Warm Southern Breeze

"… there is no such thing as nothing."

GOP: Laws Do Not Apply To POTUS Trump

Posted by Warm Southern Breeze on Monday, December 30, 2019

Where in America can you, I, or anyone, go to be immune from the law?

It’s a “trick question,” or… is it?

And yes, it’s a VERY serious question; in fact, it is an argument of which – believe it, or not – Federal Appeals Court Judges are considering the merits.

POTUS John Adams (1735-1826) c.1800-1815, painting by Gilbert Stuart (175-1828)

One simply can’t imagine the notion – that in our nation, a nation of laws, and not of men, that anyone could be above the law – and yet… here we are.

In February 1775, John Adams published a collection of essays entitled “Novanglus” – popularly known as the Novanglus Essays – where the idea that foundling nation which became “The United States of America” was a nation of laws, and not of men – was first known to be expressed.

James Harrington, oil on canvas, feigned oval, circa 1635, on display at Gawthorpe Hall, Burnley

Historians argue that the idea, or thought, was almost certainly derived from James Harrington (1611-1677), an English political philosopher, whose most renown work, “The Commonwealth of Oceana” (1656) was owned by Adams (3rd edition-1747), contains his signature on the title page, and is found in The John Adams Library of Boston Public Library, and may found online here:
https://archive.org/details/oceanaotherworks00harr/page/n5

On page 38 of the work, in the essay entitled “Oceana,” Harrington wrote in part that,

“Government, according to the Ancients, and their learned Disciple Machiavelli, the only Politician of later Ages is of three kinds: The Government of One Man, or of the Better Sort, or of the Whole People: which by their more learned names are called Monarchy, Aristocracy, and Democracy. These they hold, though their proponents to degenerate, to be all evil. For whereas they that govern, should govern according to Reason, if they govern according to Passion, they do that which they should not do. Wherefore as Reason and Passion are two things, so Government by Reason is one thing, and the corruption of Government by Passion is another thing, but not always another Government: as a Body that is alive is one thing, and a Body that is dead is another thing, but not always another Creature, though the corruption of one comes at length to be the Generation of another. The Corruption then of Monarchy is called Tyranny; that of Aristocracy, Oligarchy; and that of Democracy, Anarchy. But Legislators having found these three Governments at the best to be naught, have invented another consisting of a mixture of them all, which only is good. This is the Doctrine of the Ancients.”

So it seems almost certain that Adams derived that idea from James Harrington, but it was Adams’s use of the phrase which popularized it. Of note, Adams also wrote the clause “government of laws, and not of men” in the Declaration of Rights drafted for the Massachusetts Constitution in 1780.

Continuing…

In pertinent part, Adams wrote in Novanglus Essay No. VII, that,

“If Aristotle, Livy, and Harrington knew what a republic was,
the British constitution is much more like a republic than an empire.
They define a republic to be a government of laws, and not of men. [emphasis added]
If this definition be just,
the British constitution is nothing more nor less than a republic,
in which the king is first magistrate.
This office being hereditary,
and being possessed of such ample and splendid prerogatives,
is no objection to the government’s being a republic,
as long as it is bound by fixed laws,
which the people have a voice in making,
and a right to defend.
An empire is a despotism,
and an emperor a despot,
bound by no law or limitation but his own will;
it is a stretch of tyranny beyond absolute monarchy.
For,
although the will of an absolute monarch is law,
yet his edicts must be registered by parliaments.
Even this formality is not necessary in an empire.
There the maxim is quod principi placuit legis habet rigorem,
even without having that will and pleasure recorded.
There are but three empires now in Europe,
the German or Holy Roman,
the Russian,
and the Ottoman.”

George Santayana

The aphorism written in 1905 by philosopher/author George Santayana in The Life of Reason, vol. 1: Reason in Common Sense, seems apropos here:

“Those who cannot remember the past
are condemned to repeat it.”

And so, that begs the question…

How could we have possibly gotten to this so very corrupted point?

Samuel Johnson

Again, let the words of the wise guide us, because when ideas or thoughts are repeated, it re-emphasizes their importance.

Renown lexicographer Samuel Johnson (1709–84) expressed that idea as much in Rambler No. 2 (24 March 1750) when he wrote in part that,

“Men more frequently require to be reminded than informed.”

It is of unimaginable necessity that it is incumbent upon us to recollect this saying made by a GOP Presidential nominee candidate upon the campaign trail heading toward the Republican national convention:

“I could
stand in the middle of 5th Avenue
and shoot somebody,
and wouldn’t lose any voters…
okay?
It’s, like, incredible.”

POS45

–– Donald J. Trump, then-candidate for the Republican nomination as President, at a campaign rally 23 January 2016 at Dordt College, in Sioux Center, Iowa

On October 23, 2019, William S. Consovoy, an attorney defending Trump against a suit filed by the House of Representatives seeking his tax returns, told the three-judge panel (en banc) of the Second United States Circuit Court of Appeals that Trump was LITERALLY immune from ANY type of prosecution.

Judge Denny Chin asked Mr. Consovoy, “What’s your view on the Fifth Avenue example? Local authorities couldn’t investigate, they couldn’t do anything about it?”

Mr. Consovoy replied, “I think once the president is removed from office, any local authority… This is not a permanent immunity. No.”

Judge Chin asked for clarification saying, “Well, I”m talking about while in office. Nothing could be done? That’s your position?”

Mr. Consovoy replied, “That is correct, that is correct.”

ref: https://www.c-span.org/video/?c4824386/lawyer-argues-president-trump-prosecuted-office-shoots

What we’re seeing here is an example of a man who, as President, thinks, believes and acts as if he is above the law, is treated by his sycophants as if he is above the law, and defended in court (yes, I’m quite serious about that, and have shared audio from the Federal Appeals Court so proving), as if he is ABOVE THE LAW.

In theory, because the President is the nation’s “chief executive officer,” s/he could publicly identify the name of every secret/undercover CIA agent (blow their cover, e.g., “out” them), as well as share the planned movements & internal workings of the Delta Force and SEAL Team 6… but, it would unwise to do so – but again, technically, it would be 100% legal for the POS45 to do that because s/he is the boss, the Chief Executive of the Executive Branch – oftentimes colloquially known as “The Liar in Chief.”

–—//––

It is not expressly illegal for the President to unmask the name of the whistleblower. There are, however, federal protections that prevent retaliation against whistleblowers. Legal experts and government accountability advocates found Trump’s Twitter post unnerving.

“By making public the unsubstantiated name of the whistleblower, Trump encapsulated the pathology of his presidency — callous and cruel disregard for the well-being of anyone or anything, untethered from his own personal needs and interests.”
– Aaron David Miller, Carnegie Endowment Senior Fellow, former State Department Analyst

ref: https://www.npr.org/2019/12/29/792222297/trump-comes-under-fire-after-sharing-name-on-twitter-of-alleged-whistleblower

Whereas once before, he was a relatively private citizen, now, the CIA officer whom POS45 and others claim to have “outed” as being the whistleblower, now has to have 24/7/365 police protection.

Yes, his life, and more than likely, the lives of his family, are now in danger of being harmed, or killed… by his own countrymen – all because of what the Congressional Republican mad hatters – and now, the POTUS – have done.

Denny Chin, Judge, Second U.S. Circuit Court of Appeals

It’s altogether one thing to be placed in jeopardy of one’s life, or welfare, by working undercover in a hostile foreign land. It’s altogether a different thing to have one’s life endangered by doing the good and right thing while working in your own homeland. In some regard, it’s somewhat like being a police officer, knowing that, on any given day, at any time, just because you’re doing the right thing in your job to keep the peace, and enforce the law, you could be killed.

But, read it again – Judge Denny Chin’s question to Attorney for the President William S. Consovoy, and Mr. Consovoy’s reply:

Judge Chin:
“What’s your view on the Fifth Avenue example? Local authorities couldn’t investigate, they couldn’t do anything about it?”

Mr. Consovoy:
I think once the president is removed from office, any local authority… This is not a permanent immunity. No.”

Judge Chin:
“Well, I”m talking about while in office. Nothing could be done? That’s your position?”

Mr. Consovoy:
“That is correct, that is correct.”

Nothing could be done…

Nothing.

If that’s not above the law, it’ll have to do until it gets here, because that is as blatant a statement of being above and beyond the law – LITERALLY IMMUNE FROM PROSECUTION – as one could possibly imagine, and inherently violates the “Equal Protection clause” of the 14th Amendment to the Constitution which states in pertinent part, that:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis added]

“Nor deny to any person within its jurisdiction the equal protection of the laws.”

That’s fairly cut-and-dried. No exceptions.

And yet, the argument being made is EXACTLY that the POTUS is excluded from, i.e., immune from/to, and therefore above, the law.

If our nation’s founders – Franklin, Jefferson, Madison, Monroe, Washington, Adams, Jay, et al – could see us now… they’re probably spinning so fast in their graves, that we could hook some wires to them and generate plenty of electricity.

I ask rhetorically: When do laws NOT apply to anyone?

When, and where can anyone violate the law without consequences?

Who can murder, rob, lie, cheat, and steal –and– get away with it?

Where is that phenomenal fantasy fairyland?

Upon what planet is it located?

In what galaxy?

From what turnip truck did it drop off – and did it occur last night?

Such thinking is so utterly and preposterously absurd, that it not only boggles the mind, it literally and utterly defies imagination.

So, where, and how did that idea – of Presidential/Executive Immunity from Prosecution – come from, and get here?

In order to answer that question, we need to go back in time… but, not as far back as the idea of ours being a “government of laws, and not of men.” In this case, we need only go back to 2000, and then jump a bit further back to 1973.

The latest, and most recent opinion is entitled ” A Sitting Presidents Amenability to Indictment and Criminal Prosecution,” and dated October 16, 2000. It was preceded by another opinion dated August 18, 2000 entitled “Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate,” the summary on the opening page states that “The Constitution permits a former President to be indicted and tried for the same offenses for which he was impeached by the House of Representatives and acquitted by the Senate.”

But the original document to which both opinions was based, was a September 24, 1973 Memorandum from the Department of Justice, which subject read “Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.”

The “memorandum,” as it has come be known from the Mueller Investigation, states the question(s) before it in the opening paragraph, as follows:

“The question whether a civil officer 1/ of the federal government call be the subject of criminal proceedings while he is still in office has been debated ever since the ear1iest days of the Republic. This inquiry raises the following separate although to some extent interrelated issues. First, whether the constitutional provisions governing impeachment, viewed in general terms, prohibit the institution of federal criminal proceedings prior to the exhaustion of the impeachment process. Second, if the first question is answered in the negative, whether and to what extent the President as head of the Executive branch of the Government is amenable to the jurisdiction of the federal courts as a potential criminal defendant. Third, if it be determined that the President is immune from criminal prosecution because of the special nature of his office, whether and to what extent such immunity is shared by the Vice President.”

The gist of their opinion is based upon this solitary Constitutional matter: Article I, Section 3, Clause 7, which states,

“Judgment in Cases of Impeachment shall not extend further
than to removal from Office,
and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States:
but the Party convicted shall nevertheless be liable and
subject to Indictment,
Trial,
Judgment and Punishment,
according to Law.”

In essence, what the author(s) is saying is that, impeachment may come first, though it’s not mandatory, but whether or not it does is inconsequential, because of this colloquial idea: “We’re gonna’ get you – sooner, or later.”

The imperative command “shall” states very plainly that the impeached “Party convicted SHALL NEVERTHELESS BE subject liable and to indictment, Trial, Judgment and Punishment, according to Law.”

There is NO question about it – the impeached party MUST BE subject to indictment, trial, judgment, and punishment.

On page 34, near the conclusion of the 1973 document – aka “the memorandum” – Robert G. Dixon, Jr., then Assistant Attorney General, Office of Legal Counsel, who authored the document, wrote,

“We based the President’s immunity from criminal proceedings essentially on two grounds; First, that the person who controls criminal prosecutions as the head of the Executive branch, controls part of the evidence as holder of the power of Executive privilege, and is vested with the pardoning power under Article II, section 2, clause 1 of the Constitution, cannot at the same time be a defendant in a criminal case. This set of considerations obviously is not applicable to the Vice President. (See 11-B-2).

“The second reason was the effect of a criminal prosecution on the President’s office. (See IT-B-3 and 4.) In that context we examined the unique nature of the President’s duties and the symbolic attributes of his office. The questions now to be examined are (a) whether the Vice President in his own right is vested with constitutional and statutory duties so unique and important that they may not be disturbed by a criminal prosecution and (b) whether such prosecution would do irreparable harm to the institution of the Presidency because the Vice President may at anytime become President, i e., a theory of Vice Presidential immunity derivative from Presidential immunity. In making that evaluation we start out from the premise that immunity from prosecution is basically contrary to the spirit of the Constitution and it may be resorted to only if the considerations leading to it are irrefutable.”

The germ of the idea of Presidential Immunity, however, did not come from Robert G. Dixon, Jr.

It was even earlier.

Much earlier.

As in “Civil War Era” earlier.

In an 1867 Supreme Court case Mississippi v Johnson, supra, United States Attorney General Henry Stanbury made the following statement:

“It is not upon any peculiar immunity that the individual has who happens to be President; upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual as is the case with one who has royal blood in his veins; but it is on account of the office he holds, that I say the President is above the process of any court or the jurisdiction of any court to bring him to account as President.”

In a unanimous Opinion of the Court, the request was denied (that a POTUS uphold his duties), and Chief Justice Salmon P. Chase delivered the opinion of the court, and in part wrote that,

“The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance.

“The impropriety of such interference will be clearly seen upon consideration of its possible consequences.

“Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to [p501] observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case, could this court interfere in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?

“These questions answer themselves.

“It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

The gist of the case is that:
1.) The President of the United States cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed.
-and-
2.) It makes no difference whether such incumbent of the Presidential office be described in the bill as President or simply as a citizen of a State.

And to bring it on home, let’s quickly examine the Johnson behind Mississippi v. Johnson.

That’d be Andrew Johnson (1808-1875), the first POTUS ever impeached… who as a Tennessean, Vice President, and… well, here’s what Biography dot com says about him (in pertinent part):

POTUS Andrew Johnson (1808–1875) a Tennessee Democrat, succeeded Lincoln following assassination, and had earlier refused to leave the Senate despite the fact that his home state did. He was shortly the first-ever impeached President, though he was not convicted by the Senate.

“After Abraham Lincoln‘s election in 1860, Tennessee seceded from the Union. Johnson broke with his home state and became the only Southern senator to retain his seat in the U.S. Senate. He was vilified in the South. His property was confiscated, and his wife and two daughters were driven out of Tennessee. However, his pro-Union passion did not go unnoticed by the Lincoln Administration. Once Union troops occupied Tennessee in 1862, Lincoln appointed Johnson military governor. He walked a difficult line, offering an olive branch to his fellow Tennesseans while exercising the full force of the federal government to rebels. He was never able to gain complete control of the state as insurgents, led by Confederate General Nathan Bedford Forrest, raided cities and towns at will.

“Johnson originally opposed the Emancipation Proclamation, but after gaining an exemption for Tennessee and realizing that it was an important tool for ending the war, he accepted it. Southern papers caught his flip-flopping and accused him of seeking a higher office. This notion played out when Lincoln, concerned about his chances for reelection, tapped Johnson as his vice president to help balance the ticket in 1864. After several high-profile Union victories in the summer and fall of 1864, Lincoln was re-elected in a sweeping victory.

“On the night of April 14, 1865, while spending an evening at Ford’s Theater, in Washington, D.C., President Lincoln was shot by John Wilkes Booth, and he died the next morning. Johnson was also a target on that fateful night, but his would-be assassin failed to show up. Three hours after Lincoln died, Johnson was sworn in as the 17th president of the United States. In a strange irony often found in American history, the racist Southerner Johnson was charged with the reconstruction of the South and the extension of civil rights and suffrage to former black slaves. It quickly became apparent that Johnson would not force Southern states to grant full equality to blacks, thus setting up a confrontation with congressional Republicans who sought black suffrage as essential to furthering their political influence in the South.

“Congress was in recess the first eight months of Johnson’s term, and he took full advantage of the legislators’ absence by pushing through his own Reconstruction policies. He quickly issued pardons and amnesty to any rebels who would take an oath of allegiance. This resulted in many former Confederates being elected to office in Southern states and instituting “black codes,” which essentially maintained slavery. Later, he expanded his pardons to include Confederate officials of the highest rank, including Alexander Stephens, who had served as vice president under Jefferson Davis.

“When Congress reconvened, members expressed outrage at the president’s clemency orders and his lack of protecting black civil rights. In 1866, Congress passed the Freedmen’s Bureau bill, providing essentials for former slaves and protection of their rights in court. They then passed the Civil Rights Act, defining “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed,” as citizens. Johnson vetoed these two measures because he felt that Southern states were not represented in Congress and believed that setting suffrage policy was the responsibility of the states, not the federal government. Both vetoes were overridden by Congress.

“That June, Congress approved the 14th Amendment and issued it to the states for ratification, and it was accepted less than one month later. In a novel interpretation of the “advise and consent” clause of the Constitution, Congress also passed the Tenure of Office Act, which denied the president the power to remove federal officials without the Senate’s approval. In 1867, Congress established military Reconstruction in the former Confederate states to enforce political and social rights for Southern blacks.”

And so… here we are.

It’s 2019, and we’re smack-dab stuck right back in the Civil War.

Is it any wonder we STILL have racism in the United States?

Is it any wonder that we can’t seem to make any genuine progress?

Is it ANY WONDER AT ALL?

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