Civil Discourse Now

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Legal basis in SCOTUS case to void 2016 election

   The original Constitution—the blueprint for our national government written at the 1787 Convention in Philadelphia in the summer of 1787, before the ten Amendments of the Bill of Rights were added—is a short document. One book about the Convention contains it in an appendix that covers 14 pages. My pocket edition (a present from, and autographed by Rupert Boneham, Libertarian Party candidate for Indiana Lieutenant Governor in 2012), spans 20 much smaller pages.
   There are lawyers who argue—stridently, vociferously, and, sometimes, insultingly—that only two (2) ways, in The Constitution, exist by which a sitting President may be removed from office. Only one (1) was created by The Framers, impeachment, as set forth in Article II,  sec. 4. The other, created by amendment in 1967, provides the President may be removed if the President “is unable to discharge the powers and duties of his office...”  Amend. XXV, sec. 4.
   Another way exists.
   In 1976, one United States District Court held the Federal courts possess such power, within their equitable jurisdiction.
   The decision of a United States District Court is not controlling authority beyond its district.  Such a decision is persuasive authority, though. Courts and lawyers, when faced with a case of “first impression”—one in which there is no controlling authority in their own jurisdiction—often  look to cases from other jurisdictions to see how other courts have ruled on an issue or group of issues. Also, “obiter dictum,” or “dictum (as many lawyers shorten the term), is not controlling authority. A matter is obiter dictum is it is a “judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the case and therefore not precedential (though it may be considered persuasive).”  Black’s Law Dictionary, pocket ed., 1996, p.449.
   In Donohue v Board of Elections, 435 F.Supp. 957 (E.D.N.Y. 1976), Chief Judge Mishler, in a case that challenged the results of the 1976 Presidential and, in part, sought to declare the results of that election in New York null and void, wrote: “The point, however, is not that ordering a new Presidential election in New York State is beyond the equity jurisdiction of the federal courts.  Protecting the integrity of elections, particularly Presidential contests, is essential to a free and democratic society. See United States v Classic, supra. It is difficult to imagine a more damaging blow to public confidence in the electoral process than the election of a President whose margin of victory was provided by fraudulent registration or voting, balot-stuffing or other illegal means.  Indeed, entirely foreclosing injunctive relief in the federal courts would invite attempts to influence national elections by illegal means, particularly in those states where no statutory procedures are available for contesting general elections.” 435 F.Supp. at 967.
   We can look to our history and see what The Framers and persons in the early days of the United States, when some of The Framers held important positions in the government did—and, as importantly, sometimes, did not.  
   This is important. Alexander Hamilton, for example, opposed the creation of a Bill of Rights for fear that those rights not enumerated would be said to be nonexistent: “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?” The Federalist, no. 84.
   When it came to the powers of separate branches, Hamilton believed there were things to be inferred from our relatively short “blueprint” for government. For example, in regard to the Executive branch:  “It would have been difficult for the Constitution to have contained ‘a complete and perfect specification of all the Executive authority,’ Hamilton reasoned, and therefore it left a set of unspecified powers that must be inferred from the more comprehensive grant (Pacificus no. I, June 29, 1793...)” Frisch, The Pacificus-Helvidius Debates of 1793-1794,” p. ix.
   I am counsel of record in Bailey, et al v. United States, et al, dkt. 16-1464, the only legal action that seeks an independent investigation into the 2016 election and, if collusion is found to have occurred between the GOP campaign and Russia, the election be declared void ab initio.  The case is set for conference on September 25, 2017.  
Over one-third of cases filed with the Court fail to make this “cut.”
   Bailey et al. v. United States is docketed, 16-1464.  The case is an original action.  Most cases to appear before the Court are by way of appeal.  Parties litigate at trial courts, take matters up on appeal, and, usually through a petition for writ of certiorari, seek review by this nation’s highest Court.  Bailey is brought before the Court as a Petition for Writ of Mandamus. The Petition asks for independent investigation by a “Special Master” who, under Federal law, has authority to issue subpoenas and obtain any necessary evidence.  The Petition cites treason, among other grounds, as how the relatively few votes needed in “swing” states to grab the Electoral College were flipped.
   In the early days of our Republic, there were incidents to cause concern that treason occurred in the upper branches of the Federal government.  William Bount, a North Carolina delegate to the Convention, was charged and expelled from the United States Senate, where he represented Tennessee, for treason in conspiring with England in a plot to conquer Florida and Louisiana.
   Aaron Burr, in 1806, was indicted for treason in “a similar venture” with former Convention delegate Jonathan Dayton (New Jersey). Burr had tangled up the 1800 election results. At the time, members of the Electoral College would cast one vote for President and one vote for Vice President. There was no distinction between the votes. Thomas Jefferson, the candidate for President of (what then was called) the Republican Party tied with his running mate, Burr.  Burr refused to step aside and the matter went to the House of Representatives for resolution. As a result, the Constitution received its Amendment XII.
   Treason and election sabotage had occurred, and at the highest reaches of the Federal government.  If The Framers had seen the need to address the equity jurisdiction as limited, they could have so limited it.  Marbury v Madison, handed down in 1803 and written by Chief Justice John Marshall, held that a mandamus action can be brought where there is no specific, legal remedy. Marshall was a delegate to the Virginia ratification convention.  
   The effort in the present case of Bailey et al v United States is not “partisan” for either party.  The effort is to take control of the Oval Office back from a hostile foreign power—Russia.
   If you agree that, at the very least an independent investigation be conducted—and, as I previously have written, the Special Counsel, as part of the Executive branch can be fired and a lot of time wasted—please share this blog with three other people, and make the same request of them I just have made of you.  The stolen election of 2016 has presented us wth the gravest constitutional crisis our country has faced since 1865. 

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