Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Thursday, May 25, 2006

President Unconstitutionally Seals Evidence

The President has unconstitutionally asserted judicial Power by sealing evidence, thereby denying a defendant-Member of Congress the right to a speedy trial.

* * *

Bush is acting as if he's managing an Iraq-like insurgency in DC: "I shall bring peace." Ahem, "Mr. President, you are not lawfully allowed to act as a superior branch of government, usurping power from the Judicial branch, nor acting as a mediator between the court and the subject of the investigation, the Members of Congress. This is a false problem, and Congress and the Court cannot assent to your solution."

Using the Hegelian Dialectic, Hitler seized power in the confusion of the WTC explosions, I mean Reichstag fire. Beware, Bush is banging the drums of false love of law, yet he only loves power and any means to abuse it. He has convinced Congress to assent to his solution.

We the People must lawfully assert ourselves against this unconstitutional conduct. They can either assent to This Constitution, or we may lawuflly create a New One outside their ability to influence. They do not get to vote.

* * *

The President has created, and Congress has assented to, a fictional, non-delegated Executive power, which is an exlusive judicial power. The fact that this happened in the Capitol is irrelevant. This is not an administrative dispute within the Executive Branch, and the President has no authority to assert any power to seal anything. There is no evidence that the information relates to motor vehicles, so the information cannot be suppressed for that reason.

Common law does not recognize any Executive asserting judicial powers, as this is at odds with the Constitution mandating a separation of powers to ensure power is not abused, consolidated, or favored. It is absurd for the Leaders of Congress to stipulate in any non-court filing or motion that they are "concerned" for the Constitution, only to assent, as a "remedy," to an Executive asserting judicial power. This is neither lawful nor consistent with statute.

The rules are the exclusive jurisdiction of the courts, and not something the Executive or Legislature can design out of convenience without an Amendment to the Constitution, transferring judicial power to the Executive. Rather, it was the mad rush of events, the very excuse to avoid what may be perhaps a needed political showdown that introduces the judicial branch as the third, co-equal branch to be respected, not shunted aside for the sake of cooling the waters.

Rather, the public has every right to further throw hot water on this political cauldron. It was only when Members of Congress were personally targeted that they awoke from their coma. Today, they have awoken to the illegal grant of power to the Executive to engage in searches without warrants, which the Constitution and statute otherwise prohibit. But in shock, as after Sept 2001, rather than assert power, this Congress once again defers to the Executive on matters which the Constitution has expressly defined to the contrary.

Evidence may only be suppressed by motion, not Executive order. The magistrate, not the Executive, has the power to review evidence and matters and adjudicate what is or is not to be suppressed, sealed, or otherwise not provided to the open court for a speedy trial.

Going the other way, Congress cannot claim that Congressional papers are off limits. There are specific statutes that permit these documents being entered, and Congress also has no power to retroactively ex post facto assert that a document is or is not admissible. Rather, this power belongs to the Judicial Branch that follows the rules of evidence the Legislature and Executive have already agreed to. The Congressional letter by Pelosi and Hastert amounts to an ex post facto assertion by the legislature of non-delegated judicial power to adjudicate on matters already promulgated.

Seals are designed to protect information, especially when there is potential misconduct. This is the reason we have courts: To decide what should be done. It is more than inappropriate the Congress and Executive have asserted non-delegated powers; through joint inaction, they have assented to illegally Presidential assertions of Judicial Power.

The only branch that has the exclusive power to remedy possible issues of fraud is the judicial branch, which has the power to adjudicate on evidence, a matter of common law.

The issue of whether something is or is not admissible is already covered by statute, and a rule for the judicial branch to enforce, not the President. Rather, the evidence shall be immedately available for the defendant, counsel, and court to review.

The war exception is not applicable.

We expect to see a report by the AOC to Congress discussing the delay of the evidence, and the public has the right to inspect this AOC report.

443 F.3d 993

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18 USC 1001 is a statute, which the Judicial branch alone, has the power to adjudicate. By sealing evidence, the President has

  • A. Suppressed information related to allegations of illegal FBI action;

  • B. Denied the court of timely evidence related to a judicial matter;

  • C. Adjudicated on a judicial remedy -- to an allegation of fraud, and use the remedy of sealing -- which Constitution expressly delegates exclusively to the Judicial Branch alone.

    Rather, it could be argued that the President has violated 18 USC 1001 because he is concealing evidence related to alleged criminal conduct. Further, all exceptions to this rule apply only to judicial proceedings, clearly not what the Executive is not using or assenting.

    Further, the exceptions are not applicable because the matter is not exclusively in the legislative branch, but arguably now touch all three branches. Therefore, it is reasonable to conclude that the President has violated, and Congress has assented to violations of 18 USC 1001.

    * * *

    Federal Rules of evidence 103 is a clear Congressional Rule which applies to the Judicial Branch, not the Executive.

    Once evidence is seized, it is to be inventoried. This is a matter for the court to review, not the President.

    Congress has made no rule that permits the President to implement, order, or otherwise ensure this rule is or is not followed.

    Moreover, there is no mechanism to resolve this issue should the decision to seal evidence be in error.

    Also, who and how does anyone appeal should the President's ruling be a problem; namely, who is above the President to appeal his quasi-judicial order? Only the court has the power to implement the rules; and the President's sealing of information effectively jettison's the parties from any reasonable recourse during appeal: Defendants cannot point to the "original magistrate" that made a judicial error when the "magistrate making the error" is actually the President.

    At best, by taking this illegal action, it remains to be seen whether the Member of Congress, as an individual, challenges the President's conduct; and whether the President will assert an illusory power of "personal privilege" to do what he wants. At this juncture, Congress because it has an interest in suppressing this information, appears to be willing to assent to the President’s illegal conduct.

    In short, the Congress and Executive have simply agreed to ignore the Judicial Branch of government.


    * * *

    The irony is that the President could argue that he was hoping to avoid a problem, but this only has merit so long as has the power to investigate the wrongdoing.

    Again, this is not a credible assertion as DoJ OPR has already been denied the access needed to carry out this remedy related to the conduct.

    * * *

    18 USC 1503 clearly establishes that there are government processes to be protected: Evidence collection, rules related to sealing evidence, and timely providing evidence for a speedy trial in re Brady.

    The President's sealing amounts to an obstruction of justice for interfering with official proceedings.

    Subsequent to this sealing, it remains to be determined if anyone in the White House or Congress have been threatened to remain silent on subsequent violations of the law, or have been unlawfully intimidated to provide information to the court; or corruptly persuade others to remain silent about the interference with the court proceedings. Ref

    Further, it remains to be understood what item of value has been given to Members of Congress for their assent to this unlawful assertion of Judicial power by the President. [ Click ]: Has the President implied that he will raid other Members of Congress, subject them to illegal wiretapping, or other illegal abuses of Executive power if Members of Congress individually refuse to assent to his illegal assertion of judicial power?

    * * *

    The enforcement mechanism on the initial matter is the Attorney General, already discredited and getting in the way of DoJ OPR.

    Is DoJ OPR going to be allowed to review the AG's role in providing legal advice to the President on this matter?

    * * *

    Nowhere in the Constitution does the President have the judicial power to seal evidence, deny a speedy trial, close trials, or resolve matters related to possible fraud. These are strictly judicial powers.

    Yet, Congress has, through an interest in asserting power and protecting something that cannot be protected, assented to illegal conduct

    By sealing evidence, the President’s conduct amounts to a closure of the court. He cannot do that.

    The President does not have the power, as a basis to assert a power to seal anything, to decide whether fraud may or may not occur if the seal is not used.

    A seal is something that implies that there is something of value or interest that others do not have the right to see. The President does not have the power to assert this presumption; rather, the opposite is true: This claim of Executive privilege can be trumped.

    Unchecked and unchallenged, it remains to be understood how this "sealing" will be used as precedent in other cases related to the NSA.

    Congress and the Courts do not have the power to do nothing; rather, they have a responsibility to ensure that this abuse of power -- unlawful sealing of evidence -- is something that is publicly discussed.

    It serves the interests of the President alone to assert judicial power; this Congress, in its foolish desire to claim a "concern" with "invading" Legislative space, has now assented to a seizure of Judicial power.

    This is not lawful, nor constitutional, and as absurd as any signing statement, or other ruse this President does to abuse power. He has no power to decide which evidence to ignore. He only has the power to pardon.

    Is it the President’s intention, by sealing other evidence, to pardon himself for the unconstitutional assertion of power, and violation of the clear laws of the land? We can only presume that this Government will assent to the abuse of power, not with the protection, preservation, or assertion of the Constitution.

    Congress, because it desires to assert absurdity, is now absurdly assenting to more unconstitutional conduct.

    * * *

    These are not simply political matters, but matters of constitutional and criminal law. All Americans have a solemn duty to protect this Constitution.

    Members of Congress and the Executive Branch have assented to an illegal Presidential power grab. They have freely chosen to assent to an illegal rebellion against the Constitution, and they have no choice but to remove themselves from this unlawful conspiracy.

    Our duty, as American citizens is to assert our lawful power not delegated in X Amendment, and compel these reckless government officials to stand down, and lawfully assert their 5 USC 3331 oath: To preserve, protect, and defend this Constitution.

    They have failed. It is our job to exercise adult supervision and clear the way for responsible leadership who remain serious about the Constitution. Not this crew, they are actively agreeing to turn the Constitution upside down, suppress evidence, and illegally assert powers We the People have not delegated to them.

    It is our duty to lawfully report the evidence related to this illegal conduct. If we fail at home, others outside our borders are eager to impose that discipline using force.

    If you are not with the Constitution, and by my side as we face this domestic enemy and force them to retreat from their illegal attack on the Constitution, you shall lawfully be defeated.


    Three states and I are poised to lawfully assert our power.