to the black people's nonviolent initiatives.

In 1963, 250,000 demonstrators marched to the Lincoln Memorial in Washington, where King gave his famous "I have a dream" speech. The following year, President Johnson got a law passed prohibiting all racial discrimination.

But King had powerful opponents. The head of the FBI, John Edgar Hoover, had him placed under surveillance as a communist, and when King opposed the administration's policy in Vietnam, he fell into disfavour with the President. It has still not been ascertained whether King's murderer acted on his own or was part of a conspiracy. Read more

Tuesday, December 24, 2019

Happy Christmas, War is Over

Message from Yoko Ono Lennon,

Dear Friends,

The WAR IS OVER! campaign was once a tiny seed, which spread and covered the Earth.

John and I believed it helped many people to stop their wars. Since then, every WAR IS OVER! campaign has impacted the world as powerfully as the first one.

Start yours tomorrow, and you will see that it spreads and covers the world very fast and, meanwhile, makes you a Small Pebble Person.

Small Pebble People are people who know that small pebbles, when they’re dropped in the ocean, will immediately affect the ocean of the whole wide world.

Don’t throw a big stone. It scares people and creates repercussions.

Just drop a small pebble.
We’ll keep doing it. Together.

That’s how the world gets changed…by Small Pebble People.
We change, and the world changes.

Happy Holidays.

I love you!

Yoko Ono Lennon
11 November 2018

Saturday, November 9, 2019

ABA Legal Fact Check: Trump’s Fight with Congress Will Likely Test Separation of Powers

ABA Legal Fact Check: Trump’s Fight with Congress Will Likely Test Separation of Powers

Separation of Powers
American Bar Association
ABA Legal Fact Check
Posted 10/29/2019

In this era of divided government, opposing views originating from one branch of government and volleyed at another are often construed as threats to the separation of powers. The perceived threats cross party lines. President Barack Obama was heavily criticized for calling out the U.S. Supreme Court at his State of the Union address in 2010 for its decision in Citizens United v. FEC. In late 2018, Chief Justice John Roberts rebuked President Donald Trump after the president referred to a judge who delivered an unfavorable ruling as an "Obama judge."

For most of this year, President Trump has resisted efforts by the Democratic-controlled House of Representatives to investigate his official conduct and business dealings, challenging the delicate balance that is the separation of powers outlined in the Constitution. After a White House meeting on Oct. 16, House Majority Leader Steny Hoyer, D-Md., reflected House leadership frustration, saying, "Never have I seen a president treat so disrespectfully a co-equal branch of the government of the United States."

While hyperbolic rhetoric and name-calling are seldom acceptable in a civil society and engender otherwise avoidable disrespect, the legal guideposts that sustain separation of powers are rooted in the U.S. Constitution and case law.

The American structure of government is not the global norm; 104 nations — a majority of democratic governments — have a parliamentary system where the legislative branch is paramount, and the executive has no independent constitutional base of authority. The U.S. Constitution’s first three articles created three co-equal branches of government: the legislative (Congress), executive (headed by the president) and judicial (Supreme Court and lower federal courts). All of the state constitutions similarly provide for these three branches in their state government, and 40 of them explicitly require a separation of powers.

The federal structure reflects the collective thinking of the Founding Fathers, who melded their political philosophy as colonial Americans with their experiences as English colonists. As James Madison wrote in 1788 in The Federalist Papers No. 47, "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny."

Through two centuries, this arrangement has produced its fair share of conflict, notes a 2016 Congressional Research Service report. While the Constitution created a separation of branches, it also provided for overlapping responsibilities, such as giving the president a veto over legislation and giving the Senate approval of executive and judicial nominations made by the president. "Most powers granted under the Constitution are not unilateral for any one branch; instead they overlap," the CRS report pointed out.

Over time, power has flowed increasingly to the executive branch, a fact many scholars and commentators attribute to strong presidents like Abraham Lincoln and Franklin Delano Roosevelt rather than to any constitutional provision, statute or court ruling. After 9/11, for example, President George W. Bush adopted particularly assertive ideas about his authority as chief executive. This led to warrantless eavesdropping on American citizens’ phone calls and emails, and Bush’s signing statement declaring his authority as commander in chief to override the Detainee Treatment Act of 2005, with its absolute prohibition on "cruel, inhuman, or degrading treatment or punishment" of prisoners.

When these types of practices are challenged, the courts referee. In the first three years of the Trump administration, for instance, federal judges have halted numerous proposed changes under immigration laws, prompting the White House to issue an Oct. 11 statement titled, "Activist Judicial Rulings Block the Administration From Enforcing Our Nation’s Immigration Laws." Many of these cases are on appeal.

The most enduring U.S. Supreme Court decision dealing with the balance between executive and legislative authority came after President Harry Truman signed Executive Order 10340, which placed all U.S. steel mills under federal control during the Korean War. In 1952, the Supreme Court ruled 6-3 in Youngstown Sheet & Tube Co. v. Sawyer  that Truman had overstepped his authority because he attempted to make law rather than clarify an existing piece of legislation.

Justice Robert Jackson, in a concurring opinion, put forth a three-part test that is still relied upon by courts today in navigating conflicts between executive and legislative authority. Jackson said the president’s powers were at their height when he had the direct or implied authorization from Congress to act; at their middle ground or "a zone of twilight," as he put it, when acting without either a congressional grant or denial of authority; and "at its lowest ebb" when a president acted against the expressed wishes of Congress.

Two decades later, President Richard Nixon attempted to block a special prosecutor’s attempt to secure presidential recordings as part of the Watergate investigation. His attorneys argued both separation of powers and confidentiality. But in U.S. v. Nixon, a unanimous Supreme Court ruled that "neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances."

"Absent a claim of need to protect military, diplomatic or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide," the court ruled.

The extent of presidential power in foreign and military matters remains largely undefined. In Zivotofsky v. Kerry  in 2016, the Supreme Court struck down a congressional mandate that allowed a person born in Jerusalem to record the place of birth on a U.S. passport as "Israel." The court said this section in a State Department authorization act constituted an infringement of the separation of powers, because the president’s power to recognize foreign sovereigns is exclusive and overrides Congress’s authority to regulate passports. The court also noted that in separation-of-powers cases it puts "significant weight upon historical practice."

The separation-of-powers argument is likely to move to the public forefront in the coming months as battles between the executive and legislative branches regarding oversight and impeachment play out in the courts. In these cases, judges would be expected to consider legal precedent and the continued viability of Justice Jackson’s enduring three-prong test. Read more

Friday, November 8, 2019

House resolution outlines public phase of impeachment inquiry, gives GOP subpoena powers

House Intelligence Committee Chairman Adam Schiff 
House resolution outlines public phase of impeachment inquiry, gives GOP subpoena powers

Christal Hayes and Bart Jansen
October 29, 2019

Left: House Intelligence Committee Chairman Adam Schiff says President Donald Trump's administration is "building a powerful case" for impeachment as a former White House national security adviser defied a subpoena on Monday. (Oct. 28) AP, AP

WASHINGTON – Democrats leading the House of Representatives released an eight-page resolution Tuesday that outlines how the next phase of the impeachment inquiry into President Donald Trump will operate, offering both sides of the aisle subpoena power as committees embark on public hearings.

The resolution from Rules Committee Chairman Jim McGovern, D-Mass., could be voted on as early as Thursday. It makes clear that information gathered by the six committees that have been conducting oversight into Trump would funnel to the House Judiciary Committee – the panel that has traditionally been charged with impeachment.

"None of us came to Congress to impeach a president – but each of us took a solemn oath to protect and defend the Constitution," McGovern said. "While the president and his allies try to obstruct our investigation and cover up his wrongdoing, the House will continue to do its job and uncover the truth for the American people."

The Thursday vote on the resolution will mark the first time House members will be forced to vote on the inquiry after weeks of intense criticism by the GOP and put several moderate Democrats and Republicans under close scrutiny as the 2020 election approaches.

The rules appear tailored to meet complaints that Republicans have made for weeks about closed-door depositions that three key committees – Foreign Affairs, Intelligence, and Oversight and Reform – have been holding with witnesses from the State Department and national security offices. Republicans argued that Democrats were holding secret impeachment hearings in the basement of the Capitol.

But it wasn't enough to appease concerns and Republicans in leadership urged their colleagues to vote against the measure. GOP lawmakers argued the resolution did not include additional resources for conservative lawmakers leading the committees where impeachment would take place and failed to detail whether the president and his attorneys could be present for the hearings, offer evidence or cross-examine witnesses.

The White House denounced the measure in a statement by Press Secretary Stephanie Grisham, saying the resolution continues the impeachment "scam" without allowing "any due process for the President."

"The White House is barred from participating at all, until after Chairman Schiff conducts two rounds of one-sided hearings to generate a biased report for the Judiciary Committee," she said. "Even then, the White House's rights remain undefined, unclear, and uncertain – because those rules still haven’t been written."

Later on Tuesday, Democrats released a three-page summary that outlined the role of the president and his counsel once impeachment moves to the Judiciary Committee. It includes that both the president and his counsel may cross-examine witnesses, offer evidence and craft a closing presentation.

But it all comes with a caveat — all requests would have to be approved by Democrats and would be rejected should the administration block witnesses or documents from being made available.

The resolution broadly outlines the plan for public hearings to take place in the House Intelligence Committee, which has led the investigation into Trump asking Ukraine to investigate political rivals – the central focus of the impeachment investigation.

Both Chairman Adam Schiff, D-Calif. and Devin Nunes, the top Republican on the committee, would have subpoena power and be given up to 90 minutes together to question witnesses during public hearings – or have staffers ask questions.

But subpoenas from Nunes, R-Calif., would first have to be approved by Schiff, who can reject such requests. Any rejection could be brought to the full committee for a vote, the resolution notes.

The measure also directs the Intelligence Committee to craft a report on its findings and offer it to the House Judiciary Committee, which under the resolution would also offer subpoena power to both parties on the panel – Chairman Jerry Nadler, D-N.Y., and Rep. Doug Collins of Georgia, the top Republican.

The resolution says the inquiry would continue under six committees: Financial Services, Foreign Affairs, Intelligence, Judiciary, Oversight and Reform, and Ways and Means, all of which have been investigating the president.

Three committees – Foreign Affairs, Intelligence, and Oversight and Reform – have been holding closed-door depositions with State Department and national security officials to learn more about Trump’s demand for Ukrainian investigations while he withheld nearly $400 million in military aid for the country.

But other committees have continued work on other aspects of the investigation, which the resolution says would also be funneled to the Judiciary Committee.

The chairmen of the four most active panels – Schiff; Nadler; Rep. Carolyn Maloney, D-N.Y., at Oversight; and Rep. Eliot Engle, D-N.Y., at Foreign Affairs – issued a joint statement saying that the inquiry "has collected extensive evidence and testimony, and soon the American people will hear from witnesses in an open setting."

"The evidence we have already collected paints the picture of a President who abused his power by using multiple levers of government to press a foreign country to interfere in the 2020 election," the chairmen said. "Following in the footsteps of previous impeachment inquiries, the next phase will move from closed depositions to open hearings where the American people will learn firsthand about the President’s misconduct."

House Speaker Nancy Pelosi, D-Calif., declared a formal impeachment inquiry Sept. 24 amid reports that Trump urged Ukraine President Volodymyr Zelensky to investigate his political rival, former Vice President Joe Biden, while withholding military aid. White House counsel Pat Cipollone notified Pelosi Oct. 8 that the administration wouldn’t cooperate for lack of a full House vote. Read more

Read the resolution:

Legal Experts Dumbfounded by Kevin McCarthy’s Impeachment Defense: ‘Like Legal Doctrine Mad Libs’

Kevin McCarthy
Legal Experts Dumbfounded by Kevin McCarthy’s Impeachment Defense: ‘Like Legal Doctrine Mad Libs’

Law & Crime
by Jerry Lambe
October 29th, 2019

Republican House Minority Leader Kevin McCarthy (R-Calif.) on Tuesday attacked Democrats’ impeachment inquiry against President Donald Trump, calling it  "an entire sham." Unfortunately, in his diatribe against the investigation into Trump’s alleged abuse of power, McCarthy used several legal terms that he clearly did not understand — or, at the very least, failed to correctly employ. Legal experts were quick to respond.

McCarthy, who has Bachelor of Science and Master of Business Administration degrees but no legal training, got off to a rocky start when he misused the term "due process," which, in short, refers to the fundamental principle of fairness in legal proceedings. Impeachment is a political process, not a legal one.

"You can’t put the genie back in the bottle. A due process starts at the beginning. It doesn’t affirm a miss, sham investigation all the way through," McCarthy said, before broaching an even more abstruse legal doctrine known as "fruit of the poisonous tree."

The term, first coined in 1939, is a legal metaphor used to describe illegally obtained evidence that must be excluded at trial.

"If you were in the legal term, it’d be the fruit from the poisonous tree; it’d be a mistrial. None of this information would go forward," McCarthy said.

Professor Steve Vladeck of the University of Texas School of Law was quick to point out McCarthy’s errors, writing, "I could ask my first-year law students to identify everything that’s incorrect or misleading in [McCarthy’s] statement here, but it would be too easy," he wrote before providing a multi-faceted explainer.

Vladeck began by clarifying why the "fruit of the poisonous tree" doctrine in not applicable to the current proceedings.

"Fruit of the poisonous tree is about evidence obtained unlawfully being inadmissible—and (a) only results in suppression of evidence; and (b) has lots of exceptions," Vladeck explained. "No one is arguing the House has violated [President Trump’s] Fourth Amendment rights," he wrote, before delving into McCarthy’s "mistrial" comment.

"A mistrial is what happens when, in the middle of a trial, some uncorrectable error has occurred. There’s nothing remotely resembling a trial here—and there won’t be until and unless this goes to the Senate," he wrote. "Even then, most mistrials don’t actually invalidate the entire proceeding; they just require the case to start over. So even [McCarthy’s] preposterous analogy doesn’t actually lead him to where he wants to go," Vladeck said, concluding that McCarthy’s argument was part of a larger attempt to distract from the substantive issues surrounding impeachment.

Several other legal experts were equally amused by McCarthy’s bumbling press conference and failed attempts to employ legal doctrines.

Sasha Samberg-Champion, a former senior appellate attorney for the Department of Justice, said McCarthy’s press conference was nonsensical in a throw it at the wall and see if it sticks kind of way.

"This is like legal doctrine mad libs. Plug in some random legal term and pretend it applies," he tweeted. Read more

Tuesday, November 5, 2019

Bernie Sanders Donors Lose Case Alleging DNC ‘Improperly Tipped the Scales’ in Favor of Hillary Clinton

Debbie Wasserman Schultz (center)
Bernie Sanders Donors Lose Case Alleging DNC ‘Improperly Tipped the Scales’ in Favor of Hillary Clinton

by Elura Nanos
October 29th, 2019

Bernie-backing plaintiffs in a class-action lawsuit against the Democratic National Committee (DNC) and Debbie Wasserman Schultz were just shut down by the Eleventh Circuit Court of Appeals. Now, the only remaining avenue for direct recourse is an appeal to the U.S. Supreme Court.

The lawsuit filed in South Florida followed the 2016 election and alleged that the DNC’s favoritism of Hillary Clinton over Bernie Sanders amounted to fraud, misrepresentation, unjust enrichment, breach of fiduciary duty, and negligence.  The allegations – and the defenses – raised questions that went to the heart of American politics, and the relationship between voters and the political parties they support.

The DNC argued the only-in-politics defense that the Sanders donors knew that the committee was biased toward Clinton, and therefore, it was under no legal obligation to be neutral or fair to all candidates. Now, the DNC and Wasserman Schultz are enjoying the a win, courtesy of the Eleventh Circuit.

The court, though, appeared almost to lament its own decision – or at least the context in which it was issued. Circuit Judge Adalberto Jordan (a Bill Clinton nominee to the Eleventh Circuit) began his decision with a kind of judicial SMH:
In his classic treatise on the United States and its political system, Alexis de Tocqueville famously remarked that "[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question." Alexis de Tocqueville, Democracy in America, Vol. I, at 257 (U. Chicago Press 2000) [1835]. This case, which pits a political party against some of its supporters, confirms de Tocqueville’s reputation as an astute observer of American life.
American life, indeed.

The court’s ruling, affirming the lower court’s dismissal of the lawsuit, did little to reflect or instill confidence in the American electoral system. The ruling went in favor of the defendants not because of an absence of wrongdoing, but rather because it seemed impossible to fit their conduct into an appropriate legal context.

The court ruled that the plaintiffs did suffer an injury by forking over their donations to an institution that wasn’t as neutral as advertised, but also said the lawsuit was deficient on a number of important grounds. Plaintiffs had failed to specify how, exactly, they had relied on the DNC’s promises. Furthermore, the DNC isn’t in the business of selling goods or services, so the statutes relied upon by the plaintiffs don’t apply. And finally, contract law principles just don’t fit the facts. Those facts may look bad for Wasserman Schultz and the DNC – but the shape of any wrongdoing is a square peg to the round hole of existing law.

The court wasn’t blind to the frustration that must have been caused by its inability to compensate the aggrieved plaintiffs. But courts aren’t empowered to breathe life into lawsuits that fail to conform to the law. Writing for a three-judge panel of the court, Judge Jordan wrote as follows:
We are mindful that there are deep disagreements within (and outside) the Democratic Party about the DNC’s alleged conduct during the 2016 primaries.
But federal courts can only adjudicate cognizable claims, and the complaint here fails on a number of jurisdictional and substantive grounds.
Whether the Sanders donors will appeal the dismissal, refile as permitted, or simply wait for new allegations to accrue from the 2020 election remains to be seen. Until we do, it might be a good idea to brush up on some de Tocqueville.

[image via Joe Raedle/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Monday, October 14, 2019

Columbus Day

Christopher Columbus 
Christopher Columbus

Christopher Columbus (31 October 1451 – 20 May 1506) was an Italian navigator and colonist who completed four voyages across the Atlantic Ocean under the auspices of the Catholic Monarchs of Castile and Aragon. While pursuing a route to the Far East, he discovered a viable sailing route to the Americas, then unknown to the Old World. He led the first European expeditions to the Caribbean, Central America, and South America, initiating the opening of the New World for conquest and settlement by Europeans and the permanent European colonization of the Americas. Read more

In Defense of Columbus: An Exaggerated Evil