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Author: Philip Drucker, Constitutional Law Professor & Staff Writer, Los Angeles Free Press (page 1 of 9)

Phil Drucker’s Rant for 11-19-19: “Can a Zionist Rely on Thist?”


Today, I begin with an oft-quoted passage from the Federalist Papers No. 51 generally attributed to James Madison but, possibly, written by Alexander Hamilton.
“If angels were to govern men, neither external nor internal controls on government would be necessary.” –Federalist Papers No. 51

https://www.congress.gov/resources/display/content/The+Federalist+Papers

America. A socio/political experiment in the defeat of tyranny. With the Age of Enlightenment came the radical belief that when left to think and act for themselves without interference, mostly from Church and State, and certainly not the two working in tandem, persons would generally make the best decisions for, well, themselves. This is not to say the Founding Fathers were best described as anarchists, certainly not Godless or even libertarian. They were, for the most part, Deists who believed that the advanced science inherent in the obvious order of nature was the best indication of “intelligent design” and, hence, the existence of G-d. In short, someone smarter than us built the (As above) so-below part. But the question remained, how to best use it?

What was the best way to set up a society bent on individuals deciding for themselves? You separate those who would decide for you. From the lessons of Henry VIII and the Anglican Church, first, you separate Church and State, guaranteeing freedom of religious exercise and the establishment of an official, government sanctioned religion. Next and again based on the lessons of history, foremost the Roman Empire and English Parliament, you break the three core functions of government into three separate but equal branches. The Legislative, the Executive and the Judicial. Then, by implementing a system of checks and balances, you do your best to ensure no one person, aka a despot, tyrant, take your pick, may unilaterally designate, divine or decide that his will Trumps (coming soon to a dictionary near you) the will of the people to think and then act in their own best interests, as G-d so intended.

One of the grayer areas of constitutional separation, checks and balances, is American foreign policy. The Constitution itself grants, let’s call them duties and obligations that are related to foreign affairs to both the Executive and Legislative branches.

In addition to the War Powers (we usually (but not always) make war on foreigners) in Article II Section 2, the President is expressly enabled as follows:

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
https://www.archives.gov/founding-docs/constitution-transcript
It is also generally assumed through case law and practice that in matters of foreign policy the President “speaks as one voice” (One Voice Doctrine) for the people and thereby takes the initiative in matters related to external affairs.
Congress also has an explicit role in foreign affairs. In addition to its own War Powers, and the Senate’s right to Advise and Consent the President, Article I section 8 Clause 3 includes the right to regulate foreign commerce under the Commerce Clause:
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (Emphasis added).

Recently, a great deal of attention has been placed upon foreign relations between the United States and Israel. For the record, the President acting unilaterally has, against literally decades of foreign policy to the contrary, reversed longstanding US policy on Israeli settlements. In fact, calling it “Obama’s Policy” although it was, in fact, Jimmy Carter’s administration that ruled in 1978, that’s 40 years ago for those who are counting, that ruled that civilian Israeli settlements were illegal under international law.

Now, it is true, Ronald Reagan, “changed” the word “illegal” to “illegitimate” in an action to downplay the international significance of the West Bank settlement, but it is there we have stood, till now. Don’t get me wrong. There is nothing wrong with a President supporting an ally, more or less, fervently than his predecessors, but officially acknowledging Jerusalem as Israel’s capital? A move certain to throw more fuel on the Israel-Palestinian two separate states fire? This is also on top of his unusually cozy relationship with fellow fascist Netanyahu. Is influencing Israel, not an enemy but a friendly nation’s elections to stay committed to the “right” a legitimate foreign interest? And yes, I will say it, is promoting the “Rapture” a legitimate function of state or religion?
Is this your voice? It’s not mine and I condemn it. Oh, and BTW, Jared, if you are listening, still working on that Middle East Peace Plan that nobody has ever seen? Khashoggi’s ghost must be turning in his dismembered grave.

Did you get your fill of Phil?
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@DruckerPhilip
Instagram: Philip_Drucker

“Pardon Me? Pardon Him? Are You Serious?”


Today, I begin with a simple question. Is the presidential Pardon Power absolute? The answer, of course, is, of course not. Why? Because the word ‘absolute’ does not appear in the US Constitution. If the Founders wanted to make any presidential power absolute, including the Pardon Power, they certainly knew of and could have used the word, you know, as in absolute power corrupts absolutely. You get the picture – it’s a non-starter from the word go.

Let’s take a look at the actual words of Article II, Section 2 of the US Constitution:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” – Emphasis added.

When discussing Presidential Powers, it is best to remember that unlike Congress, whose powers are enumerated, meaning they are either included in the Constitution or they don’t exist, the President’s powers are not strictly enumerated and are subject to inference, limited in theory only by the parameters of the Office’s overall textual mission as contained in Article II Section 3 of the US Constitution:

“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”-Emphasis Added.

The “Take Care Clause” requires the President to enforce all constitutionally valid Acts of Congress. Between these two clauses, we now have virtually all of the express directives within the Constitution that could be of use in divining the breadth and scope of the Pardon Power. That’s it. Really.

As a starting point for inferring Presidential Power, the powers are generally separated into two categories. Domestic and Foreign. Eschewing the foreign component, Domestically, we know from the Preamble that the main mission of the Federal government, including the President,  is to “insure domestic tranquility.”

So, for those of you keeping a scorecard, we now have as a baseline for presidential power, something along the lines of “to insure domestic tranquility, the president must take Care that the Laws (of the land) be faithfully executed.” Now comes the fun part. Let’s do a little inferring in real time, shall we?

If it is so, and it is, that we are a nation of laws, and that no singular person is above the law, how can it be inferred from the Constitution that the President, through the Pardon Power, may “tack on” to the end of Article II, Section 2.?, That, in and of itself, places a clear exception, that being matters involving impeachment, is allowed to “faithfully” place himself above the law? In what way would excluding himself from the law through the use of the Pardon Power to pardon himself help, in any way, to ensure domestic tranquility?

Would you sleep better knowing the President, this President, can undertake whatever act or actions, commit any crime or crimes and face no penalty for both unconstitutional and illegal actions? Even though these actions are clearly impeachable and are, therefore, by their very nature considered against the interest of the people? Against the constitution, laws, and interests of the United States? Are we seriously contemplating going back to a time where the King could do no wrong? No, we’re not. We settled all that back in 1776. Trump can’t pardon himself. For if he does, and we let him get away with it, we no longer live in a democracy, or in any place I would recognize as America. And that’s one absolute we can all be sure of.

Did you get your fill of Phil?

Druckerreport.com/blog
@DruckerPhilip
Instagram: Philip-Drucker

Phil Drucker’s Rant for 11-5-19: “9-24-2019”


Today, I start with a simple historical fact. On September 24, 2019, the House of Representatives voted to begin a formal impeachment inquiry into the conduct of the 45th President of the United States of America.

The Constitutional authority for impeachment is clear and unambiguous.

“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.” – U.S. Constitution, Article II, section 4

Impeachment is a drastic remedy to a serious situation. It is the method specified by the Founders to remove a sitting president from elected office before the end of their term. But in the grand scheme of politics, impeachment is simply a part of our system of checks and balances, of maintaining good governance of the people, by the people and for the people.

The mechanics of impeachment are not terribly difficult. The House of Representatives brings impeachment charges against federal officials, including the President, as part of its oversight and investigatory responsibilities. If the articles of impeachment are adopted by a simple majority vote, the proceedings are sent to the Senate. The Senate then employs a quasi-judicial posture, in essence, the senators, much like a petit jury, act as the finders of fact, hear and weigh the evidence before them before culminating in a vote/verdict to acquit or convict. If a two-thirds majority of the senators vote to convict, the president may then be removed from office, with or without the possibility of holding future office. Fines and potential jail time for crimes committed while in office are left to civil/criminal courts.

The Constitution is a social pact between individuals and their government. It does not give us any rights, but protects our natural rights from unwarranted and unwanted government interference. In America, we are a democratic republic, we consent to be governed, but only if and when our elected officials act in our best interests and fulfill their duties as servants of the people. For those representatives who violate their oath to the Constitution, most likely by placing their own self-interests, be they political, pecuniary or otherwise, ahead of the good of the nation, of us, of We the People, of who they work for, impeachment is the just and proper method of intervention and, if necessary, termination of any clear and present danger to our rights of Life, Liberty and the Pursuit of Happiness. In the end, at least in the America I know and cherish, it all comes down to us.

In Federalist 65, Alexander Hamilton explained the difference between impeachment proceedings and the civil/criminal court system. Impeachment involves government action and is a safeguard against;

“misconduct of public men, or in other words from the abuse or violation of some public trust.”

https://www.congress.gov/resources/display/content/The+Federalist+Papers

In addition to treason and bribery, the Founders chose “High Crimes and Misdemeanors”, an old English legal term denoting crimes by public officials against their government, punishable by death, as grounds for removal. Additional offenses are identified in the individual pre-US Constitution state constitutions that provided for impeachment for “maladministration” or “corruption.”

Well, what do you think? Has Donald J. Trump, our 45th President violated our public trust? Committed treason or bribery? High Crimes and Misdemeanors? Maladministration or corruption? That’s like asking how many of the seven deadly sins has he violated. All of them. Now he must pay.

Repeat after me: Impeach!-Remove!-Incarcerate!*

*Lock-Him-Up!

PS: The Revolution IS being televised! Check out my video @

https://twitter.com/DruckerPhilip

Did you get your fill of Phil?

Druckerreport.com/blog
@DruckerPhilip
Instagram: Philip-Drucker

Phil Drucker’s Rant for 10-29-19: “Howdy Rudy. The Fall Not So Wise Guy”


Today, I am going to discuss Rudy Guliani and his starring role in the soon to be a hit, made for the small screen not ready for prime time bit players mini-brained TV series “Ukraine.” Kind of like “Dallas”, but without the charm of big city homicidal oilmen or their slutty, backstabbing, petty gossipy, housewives of Texas wives. Coming soon to an impeachment inquiry near you.  

It has spawned my interest in a little known federal law I would venture a guess very few Americans, including most if not all of the Trump cabinet are aware of. I have always liked things that are obscure.

For example, I have been known to spend an inordinate amount of time looking for music that “no one” has ever heard of, much less heard. I was into “world music” before there ever was such a generic all-encompassing term. Back then, we called it “Nonesuch Music”, named after the label that released recordings from India (Ravi Shankar), Indonesia (Gamelan), Japan, (Koto) and so many other viable, vibrant and interesting musical communities not readily available on the radio or in your favorite chain record store. Licorice Pizza comes to mind, you might find a disc or two at Tower, but that was about it. Of course, today all the musical wonders of the universe, including sound recordings of Saturn’s rings are available via the Internet. NASA calls them “Spooky Space Sounds.”

https://www.nasa.gov/vision/universe/features/halloween_sounds.html

I’m not sure the celestial sounds of our universe are going to make the Billboard Top 40, but it is somehow strangely reassuring to me they are available, for free, at the click of a mouse.

For those of you who have read this column before, you know I also have a penchant for obscure documents. In past Rants, I’ve explored such little known, but important, early American documents as the Fairfax County Resolves, a set of resolutions adopted in 1774 by Virginia. Written in part by George Washington and George Mason, the Resolves were Virginia’s “wish list” of political reform measures sent to King George in an effort to avoid a war for independence that, at least for the moment, neither side wanted. The Resolves also contains a rather testy and explicit threat to King George should he choose to continue to ignore the freemen of Fairfax County and their request (demand?) for the preservation of their Lives, Liberties and Fortunes.

“Resolved that this Colony and Dominion of Virginia can not be considered as a conquered Country; and if it was, that the present Inhabitants are the Descendants not of the Conquered, but of the Conquerors.”

https://www.loc.gov/collections/george-washington-papers/articles-and-essays/fairfax-resolves/

The Conquerors, you’ve got to love that. At least I do.

Now, I also re-confirm my similar predilection for somewhat less than what one might call common knowledge statutes, in particular, those addressing criminal law. And I prefer the white-collar variety. International is interesting. too. Graft and corruption in the smoke filled, possibly with a hookah these days, backrooms of golf courses and brothels. Ah, the life.  

So today, for your database and further entertainment, I offer up that little known federal law,the Foreign Corrupt Practices Act (FCPA). The FCPA addresses American citizens both at home and abroad who seek to offer “gifts” and other “payments” to foreign officials in return for “special treatment” in their countries. In short, if it would be illegal to do it here, it’s also illegal to do it there.

To make a case under the FCPA you need to find a “causal connection” between three key elements;

  • The use of American “Interstate Commerce,” meaning phone lines, the Internet, even the US Post will do.
  • The Defendant offering something of “value” to a “foreign official”. The terms value and “foreign official” are defined broadly including persons including government officials and persons of political parties.
  •   The defendant knowingly, corruptly, or willfully sought to influence an official act or to secure an improper advantage.

Hence, our not-so-bright Star of the now-playing Ukraine series begat my interest in this vague, enigmatic, almost esoteric, Act regulating the actions of American citizens and their illegal attempts to gain an unfair, anti-competitive advantage by wrongfully influencing foreign businesses and governments?

Why, that would be the burgeoning presidential scandal in the Ukraine, also soon to be known as the subject matter of the first article of the impending presidential impeachment.

Rudy, if you are listening, forget about Hilary’s emails. You need to take a look at the FCPA, and fast. I’m thinking, you, as a private citizen and attorney have no particular immunity from prosecution under executive privilege or whatever mythic super power Trump might make up next. Quintessential fall guy if you ask me. Oh, and that bit about being crazy, the SDNY won’t fall for it, but I thought you might know that, considering you used to play an honorable role there.

 

Did you get your fill of Phil?

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