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Friday, January 26, 2007

House Judiciary: Signing Statements

These are some preparation notes to consider when evaluating whether the House Judiciary Committee hearing into Signing Statements does or does not fully protect the Constitution. Ref

We discuss signing statements in terms of admissable evidence related to illegal usurpation of power, war crimes, and privilege; and conclude with issues and questions for your discussions.

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Signing statements may not legally expand Executive power beyond his sole power: Executive. An option to violate the Constution is not a new powe, but evidence of illegal activity.

Signing statements are fatal admissions of war crimes and illegal usurpration of non-delegated judicial and legisaltive power. It is our view that it is a subsequent violation of the oath of office for any official in the Judiciary or Legislature to not challenge these illegal signing statements.

The President does not have legislative or judicial priviledge permitting him to hide communications related to illegal assertion of legislative or judicial powers. Such a priviledge, if it were to exist, would violate the doctrine of Separations of Power and illegally permit the Constution to be left in an inferior state.

The President may not legally use Executive Priviledge to hide evidence, communications, or pre-decisional discussions supporting or advising illegal usurpation of power; or anything related to the illegal signing statements. Once a single singing statement was disclosed, the President has fatally opened the door to expansive, detailed, and broad discovery into all notes and pre-decisional communications related to this illegal activity, and unlawful usurpration of non-delegated powers. These decisions are not legally protected nor linked with a lawful delegation of power.

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Singing Statements: House Judiciary Committee Prep Notes

Next week, the House Judiciary will be reviewing signing statements. This note outlines some of my concerns.

Specifically, signing statements offer an opportunity for discovery: They are fatal, open, admissible evidence showing the President has illegally usurped power not delegated in the Constitution. This note outlines some of the issues of signing statements as they relate to discovery, rules of evidence, and admissibility of non-public information. It is argued signing statements are not necessarily lawful decisions; because statement is linked with an illegal usurpation of non-delegated power. the Executive cannot be expected to successfully claim Executive Privilege over decisions outside his narrow delegated power. Rather, when the Executive asserts or usurps non-delegated judicial or legislative powers, all decisions related to that illegal usurpation are not lawful; and all counsel memorandum fall outside the narrow lane of Executive Privilege. The President's privilege against disclosure does not cover non-executive decisions; and he has no power, nor can he credibly expect to remain hidden, memorandum related to non-delegated judicial or legislative decisions he's recorded in his signing statements.

We rely on a strict interpretation of Article II, which expressly delegates only one broad power to the President: Executive. We distinguish between the single executive power in Article II with the multiple powers delegated to the Legislature in Article I. This distinction is important when considering whether the President, through his singing statements, is or is not asserting non-delegated powers; or suggesting that the Executive has more than one power beyond the single power in the first sentence of Article II.


Here is a checklist I will be using to evaluate the hearings next week. I do not expect the distinguished law professors and other witnesses before the House Judiciary Committee to rely on this checklist, but I anticipate they will cover many other topics. These are my concerns with signing statements.

1. Discussion of the Veto, and Line Item

Veto is not an expressly delegated Executive Power, but is an option preserved in Article I for the President to do nothing. However, we distinguish between an express delegation of a single power in Article II, with that of an implied option: The President may have an option to do something, but this is not a new power, but an option that exists under the President's sole power in Article II: Executive.

Signing statements amount to an illegal self-delegation to the Executive of a line item-veto. This is unconstitutional. The President shall either accept the Bill in whole and sign it; or return the bill with his comments to the Legislature so that they might fix it, and with 2/3 concurrence pass the bill without further Presidential comment or input.

Signing statements amount to a failure of the President to return the bill; and deprive the Congress of the opportunity to fix the President's concerns, or amplify and clarify language that would8 warrant 2/3 approval. When the President refuses to reject a bill, but signs it, but then provides comments, he's doing something beyond which Article I permits: Rejecting the bill and returning the bill to Congress with Comments.

Once the President provides comments, but signs the bill, he's exercising both Legislative and Executive Power. This is a violation of Separation of Powers.

2. Executive Power

The Executive has only one power: Executive, and no delegated power to delegate himself new powers, or imply that he has plural powers. He has only one express power, and all options do not amount to new powers, but merely discretion. This is not a new power.

3. Unconstitutional Expansion

The President has only Executive Power, and he has no legal authority nor any express or implied delegation of any authority to do anything resembling legislative or judicial Powers. The courts in Dunn recognize that a usurpation of power is not precedent; the President has no power to rely on his signing statements, his illegal usurpation, or his defiance of the Constitution as a precedent to remain beyond accountability, including impeachment and removal. Usurpation of power is illegal; and the signing statements may not be relied upon to expand the President's sole power to include anything new.

4. Accountability: Duties to Vice President during President's imprisonment

Impeachment is not the only option to punish the President for illegal usurpation of power. The President may be lawfully prosecuted by the states and lawfully convicted; while serving his Prison term, he would retain the title of President, but the duties would fall to the Vice President.

5. Signing statements as Admissible Evidence

The Singing statements may be used to show the planning, legal review, and other course of conduct the President and others jointly agreed to illegal usurp power. These signing statements may be admitted to any court to show the President intended, and did, illegally usurp non-delegated Powers; and illegally exercised self-judicial review which amounted to a ratification of war crimes, constitutional violations, or illegal conduct.

6. Signing Statements As Opening the Barn Door

Signing statements may also be used by prosecutors to show that legal counsel in the White House, DoJ, and other Executive Counsel have illegally assented to violations of the Constitution. Once the President discloses a signing statement, he's shown [a] his decision is not a lawful decision; [b] all pre-decision communications related to that illegal act are not protected; and [c] all decisions asserting judicial or legislative Powers are not lawful; and all decisions which fall outside the single Executive Power are not protected acts, nor can the be expected to be protected by Executive Privilege.

The singing statement shows us: [a] The President breached his duty to only exercise Executive Power; [b] there were non-protected communications which fall outside the President's sole Executive Power; [c] there were staff communications related to non-delegated Powers which cannot lawfully be protected; and [d] any attempt by the President to shield counsel communications related to non-delegated powers must rely on a non-existent assertion of a joint Executive-Legislative-Judicial privilege which does not exist, violates the separation of Powers, and cannot legally shield the pre-decision communications related to non-Executive power.

Said another way: The singing statement is evidence that pre-decisional communications would have to rely on a violation of the separation of Powers to shield Executive decisions outside those he's been expressly delegated the power to exercise. The courts cannot recognize the President's assertion of Executive Power to protect non-Executive decisions related to non-delegated powers. Executive Privilege does not mean that all Executive Conduct is immune to scrutiny; only that Executive-power-related decisions can retroactively shield staff communications related to lawful assertions of Executive Power. Once the President illegally makes legislative and Judaical decisions, all staff communications related to those legislative and judicial powers are not protected; and no counsel could reasonably expect those memorandum to be enjoy protection.

The Signing Statements open the bar door to discovery to the Executive actions which are not protected by Executive Privilege; and failure of the Executive to provide these staff communications related to non-Executive Powers can be adversely interpreted to be an admission that the Staff Counsel knows the pre--decisional communications are not protected; and cannot be shielded by a narrow assertion of Executive Privilege. Staff counsel knew, or should have known, that they were failing to protected and preserve the Constitution when they incorrectly assumed that pre-decisional communications and memorandum related to non-Executive decisions were not protected; and no Executive could compel any court to shield what were communications and pre=decisional notes related to illegal assertions of non-delegated judicial and legislative powers.

7. Problem With Asserting Executive Privilege For Non-Executive Power

The President has no power in a signing statement to compel anyone to accept the fiction that Executive Privilege can shield illegal usurpation of power. Executive Privilege applies to only one power: executive.

No Staff counsel could expect that Executive Privilege would protect staff communications related to decisions to illegally usurp legislative or judicial power. There is no joint "Executive-Judicial-Legislative Immunity" which would protect Executive decision to assert non-delegated powers. This is not lawful; the immunity does not exist; and the assertion of this shield rewards illegally the President's unlawful violation of Separation of powers.

8. Rules of Evidence Related to Illegal, Non-Delegated Power

All decisions, memorandum, and other communications related to non-Delegated powers are not protected. The Rules of Evidence and precedent do not permit shielding memorandum linked with non-delegated powers.

The Singing statements are evidence the President has violated the Constitution, and become the vehicle to deny the President's legal effort to assert the rules of evidence are in his favor or protect his pre-decisional communications. These decisions were not lawful, are not connected with delegated power; and the Court cannot legally recognize a privilege for a power that was never delegated. To do so would permit the President to assert new, non-delegated powers but hide the evidence of his illegal activity. This outcome would, in effect, permit the destruction of the Constitution, leaving it in an inferior state; any court that would permit this outcome could be legally challenged for impeachment.

Any State Prosecutor could lawfully prosecute any sitting Federal Judge for failing to ensure the States enjoyed the full right to a Republican Form of Government. Any court which asserts that the President may assert privilege to hide evidence of usurpation of illegal activity could be reasonably presumed to have assented to violations of the Constitution, warranting a finding that the Court had failed in its judicial cannons and Judicial Oath of Office to preserve the Constitution.

9. Signing Statements: Violations of Geneva Conventions and FISA

Signing Statements are fatal admissions that the President knew, or should have known he had access to counsel on Article 82 requiring legal counsel to fully enforce Geneva. Signing statements becomes the vehicle to show that the President and DoJ Staff counsel knew or should have known, prior to coordinating on the signing statement, that they jointly agreed to illegally assert powers non-delegated; and they have jointly endorsed illegal violations of Article 82 requiring all counsel to fully enforce the Conventions. Courts could conclude the signing statement is sufficient evidence to show the DoJ and White House Staff counsel knew, or should have known, the illegal conduct was a Geneva Violation; and the failure of the Staff counsel to remove themselves or end the illegal activity amounted to a violation of the Attorney Oath of Office and a violation of Geneva.

Signing Statements are also evidence of the President illegally asserted that he has the power to decide whether the courts will or will not review FISA violations. Only the Courts may review this matter; the President has no power to agree, delegate, or approve whether FISA issues are or are not reviewed by any court.

The FISA statutes does not permit, nor has Congress lawfully delegated any new power to the President to self-adjudicate that the President has or has not appropriately reviewed whether the NSA activity is or is not lawful. Only the courts may assert judicial power.

The President's signing statement is also evidence of his illegal agreement to pretend that he can hide violations of the law; or that he can retroactively assert in writing that he may work with Congress to retroactively create new crimes where none existed. The President may not use a signing statement to put into effect an illegal rule which Article I expressly denies to the Congress; where there is no permission to the Legislature, and no express delegation of that power to the President, the President is presumed to have knowingly not asserted his oath of office. If Members of Congress choose to turn a blind eye to these alleged crimes, this raises questions about their fitness for office as a Member of Congers; or their assertion that they might make a good President. Inaction should not be rewarded with more power, but punished with legal consequences.

10. Signing Statements and Changes in Position

Once the President illegally asserts a non-delegated power, violates the law, or announces formally that he does not intend to fully enforce either Geneva or FISA, the President has fatally shown he's violating his oath of office.

Going deeper, once the President moved the Prisoners from Eastern Europe, or he accepted the courts would review the FISA violations, the President has fatally admitted his original positions were not lawful. Signing statements are evidence of the original illegal position; and his intent to thwart Judicial and legislative oversight. Again, the signing statement amounts to a fatal admission that the original conduct was illegal; and that he knew, or should have known, the final outcome was for judicial review, no not something the President could unilaterally assert or exercise as any Constitutional executive power.

11. Conference Committee and Signing Statements

The President when he issues a signing statement is not respecting the conclusions of Congress about what the legal language means. Only the Conference Committee may adjust the words, ignore terms, or do things which both houses have not done.

It is a separate matter whether the Conference Committee has or has not agreed to terms which violate the Constitution.

Once the President issues a signing statement he's in effect acted as judicial review, engaging gin retroactive mark-up of a bill, and denying Members of Congress to leave on the record their comments, views, and intentions about the express language. The President has no power to, in effect, use a signing statement to create legislative history; nor trump all Members of Congress over whether a term will or will not mean something. This is an illegal exercise of judicial power.

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Issues for Discussion.

___ Should signing statement be banned, not enforceable?

Yes. The President could be denied the right and power to make any public comment or writing related to any bill. The President is not a citizen for purpose of Article II, but a creature of the Constitution. The Congress has the power to regulate how the President signs a bill; and what form of guidance he issues, especially when the statement illegally usurps Judicial and Legislative powers.

___ What crimes should be attached to signing statements which illegally usurp power?

Crimes could include Constitutional violations, 5 USC 3331; conspiracy; war crimes; and unlawful violations of US Constitution.

___ If Members of Congress refuse to punish the President, White House counsel, and DoJ Staff for cooperating on illegal usurpation of power, what actions should state prosecutors take to lawfully prosecute Members of Congress for 5 USC 3331 violations -- failing to preserve the Constitution against illegal usurpations by the President?

Yes, Members of Congress are not subject only to review during elections, but may at any time be prosecuted for 5 USC 3331 violations and immediately removed from office.

___ How will illegal usurpations of power in a signing statement be handled?

Impeachment, state level prosecution, and forwarding evidence of illegal activity to international tribunals. Foreign fighters may be legally delegated the power to engage in like violations of Geneva against the Executive Branch.

___ Can executive Branch counsel, officers, and agents be prosecuted for violations of the Constitutions, regardless Presidential orders or guidance in illegal signing statements?

Yes. The President may not lawfully compel anyone to follow illegal orders.

___ What if Legislative and Judicial actors assent to illegal signing statements, what is the remedy, and how will this illegal usurpation of power be prevented, blocked, thwarted, or controlled when the Federal-level actors refuse to check the illegal violation of Separation of Powers?

State Prosecutors may legally prosecute Federal Officials for violating the oath of office.

___ What is the remedy to prevent this from happening again?

A New Constitution could separate the legal review to a third chamber in the Congress -- the Consulars-- , requiring the Bill to meet a Constitutional Test before presented to the President. A fourth branch of government could have the exclusive power to investigate illegal activity, or lawfully wage war against a President who was illegally usurping powers to violate Geneva.

___ Could the White House and DoJ Staff counsel -- who advocate illegal usurpation of power by the President -- be prosecuted, disbarred, or subject to legal sanctions?

Yes. It is a violation of the laws of war and attorney standards of conduct for counsel to assent to illegal violations of the Constitution, or actions with violate the Separation of Powers. Memorandum related to judicial and legislative power cannot be protected by Executive Privilege. Counsel knew, or should have known, that their work products when linked with an illegal, unconstitutional usurpation of power were not protected; and could not legally rely on a joint assertion of "Executive-Judicial-Legislative" privilege which blocked review of evidence made before the illegal assertion of power, or the illegal decision.