"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, September 21, 2017

Dean Chemerinsky's startling revelations regarding Arpaio's presidential pardon, Part II - Old English common law instead of the U.S. Constitution, controls on the issue of what is constitutional in the United States

I continue to comment in separate articles as to the outrageously incompetent amicus brief of Erwin Chemerinsky and his attorney team of former federal judicial law clerks (including one clerk of two U.S. Supreme Court justices).

In the previous blog, I covered Chemerinsky's claim that the criminal proceedings against Arpaio which were specifically brought, prosecuted and adjudicated as criminal proceedings, are not criminal proceedings for purposes of presidential pardon power, provided by the text of the U.S. Constitution, Article II, paragraph 2.

Chemerinsky arrives at that stark proposition through a series of conceptually messy claims regarding the role of common law, and Old English common law, in analysis of compliance of actions of American public officials with the U.S. Constitution.

Chemerinsky claims that there is no such thing in American law as "federal common law crimes".

Which is correct.

But, Chemerinsky does not go further and does not try to suggest that there is no such thing as "federal common law" in the U.S. at all.

In fact, Chemerinsky and his team must know that the only "federal law" in existence is:

  1. the text of the U.S. Constitution;
  2. the texts of treaties of the U.S. with other countries, ratified by the U.S.;
  3. statutes enacted by Congress.
All of that is contained in the Supremacy Clause of the U.S. Constitution, something that a supposed constitutional scholar such as Chemerinsky should be able to know and recite by heart in his sleep.

Yet, while there is no such thing as federal common law, Chemerinsky relies in his claim that Arpaio's presidential pardon does not comply with the U.S. Constitution, EXCLUSIVELY upon common law, decisions of federal courts, and common law from 800 years back from England, the country from which the U.S. broke out specifically because the "old country"'s laws were oppressive against people in America.

First of all, Chemerinsky quotes Marbury v Madison, by which the U.S. Supreme Court usurped the power to interpret the U.S. Constitution and claim that their interpretation, and not the text of the Constitution itself, is the actual Law of the Land.

Second, Chemerinsky relies upon a federal court precedent and English common law in claiming that "inherent contempt power" of the court is some one of a kind concept that is not criminal in nature, even if it calls itself criminal, and exists separate, distinct, above and beyond procedural rights or possibilities that federal criminal defendants normally have, including the possibility of a presidential pardon.

Cases that Chemerinsky relies upon are:

1. Gilchrist v Collector of Charleston, 10 Fed. Cas. 355 (C.C.D.S.C. 1808) where Chemerinsky claimed, without quoting the court decision, that the court "held that despite the broad statutory language federal courts had the power to control actions of the executive branch".  It was not about a presidential pardon, and there is no indication as to what was the actual decision (no quote) and what was the basis of that decision.

So, Chemerinsky and his team gets an F in a legal writing class for that argument.

2.  Chambers v NASCO, Inc., 501 U.S. 32 (1991) by which Chemerinsky claims that "The Supreme Court reaffirmed the inherent power of district courts to enforce compliance" - the case is pure judicial legislating from the bench that attempts to make law (and allow itself to prosecute those who disobeyed them, acting as a victim and a prosecutor - in that Chemerinsky is right, but that does not make prosecutions by the victim lawful or constitutional).

In that case, the U.S. Supreme Court said the following:

"Federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them. In invoking the inherent power to punish conduct which abuses the judicial process, a court must exercise discretion in fashioning an appropriate sanction, which may range from dismissal of a lawsuit to an assessment of attorney's fees."

So, even though Chemerinsky acknowledged that there are "no federal common law crimes" in the U.S., he nevertheless relies upon a U.S. Supreme Court case where the court legislated from the bench, without constitutional authority to do that, in the institutional favor of itself, and CREATED JURISDICTION in federal courts for crimes that were not created by Congress, but are meant to retaliate against those who "disobeyed the court" (or criticized it, criminal contempt powers are used that way, too) and where courts are somehow allowed to "fashion an appropriate sanction", on a whim - while those convicted of federal crimes may not be sentenced without following sentencing guidelines.

So, somehow when the victim of a supposed crime is a court, somehow constitutional protections preventing the victim from prosecuting and adjudicating the supposed crime, stop existing, and that victim may now fashion a criminal complaint, file it, have it prosecuted and adjudicated and "fashion" a sentence, and, as Judge Bolton did in Arpaio's case, deprive the criminal defendant of a jury trial based on what "sanction" she would prefer to "fashion" if she finds the defendant guilty in the future (which she, of course, did).

Once again, there is no such thing as federal common law crimes - as Chemerinsky admitted.

So, the way out of considering what the court did as unconstitutional is simply to say that it was not a crime, and rely in that argument on some more "federal common law" that has no right to exist, and upon Old English common law that is irrelevant to the argument as to the meaning of the U.S. Constitution.

The next two cases that Chemerinsky relies upon in claiming that the power of criminal contempt is (1) not criminal and (2) is somehow "inherent" to courts and must not be regarded as criminal and subject to constitutional authority of the President to grant pardons and reprieves, are these two:

Young v. United States ex rel Vuitton et Fils, 481 U.S. 787, 785 (1987) saying:

"[Fed.R.Crim.P. 42(b)'s] assumption that private attorneys may be used to prosecute contempt actions reflects the longstanding acknowledgment that the initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function".

Note that there is no mention whether the "court orders" in question are lawful or not.  People are expected to obey unlawful court orders anyway, I guess, that is the "rule of law" in this country.

In Young, attorneys for a civil litigant with financial interest in the outcome of proceedings were appointed as criminal prosecutors of a separate criminal contempt case, and the court ruled that it is ok as long as a judge supervises it.  But, in this case, a criminal defendant's right to an IMPARTIAL PROSESCUTOR was taken away, and that should be understandable for Chemerinsky and his team of criminal defense attorneys.  It is a basic due process right not to be prosecuted in a criminal proceeding by a person with a financial interest in the outcome.

In this case, the criminal prosecutors' loyalty was not with the People of the United States, as it should be in criminal cases, but with private parties who paid them.

Again, the constitutional scholar Chemerinsky considers this situation as being good, proper and to be perpetuated in Arpaio's case - even though in that case it was the U.S. Attorney's office who prosecuted Arpaio.  Chemerinsky simply says - it does not matter, it is as if the U.S. Attorney's office and "its personnel" are acting as private attorneys in prosecuting Arpaio.


U.S. Attorney's office paid by taxpayers are suddenly private attorneys? Paid by whom?  How did such a brilliant idea come to a constitutional scholar of the supposed caliber of Chemerinsky?

The next case Chemerinsky cites is Michaelson v United States ex rel Chicago, 266 U.S. 42 (1924):

"That the power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law.  It is essential to the administration of justice.  The courts of the United States, when called into existence and vested with jurisdiction over any subject, at once became possessed of the power".

Actually, Chemerinsky may have skipped READING the cases he was citing to, but Michaelson actually indicates that a defendant in criminal contempt of court cases has a right to a JURY TRIAL on demand - which Judge Bolton denied to Arpaio.

And, as to "settled law", since ancient Romans, there exists a legal concept that "abusus non tollit usum", or that incorrect use of the law does not make that incorrect use a correct use.

So, claiming that something becomes legitimate simply because it has been repeated many times, is not an argument at all.

Nor is an argument a statement, made without any basis in a federal statute or the U.S. Constitution, that somehow federal courts "became possessed with [contempt] power" the moment they "came into existence".

If a judge makes a certain statement, that does not automatically become law, simply because a federal judge lacks law-MAKING capacity, such a capacity is within the exclusive power of the Legislative branch under Article I of the U.S. Constitution.

But the fact that Chemerinsky & team did not have a clue WHAT they are arguing for, against or about, as long as that Arpaio should go to jail no matter what because Arpaio and Trump do not have any rights or authority even if that is written in black and white in the U.S. Constitution was revealed in his statement that "the judicial contempt power [is a] power with as good or better common law pedigree than any presidential pardon".

It appears that Chemerinsky & team completely forgot why they are filing the amicus brief where they are trying to prove that the President did not have a power under the U.S. Constitution to grant a pardon while somehow basing that argument that the presidential pardon power has less "common law" pedigree than a supposedly "inherent" contempt of court power of the court that is not reflected anywhere in the U.S. Constitution.

Somehow, Chemerinsky forgets that clear language of the U.S. Constitution does not trigger interpretation, and the presidential authority to pardon in criminal cases is unquestionably clear.

Fiddling with the word "offense", as Chemerinski & team do in the brief, and trying to claim that somehow "offense" does not mean "crime", and what Arpaio was charged with is not a "crime", is defied by the interchangeable use of the words "criminal offense", "misdemeanor" and "felony" by all courts, including federal courts, and by the fact that Arpaio's case is docketed as a "felony".

Also, Chemerinsky makes a starkingly baseless proposition that the U.S. Constitution must be interpreted - and its meaning controlled - with what was happening in courts of another country 800 years ago.   

So, somehow the U.S. Supreme Court claims "judicial independence" from courts of other countries that declared the death penalty a human rights violation and refuses to pronounce it unconstitutional.

But, the same federal courts must now be shackled with how contempt was understood 800 years ago in England, even if it contradicts the clear text of the U.S. Constitution?

That is some incredible bullshit coming from a supposed legal expert and constitutional scholar.

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