Constitution Archives - Bookworm Room

So Who Was Vindicated by the IG Report?

December 12, 2019 by Wolf Howling Leave a Comment

IG Horowitz’s testimony shows that his Report did not vindicate anyone in the FBI, DOJ, or the press. The only one the IG Report vindicated is Devin Nunes.

The Russia Hoax that lasted three years and that nearly toppled the duly elected government headed by Donald Trump, was nothing less than an attempted coup. James Comey and the progressive left that actively supported this attempted coup are now making much of the IG Report’s conclusion that IG Horowitz found no direct evidence of bias against the President. But as the IG stated in testimony on 11 Dec.: “You know, I think the activities we found here don’t vindicate anybody who touched this FISA.”

Horowitz did not find that anyone involved in his investigation acted innocently. He simply didn’t make any inferences as to their intent in the absence of ‘direct evidence’ of the same. As he stated in testimony yesterday, “[O]n decisions regarding those FISA matters, I do not know their state of mind.” He did not exonerate anyone; to the contrary, Horowitz stated that he has referred his findings to AG Barr and Asst. AG Durham for their action.

‘Direct evidence’ in this case means that someone was stupid enough to memorialize his or her bias, such as Christopher Steele’s admission to Bruce Ohr that he was determined Trump not become President, or the torrid text messages between Strzok and Page. Horowitz’s delicacy, however, is not the legal standard that applies to any of our laws, nor is it the standard anyone should apply to the facts in the IG complaint. Every day, we impanel juries and ask them to draw reasonable inferences from proven fact patterns. It’s very rare for there to be direct evidence showing the specific intent that is part and parcel of virtually every criminal law.

For example, say X swings an axe and beheads Y. If the circumstances are such that a person could reasonably infer that X intended to behead Y, and that there were no provable mitigating circumstances, then it is charged as murder (the intentional and inexcusable killing of another), regardless of whether X admits to his motives or lies about them. If the circumstances show that X was likely trying to chop wood and hit Y accidentally, it is not criminal unless, from the surrounding facts, it appears X acted negligently. Then X could be charged with manslaughter, a criminal charge, but one carrying a far lighter penalty than murder.

Powerline addresses the same point within the context of the IG Report:

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The Four C’s Of The Impeachment Sham — Constitution, Corruption, Comity & Coup

November 8, 2019 by Wolf Howling Leave a Comment

The House is considering three articles of Impeachment. The Constitution is at issue in questions of Obstruction of Justice, Contempt of Congress and the form of the Senate Trial. Comity and Corruption are at issue as to the Bidens and Abuse of Power. And is this is an unlawful attempted coup?

The Constitution

The House is considering three Articles of Impeachment, one of which is expected to be for contempt of Congress. The House claims that Donald Trump refused to honor lawful subpoenas for testimony and documents as pertains to the Ukraine. Was Trump within his rights to do so? That is wholly a Constitutional question. It is also closely related in at least one relevant part to a likely Second Article of Impeachment, namely Obstruction of Justice as to the Russian Hoax inquiry.

The only vote the House of Representatives has held to authorize an impeachment inquiry of Donald Trump was defeated overwhelmingly in January, 2017. In response to the Ukraine IC IG matter, Nancy Pelosi, as Speaker, unilaterally declared an “impeachment inquiry” on September 24, 2019, and the House immediately began issuing subpoenas for witnesses and documents. As to the latest vote held a week ago to formalize the procedures being used in the ongoing Star Chamber, Speaker Nancy Pelosi was adamant that the Resolution was not an authorization of an “impeachment inquiry.”

Can anything less than a vote by the entire House of Representatives to authorize an “impeachment inquiry” be considered Constitutionally valid? As I’ve discussed before, this is far from mere form. If the House of Representatives approves a resolution for an impeachment inquiry, the House gains a power that it, by the explicit terms of the Constitution, does not otherwise possess — the judicial power to enforce subpoenas and requests for documents on matters outside its Art. I, Sec. 8 enumerated powers. Without that power, the White House was acting lawfully when it refused to cooperate. Tellingly, the House, rather than take those subpoenas to a Court to enforce them — and risk having a Court declare their proceeding unconstitutional — appears to be simply rolling all but one of their refused “subpoenas” into an contempt of Congress charge.

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Impeachment & The Importance of Due Process: The Testimony of LTC Andrew Vindman

October 30, 2019 by Wolf Howling Leave a Comment

Democrats are denying Trump due process to poison the well with their Star Chamber Proceeding. The testimony of Vindman yesterday is but one example of it.

Left-wing zealots have often been prepared to ride roughshod over due process and basic considerations of fairness when they think they can get away with it. For them the ends always seems to justify the means. That is precisely how their predecessors came to create the gulag.

— Margaret Thatcher

The most fundamental right of any citizen under a prosecution by the state is to be able to cross-examine a witness, to explore their testimony for accuracy, to explore a witnesses biases, motivations and character, all so that jurors can best discern the truth. Moreover, an equally important right of the defendant is to object to testimony against him being heard by the jury on grounds that it is irrelevant or insufficiently trustworthy to be admissible. These all a part of due process of law, a practice so ancient in our Anglo legal system that it predates the Magna Carta of 1215. And it is, to quote Justice Story, a “birthright” of ever American, even for non-progressives.

Due process of law also includes other processes and protections. For instance, the federal government has a grand jury system, whereby the government, before indicting and bringing charges against a defendant, first presents its side of the case to a Grand Jury in a secret proceeding. If the Grand Jury agrees that the government has made what appears to be a sufficient claim, they will vote to approve the filing of charges. Importantly, testimony given before a Grand Jury is secret so as not to prejudice the Defendant. It is a significant violation of the law to leak Grand Jury testimony. A trial is then held in public, but the Grand Jury testimony is not admissible at the actual trial, absent some exception to the hearsay rule. Fed. R. Evid. 803.

Lastly, it is fundamental to the due process of law in our modern era that the State, whenever it becomes aware of information that would tend to prove a defendant’s innocence or that would tend to show that a witness for the prosecution’s honesty or accuracy may be put at issue, it must provide that information to the defense as a “Brady Disclosure.”

So, let’s match that up with the Star Chamber process being conducted today by Nancy Pelosi and Adam Schiff.

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Pelosi Polishes A Turd

October 29, 2019 by Wolf Howling Leave a Comment

Nancy Pelosi crafts a joke resolution to “formalize” the Star Chamber impeachment inquiry. Unfortunately, the joke is on America.

Nancy Pelosi announced yesterday that she intended to bring a Resolution to the floor on Thursday. As she described it:

“This resolution establishes the procedure for hearings that are open to the American people, authorizes the disclosure of deposition transcripts, outlines procedures to transfer evidence to the Judiciary Committee as it considers potential articles of impeachment, and sets forth due process rights for the President and his Counsel,” Pelosi wrote in her letter. “We are taking this step to eliminate any doubt as to whether the Trump Administration may withhold documents, prevent witness testimony, disregard duly authorized subpoenas or continue obstructing the House of Representatives.”

Wonderful. So an end to the Star Chamber proceedings then. Except . . . when you read what she has released today, it is a whole lot of nothing (copy here):

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The Impeachment & The Russia Probe

October 24, 2019 by Wolf Howling Leave a Comment

The Barr/Durham Russia probe is now a criminal investigation. The NYT reports that the investigation is without basis and that pushing for Ukrainian assistance is part of the justification for the House Impeachment investigation.

It was apparent from Nancy Pelosi’s “fact sheet” released the other day (and blogged here) that the House is looking to assert that any investigation into the criminal origins of the Russian Hoax is an impeachable abuse of power by the President. That was confirmed by an article in the NYT today (reprinted at SFGate) discussing that “Justice Department officials have shifted an administrative review of the Russia investigation closely overseen by Attorney General William Barr to a criminal inquiry.” Bookworm has already fisked the article in the post below this. I’m writing to add emphasis to one portion of the article. As the NYT reports: [Read more…]

Pelosi: All Investigations Of Democrats Are Illicit & Grounds For Impeachment

October 23, 2019 by Wolf Howling Leave a Comment

Nancy Pelosi’s “Impeachment Fact Sheet” asserts that investigating the Russia hoax constitutes an impeachable attempt to interfere in the 2020 election.

In his July 25 phone call, President Trump asked the President of the Ukraine to assist in an ongoing investigation into Ukrainian assistance to the Democrats in the 2016 election, to locate the DNC server supposedly now being held in the Ukraine and, later in the conversation, “to look into” the situation surrounding Joe Biden and his son Hunter. Pelosi now collectively labels all of those investigations a “sham.”

Nancy Pelosi just turned the corner on the Democrats’ already very dangerous game. If the law is such that progressives can operate above it in this country — including attempting coups to overturn elections — while holding the rest of the nation below its protections, then however this ends, it will include the end of our near 250 year experiment in republican government based on our Constitution. This all started with whitewashing Hillary Clinton serial crimes: first, recklessly mishandling our nation’s secrets; second, trying to destroy the Trump campaign and install her in the Presidency. The only way this ends with this nation intact is for justice and the law to be applied equally across party lines, and for those who violated the law to be held accountable.

The propaganda Pelosi released Tuesday is many things, the most important of which is a preemptive strike to undermine what many expect Horowitz, Barr, and Dunham will find through their ongoing investigations; namely, that the Russia hoax was an attempted coup (it most certainly was) executed by unlawful means (and I will be amazed if it wasn’t). Those investigations are tied in part to the Ukraine. We know that, at the Democrats’ request, Ukraine did in fact play a role in the 2016 election hoax. As Politico reported in January, 2017:

Ukrainian government officials tried to help Hillary Clinton and undermine Trump by publicly questioning his fitness for office. They also disseminated documents implicating a top Trump aide in corruption and suggested they were investigating the matter, only to back away after the election. And they helped Clinton’s allies research damaging information on Trump and his advisers, a Politico investigation found.

Here is the “Fact Sheet” Pelosi released today, which I have reformatted for this blog, including removing the graphics. In it, in speaking of the investigations as to which which Trump asked for Ukrainian assistance, Pelosi refers to all collectively as “sham investigations” (red-text emphasis mine):

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Religious Liberty: AG Barr vs. Jeffery Toobin

October 20, 2019 by Wolf Howling Leave a Comment

AG Barr recently spoke eloquently on religious liberty. Progressive legal analyst Jeffery Toobin vomited canards and bald assertions in response.

In a speech at Notre Dame Law School on October 11, Attorney General William Barr asserted that government needs to prioritize protecting religious freedom. To summarize briefly, Barr observed that the Founders held that the new country needed to be built upon Judeo-Christians moral underpinnings, in large part because those values were inextricably intertwined with our being a “free” and functioning nation. For the past half century or more, though, progressives have been attacking these religions, seeking to drive them from the public square while offering no viable alternative. The cost of that to our society has been “grim.” Thus we must act to protect religious liberty in this country from the progressive onslaught.

Barr makes so many insightful and nuanced points of such great importance to the character and functioning of our nation, and he does so with such elegance, that I cannot possibly do his speech justice in any sort of summary. For instance, Barr points out that the Judeo-Christian religions provide a “shared set of moral values” flowing from a transcendent God that teach us both restraint and positive action in a way beneficial to society as a whole. Says Barr, “but, if you rely on the coercive power of government to impose restraints, this will inevitably lead to a government that is too controlling, and you will end up with no liberty, just tyranny.” It really is a speech that every American should read or watch. You can read the full text of his remarks here, and you can watch the video below:

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Can Pelosi & Schiff Get Away With Running a Star Chamber Impeachment?

October 11, 2019 by Wolf Howling Leave a Comment

What are the issues at the heart of the impeachment farce, and, as between the President and the progressives in the House, who has the superior legal argument?

Everything wrong with progressives today is playing out in the Star Chamber that Democrats are running as an “impeachment inquiry” in the House of Representatives. The Democrats’ have dispensed with due process, precedent, and Constitutional limitation to create a juggernaut designed not to reach a just conclusion, but to ensure a vote impeaching the sitting President and bringing this nation half way to overturning the 2016 election. Today’s progressives feel themselves above the law and believe the rest of us, including very much President Donald Trump, are unworthy of its protection. Nowhere is that more apparent at the moment then in this impeachment farce.

The issues are two-fold. First, may the House exercise the power to conduct an impeachment inquiry without formal authorization voted upon by the full House? Second, is Nancy Pelosi constitutionally able to manipulate the House rules of impeachment to deny any due process or procedural protection to President Trump and to the minority members of the House? In other words, is it true that Impeachment is nothing more than a particularly one-sided Grand Jury investigation?

A bit of background first. A formal decision to investigate for impeachment is not a meaningless decision or a mere label. At a minimum, once the House formally decides upon impeachment, the House accrues powers beyond that which it normally possesses. Thus, it is a substantive legal question whether a House impeachment inquiry requires a House vote or whether the Speaker of the House can unilaterally announce the beginning of an impeachment inquiry. I know of no precedent in American or British history supporting Nancy Pelosi’s contention that she can accrue these formal powers of impeachment by simple fiat. More on that below.

The House of Representatives normally only has “legislative” authority. Thus House members are limited to investigating and holding hearings on matters that relate directly to producing legislation. As with so much in our Constitution, this is not a thing of bright line clarity. But as is almost always the case, the fact that there’s no bright line does not mean that there is no line. Perhaps the clearest example of line drawing outside of the impeachment context comes from recent House efforts to use a subpoena to force the IRS to release Trump’s tax returns. When Trump refused to honor the subpoena, his attorneys pointed out that the House, while its members may have a political interest in reviewing Trump’s tax returns, have no legitimate legislative interest.

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Progressives See Themselves As Above The Law And The Rest Of Us As Below It

September 30, 2019 by Wolf Howling Leave a Comment

American Progressives want to be above the law and the Constitution, while treating Trump and his supporters as below the law and the Constitution. This can’t end well.

INTRODUCTION

We live in two Americas today, two parts that are in a cold civil war. The divide is between progressives who believe their moral superiority makes them above the law and the rest of us, whom progressives strongly believe should be subordinate to the law and the Constitution. To this end, progressives believe the Constitution, both its mandates and its limitations, are an obstacle that they can dispense with when any provisions do not redound to their benefit. If Trump does not return us to an America in which the law is applied equally to all people, ending the progressive’s raw will to power and reuniting the two Americas, the current situation will spell this nation’s end.

I. Trump and Charges of a Cover-up of the Ukraine Affair v. Hillary Clinton and her Private Server

Once the auditors to the Trump phone call with Ukraine’s president finalized and consolidated their notes from the call, the Trump Administration stored that document on a government top secret server for a few weeks — just as Trump’s predecessor, President Obama, did so with many of the memorializations of his phone calls with foreign leaders. However, when congressional Democrats said that they wanted to see the transcript from the call, the Trump Administration immediately produced it. Nevertheless, the Democrats in Congress and in the media are now claiming that merely placing the document on that server is one of the grounds for impeaching Donald Trump and Attorney General William Barr for a “cover up.” It is ludicrous.

Hillary Clinton ran a private server out of a bathroom to hide her communications as Secretary of State for years, placed thousands of secret and top secret emails on the server, and then used “bleach bit” to wipe her server months after receiving a subpoena. The Obama DOJ and FBI then engaged in the single most obscene travesty of justice in this nation’s history to exonerate her and they did so with the whole-hearted support of every progressive in and out of Congress. The progressive left, repeatedly claiming her innocence, is only angry that she didn’t win the presidential election to which they — and she — felt she was entitled.

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On Constitution Day, Leftists assault the Constitution

September 19, 2019 by Wolf Howling Leave a Comment

For most of America, September 17 was “Constitution Day.” For progressives, it was a day to launch a multi-pronged assault on the Constitution.

On September, 17, 1787, the delegates to the Philadelphia Convention signed their finished product, the Constitution, and released it to the states to consider for ratification. It would be a year before eleven states ratified the Constitution, passing it into law, and three years before all thirteen states ratified the Constitution. It would be four years before the states ratified ten of the first twelve proposed Amendments to the Constitution, creating the Bill of Rights. Regardless, it is the 17th of September that we commemorate as “Constitution Day.”

But not the progressive left. To the extent they spent any time at all referencing the Constitution this past week, it was to attack the Constitution. Call it “Un-Constitutional Day,” if you will. The most direct attack was an attack on originalism — the truism that the Constitution must be interpreted as closely as possible to its commonly understood meaning on the day it was signed in 1787. Next, the Left, through its house organ, the New York Times, launched an attack on due process, with Democratic candidates for President calling for Supreme Court Justice Kavanaugh’s head. And the last attack, without doubt the most dangerous in the near term, was a renewed call in the New York Times to pack the Supreme Court with progressive ideologues. [Read more…]

The New & . . . Well, NEW Progressive Constitution

September 11, 2019 by Wolf Howling Leave a Comment

With Rep. Clyburn admitting that the proggies don’t like our Constitution as is, it’s time to take a look at what they want in a constitution.

Let’s face it. Progressives have gone a long way to making our Constitution a dead letter already. But as Rep. Clyburn makes clear in the video below, they are not yet wholly satisfied with the result. Work remains to be done.

What progressives want is nothing more than permanent power. That would be impossible to accomplish were they starting from scratch, but clearly they aren’t. A lot of the most important groundwork has already been laid over the past century. So with that in mind, let’s take a look at the state of our Constitution today, how it has already been altered, and how it would look once the proggies are done rewriting it. [Read more…]

Is The Administrative State On Borrowed Time?

June 24, 2019 by Wolf Howling Leave a Comment

Is the Supreme Court about to curtail the administrative state (and perhaps circumscribe judicial activism) by holding that Art. 1, Sec. 1 of the Constitution actually means what it says?

For the past near century — since FDR’s infamous court packing scheme — the administrative state (or bureaucratic state, call it what you will) has ever increasingly come to rule this country, working extra-Constitutional and fundamental changes to the fabric of society by promulgating regulations with the force of law that could never pass through Congress. (For but three of countless possible examples, the HHS Obamacare birth-control mandate that was a direct attack on religion in America, the EPA’s regulation of carbon dioxide as a pollutant despite rejection by Congress, and the regulation of the internet under the rubric of net neutrality.) It is the single greatest threat to America as a constitutional republic.

In a decision issued 20 June 2019, Gundy v. U.S., Justices Roberts, Thomas, Gorsuch, and Alito explicitly stated that they are prepared to enforce the plain words of the Constitution and limit as unconstitutional Congress’s delegation of legislative authority to administrative bodies as currently practiced. Justice Kavanaugh, who did not take part in the Gundy decision but whose criticism of the administrative state is well documented, could well be the fifth vote. Such a decision would fundamentally remake this nation and take us back to our constitutional roots. It would be, in essence, a bloodless revolution.

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House Judiciary Committee calls as its first witness . . . John Dean

June 4, 2019 by Wolf Howling Leave a Comment

Jerry Nadler’s House Judiciary Committee opens its hearings with John Dean, disgraced former White House Counsel. Republicans should be thrilled.

John Dean is about to testify that Trump’s actions amount to an unlawful obstruction of justice. Jerry Nadler will invite Dean to explain how everything Trump did per the Mueller Report parallels something Richard Nixon did in connection with Watergate. Then Nadler will invite Dean to call for Trump to be impeached. I have no doubt John Dean will accept all of the invitations.

What is John Dean’s expertise? He knows no more about the inner workings of the Trump Administration than any other citizen who has read the Mueller Report. He does, however, know about political spying, criminality and covering up a criminal acts — unsuccessfully at least.

During the 1972 Presidential campaign, several private citizens who supported President Richard Nixon’s reelection bid were caught attempting to bug the DNC Headquarters at the Watergate Hotel. Although President Nixon had nothing to do with the crime, he attempted to cover it up by using the agencies of government. For instance, he had the CIA hinder the FBI investigation, targeted reporters with wiretaps, he used the IRS to audit a political enemy, and he attempted to bribe people involved. John Dean, as White House Counsel, was the architect of the cover-up and was personally involved in destroying evidence. Dean jumped ship at some point, offering to testify against Nixon in return for a lenient jail sentence.

Since getting out of prison, John Dean has been a hero to progressives. He pretends now be a paragon of morals and ethics, attacking the GOP (but never Democrats) at every turn. According to Dean, George Bush and Dick Cheney were worse than Nixon and should have been impeached. And don’t get this worthless excuse for a lizard started on Donald Trump, whom he has attacked repeatedly since 2016. Eh, it’s sold books and gotten him some MSNBC gigs.

Why should Republicans be salivating at the chance to question Dean? Let me count the ways.

Nadler wants to pretend that Trump is a reincarnation of Dick Nixon in the White House. Fine. Here are some points to bring out in Dean’s testimony.

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Will “Unprecedented Obstruction of Congress” Become The New Democrat Meme?

April 27, 2019 by Wolf Howling Leave a Comment

The NYT tests out a new Trump attack . . . and after 8 years of Obama, the NYT discovers “unprecedented obstruction” of Congressional Oversight.

The NYT editorial board is in high dudgeon. Apparently, “Donald Trump Shows a New Level of Contempt for Congress.” Many presidents,” the NYT editors tell us, “have resisted congressional demands for testimony and documents. But not quite like Mr. Trump.” Really? Are they high? Or did the eight years of the Obama administration simply not count?

So what exactly has Trump done, . . . besides fully complying with a two-year fishing expedition for criminality that was the worst political dirty trick in our nation’s history. According to the NYT:

Mr. Trump’s top immigration adviser, Stephen Miller, has declined an invitation to discuss immigration policy;

Stephen Miller is not an agency head who would normally be subject to a subpoena over public policy. So how is his declining an “invitation” that he is free to accept or decline without recourse in any way obstructing Congress?

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Thoughts about the Catholic School’s lawsuit against LGBT laws

April 3, 2019 by Bookworm Leave a Comment

A cursory review of 1st Amendment law hints that a Catholic school can win its challenge against South Euclid’s overly broad statute regarding sexual orientation and gender identity.

PJ Media reported yesterday that a small Catholic school in Ohio, one that revolves around traditional Catholic doctrine, including viewing marriage as a covenant between a biological man and a biological woman, is challenging its city’s newly passed “sexual orientation gender identity” (SOGI) ordinance on the basis that it is an unreasonable infringement against the school’s free exercise of its religion under the First Amendment:

Last year, the City of South Euclid passed a SOGI ordinance similar to the Equality Act in Congress and the Ohio Fairness Act currently in the state legislature. The Lyceum, a Catholic classical school in South Euclid, will sue the city on Wednesday, claiming the SOGI ordinance violates the First Amendment.

[snip]

“South Euclid passed one of the most offensive and egregious sexual orientation gender identity laws that I have ever seen, and Christian ministries across the country should take note of what these laws would mean to them,” Aaron Baer, president of Citizens for Community Values (CCV), told PJ Media. His organization opposed the ordinance during the legislative process and will host the press conference on the lawsuit with ADF and the Lyceum. “The Lyceum is standing up and saying enough is enough.”

Baer called the local ordinance an “incredibly broad law that is devastating to Christian ministries.” According to him, the law imposes criminal penalties on individuals, businesses, and ministries that operate according to the teachings that marriage is between one man and one woman and that biological sex overrides gender identity. Every school, business, and ministry must open women’s bathrooms to biological men who identify as women and celebrate same-sex marriage and transgender identity.

According to the CCV president, the ordinance has no exemption for religious freedom or freedom of conscience.

Here’s the ordinance (or at least I believe this is the ordinance at issue) so you can draw your own conclusions. After defining sexual orientation and gender identity among other protected classes, the ordinance prohibits all sorts of things, including hiring people on the LGBTQetc. spectrum. I don’t think it’s true, though, that there’s no religion or conscience exception (again, assuming I’m looking at the correct ordinance). Instead, there is one that places the burden of proof on the person asserting the right of conscience.:

552.06 GENERAL EXCEPTIONS.

[snip]

(f) If a party asserts that an otherwise unlawful practice is justified as a permissible bona fide religious or denominational preference, that party shall have the burden of proving that the discrimination is in fact a necessary result of such a bona fide condition.

As a preliminary matter, when a government is infringing upon free speech or association — which is effectively what is happening here because it is holding that religious institutions cannot promote their values either through hiring practices or teachings — it’s the government that bears the burden of proving that its regulation is not unduly burdensome: “When a State’s rule imposes severe burdens on speech or association, it must be narrowly tailored to serve a compelling interest. . . .” Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 206 (1999), Justice Thomas, concurring (and cited with approval in the decision itself). [Read more…]