Occupational licensing in the U.S.: the stifler of talent and innovation, the waste of human capital. The story of a Renaissance man whose knowledge and talent America rejected - likely, under the pressure of several special interest groups.

 

Meet Dr. Richard M. Fleming, MD, JD.

This handsome man, a Peter O'Toole look-alike (compare)

is actually also an actor.  

And a nuclear cardiologist, and an inventor and patent holder in important areas of medical diagnostics, and an ardent advocate of public health, this is his self-description on the professional LinkedIn profile.

He holds undergraduate university degrees in:

• biology;
• psychology and 
• science (physics);

and professional degrees in law and medicine.

He is also a man who is not allowed to practice in his profession, engage in his valuable scientific research that would have helped not just his locality, not just his state, not just this country, but very likely - the entire world.

Why?

According to documents I so far received and reviewed, not because he broke any laws - even though that is what he was made to plead to - but because he stepped on too many toes of two many financially and politically powerful and "connected" people.

Dr Fleming courageous exposure, using entirely legal means, of what he considered in good faith to be a powerful charlatan, and his going public in order to protect the public from that charlatan, led to

• his conviction on a coerced nolo contendere plea (under a hint that otherwise he will be sent to prison and his children will be abused while he was there) to a legal nonsense, to committing what was not a crime as a matter of federal rules and regulations, and to 
• stripping him of his medical license;
• preventing him from ever having a law license;
• denying him support as a scientist (based not only on the conviction, but apparently on the fact that diagnostic methods for treating heart disease and breast cancer may be much cheaper and easier than the medical establishment would have wanted it to be to gouge the American public).

You know what this man has gained out of all of this, in addition to poverty and humiliation.

He's got his children who he saved from abuse, paying his entire career, dreams and visions as a scientist as a price.

Meet Dr.  Richard M. Fleming - doctor, inventor, innovator, public health advocate, actor - the Renaissance man whose talents are rejected by American bureaucracy and against whom occupational licensing, the tool declared to be introduced to protect the American public, was used as a sword of retaliation, simply because he crossed too many of the "wrong" people.

A FATHER, with all capital letters.

The story of Dr. Fleming is so complex and so full of details requiring specialized knowledge that it took me a long time to go through all the materials in this case that were available to me and verify credibility of issues I am going to raise in description of Dr. Fleming's story.

Due to its complexity, I will have to present the story in not just one article, but in a series of articles, this one being just an introduction.

I am not naïve and I do realize that Dr Fleming may be a complex man and may have his own flaws, as all of us do, or that there are more undercurrents in his story than I could discern from research of open public records and interviews with some witnesses to what was happening to him.

And, people who, I believe, so far stopped his career as a doctor and scientist (and prevented his career as a lawyer, while he also holds a Juris Doctor degree), are so rich and so powerful that, I am sure, they tie their ends well.

What remained for me is to try to trace those ends, as a court of law does reviewing and judging based on circumstantial evidence, and there is a lot of both first hand and circumstantial evidence in this case pointing at certain individuals, businesses, institutions, public officials and industries that may have benefited from professional demise (or at least, forced hibernation) of Dr. Fleming.

I am starting to publish the story of Dr. Fleming along with the story of another whistleblower about what is wrong in our public health system - even though in an entirely different geographic locality and in an entirely different area of public health, treatment of people with developmental disabilities.

Yet, the bottom line in treatment of both whistleblowers - Dr Fleming of Missouri and Iowa where he held medical licenses and Jeffrey Monsour of New York - is the same: vicious, petty, unreasonable, stupid, vulgar, ruthless retaliation by those in power whom these men criticized and attempts to deny them their right to do what they do best and what they love to do - for the benefit of us, the people.

Stay tuned.

Dean Chemerinsky's outrageous claims in his amicus brief regarding Arpaio's pardon, Part III - Chemerinsky is yet another "legal scholar" who is still in a longterm "peaceful slumber"

I recently wrote about a federal appellate judge, Richard Posner, who claimed he was has recently emerged from a 35-year (!) "slumber" and now claimed that his court (which he headed for many years) actually has a policy of discriminating against pro se appellants.

Apparently, we have another long-term "slumber" candidate - Dean Erwin Chemerinsky of Berkley Law School, California.

In his amicus brief claiming unconstitutionality of presidential pardon of Joe Arpaio, Dean Chemerinsky made an interesting claim:

 And, that the President cut off the court's ability to provide such a redress to the victims by providing the pardon, lamenting that "[n]o President till now has proclaimed that a public official who violated the Constitution and flouted court orders was 'doing his job'".

Of course, other legal scholars already pointed out that when Article II paragraph 2 was put into the U.S. Constitution, it was well understood what exactly it is meant to do, and that it cuts off court-ordered redress for crimes.

But, what absolutely floored me is the hypocrisy with which Dean Chemerinsky flouted this supposed "right to redress" that the President supposedly violated when not allowing a biased court to sentence an elderly sheriff to prison after a completely crooked criminal proceeding, see my blogs about how the criminal case was handled here and here.

Let's go back to Chemerinsky's arguments.

Chemerinsky claims that "Article III courts have a duty to provide effective redress when a public official commits harm by violating the Constitution", moreover, that this "duty" was "guid[ing] the federal courts" since 1803.

My question to Chemerinsky and his team is - under which rock have they slept all this time?

Actually, one of Chemerinsky's attorneys who signed this interesting statement about "right to redress" as the supposed duty of federal ("Article III") courts is Larry A. Hammond who claims in his advertisement/ biography that he clerked for the U.S. Supreme Court Justices  Hugo Black and Louis Powell.

As law clerks to federal judges, both of Chemerinsky's attorneys, as well as Chemerinsky himself as an attorney - who regularly represents judges - DO know that judges GAVE THEMSELVES a gift that absolves them from any liability for constitutional violations, and gradually gave the same or similar gifts to all other branches of the government.

Chemerinsky must know that to even say that:

• there is a right to redress for constitutional violations by public officials in the U.S., and that
• courts are "guided by their duty" to provide such redress to victims of such violations

is not just hypocrisy, but is CRUEL hypocrisy, because, as majority of civil rights litigants (especially pro se civil rights litigants, discriminated, as Judge Posner admitted, by federal appellate courts) know, they have no chance to beat through the brick wall of

• immunities;
• abstentions;
• comities;
• deferences; and
• other judicially created "doctrines" which

1) unlawfully restrict jurisdiction of federal courts contrary to what is provided by the Civil Rights Act,

2) deny redress to nearly ALL victims of constitutional violations in the United States; and, moreover,

3) that those courts whose supposed duty is to ensure right to redress for constitutional violations by public officials instead routinely PUNISH victims of such constitutional violations by making them pay attorney fees and court costs of PERPETRATORS of such violations - because those victims dared to invoke the Civil Rights Act in disregard to judicially created barriers to civil rights litigation.

It is disgusting, #ErwinChemerinsky, to laugh in the face of victims of judicial, police and prosecutorial misconduct who were not only denied redress of their injuries, but were made to pay attorney fees for their "immunity-covered" perpetrators, by quoting Marbury v Madison as a "guiding principle" of modern U.S. Courts:

"The very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.  One of the first duties of government is to afford that protection...  The government of the United States has been emphatically termed a government of law and not of men.  It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested right...".

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.

Huh?

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.

Dean Chemerinsky's revelations in his amicus brief re Arpaio pardon, Part I - criminal proceedings against Arpaio listed as a felony, brought, prosecuted and adjudicated as criminal proceedings are not criminal proceedings when it comes to presidential pardon power

As promised, this is the first of separate blogs analyzing the outrageously incompetent and politically bent amicus brief of Berkley Law School Dean Erwin Chemerinsky claiming that the pardon given by President Trump to Joe Arpaio is unconstitutional.

Chemerinsky's take:

criminal proceedings against Joe Apraio were not criminal proceedings, contempt of a federal court is not an "offense against the United States" within the meaning of the U.S. Constitution, and presidential pardon power under Article II paragraph 2 of the U.S. Constitution does not apply these proceedings.

First, let's go to the source of presidential pardon power, Article II paragraph 2 of the U.S. Constitution that all judges, and Dean Chemerinsky, and his lawyers, and the President, are sworn to protect and uphold:

the President of the United States "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment".

Dean Chemerinsky has an interesting position as to what two words in the U.S. Constitution mean:

• "offenses" and, believe it or not,
• The United States.

This is what Dean Chemerinsky states through his two attorneys, both of whom have clerked for federal judges, and both of whom are supposedly engaged in criminal defense:

So, Chemerinsky and his crew of lawyers (former judicial law clerks) claim that proceedings against Arpaio are not REALLY criminal proceedings, but that perceiving proceedings against Arpaio as criminal would be a "false impression" obtained by an "inattentive observer" from the fact that the U.S. Attorney "personnel" prosecuted Arpaio.

Yet, ATTENTIVE reading of the case will not lead the "inattentive observer" to believe that it is a criminal case, it will SHOW an attentive observer that it IS a criminal case and could may be no other, from how it was

• brought,
• prosecuted and
• adjudicated.

CrimLaw 101 - POINT I how do you distinguish a criminal case from a civil one?

Correct answer: by its name.

A criminal case will always have the government as the plaintiff, "People v. XYZ" if it is a state case, and "US v XYZ" if it is a criminal case.

That CrimLaw 101 is taught in Dean Chemerinsky's law, too.  Obviously, he and his attorneys need a refresher course on that.

POINT II

If it is NOT a criminal case, why was it referred out of a pending civil case into a separate proceedings, to the U.S. Attorney's office, for criminal prosecution?

POINT III

Can you change the nature of the case from criminal to civil only after the conviction, in order to deny a person a remedy of an amnesty?

• There are only two types of contempt proceedings in this country: civil and criminal.
• Civil contempt proceedings are court proceedings to MAKE the supposed violator of a court order to comply with that order.  In such cases, if the contemnor is found in contempt and put in jail, he is believed to have keys from his jail cell in his own pocket - as soon as he complies, he must be let out.
• A criminal contempt proceeding is a separate criminal proceeding where charges brought, prosecuted and adjudicated in accordance with criminal procedure law.  The goal of criminal proceeding is PUNISHMENT, not ensuring compliance with the law.
• There is no other types of contempt proceedings in U.S. law;
• Since Arpaio was referred by Judge Snow OUT OF a civil proceeding, TO the U.S. Attorney's office, the office that usually prosecutes crimes, for prosecution specifically for criminal contempt, outside of the pending civil proceedings, and the case was filed, docketed,  prosecuted and adjudicated as a criminal case, it is too late to say it is not a criminal case for purposes of pardon only.

The answer to the question above is clearly "no", and this is a constitutional law question that Dean Chemerinsky, a supposed constitutional scholar, must be able to recognize and resolve - when the government gives a person a notice that he is prosecuted CRIMINALLY, the government may not change its claim that it is now a civil case after it followed criminal procedure and obtained a criminal conviction, complete with a threatened criminal sentence.

Of course, Judge Susan Bolton already used a similar trick during the proceeding, depriving Arpaio of his right to a jury trial by granting an unheard of prosecution's motion for a bench trial, over the defendant's objection, she jumped ahead of the trial, assumed that the defendant was guilty and comes in front of her for sentencing, accepted prosecution's claim that he should not be sentenced for more than 6 months, and based on that assumption, ruled that he is not entitled to a jury trial.

Chemerinsky here is going even further and claiming that it was not a criminal case at all.  I wonder then why Arpaio was set for sentencing to be put in federal prison.  Are we putting people in prison in the United States of America in civil cases?  But, in civil cases that is done not in punishment, but only to coerce compliance with the law.

Quite a bit of mess in the esteemed Professor's head as to the most basic concepts of criminal law.

The esteemed Professor and his team actually claim that "offenses", "misdemeanors and felonies" and "criminal contempt of court" do not mesh, and that presidential pardon power extends only to "offenses", which is not the same as the crime of criminal contempt. 

The Professor slipped and fell upon his own tongue at the end of his long and convoluted argument when he actually claimed that Arpaio was prosecuted not for a crime at all, but for an ancient "appeal of felony", in a private proceeding, and that the fact that he was prosecuted by the government was just a coincidence that creates a "false impression" of criminal prosecution in an "inattentive observer".

Actually, the court docket lists proceedings against Arpaio, from day one, as a FELONY.


A felony is undoubtedly a crime that is subject to the presidential pardon power.

And, a criminal proceeding is undoubtedly defined by one of its main goals that is lacking in a civil contempt proceeding - to PUNISH, not to coerce into compliance.

There is no doubt that a federal court is a part of the federal government, its 3 branches - executive, legislative and judiciary.

There is no doubt that the proceeding against Arpaio had a purpose to punish him, not to coerce his compliance with a court order - that was the whole reason of singling the proceeding out into a separate criminal proceeding, through a referral by Judge Snow.

And, here is the judge's order against Arpaio at the end of the bench trial:

"Guilty of criminal contempt".

Sentencing (not a "disposition" in a civil contempt case) set.

What kind of "false impression" can all of this documentary evidence create in an "inattentive observer", according to Chemerinsky?

So, what does Chemerinsky think it is?

A civil contempt?

A criminal contempt?

Neither of the two.

Chemerinsky finds that it is this:

Of course, there is no such thing as a THIRD type of contempt, on top of civil or criminal, in US law, and Chemerinsky, as well as his lawyers, know it too well.

At the same time, in the same brief, Chemerinsky explained what an "appeal of felony" (a creature inexistent in the U.S. law) actually is:

This table shows that the "appeal of felony" is not only irrelevant to an analysis whether the pardon violated the U.S. Constitution, but that the "appeal of felony" would be unconstitutional, which any licensed attorney must know, must less a dean of law school and his team of former judicial law clerks. 

	Appeal of felony	Criminal contempt of court against Arpaio
Basis	English common law	Statute and “inherent power of the court” by federal common law that Chemerinsky says does not exist: “…there are no common law crimes in the federal system”, p. 10, lines 11-12.
Time of existence	13th to 16th Century	Does not exist in the U.S. and never did
Country	England, a monarchy	U.S., a constitutional democracy that split from England, in part, because they disagreed with English laws
Type of action	Private	Government
Who prosecutes	A private party	Government
Essence	A private action brought by a supposed victim of a crime against the supposed perpetrator of a crime, a mixed tort (civil) and criminal proceeding.	There is no such thing in the U.S., victims are individuals with a vested interest in the outcome of proceedings, and are not allowed to prosecute crimes on their own behalf, it is a violation of due process for defendants. In the US, torts are brought by the supposed victims of constitutional violations in separate civil rights actions, it was actually done in a civil rights lawsuit against Arpaio, it remains pending, and the criminal proceedings are separate and distinct from that lawsuit

So, despite clear documentary evidence that the case was brought, prosecuted and adjudicated as a criminal case, somehow Chemerinsky has the lack of professional self-respect to argue that it is not a criminal case, but is some kind of a common law creature similar to an old English common law of "appeal of felony", which is in itself unconstitutional in the U.S. as allowing a person with a personal interest in the outcome of a criminal proceeding to engage in a vendetta and prosecute such a criminal proceeding.

I wonder whether Chemerinsky actually knows that part of the reason why courts are established is to avoid personal vendettas in resolution of disputes.

I also wonder if Chemerinsky and his criminal defense attorney lawyers are familiar with the concept of the due process right to an impartial prosecutor which a victim prosecuting "appeal of felony" cannot possibly fit.

I wonder if it bothers Chemerinsky, at least a little bit, that there is no such thing as "appeal of felony" in the U.S. federal law, which consists ONLY of U.S. Constitution, federal treaties, statutes and regulations - all written documents.
So, the next no-less-crazy set of confused vibes that Chemerinsky throws at Judge Bolton that I am going to cover in a separate blog is:  whether the Old English common law must define what the U.S. Constitution means - which is clearly what Chemerinsky pushes for.

For the next blog in this series, stay tuned.

Dean Chemerinsky makes startling (and startlingly incompetent) statements in an amicus brief regarding the pardon of Joe Arpaio

I wrote on this blog about the criminal case against Joe Arpaio, see Part I and Part II here, about how politicized and unlawful the whole proceedings, including the conviction, was, and that if we want to be the nation ruled by the rule of law, we must accept that the rule of law equally applies and gives rights to people we like and especially to people we do not like.


That approach to the rule of law is, apparently, not in the mainstream of political and legal thought nowadays.

For example, recently the new dean of the University School of Law at Berkeley, California, #ErwinChemerinsky, promoted by his school as a "thought leader" and a "living legend—a person who exemplifies the very best that the field of law has to offer: brilliant, warm-hearted, thoughtful, open-minded, and deeply engaged in the culture of public service", filed an amicus brief with the U.S. Supreme Court challenging constitutionality of Presidential pardon to Joe Arpaio.

Erwin Chemerinsky is a somewhat of a notorious figure.

• He was a paid lecturer of BarBri while remaining a professor and/or a dean of various law schools, while BarBri was sued for engaging in anticompetitive activity and underhanded tactics in driving its cheaper and better rivals out of business, thus undermining the quality of legal education and, ultimately, the quality of lawyers for us, the public and consumers of legal services;
• He opposed the recall of judge Persky who sentenced an athlete from his own alma mater to 6 months in jail (3 months for good behavior) for non-consensual sex with an unconscious woman - and the conflict of interest for Chemerinsky, an attorney licensed to practice law in California, supporting a judge against public outrage, while the judicial branch regulates and controls Chemerinsky's own law license and livelihood, is clear;
• In 2016, Chemerinsky not only represented a judge who was disqualified out of several cases through the use of a peremptory challenge by prosecutors, and not only argued that an absolute right to a peremptory challenge of a judge by a party is not absolute and has some kind of constituional limitations (while representing a judge who is not a party in a criminal proceedings and has no say in the matter), but also called for a federal investigation of prosecutors against whom his powerful client (a client who belonged to the branch of the government regulating Chemerinsky's own law license) belonged.  

I do not know how "warm-hearted" Erwin Chemerinsky is, but I do know criminal law, and I have a funny feeling that Erwin Chemerinsky had no clue what he was writing about, and wrote to justify his ultimate politically sought conclusion - that the pardon is unconstitutional.

In his amicus brief regarding the supposed unconstitutionality of Arpaio's presidential pardon, Chemerinsky follows and attempts to encourage the latest dangerous trend of identity politics in law where the identity of the party defines what rights that party is given, or not given by courts.

Since the election of Donald Trump as the President of the United States I monitor an interesting phenomenon in courts – the rapid disappearance of laws as basis of judicial decisions.

Any civil rights attorney knows how difficult it is to bring a civil rights case through a motion to dismiss and/or a summary judgment.

And, any civil rights attorney knows that it is nearly impossible to obtain a preliminary injunction in a civil rights case in federal court.

All that changed when Donald Trump or a member of his administration (like Jeff Sessions) are sued – even in their official capacities, which means, as any law professor teaching Civil Rights Litigation will tell you, means that the American taxpayers are being sued.

Reason and “respect to precedents” and to statutes disappeared as well as the law.

Preliminary injunctions are handed left and right.

·        Prohibiting the President to enforce immigration laws and block entry of certain immigrants into the country for considerations of National security – now courts demand that the President spill national security secrets (for which judges do not have clearance) in open court proceedings;  now, contrary to statutory law and existing precedents, immigrants located beyond U.S. borders suddenly acquired a right to sue that they never had before, and so did their relatives within the country, as well as their supposed employers and universities where they are going to supposedly enroll – and standing on purely economic grounds is judicially created for all these categories that supposedly trump (no pun intended) President Trump’s absolute exclusive prerogative to handle national security questions and regulating who does or who does not get to get a visa and entry into the country;

·        Prohibiting the federal government from deciding whether to give or not to give states or municipalities gifts of federal money – and mandating that they finance state social and law enforcement programs, a state obligation that federal taxpayers do not have to finance, and judges have no right to enforce.

We have people suing Donald Trump for issuing an executive order (the so-called “travel ban”) and for repealing an executive order (DACA) – I will analyze the grounds for the lawsuit in a separate blog.

We have people suing Donald Trump’s administration for a “right” of immigration attorneys NOT to represent people throughout an immigration proceeding – while claiming that it is done in those same people’s best interests – and they actually win preliminary nationwide injunctions.

And, apparently, all these lawsuits are fueled and brought by lawyers who have no compunction about spending scarce judicial resources and taxpayer money, putting the law on its proverbial head and replacing the U.S. Constitution, federal statutory law and the concept of separation of powers with a wholesale judicial whim based on just one principle – the identity of the U.S. President who dared to have been elected when the establishment did not want him there.

Presidents before Trump deported people – and no lawsuits were filed.

No DACA existed before President Obama – and previous presidents were not sued, or had riots in the streets of illegal immigrants claiming their supposed right to remain in the country, simply because they already received free education at taxpayer’s expense without taxpayer’s consent in this country and simply because they were children when they were brought here by their parents.

It is apparent that the media, the public who does not like this particular President finds fault with him at every turn – hair color, choice of wife, etc.

Public discourse about what the President of the United States is doing, under the 1^st Amendment, may be as vile, without becoming violent, as the public, or its separate members, wants it to be.

Yet, federal courts are bound by laws to resolve disputes based on federal law only – and that is, as the Supremacy Clause states:

·        The text of the U.S. Constitution;

·        The laws made pursuant to that U.S. Constitution – which means only statutes enacted by the U.S. Congress; and

·        U.S. Treaties.

That’s it.

Nothing else.

There is no such thing as “federal common law”, and precedents of any federal courts, including the U.S. Supreme Court may not be considered to outweigh the above three components of the Supreme Law of the Land.

Moreover, rights of the President clearly established by the text of the U.S. Constitution and/or a statute enacted by U.S. Congress may not be questioned by a court unless the court wants to declared the statute the President follows unconstitutional.  Courts have no rights to CHANGE the law through interpretation – only the U.S. Congress, under Article I of the U.S. Constitution has the power to create laws.

Let us revisit what separation of powers means.

Executive branch (President)	Legislative branch (Congress)	Judicial branch (courts)
Enforces the U.S. Constitution and statutes enacted by the U.S. Congress through powers provided to the President under Article II of the U.S. Constitution	Enacts laws within its Article I authority and in compliance with the U.S. Constitution, after consulting with their constituents – VOTERS, citizens of the U.S., not immigrants and not illegal aliens	Resolve individual disputes between parties based on the U.S. Constitution and statutes enacted by the U.S. Congress

·        Federal courts may not set policy, it is an exclusive legislative function of the U.S. Congress;

·        Federal courts may not change laws through their interpretation, to mean the opposite of what the laws’ clear text says;

·        Federal courts may not write into the statutory law or into the U.S. Constitution what is not there.

Courts may only resolve individual disputes based on the existing U.S. Constitution and federal statutes and treaties – or declare those federal statutes and/or treaties unconstitutional. 

That’s it.

But, since the election of Donald Trump as the President of the U.S. it has become even more obvious that courts are not content with the role of a detached apolitical arbiter dispassionately applying the law handed down to them by the U.S. Constitution and the U.S. Congress.

Courts want to be creators of the law, courts seek publicity through populist decisions, and there is a whole class of prominent, rich attorneys who support and encourage federal courts to usurp the role of lawmaker and to even change the U.S. Constitution by

Unfortunately, at least judging by comments in the media, there is a wide-spread belief in the public that anything – anything – that comes from under a pen of a judge is not only “law”, but “The Law of the Land”, to be obeyed without question, and that somehow the unlawful judicial lawmaking is, on the contrary, the way it should be, and everyone in this country “must” respect unlawful court orders made contrary to the U.S. Constitution and/or federal statutes as “law”.

And, unfortunately, prominent-name attorneys artfully manipulate the public in continuing with this dangerous illusion, that courts in this country are lawful lawMAKERS.

One of such dangerous examples that I came across recently is the now-dean of the Berkley Law School in California, Professor Erwin Chemerinsky.

Having disregarded his own conflict of interest, as a Dean of law schools that, no doubt, receives donations from large law firms representing employers that need cheap legal and illegal immigrant work force, and is a party against the federal government to make the President in a lawsuit to make him cancel his visa restrictions in order to benefit his law school and university financially, Erwin Chemerinsky recently filed an amicus brief with the U.S. District Court for the District of Arizona arguing that the recent presidential pardon of Joe Arpaio is unconstitutional.

This challenge to the pardon of Joe Arpaio by President Trump is a quintessential litmus test as to the rule of law in this country.

Should a legitimate exercise of presidential power as per the text of the U.S. Constitution, Article II, paragraph 2, be considered unlawful simply because it was done by a supposedly unpopular president in favor of an unpopular sheriff?

If it should, then we do not have the rule of law in this country.

I wrote in this blog about the criminal proceedings against Joe Arpaio and their stark illegitimacy, about jurisdictional defects in proceedings and screaming judicial bias of the Clinton-appointee judge that would make the blood of any criminal defense attorney, and of any member of the public knowing the law boil.

But, somehow, any violation of the law is good if that is against a person you do not like – because that is the sum and substance of public comments about Arpaio’s pardon.

President is bad, so his pardon is also bad.

Arpaio is bad, so to pardon him was bad – no matter what happened in his criminal proceedings, and if a judge issued a decision in those proceedings, it must be good, and President Trump should not have touched it with a pardon.

By the way, the U.S. Justice Department already moved todismiss Arpaio’s conviction as moot, over the resistance of the judge, so the prosecuting party does not want to continue to sentencing, cases should be closed and shut – if that would be any other criminal proceeding.

But, not here.

Here Dean Erwin Chemerinsky is throwing his heavy-weight name around in order to claim that the pardon was unconstitutional and to put the already dead criminal proceedings back on the docket – while making some outrageously incompetent claims that would result in an F in Criminal Law 101 and Constitutional Law 101 in Chemerinsky’s own law school, and on a bar exam.

A person who positions himself as an expert in constitutional law should have at least more self-respect than to make claims Chemerinsky is making, embarrassing himself in front of the legal community, his own students and the public – and putting into his law students an impression that the law does not matter when there is a political and financial goal to attain through the influence of courts.  And, by the way, Chemerinsky is arguing that the pardon is unconstitutional to the same judge whose decision the pardon affects – at the trial level.  Like – “Your Honor, see what that bad President did to your perfect order, declare that bad President’s Article II paragraph 2 presidential pardon authority unconstitutional NOW, what are you waiting for, he hurt your feelings so!”.

The claims of Professor Chemerinsky, through his two attorneys who both clerked for federal judges and should know better than to write such gibberish, can be seen in their full glory, here.

In view of Professor Chemerinsky’s influence on the legal community, courts and public opinion and the danger that his outrageous statements to the court present for civil rights in general, and criminal defendants’ rights in particular, I will analyze Professor Chemerinsky’sclaims, one by one, in separate blogs.

I am certainly not the only and not the first critic of Professor Chemerinsky's amicus brief regarding Arpaio's pardon, but, judging by the fairly bland criticism that I have read of the Chemerinsky's amicus brief, critics do not dare to go deep enough into the dangers of a celebrated supposed legal scholar going amok with a result-oriented attempt to influence federal judges with claims that are incompetent albeit pushed by a team of attorneys,


Larry A. Hammond (who boasts in his advertisement his involvement in "high profile criminal defense cases while demonstrating in the amicus brief a lack of knowledge of the most basic principles of criminal law)

and Josh Bendor, 

both of whom have a long history of federal judicial clerkships, which takes away any excuses that their deliberate manipulation of the court with incompetent claims is anything but deliberate.

Some of the main claims by Chemerinsky and his attorney team of former federal judicial law clerks that I am going to review in separate blogs are (I will provide a basis why these claims are not well grounded in law, fact or precedent in separate blogs):

• That proceedings against Joe Arpaio where the President granted his pardon were not criminal proceedings;
• That the notion of "criminal offense" does not equal a "misdemeanor" or a "felony";
• That federal courts must provide a remedy in each case where a public official violates people's constitutional rights;
• That there is no such thing as federal common law;
• That interpretation of Old English common law going back to the 13th century is not only a valid source for interpretation of the U.S. Constitutien, but should apparently take precedence over the text of the U.S. Constitution and its legislative history;
• that THIS presidential pardon (somehow apart from all others) is unconstitutional because it encroaches upon judicial independence (even though such a mode of "encroachment" is written into the text of the U.S. Constitution all judges, Sheriff Arpaio, President Trump, Dean Chemerinsky and his two attorneys have sworn to uphold).

Nevertheless, such supposedly "expert" legal blogs as Above the Law cited to the brief as if it is Gospel, and blasted - no, not Chemerinsky for incompetence and attempt to influence the court with his gibberish, no, of course, not - Trump again.

The use of presidential pardon is now unconstitutional, says Chemerinsky, seconded by Above the Law, for the main three reasons, here they are:

I will start posting analysis of each of these issues today.  Stay tuned.