Wednesday, November 20, 2019

Blogger Candidate Forum: The Sixth Amendment

Hello Everyone:

It is a damp Wednesday and time for Blogger Candidate Forum.  Blogger also wanted to let you all know that she is back after a very brief period of incommunicado due to mobile phone data migration chaos.  Nevertheless she persists.

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Lt. Col Alexander Vindman to you
Before we get going on today's subject, the constitutional mechanics of impeachment, a brief word on yesterday and today's blockbuster testimony from Lt. Col Alexander Vindman and European Union Ambassador Gordon Sondland.  

Highly inappropriate and quid pro quo were two phrases that described the now infamous July phone.  Lt. Col Vindman testified that he was shocked at the what Mr. Donald Trump asked Ukrainian President Volodymr Zelensky to do, announce an  corruption investigation into a potential political in exchange for an already approved military aide package and a White House meeting with the president.  Perhaps the most stunning visual of that hearing was Lt. Col Vindman dressed in his uniform, medals pinned to his chest.  It was the ultimate power move, daring Republican House of Representatives Foreign Intelligence Committee to question his credibility.  Never one to miss an opportunity to insert his foot in their mouths, ranking member Representative Devin Nunes (R-CA) asked about concerns centering around Lt. Col Vindman's judgement.  Lt. Col Vindman clapped back with a total Jedi move, pulling out his most recent laudatory job evaluation.  Ohio Republican Jim Jordan made the mistake of calling Lt. Col Vindman "Mr."  It is Lieutenant Colonel Alexander S. Vindman, thank you very much.

In today's hearing, E.U. Ambassador Sondland employed the "save yourself" strategy testifying that he did hear the president discuss a quid pro quo arrangement over dinner in April.  Ambassdor Sondland's testimony comes after questions surrounding the veracity of his closed door testimony about a month ago and implicates VPOTUS Mike Pence, Secretary of State Mike Pompeo, and Trump personal attorney Rudy Giuliani.  The is more testimony to come as House Intelligence Committee members try to wrap up hearings before the Thanksgiving Day holiday.  For all the latest news and analysis, The Candidate Forum suggests you check out the podcast "The Latest" presented by The New York Times.  You can find it on Spotify and Apple podcasts.  Shall we change the subject?

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The Sixth Amendment to the U.S. Constitution

  There are few constitutional legal questions that require debate.  For example, the right to due process (the 14th Amendment) or does the president have to really be 35-years old when he (or she) is sworn in--yes.  In fact, for its complexities and contradictions, the United States Constitution is a fairly straightforward document that leave little room for doubt.  Be that as it may, you could be forgiven for not understanding just how little room there is for legal arguments from the legal machinations by the president's defenders to the ongoing impeachment inquiry.  The biggest argument posited by the White House is the president's is being denied his Sixth Amendment right to confront his accuser, i.e. the whistleblower who made the original complaint (; Nov. 6, 2019; date accessed Nov. 20, 2019).

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Senator Rand Paul (R-KY)
In a recent opinion piece for the political online publication The Hill, Kentucky Republican Senator Rand Paul writes that the whistleblower was not some dedicated employee who wanted to report some egregious act committed by his supervisor, rather,

The information revealed by the "whistleblower" was of a political nature and was known to dozens of people who came to a different conclusion that the "whistleblower"... (Ibid)

Senator Paul argues,

Anonymity is not an option when your accusations trigger criminal penalties.  The Sixth Amendment guarantees the right to confront one's accusers... The ability to confront and cross-examine one's accuser's is a key component of our judicial process, critical to finding the truth... (Ibid)

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The Fifth Amendment of The Constitution
Senator Paul is partly correct when he writes that confronting and questioning the accuser, by the accused, is a critical part of the legal system, but the Gentleman from Kentucky is only referencing the criminal legal system.  This means, for example, an immigrant facing deportation would not be granted the right to legal counsel because the penalty, removal, is civil.  A parent facing possible removal of a child from the home cannot invoke the right to confront witnesses against because, again, termination of custodial rights is a civil penalty (; Nov. 15, 2019; date accessed Nov. 20, 2019).  In civil proceedings, both parties are still afforded their Fifth Amendment rights, which includes less stringent due process protections (Ibid).  This should give you some context to the argument being made that the whistle blower should testify in public.

This was the argument being made, in part, by some of the legal conservative establishment in a column by Northwestern University law professor Steve Calabresi (; Nov. 13, 2019; date accessed Nov. 20, 2019).  Professor Calabresi makes the following arguments: First, impeachment is not a criminal matter, period full stop.  If anything comes close to a criminal matter, it is a trial in the Senate where the penalty is removal from office.  The second argument is that the "trial" itself is not a criminal matter.  The Constitution is very specific on this point,

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...As Article I, Section 3, Clause 7 makes clear, "Judgment in Cases of Impeachment shall not extend further than to removal from Offices, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States...(; Nov. 15, 2019)

Thus, a member of the executive branch or federal judiciary who is removed from office is still liable for federal and state civil and criminal penalties once out of office.  Thus,

Someone who is removed from office "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to the Law.. (Ibid).

This is a separate matter but suffice it to say if were otherwise, "being removed by the Senate would mean a subsequent criminal trial would violate the Constitution's ban on double jeopardy" (Ibid).

Third, we can stipulate that the right to confront and question one's accuser is not an absolute right confront every single person that was remotely involved with the case.  The Sixth Amendment only applies to a defendant's right to confront those directly offering evidence introduced at trial (Ibid).  This means that if someone called an anonymous tip line to report a person engaging in unlawful conduct, the defendant would only be allowed to confront the arresting officer who search the home and found the evidence.

If we accept Professor Steven Calabresi's arguments, then we run the risk of venturing into far more politically dangerous territory.  The president has used the phrase "witch hunt" to describe not only the impeachment inquiry but also the special counsel's investigation into Russian interference in the 2016 election.  This buzz word, along with the word "hoax," is used to rally the president's base and delegitimize a process that already provides more protection to the president that what is constitutionally required (Ibid).  Politicians say a lot of things--true, half true, exaggerations, and outright lie--to rally their supporters but for a lawyer to make dubious arguments public is quite another matter.

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Fred T. Korematsu
Professor Calabresi't arguments are similar to the central criticism made in Justice Robert Jackson's dissent in Korematsu v. United States.  In Korematsu, the Supreme Court sustained the lower court conviction of Fred Korematsu for refusing to comply with Executive Order 9066, ordering the internment of all Japanese American citizens during World War II.  Justice Jackson writes,

...if the military commander had reasonable military grounds from promulgating the orders, they are constitutional, and become law, and the Court is required to enforce them... a commander, in temporarily focusing the life of a community on defense, is carrying out a military program; he is not making law in the sense the courts know the term... In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal... (; Dec. 18, 1944; date accessed Nov. 20, 2019)

Justice Robert Jackson was objecting to a military commander overstep the bounds of constitutionality, this was incident.  The real objection was the Supreme Court reviewed and approved it thus making it a doctrine of the Constitution.  From a legal standpoint, it was the legality of the internment of Japanese American citizens that made it a dark stain on America.

Therefore, we should not be surprised when the president's defenders use constitutionally dubious arguments to delegitimize the impeachment inquiry.  While the Constitution does give White House lawyers the right to present a vigorous defense, we as critically thinking intelligent human beings should evaluate the arguments in favor of protecting the rule of law. 


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