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Author: Philip Drucker, Constitutional Law Professor & Staff Writer, Los Angeles Free Press (page 2 of 9)

Phil Drucker’s Rant for 11-12-19: “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?

 If not, give these a whirl:

Druckerreport.com/blog

@DruckerPhilip

Instagram: Philip_Drucker

Phil Drucker’s Rant for 10-22-19: “Hack-ack-ack-ack”


Today, I start with a simple, easily answered question followed by another inquiry that at this moment appears to be of infinite complexity.
Q1: Does the word “cyber” appear in the black letter text of the US Constitution? The answer is an easily ascertainable and definite “no.” The closest early American touchpoint we have is Ben Franklin’s kite/key trying to catch lightning in a bottle lucky he didn’t electrocute himself experiment into the working of electricity.
Q2: Should Congress begin legislating for the cyber realities of tomorrow that I would argue are already here today? My answer would be not only “yes,” but I would emphatically add as soon as possible, and in no instance later than the beginning of the 2020 Presidential election. Our very lives and future as a planet may depend upon it.

So, where do we start? I would start with the redefinition of a word that does appear in the Constitution. War, as in Congress’ power to declare.

Congress has not officially declared war since June 5, 1942 when, by joint resolution, both houses of Congress declared war on Bulgaria, Hungary and Romania.

https://www.senate.gov/pagelayout/history/h_multi_sections_and_teasers/WarDeclarationsbyCongress.htm

Since that time, Presidents from Truman to Kennedy to Bush have referred to their lack of actual Congressional approval to assume the role of acting commander in chief has been “politely” sidestepped by using a series of euphemisms for War. Truman called the Korean War a “police action” sanctioned under the auspices of the United Nations.

https://www.archives.gov/education/lessons/korean-conflict

In 1964 Congress passed the “Gulf of Tonkin Resolution” that authorized the president to take all necessary measures, including “the use of armed force” in the fight against the perceived threat of Communist domination in South East Asia.

https://history.state.gov/milestones/1961-1968/gulf-of-tonkin

In 2002, Congress passed the “Iraq Resolution” as an “Authorization for Use of Military Force” and away went George “I’m a war president” Bush No. II.

https://www.govtrack.us/congress/bills/107/hjres114

Not an actual Congressional Declaration of War in sight.

Regardless of what they may call it, it is essential Congress assert its power to include declarations of war with computer programs, viruses, hackers, and bots taking the place of soldiers battling on the field of cyberspace. The sooner the better. It is cyber suicide not to.

Everything is computerized including many of the classic attack targets of all-out war. More importantly, we are vulnerable. What would happen if the following, all online and subject to cyber-attack were disrupted or taken “off-line”? It could happen.

· Power Grids
https://www.techtimes.com/articles/245271/20190908/first-of-its-kind-cyberattack-hits-us-power-grid-report.htm

· Water
https://www.washingtonpost.com/blogs/checkpoint-washington/post/foreign-hackers-broke-into-illinois-water-plant-control-system-industry-expert-says/2011/11/18/gIQAgmTZYN_blog.html

· Communications
https://fcw.com/articles/2018/03/28/csric-diameter-ss7-cyber.aspx (G5?)

· Economic/Online Retailers (aka life without Amazon)
https://www.statista.com/statistics/183755/number-of-us-internet-shoppers-since-2009/

https://www.digitalcommerce360.com/2019/03/26/millennials-online-shopping/

Why I dare say we’d be reduced to reading the LA Free Press by candlelight (the “paper” edition, that is!). In-light-of the likelihood of a severe cyber interruption with our basic functions of life, I would posit all the fuss concerning hacking into social media sites, Facebook is, if not misplaced, a bit over the wrought top. But interference with our elections? That is a different matter entirely. How can we ensure the basic accuracy, reliability and integrity of our elections? Let me ask you another question, this time a not so simple one.

What is more troubling, the FACT that Russian interfered in our 2016 Presidential election, or that the benefitted candidate has every intention of “aiding and abetting” a foreign nation (Russia) to do it again in 2020?
I would opt for the latter. In an effort to stop what we know is going to happen, may I suggest the Constitutional remedy most readily available? Treason. Treason is the only criminal felony defined in the Constitution. All we need to employ it against Trump and his merry band of traitors when they are “aiding the enemy” is a declaration of war.

https://www.law.cornell.edu/constitution/articleiii

Constitutional treason by aiding the enemy is judicially interpreted as only possible during a time of declared war. In short, meaning you need an identified, declared enemy to aid or abet. So, before the next election cycle, why not declare cyber war against Russia? Before all the fun and games and well, treason begins. We have already seen and felt the effects of Cyber War. It is a real and serious threat to our democracy. Isn’t it time we began to take it seriously? Before it’s too late, again?

Did you get your Phil?

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

[Ed.’s Note: Today is the day that Professor Philip Drucker graduated from being a Guest Columnist on ‘Today’s Rant’ to ranting on his own at ‘Phil Drucker’s Rant’.  Not only is his quick rise as a thinker of note notable, but he is now among the past notable Columnists of the LA Free Press.

To wit (as some legal scholars might say), here are some of them: Charles Bukowski, Earl Ofari Hutchinson, Gene Youngblood, Harlan Ellison, Lawrence Lipton, Liza Williams, and Paul Schrader.]

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