Friday, September 2, 2016

America's Favorite Tyrant: Abraham Lincoln

What does tyranny look like?
Here's a letter to General Winfield Scott from Abraham Lincoln:
"To the Commanding General of the Arm of the United States
You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line, which now used between the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally or through the officer in command at the point where the resistance occurs, are authorized to suspend that writ.
April 27, 1861
A. Lincoln"
In case you read that and are waiting for the evidence of tyranny, here is the Constitution on this point:
"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
That provision -- the sole constitutional provision authorizing suspension of habeas corpus -- is a clause of Article I of the Constitution. In Article I, the States created the Congress and endowed it with ALL legislative power of the federal government. The habeas provision, from section 9 of Article I, states the only instances in which suspension may occur, and provides clear limitation on the power to suspend the writ.
From that provision, we know only Congress can suspend the writ of habeas corpus.
Now, some two years after Lincoln began instructing his general officers and their staffs that they were empowered to suspend the Great Writ in particular circumstances described by Lincoln the Congress passed an Act authorizing Lincoln to suspend the Writ. The Habeas Corpus Suspension Act of 1863 also provided immunity to Lincoln and his officers from suits filed by those injured by his previous suspensions of the Writ.
That Congress ultimately authorized the suspension of the Writ in its 1863 Act tells you everything that you need to know to wade through the questions about whether Lincoln's order to General Scott (and his orders to other generals) constituted tyrannical acts.
Lincoln, as President, embodied the Executive Power of the United States. The executive power prosecutes wars authorized by Congress and enforces laws passed by Congress. Had CONGRESS passed legislation suspending the Writ, Lincoln's order would be consistent with the Constitution, and, in that sense, at least, not an anti-constitutional form of tyranny.
But to appreciate the "lots of harm, lots of foul" nature of Lincoln's actions, you have to understand what it is that the Writ of Habeas Corpus does.
While the Constitution deposits all legislative power in the Congress and all executive power in the President, it deposits all judicial power of the United States in the Judiciary, consisting of the Supreme Court and such lower courts as Congress should authorize.
The Writ of Habeas Corpus is, in fact, a court order. "Writ" is just another way of saying "Order." Habeas corpus, literally translated from Latin, means "present the body" or "you have the body." In the technical, legal sense, a Writ of Habeas Corpus is an Order of a Court directing a representative of the executive power of the government to appear in court, along with body (the person) whose rights or liberties are at stake. The Order has the EFFECT of requiring the executive branch of a government to appear before the judicial branch of a government, there to provide justification for detaining the person, or suppressing them in the exercise of their rights.
Suppose that troops under General Scott observed a man counting troop transport cars on the rail line from Philadelphia to Washington.
Or, suppose that they discovered a man conducting measurements suggestive of a plan to attack the line with explosives.
In all reasonable contexts, under our tradition of law, it would be required that the executive branch apply for search and arrest warrants to detain the suspect, and the panoply of constitutional protections for persons accused of crime would thereafter be available to the suspect.
Among the rights are many commonly recognized ones: the right to be free from wrongful arrest, search, and seizure; the right to representation by counsel; the right to trial by jury; and, the right to be free from cruel and unusual punishments.
Outside the context of a suspension of the Writ of Habeas Corpus, if the executive branch searched and seized without warrant, denied legal counsel to the accused, refused trial by jury, or imposed cruel and unusual punishments, a Petition by the injured person would ask the judiciary to issue a Writ of Habeas Corpus.
The Petition for a Writ of Habeas Corpus is the document filed by, or on behalf of, a person wrongfully detained or wrongfully restrained in the exercise of their rights.
Today, shrouded in mystery, most Americans, if they have any notion of Habeas Corpus at all, associate the petition for a writ of habeas corpus as a device used by convicted criminals to complain about their trials, convictions, and punishments after the fact, and typically by filing habeas actions in federal court after being prosecuted and convicted in State Courts. The mistake would be to conclude that the Petition for a Writ of Habeas Corpus and the Writ itself are just the clever tools of those who coddle criminals.
The Petition and the Writ are, first and foremost, the tools of those that love liberty and despise the deposit of too much power in the hands of the executive branch of a government. And, in fact, the Petition isn't just about seeking "post-conviction" relief for "criminals."
In 1992, for the second time in my young legal career, I drafted and filed a Petition for a Writ of Habeas Corpus. The brief version of the story shows the value of the Petition and the Writ.
In the run up to the 1992 Republican Convention in Houston, Texas, pro-life activists leading Operation Rescue organized a series of demonstrations and protests in Houston. The stated purpose of these events was to insure that the Republican Party retained the pro-life plank of its quadrennial presidential platform.
While in Houston, rescuers protested at local abortion businesses, including affiliates of America's abortion superstore, Planned Parenthood. A local judge, whose re-election had been supported financially by the law firm representing the abortion stores, issued an Order that limited the rights to freedom of speech within the vicinity of these abortion stores.
Seven pro-life leaders decided that they would challenge the power of the judge to deny their constitutional rights. They were Keith Tucci, Randall Terry, Patrick Mahoney, Wendy Wright, Flip Benham, Joe Slovenec, and Bob Jewitt. They entered the "forbidden zone" and prayed. By court order, they were arrested and held without bond to answer before the local judge.
Together with my late friend and colleague, Mark Troobnick, I researched and drafted a petition for a writ of habeas corpus. Our petition sought review, first in the Texas Court of Appeals and then in the Texas Supreme Court of the detention of the praying protesters. The Texas Supreme Court granted the writ. Under the Court's order, our protester clients were released pending their consideration of the merits of the arguments Mark and I had prepared that the local judge's order violated the right to freedom of speech.
Ultimately, after full briefing and argument, the Texas Supreme Court affirmed its provisional decision and overturned the speech restrictive injunction issued by the local court.
Now, suppose that Tucci, Terry, Mahoney, Wright, Benham, Slovenec, and Jewitt had organized a similar peaceful demonstration against Lincoln's war, with the purpose and effect of discouraging enlistment in the Union armies.
We know from history that Lincoln and his generals did not brook interference with enlistment or conscription. General Ambrose Burnside ordered the arrest and courts martial of a former Congressman, Clement Vallandigham, because of his public addresses about the War, and the effect of those addresses on military enrollment in Ohio and elsewhere.

In the context of that time, relief for Tucci & Company would be found, if at all, by Writ of Habeas Corpus. But remember, Lincoln had suspended habeas corpus, and did so without congressional approval for two years, and continued to do so with congressional authorization for two years more. So the victory in Texas would have been a doomed failure in the Lincoln's tyrannical Union.

Tuesday, August 9, 2016

Taking Your Polls With a Grain of Salt

One of the harsher criticisms delivered by a New Testament author is found in the Letter to the Hebrews. (If you aren't a "believer," I hope you'll tolerate this brief observation because it leads somewhere important.)
The writer criticizes Hebrew believers that aught, based on the passage of time and experiences of life, to be eating a diet suitable to adults. The writer uses the phrase "strong meat" to describe the diet that the writer expected those Hebrew believers to be of sufficient maturity to consume. (For the vegan reader, that's going to take you sideways if you get locked up on it … maybe think of the writer as having endorsed Brussel sprouts.) The writer's point is that, as adults, from the time our milk teeth drop out and our permanent teeth drop in, we are capable of eating more than breast milk from our mothers.
The writer's criticism focused on those Hebrews that should be, spiritually speaking, on an adult diet of spiritual understanding, but who were, instead, still feasting at the teat, surviving on the barest spiritual nutrition.
“Time to grow up,” I think, was the author's point.
Elections seem to bring out the teat sucker in folks.
I have in mind the consumption of news about presidential polls.
So, in the span of a few short days, we have been invited, courtesy of traditional news sources, to believe that we have swung from a Trump bump to an electoral Armageddon in which the Democratic Beast rises to the throne of America. Is that so obviously the case? If you take the Pablum of predigested summations, you may think it is so.
I think not. And, if you are a thinking person, you may think not too.
If you are a person that isn't content to avoid macerating facts, if you don’t simply accept the spoon fed agenda of the lap dance media, you will have looked through their filters and studied and understood the implications of what is, and what is not, being reported, about polling.
It's time to grow up.
If you have read this far, then I know you are capable of reading and understanding basic written English; to my thinking, that also means that you are capable of getting beyond the Pablum of media reports about presidential polling, that you can, you should actually take up the source information and screen it for its meaning.
Because it seems to be the place where folks shop for polling data, let's use RealClearPolitics and its polling summary page as an example. I've reorganized and reproduced their summary here:

 As shown, the largest sample polling was that of the Los Angeles Times poll. That poll, of over 2000 participants, showed the narrowest margin between Clinton and Trump, a single point of preference separating the two.
Moreover, that poll, based on its sample size had a self-reported negligible margin of error. Finally, among the polls summarized, that poll sought the views of LIKELY VOTERS, and was one of only TWO polls in the RealClearPolitics summary that sough the views of so-called LIKELY VOTERS.
The other poll of LIKELY VOTERS was completed a week prior to the LA Times Poll. It included a smaller polling sample, produced a reportable margin of error, and, while it showed Clinton ahead of Trump, the spread between them was nearly completely covered by that margin of error.
The remaining EIGHT POLLS were all of small sample sizes compared to the Los Angeles Times poll.
The remaining EIGHT POLLS were of a different demographic group. Where the LA Times and Reuters/IPSOS polls sought the views of LIKELY VOTERS, the remaining polls all sought the views of REGISTERED VOTERS.
Give some thought to what this could be telling you.
As a nation, a substantial minority of us, in many cases nearly 50% of those who are not only old enough to vote but are also eligible to vote do not vote. The most recent presidential election in which both the number of registered voters and the number of actual voters is certain, 2004, showed a turnout of about 60% of registered voters. You can check my math here and here.
Of course, there are many uncertainties in every election that can cause variations in the turnout and the outcome. Yet, if the search is for the most likely accurate forecast of how the election actually would turn out, you have to ask yourself, would the more accurate picture be gained by polling those who are registered to vote? Or, would the more accurate picture be gained by polling those who are, based on prior behavior and declared intentions, actually LIKELY TO VOTE?
The wildly ranging numbers in the REGISTERED VOTER POLLS, it seems to me, are exactly what to expect in a large scale group amongst whom nearly 50% are unlikely to actually vote in an election, even though they have bothered to register to vote.
Here’s another curiosity for a “meat-eating” poll reader:
If a poll of REGISTERED VOTERS showed one kind of trend or condition, but a contemporaneous poll of LIKELY VOTERS produced a contrary trend or condition, what meaning, if any, might/could/should we draw from a preference for polls of REGISTERED VOTERS or of LIKELY VOTERS?
Suppose that polling REGISTERED VOTERS produced reliably more accurate results, results that actually matched election outcomes. Or suppose, to the contrary, that polling LIKELY VOTERS did so. In either event, for what possible reason would a news agency or its polling partners choose to gauge the less reliable group?
Think about it.
Suppose you had to make your living betting on the outcomes of NFL games.
If you did so, which of the following would be more important to you: knowing what would be the actual starting line-up for Sunday's game, or simply knowing the undifferentiated list of all 53 eligible players on the team's roster?
To be sure, when injuries require that they do so, coaches will go into the bench; and you will want to know, in turn, about the depth of the bench for various positions, but in the first instance, how likely are you to pick one team over another, or even more so, pick a game based on point spread, if you are told only that there will be 11 unidentified players on one team playing against 11 unidentified players on the other team. The risk of losing on your bets would be enough to make you seek legitimate employment!
If the coach puts a passing quarterback on the field, that is some indication of the game to be played.
Here, the generic "registered voter" is placed in comparison with the more certainly known "likely voter."
If you think it odd for me to focus on the differences to be found in REGISTERED VOTER polls and LIKELY VOTER polls, I’d recommend reading some coverage of the differences. You can read about this topic, in the context of previous elections, here, here, here, here, and here.
And if a media organization likes the odds spread when polling REGISTERED rather than LIKELY voters, and then actually produces only polling of REGISTERED voters, that should give you that one more insight:
Yes, the media does have a preferred candidate, and they don't like the trends among likely voters, so they disguise them by polling a fairly irrelevant group instead.

Sunday, July 24, 2016

Hillary's View of the Military: Loathsome, Contemptible, But Make Great Butlers At Parties!

Some of you weren't alive during the Clinton White House era, or you were not tracking events at the time. Please bear that in mind for a minute. I'm not BLAMING you, I am just asking your patience about a certain fact. A retired (old) professor from UNC says that Trump doesn't understand the military he would head if elected president. Now, he didn't counterclaim that Hillary does, but obviously that will be her claim. So what does Hillary's "understanding of the military" look like? Can we possibly know something tucked inside a person's brain? Not entirely, to be sure, but those who speak, write, and act provide us powerful clues to their "understanding" of things.
In Bill Clinton's White House, at an evening reception, Hillary and her staff asked Marines attending in their dress blues to pass around the hors d'oeuvres trays.


They really did. Ignore that the badges and ribbons on their chest manifested love of country, devotion to service, mastery of fear in the face of the enemy. The woman who would be Commander in Chief wants Marines who are guests to become waiters. Pardon another pause here, because I refuse to categorized as demeaning service. I've done a lot of serving in my life. Not like Marines or other service members. But 25 years of nonprofit legal representation, at least 15 years of which would be HIGHLY UNDERCOMPENSATED by any reasonable legal pay scale. I never begrudged it because I loved what I did. At home, we not only raised our children but we hosted dozens of our children's friends for an hour, the day, overnights, week-ends. We opened our home to a recently graduated son of a former colleague for over six months. We hosted our neighborhoods "safe enough to trust the commoners with them" fireworks for over a decade. At church, over a decade serving with K-2nd grade kids for AWANA. Nearly a decade serving the youth ministry in our church. There is blessing and grace and power from God in acts of service. So, please don't think I object to a Marine carrying an hors 'd'oeuvres tray. I object to a service member in uniform who is a guest at a function being transformed into a waiter due to ignorance and contempt by the First Lady. Yes. You're right. It could have just been ignorance, and a moment of poor judgment by a hostess. That can happen. But then, there was the White House policy under Bill Clinton: military personnel attached to the White House were discouraged from wearing their uniforms at work. Well, well, you might say, that's not so bad, is it. After all, the military is under CIVILIAN control. Yes it is.
Still, when you deprive a service member of the privilege of wearing a uniform they view with the pride of accomplishment, you attack an aspect of their identity. On a more practical level, when you order someone to acquire a different wardrobe, you impose an expense on them. Our military is not paid Hollywood scale in order to afford the peccadillos of a Vietnam era brat, or to serve as subservient set pieces to their world view. And how was this preference for civilian attire enforced by White House staffers? "We don't talk with people in uniforms." Imagine that. Good enough to be sent to blow up aspirin factories and intervene in Bosnia, but we'll be darned before we tolerate the sight of your uniform in our enclave of power. So, get yourself ready for the lying onslaught from a woman that loathes the military and has demonstrated that loathing consistently throughout her public career, and remember, if you want your fathers and mothers, brothers and sisters, and sons and daughters to be transformed from one of the most effective fighting forces in the world, to the world's largest corps of waiters and waitresses, #votehillary.

Tuesday, July 5, 2016

Comparing Apples and ... Classified Information: Justice Joseph Story 'Splains It All for You

In a press release and briefing today, FBI Director James Comey announced that the Federal Bureau of Investigation, while referring the Bureau’s investigation into the Hillary Clinton Email Server Affair “to the Department of Justice for a prosecutive decision,” announced that the FBI would be “expressing to [the Department of] Justice our view that no charges are appropriate in this case.” In the release and in his remarks today, FBI Director Comey asserted that there is evidence showing that Clinton and her staff were EXTREMELY CARELESS in their treatment of the emails that included sensitive and top secret materials. Comey's remarks evidence a stunning omission. In his release, Comey discusses the referral of the Clinton matter to the Department of Justice and announces that the FBI will not recommend prosecution. What could be missing from a major announcement of this sort? What glaring omission is explained only by its inexplicable irrelevance to Comey's remarks? What Comey leaves entirely unstated in his remarks is that a federal criminal statute makes it a felony to act with GROSS NEGLIGENCE in the handing of such materials. Still, there is the question a reasonable person must ask: Does Hillary Clinton's "EXTREME CARELESSNESS" equate with the federal criminal law's requirement of "GROSS NEGLIGENCE?"
That's a great question, Jim!
How often have we been told that we are a Nation under the "Rule of Law," one in which one’s status and station in life SHOULD NOT AND DOES NOT determine whether one is bound to obey the law? How often has the Patriotic Chorus elevated this distinguishing feature of America over third world tyrannies and tinpot dictatorships? THE Rule of Law. The RULE of Law. The Rule of LAW. THE RULE OF LAW. In fact, under the Rule of Law, only a jury can decide whether Hillary Clinton is more of a Bozo the Clown in the handling of sensitive government information, or more of an Insane Clown and her Posse. Indeed, in a case of such serious political consequence, the wise approach would be for the Department of Justice to present the case to a grand jury. True enough, a grand jury, as is sometimes said, could be convinced to indict a ham sandwich, if a prosecutor were inclined to prosecute comestibles. The risk of damage to the reputations of the FBI and the Department of Justice – in a case already described as presenting evidence of EXTREME CARELESSNESS – the only wise move of astute prosecutors would be to ask a grand jury to decide whether there was probable cause to believe that Clinton's EXTREME CARELESSNESS equated with GROSS NEGLIGENCE. Then, even if a grand jury concluded that Clinton's EXTREME CARELESSNESS satisfied the statutory prohibition of GROSS NEGLIGENCE, it would remain for a trial jury to decide the exact same question to the certainty commonly called "beyond reasonable doubt." Frankly, it seems suspect for FBI Director Comey to be in such a rush to proclaim the EXTREME CARELESSNESS of Clinton and her staff and just as suddenly to doubt that a prosecutable offense had been discovered.

Still, Comey did use the phrase “EXTREME CARELESSNESS” and the federal statute punishes “GROSS NEGLIGENCE.” While courts and judges may define the meaning of “GROSS NEGLIGENCE,” it is the peculiar function of juries – grand juries and trial juries – to apply law to facts. Here, both juries would be called on to decide whether Clinton’s EXTREME CARELESSNESS is the federal statute’s GROSS NEGLIGENCE. Unsurprisingly, courts have been called on in many cases over many years to explain the legal term “GROSS NEGLIGENCE.” One of America's early Supreme Court Justices, and one of its most highly regarded jurists, gave this view of how to distinguish ordinary and gross negligence:
"If a bag of apples were left in a street for a short time without a person to guard it, it would most certainly not be more than ordinary neglect. But if the bag were of jewels or of gold, such conduct would be gross negligence. In short care and diligence are to be proportioned to the value of the goods, and the temptation and facility of stealing them and the danger of losing them."
Tracy v. Wood, 24 F. Cas. 117 (Story, Circuit Justice, C.C.D.R.I. 1822).
So, in two nearly identical circumstances, the exact same conduct might just be good old regular negligence – the kind of negligence evidenced when a driver briefly looks down and, as a result of his brief inattention, rear ends the vehicle in front of him – or it might, based on the value of what is at stake and the risk of harm – be the sort of negligence that is evidenced when a parent leaves an infant in a closed car on hot sunny afternoon. Still not clear?

Suppose we substitute different "goods" for the apples and jewels Justice Story employed in his illustration:
"If a bag of old newspapers were left in a street for a short time without a person to guard it, it would most certainly not be more than ordinary neglect. But if the bag were of top secret documents and classified information, such conduct would be gross negligence. In short care and diligence are to be proportioned to the value of the goods, and the temptation and facility of stealing them and the danger of losing them."
I think that helps to clarify what is GROSS NEGLIGENCE in the Clinton Email Server Affair, leaving me with just one question:
How is it that FBI Director Comey doesn’t get it?