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Author: Philip Drucker, Constitutional Law Professor & Columnist, Los Angeles Free Press (page 4 of 13)

Phil Drucker Rants for 1-6-2020: “All Words Matter”


In the world of legal and constitutional analysis, words matter. A lot. For instance, have you been wondering whether the assassination or, elimination, neutralization or murder of Major General, or terrorist, or freedom fighter Qasem Soleimani, was authorized, legal or illegal, depends on what military, or non-military classification he falls into under one of several possibly applicable federal statutes. Keep in mind that throughout this article we will be discussing the very same person.

In the 1990s, a string of important cases regarding prisoners from the Middle East detained in Guantanamo Bay detention camp (it’s a military prison) located within Guantanamo Bay Naval Base, and often referred to as Gitmo, was decided by the US Supreme Court. These cases involved detainees imprisoned by and within US custody, being held indefinitely, without formal charges brought and lacking any meaningful access to evidence, or legal counsel while awaiting battlefield justice (a bullet to the back of the head) a military tribunal (hanging) or, a trial with the prosecution deciding what evidence was admissible and what was “classified” (basically everything) and unavailable to the defendant and his or his not lawyer much less legal team.

In the last case decided, Boumediene v. Bush, it was ruled even high-value prisoners had at least some, however minimal, due process rights. But the amount of rights depends on an analysis of various classifications of status under several different domestic and international laws. But let’s start here. Are we talking about

1. A well-defined conventional war? With conventional soldiers wearing uniforms on a traditional field of battle? Or are we discussing part of the never-ending, vague and amorphous “War on Terror?” An asymmetrical war with no actual “soldiers” and no defined battlefield? If the latter then classify the individual as an “enemy combatant” with no rights under the Geneva Convention and subject to, in most cases, US Military law(s) of which there are several that may apply.

2. Is the enemy combatant (not a soldier) an American Citizen? If so, check the box for more rights, if not, then less rights it is.

3. Is the enemy combatant being held on American soil? Or in Gitmo which conveniently happens to be classified as “foreign territory.” If currently detained, incarcerated, on foreign dirt, its constitutional limbo time as in how low can your rights go? Keeping in mind even if you are “three for three” you still have some due process rights.

And so, keeping all of this in mind, how exactly would you classify the recently assassinated, liquidated, ambushed, attacked, killed, murdered, nothing left but a black smudge on the ground after being hit by a drone strike on Iraqi soil Soleimani?

Who just so happens to carry a military rank the equivalent of an American Major General and as the leader of the “Quds Force” or elite Revolutionary Guard, the second most important person in the Iranian government? The same person and group the Americans have classified as “Terrorists” (see above for not soldiers) and can only be led by a terrorist (see not a soldier on a battlefield and, therefore, an “enemy combatant”.

The reason I ask is because, is it not true that one person’s “terrorist” is another person’s “freedom fighter?” If not, then I imagine we will have to re-classify George Washington as an enemy combatant and subject to something along the lines of military tribunal as opposed to civilian courts with little to no due process rights as part and parcel of the British “war on terror.”

Of course, once you’re dead, you really don’t care what your due process rights were, or at least, could have been. Did I mention that detainees, prisoners, recipients of torture, victims were given a happy meal for their supposed cooperation? Like I said, words matter.

Did you get your fill of Phil?

https://www.druckerreport.com//blog
@DruckerPhilip
Instagram: Philip_Drucker

Phil Drucker’s Rant for 12-31-19: “I Read the News Today, Oy Vey.”


Welcome to this week’s edition of “Reading Between the Headlines and Asking Why?”

There was an attack on Jewish New Yorkers almost every day last week. Police are investigating these as possible hate crimes

https://www.cnn.com/2019/12/29/us/jewish-attacks-week-new-york-trnd/index.html

NYPD Investigating 9th Anti-Semitic Attack Reported This Week

https://newyork.cbslocal.com/2019/12/28/rash-of-anti-semitic-attacks-new-york-city/

Vigil Held In Skokie After Wave Of Anti-Semitic Attacks In And Near New York City

https://chicago.cbslocal.com/2019/12/29/new-york-brooklyn-monsey-anti-semitic-attacks-skokie-vigil/

NYPD to step up presence in Brooklyn after string of anti-Semitic hate crimes

https://www.cbsnews.com/news/nypd-to-increase-presence-in-brooklyn-after-string-of-anti-semitic-hate-crimes/

Miami man’s Manhattan assault in broad daylight called hate crime

Police say 65-year-old Jewish man kicked, punched

https://www.local10.com/news/local/2019/12/28/miami-mans-manhattan-assault-in-broad-daylight-called-hate-crime/

Suspect pleads not guilty after five stabbed at Hanukkah party at rabbi’s home in New York

The governor called the late-night attack in Rockland County an act of “domestic terrorism.”

https://www.nbcnews.com/news/us-news/multiple-victims-reportedly-stabbed-rabbi-s-new-york-home-n1108271

Suspect in Monsey Stabbings Searched Online for ‘Hitler,’ Charges Say Officials said the suspect, who is charged with hate crimes, also expressed anti-Semitic views in his journal.

https://www.nytimes.com/2019/12/30/nyregion/jewish-attacks.html

Jewish college student attacked on New York subway

https://worldisraelnews.com/jewish-college-student-attacked-on-new-york-subway/?fbclid=IwAR3BF7HfYGipPktZ5w2zPyeFtPnokrEIW-Yw0hgLvf9utkH5FCaPIydBmhk

Jersey City Shooting Was ‘Domestic Terrorism,’ Officials Say

The two attackers were “fueled both by anti-Semitism and anti-law enforcement beliefs.”

https://www.nytimes.com/2019/12/12/nyregion/jersey-city-shooting-domestic-terrorism.html

Hate Crimes

https://www.nytimes.com/topic/subject/hate-crimes

 

Why? Because…

Trump signs executive order to define Judaism as a race, ethnicity

https://www.axios.com/trump-jewish-executive-order-kushner-anti-semitism-c97f5927-786f-4f4a-b10f-36816f5df20a.html

Or, stated another way…

Trump’s Executive Order and the Rise of Anti-Semitism

The president’s campus intervention ignores the bigger threat of anti-Semitism and threatens free speech.

https://www.nytimes.com/2019/12/11/opinion/trump-bds-movement-israel.html

To protect Jews on campus? This is beyond the alt-right fringe. Reclassification for maximum racist effect and pure Nazi 101. He is a very sick, twisted and evil man and trust me, you’re next.

 

Did you get your fill of Phil?

 

Druckerreport.com/blog

@DruckerPhilip

Instagram: Philip_Drucker

Phil Drucker’s Rant for 12-24-19: “An Open Letter to Robert Reich”


Dear Mr. Reich:

Please allow me to introduce myself. My name is Philip Drucker and I am a retired lawyer, Constitutional Law Professor and amateur historian. Recently, I came across an article you had written, Robert Reich: If Impeached by the House, Trump is Literally Unpardonable.

https://www.newsweek.com/trump-impeached-house-literally-unpardonable-1475096
I found it to be of great interest in matters related to the breadth and scope of a successful congressional impeachment proceeding to limit the power of the ExecutiveSpecifically, this part of the Pardon Power in Section II Clause 1:

The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.

It never made sense to me that the Founders intended to leave an impeached but not removed monarch, er, president in office without so much as a hint of punishment, restrictions or restraint on his or her future conduct. I posit this position is anathema to the basic duties of the president as included in Article II Section 3:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

As well as the even more central tenet to our democratic republic that we are a nation not of blood or title, but of law and that no one, not even a president is above the law. If for no other reason that this, we must never let Trump or any other president ever pardon themselves. To do so would be, in effect, to create a tyrant the likes of which there may be no return.

After sufficient research, I completely agree with you on the issue of whether a president, any president, can pardon him/herself, or any other impeached president from the impeachment itself, and any criminal liability that may attach as a result of further prosecution under the laws of the United States of America. They cannot. There is however, and as I suspected, yet another piece to the puzzle that seems to indicate that after impeachment, any other crimes for which the president may be charged with having committed during his/her remaining tenure in office are similarly unpardonable and, hence, will be subject to prosecution for, and if found guilty, appropriate penalties as indicated under the applicable statute(s).

However, for proper authority and guidance, we must look far beyond Ex Parte Garland (1867), a case involving an ex-confederate soldier during the time of Reconstruction, an era generally believed to be a time of Southern forgiveness and unification. How can this case be “settled law” in matters of pardons when it was not challenged for over 100 years, not because of its brilliance, but because there were no other presidential impeachments to which it serve as guidance?

Further, Garland contains no instruction that a sitting president can pardon himself thereby placing him/her above the law. I simply isn’t there and yet somehow turns up again and again as Supreme Court approval for an unlimited Unitary Presidency. This fancy, constitutional sounding term is often employed as a thinly disguised front for the right to anoint an American king in a American monarchy, which in many ways is an abuse of power in and of itself, if employed by the president himself. We must return to an earlier time for guidance and return to the time and place of the American Pardon Power’s historic origins, England.

Without doubt the American Presidential Pardon Power was derived from the royal English Prerogative of Kings. It would also be uncontested prior to the 17th Century, the power to pardon, also referred to as the prerogative of mercy, was unlimited. It was associated with grace and the King’s reflection of the Almighty’s capacity for justice and mercy. Please remember this is a time when the idea of Church and State would have been treated as both treasonous and blasphemous, neither of which would be true today. That is, of course, unless you think he is the chosen one and his orange skin is a result of the holy spirit flowing through him. (You really can’t make this up, can you?)

It is in the late 17th Century when the true inquiry and illuminative history begins. For it was on December 20, 1678 that the House of Commons sought to resolve the conundrum of a royal pardon involving the conviction of Thomas Osborne, Earl of Danby, for treason and other high crimes and misdemeanors, ending in a restriction on the pardon power in matters of impeachment.

Leaving the factual history behind, the impeachment as fascinating as it is, the point being, for the first time, Parliament recognized the King’s pardon as irreconcilable with the notion of “constitutional balance”. Particularly, in connection with a somewhat “rogue” and irresponsible monarch often flaunting the Constitution for less than commendable, usually selfish and often traitorous, reasons. Sound familiar? For the most part, members of Parliament believed the power of impeachment was necessary to establish a better government and that after impeachment it was in the best interest of the King and the Nation, particularly in matters involving High Treason, that this person not remain free. Interestingly, Parliament also worried that the wanton use of pardons would silence all testimony and, thus, suppress the truth of any plot. Interesting to note how little treason, bribery, corruption, high crimes and misdemeanors have changed since the days of King Charles II till the time of King Donald the First, isn’t it?

But it is upon deciding that a restraint on pardons in matters involving impeachment was proper and just, that an ancient restraint on the pardon power comes to light. However, I have not heard it discussed at length, In fact, I’ve not heard it discussed at all. Yet it is, seemingly, extremely relevant to today’s conversation. Namely, that the King could not issue a pardon for any felony that deprived a third party of their right to a legal remedy (recognized by judicial tribunal in 1673). In cases of impeachment, the third party, it turns out, was, in fact, the whole Commons of England. Here, We the People.

If nothing else, here would appear to be, at least, one sound basis for Nixon’s resignation prior to impeachment and, now that our 45th President has been impeached, he cannot pardon himself or can any other president pardon him for any of offenses against the United States, including all criminal acts, if it deprives we, us, the American people, of our right to legal remedy. And most assuredly, those particular acts within the articles of impeachment for which there would certainly be a Due Process argument for maintaining a remedy at law for a third party (that would be us).

In an another eerily similar situation, the House of Commons and the House of Lords clashed and, despite the House of Commons issuing numerous resolutions outlining their obviously stronger position, with Charles hemming and hawing the whole time, no actual legislation could be agreed upon. Although he remained fully pardoned, Danby spent the next five years in the Tower of London. But, as the years crept on, more and more restrictions were placed upon the pardoning power while the deprivation of individual third party rights (the same is true in America as part and parcel of Due Process) is still a valid issue for consideration to this day.

Although more research would be an obvious necessity, Due Process third party remedy rights in America of which plenty comes to mind, I would like to recommend, We the American People, start with a simple question. Are we, or are we not smarter today in America than the good people of 17th Century England? At the moment, that question seems to be open for debate.

In closing, I again take the opportunity to concur with your analysis regarding the limitations placed upon the pardon power in matters involving impeachment. I would further argue that in the best interest of the Country and our “King” although he may not realize it, now impeached, Trump cannot be pardoned, by himself or any other president, for any criminal acts under the applicable Federal Statutes for which he has already been impeached, and in fact for any offense against the United States he may violate during the remainder of his time in office. This being true, regardless of whether he is convicted and removed by the Senate, or not.
Humbly, I submit for your opinion and hope to hear from you shortly. Sources and citations available upon request. Thank you for your consideration.

Philip Drucker

Did you get your fill of Phil?

https://www.druckerreport.com//blog
@DruckerPhilip
Instagram: Philip_Drucker

Phil Drucker’s Rant for 12-17-19: “Anyone Know Where I Can Find a Good, Hardly Used Teleprompter?”


Q: Have you ever asked yourself, what exactly does it mean to be an American? Or, more precisely, what does it Constitutionally mean to be an American. Oddly enough, there is an answer. It is in the Preamble. If we analyze the Preamble we find several directives, principle and wisdom, both hidden and obvious, to guide us toward honoring the words and intent of the Founding Fathers in our everyday lives and deeds.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Let’s begin at the beginning, “We the People of the United States,” a statement of sovereignty and independence. A statement of affirmation and defiance, letting the world know that in America, it is the will of the People that ultimately rules and that without our consent, no government can be considered legitimate unless it acknowledges, honors and reflects the People to whom all who purport to serve must yield. This is true from the lowest of civil servants to the highest and, of course, includes, if not more so, the President of the United States of America.

The next line is “in Order to form a more perfect Union,” not a perfect union, the Founders were far too intelligent to seek perfection from those subject to the human condition, but to strive for a more perfect union.  A smarter one, a kinder one, a better one. How do I know this? Look at the words included over the next several sentences. Justice, tranquility, provide, promote, Welfare and Liberty. These are the words of progress through compassion and unity. Unity of thought and mind. One mind and one heart dedicated to the betterment of all.

Today, is Rally for Impeachment Day and we are all here to show our honor and respect for the Constitution. And today, We the People, as is our right, is calling for the Impeachment of our 45th President Donald J. Trump for he has not only violated his oath of office, but has repeatedly and without so much a word of remorse, violated the Constitution and hence the will of the People. And therefore, I posit, there can be no greater harm and injustice to the public weal than to leave this monster in power.

Looking again to the Preamble, do you see words promoting deeds of or even the spirit of selfishness, self-gain and self-interest over all others? Of  “prosperity” clearly at the expense of others? That uncontrolled greed and ambition, regardless of the consequences are what it means to be an American?

Where do you see a mandate for cruelty? Cruelty toward our fellow Americans and those who might be strangers from another land? When did America become afraid of destitute refugees, men, women and children, walking barefoot to our land in hopes of a better future as an American?

Where does it say put children in cages? Where does it say deport the needy and the sick? Where does it say divide the people along social, economic, racial, gender and religious lines? Where does it say it is American to hate those who are not like you? Who do not look like you? Or swear allegiance like you? Or who do not pray to the same G-d as you? It does not.

So yes, today we rally for impeachment as is our right for it is the remedy specifically included within the 2,543 words of the Constitution. 

In closing, be confident in our path forward for it is the path of unity and compassion. We are just and right in our demand for impeachment. He is not a king and he will never be king. For in America, we have no king, only pretenders to a mythical and non-existing throne made of gold, fantasy and yes, tyranny. And rest assured, We, this (pointing at crowd) fight for democracy, a better life for everyone, and a more perfect union, is what it means to be an American.

Thank you and G-d bless America. -PD

 

Did you get your fill of Phil?

Druckerreport.com/blog

@DruckerPhilip

Instagram: Philip_Drucker

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