Laurence Tribe is a professor of constitutional law at Harvard Law School. He has weighed in on the question of whether the United States can void the results of the hacked, illegal election of 2016, as Kenya did in regard to its election in August. Professor Tribe simply said that, under our Constitution, we “do not roll that way.”
In the 1970s my fraternity brothers gave me a rough time because I could not “roll.” Today, because of the comments of others and posts on the internet, I reasonably believe Professor Tribe at least is aware of the allegations raised in Bailey, et al v. United States, et al, docket 16-1464, pending before the United States Supreme Court.
I cannot discern the basis for Professor Tribe’s pronouncement. An assertion only can be refuted, or perhaps only disputed, by inference. One inference I draw from his assertion is he only is aware of, and has not read the bases for, the allegations in the Petition. The following lesson is for the reader. I apologize for repetition.
The Constitution was written, at the 1787 Convention in Philadelphia, as a blueprint for a government. Delegates saw themselves as “Framers,” because they set about to build a framework. The Constitution is a short document. One version runs 14 pages. My pocket edition spans 20 much smaller pages.
Here I begin to infer the reasons for Professor Tribe’s assertion.
Only two (2) means in The Constitution state how a sitting President may be removed from office. One, created by The Framers, is impeachment. Art. II, sec. 4. The other, written in 1967, is removal if the President “is unable to discharge the powers and duties of his office...” Amend. XXV, sec. 4.
Here I depart from people in the “tea party,” people who embrace “originalism” (a jurisprudence in which the original intent of The Framers is paramount when one interprets the Constitution), and, apparently, on the matter of removal from office of a sitting President, Professor Tribe.
“Originalism” is, as a general matter, bunk. First, to whom do we look for the “intent” of delegates at the Constitutional Convention? The 36 white, male landowners who signed the document at the end of the Convention? Is intent to be conjured from the thoughts of the 39 who were present at the signing? (Three refused to sign, although two relented.) Fifty-five white, male landowners, at one time or another, attended the Convention. What of their input? Seventy-three (or 74 according to another source) were named as delegates. Eighteen or 19 either could, or did, not attend. Perhaps most famously, Patrick Henry is said to have declared he “smelt a rat” in Philadelphia. You see, the delegates task was to make improvements or corrections to the Articles of Confederation. Perhaps what is as important to our history as what The Framers did is what other persons refused to do.
Matters become no more simple. States had ratification conventions. North Carolina had two such conventions.
Then we have the matter of Amendments to the Constitution. The Bill of Rights consists of Ten amendments to the Constitution and were not part of the original text. Alexander Hamilton 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.
The Civil War Amendments freed—very important point here—people held in involuntary servitude and altered concepts of the power of the Federal government. The Eighteenth Amendment gave women the right to vote. These are changes in constitutional structure at odds with the beliefs of many of the Framers.
How do these aspects of constitutional history fit with the argument that only two ways exist by which a sitting President may be removed from office—that is it, period, end of report, no further argument?
In 1976, a United States District Court held: Federal courts possess such power, within their equitable jurisdiction. Perhaps Professor Tribe, or others who might argue on his behalf, would point out that the decision of a U.S. District Court is not controlling authority on the Supreme Court. The decision is persuasive authority, though. Courts and lawyers, when faced with a case of “first impression,” one where controlling authority is absent, look to cases from other jurisdictions for guidance. Also, one may argue a statement is “dictum” and not controlling authority. “Dictum” is a comment in a judicial opinion unnecessary to the case and not precedential, but may be considered persuasive.
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 election 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, ballot 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.
Alexander 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.
Kenya’s Supreme Court possessed the power to void its Presidential election last month. Under the Constitution and the equitable jurisdiction granted in Article III, our Supreme Court has possessed that power since 1789.
Each day we learn more information as to how close the ties between Trump, his campaign and his family were with Putin and Russia.
The Framers would not have countenanced the theft of a Presidential election by a hostile foreign power.
Trump committed treason to obtain the Oval Office. Unfortunately Professor Tribe believes we are powerless, under our Constitution to do anything but seek impeachment of Trump by a Republican-controlled Congress or removal of Trump by a Vice President who gained office through the same perfidy as awarded the Oval Office to Trump and a majority vote of members of a cabinet who said what a great guy Trump is as they went around the table a couple of months ago in a scene befitting a dictatorship.
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. This effort 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.
And if Professor Tribe wishes to discuss the case and his erroneous interpretation of our Constitution, I am available.