Wednesday, February 17, 2021

Trump's Last Stand?


Here is a Link that Reports SCOTUS Actions

22 February 2021 UPDATE:  Election Cases denied Certiorari with Justice Thomas writing dissenting opinions.


On 19 February 2021 the Supreme Court will consider granting Certiorari (accept the cases onto its docket) for several of the pending presidential election fraud cases, including the cases brought by Sidney Powell and Lin Wood.  These include the Georgia and Pennsylvania cases.  If 4 of the 9 justices agree to accept the cases then the Court must hear them.  If 5 of the 9 agree with the plaintiffs that massive election fraud occurred then the remaining question is what remedy will the Court impose. The Court can refuse to consider the cases (if no justice want to discuss the case, it is automatically dismissed under Rule 46), grant immediate Certiorari or request a BIO, a Brief in Opposition, and consider the request for Certiorari later.

There is a scenario in which D. J. Trump may still return to the White House in triumph.

But to understand how, we need to start in 2018 when Chief Justice Roberts wrote the Opinion in the case of Abbott vs Perez. [1]  This was a Texas electoral fraud case in which, as we have also seen this year, the trial courts refused to hear any evidence of fraud. When the case got to the Supreme Court the Chief Justice wrote that the Court could determine whether there had been fraud, or not, even in the absence of evidence presented in the courts below, by taking judicial notice of the actual voting statistics which are part of the public record.  The court does not need to know the who or how of the fraud to determine whether or not there was fraud. In the Perez case the Court looked at the voting records and decided there had not been fraud.  

This means if the Court decides to take on the presidential election fraud cases, those cases can proceed rapidly to a decision based on the public record of anomalous shifts in the votes among the candidates in the "key states."

That there were anomalies is widely accepted:

"This report studies 8,954 individual updates to the vote totals in all 50 states and finds that four individual updates — two of which were widely noticed on the internet, including by the President — are profoundly anomalous; they deviate from a pattern which is otherwise found in the vast majority of the remaining 8,950 vote updates…" [2]

However, it will be up to the Court to finally determine the outcome of the 2020 election.  Assume that 5 justices decide there had been fraud.  What is the proper remedy?

Will the Court simply say, try again better next time?  Or will the Court determine that the contested State electoral votes are invalid and no candidate received a majority of the electoral votes?

In that case there was no president after January 20th, and no vice president either.  That has two astounding results. 

First, the Speaker of the House would be Acting President. The Senate would be divided 50/50 with no presiding officer to cast any tie breaking vote.

Second, the choice of president falls to the House which under the Constitution has until March 4th to choose a president from among the top electoral vote getters.  Each state gets one vote. Since the Republicans have a majority of the state delegations to Congress, they can easily choose Trump.

The divided Senate gets to choose the new vice president from among the top two electoral vote getters.  I suspect the evenly divided Senate will not be able to choose a vice president before the March 4th deadline. 

After that date the office would be vacant and the new president would have authority under the 25th Amendment to the US Constitution to nominate a vice president, subject to Congressional approval..

And that is how Nancy Pelosi might end up as Acting President for a few weeks, succeeded by the once-and-future President Trump.


[1] I wrote about the Perez case here:


Thursday, February 11, 2021

Speaking the Unspeakable: The First Amendment & Violent Overthrow

Is it Lawful to Advocate Violent Overthrow of the Government?

The legal system of the American Federal Republic, arising from the libertarian principles of the Declaration of Independence, has a number of unique features, not widely shared in practice in other large nation states.

These include, preeminently, the First and Second clauses of the Bill of Rights -- the guarantees that the government will be strictly limited regarding our most important personal liberties.

The Founders of the Federation were gentlemen who were among nearly the last generation to receive a classical education, including literacy in Latin and Greek, with an emphasis on the history of the Roman Republic and its convoluted legal system.  They intended that the American Republic was to be established on a stronger tradition of law, the English Common Law, than had been possible for the Romans.  The Romans did not keep their republic -- rather, they lost their republican liberties, becoming mere subjects of an imperial system -- also a clear and present danger for Americans.

When Benjamin Franklin was asked, at the end of the Constitutional Convention of 1787, what type of government was being planned, he is reported to have said, "A republic, if you can keep it."

The Founders knew history and determined the new American Republic would not make the mistakes of the earlier republics.  Here, we were promised, the rule of law would restrain the power of politicians.

Thus the Bill of Rights, with its First Clause asserting the individual's right to free speech and communication, religion, association and petition and its Second Clause recognizing the individual's right to keep and bear arms (which is what guarantees the First) were imposed on the new government through general popular support as amendments to the original Constitution of 1787.

The American legal system developed based on a fundamental law in which the Legislative Power is told it "shall make no law" regarding certain subjects:  the subjects listed in the First and Second clauses. These have, as the Supreme Court earlier remarked about the First, a "preferred position" in our legal system.

This introduction leads me to the purpose of this blog entry.  These strong Constitutional Protections have actual application in the case law.  For example, regarding (IMHO) one of the most difficult areas of First Amendment jurisprudence -- the area of extreme political speech.  

Specifically, the question is, when is it  lawful, under American jurisprudence,  for an individual to engage in speech actually calling for the violent overthrowing of the government.  

The events of 6 January 2021, when large numbers of citizens visited the Capitol to "speak truth to power" and Congress reacted with fear and loathing, abandoning the Capitol, show this is not just an academic question.

Yes, the courts have considered this question.  Given the history of the revolutionary movements of the 19th and 20th Centuries, there is well developed law regarding this question.

That law was aptly reviewed by President Trump's lawyers in their Brief against the Second Trump Impeachment.  

The full Brief is here:

Below are several pages from the Brief which review the cases on Advocating for the Overthrow of the Government [emphasis added]. Based on the case law, my conclusion is that it is lawful to advocate even the "necessity" of the use of violence to overthrow the government.  A speaker may even "incite" violence against government, so long as incitement to immediate violence does not occur. 

"The fatal flaw ... is that it seeks to mete out governmental punishment ... based on political speech that falls squarely within broad protections of the First Amendment. Speech and association for political purposes is the kind of activity to which the First Amendment offers its strongest protection.125 Restrictions placed on freedom of speech are evaluated “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”126 

Thus, “[o]ur First Amendment decisions have created a rough hierarchy in the constitutional protection of speech” in which “[c]ore political speech occupies the highest, most protected position.”127 The Supreme Court has further acknowledged that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact.”128 A rule of law permitting criminal or civil liability to be imposed upon those who speak or write on public issues and their superintendence would lead to “self-censorship” by all which would not be relieved by permitting a defense of truth. “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so . . . . The rule thus dampens the vigor and limits the variety of public debate.”129 In only a few well defined and narrowly limited classes of speech may the government punish an individual for his or her words.130

Even political speech that may incite unlawful conduct is protected from the reach of governmental punishment. Indeed, “[e]very idea is an incitement,’ and if speech may be suppressed whenever it might inspire someone to act unlawfully, then there is no limit to the State’s censorial power.”131 The government may not prohibit speech because it increases the chance an unlawful act will be committed “at some indefinite future time.”132 Rather, the government may only suppress speech for advocating the use of force or a violation of law if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”133

In Brandenburg v. Ohio, the Supreme Court formed a test that placed even speech inciting illegal conduct within the protection of the First Amendment.134 In that case, a leader of the Ku Klux Klan was convicted under an Ohio criminal syndicalism law.135 Evidence of his incitement was a film of the events at a Klan rally, which included racist and anti-Semitic speech, the burning of a large wooden cross, and several items that appeared in the film, including a number of firearms.136 The leader of the protest proclaimed that “[w]e’re not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might be some revenge taken. We are marching on Congress July the Fourth, four hundred thousand strong.”137 

The Court held that, “the constitutional guarantees of free speech and free press do not permit [the government] to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”138 The Court explained that “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.139

Thus, under Brandenburg and its progeny, government actors may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”140 Absent an imminent threat, therefore, it is expressly within the First Amendment to advocate for the use of force; similarly, it is protected speech to advocate for violating the law..."


125 New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964)(The First Amendment “’was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).

126 Watts v. United States, 394 U.S. 705, 708 (1969) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).

127 R.A.V. v. St. Paul, 505 U.S. 377, 422 (1992( Stevens, J., concurring); see also Hill v. Colorado, 530 U.S. 703, 787 (2000)(Kennedy, J., dissenting)(“Laws punishing speech which protests the lawfulness or morality of the government’s own policy are the essence of the tyrannical power the First Amendment guards against.”); Citizens United v. Federal Election Comm’n, 588 U.S. 310, 349 (2010)(“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”)

128 Watts, 394 U.S. at 708 (distinguishing between “political hyperbole” and “true threats”) (citing Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58, (1966)).

129 New York Times, 376 U.S. at 279.

130 Gooding v. Wilson, 405 U.S. 518, 521-22 (1972). 

131 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 580, 121 S.Ct. 2404, 2435, 150 L.Ed.2d 532 (2001)(emphasis added)(quoting Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138 (1925)(Holmes, J., dissenting)).

132 Ashcroft v. Free Speech Coal., 535 U.S. 234, 253–54 (2002)(quoting Hess v. Indiana, 414

U.S. 105, 108 (1973)(per curiam)).

133 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (emphasis added) (per curiam).

134 395 U.S. at 447.

135 Id. at 445.

136 Id. at 445-46.

137 Id. at 446.

138 Id.

139 Id. at 448.

140 Id.

Thursday, February 4, 2021

Is the End of the USA Unthinkable?

A Texas State Rep wants Texas to leave the Union again [1] and become an independent nation again. [2]

Maybe the second time's the charm...

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." -- United States Declaration of Independence

For the first time in a century and two thirds we face the real prospect of irreparable differences among large geographic areas of the United States of America. Many fear that we are on an irreversible path toward a civil war between the over-populated coastal urban centers and the food and fuel producing interior regions they depend upon.  

This civil war would be a struggle for control by the urban elites or autonomy for the interior regions. The electorate appears nearly evenly divided, with no clear majority, although the Regime Party currently looks like it holds all the levers of power...

This time it must not be like what happened in 1860/65 when the Federal Government destroyed dozens of American cities and about a million and a half Americans died in the war and subsequent famine (mostly, BTW, former slaves) during a failed attempt to split the Federation.

Would people support an Institute for Peaceful Secession which would study how peaceful secession and dismantling of the Union could occur?

The Institute could study relatively peaceful examples from history, like the Czechoslovak "Velvet Revolution" and the break-up of the USSR or British Empire.

What would we actually have to do to peacefully replace the United States of America and its authoritarian legislative, judicial, executive/military bureaucracy with true guardians for our liberties? 

Maybe that new structure could be called the American States' Common Market or the New American Confederation.

Americans would most likely need a free trade treaty among the States. This could include joint international border controls, but free internal travel and trade for citizens of the States.

That was the original concept of the Confederation that existed before the Constitution and is within the purview of the Declaration of Independence which reserves to the people the "...right, [the] duty, to throw off such Government, and to provide new Guards for their future security."

But the first step toward making a New American Republic a reality would be studying and publicizing how to do it peacefully.

A bit over twenty-five years ago the largest government on earth, that of the USSR, disappeared nearly without warning. 

Many areas, like Ukraine, which had been part of the empire since the 1700s, became independent nations again.  

Just a few years before that the head of the Red Army bragged that the "correlation of forces" had shifted decisively to the USSR and against the West.  We all know what happened and the suffering of millions as the old regime collapsed without any planning.  

While the peoples of the former USSR are now much better off than before, it took a quarter century for them to be able to enjoy the freedoms they had at least partially regained.

We could face similar horrific hardship unless we plan for the devolution of the Third Republic (the First was under the Continental Congress, the Second was under the Articles of Confederation and the Third is under the often violated Constitution of 1787).

There is already a private body known as the Uniform Law Commission which can serve as a model. It developed the Uniform Commercial Code among other model state laws. [3] 

Another approach would be for those States, like Texas, that are distressed by the CCP-backed Coup of 6 January, when Congress was panicked into approving the stolen election, to demand the convening of the Convention of the States to revise the Constitution of 1787, as provided in that document. [4]  That body could reform the Federal System and perhaps preserve the Union.



[2] Texas Declaration of Independence, 1836

[3] "The Uniform Law Commission, also called the National Conference of Commissioners on Uniform State Laws, is a non-profit, American unincorporated association. Established in 1892, the ULC aims to provide U.S. states with well-researched and drafted legislation to bring clarity and stability to critical areas of statutory law across jurisdictions"