Constant's pations

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

Thursday, March 01, 2007

Attorney Confirmation Review: Overturning All Convictions by Unconstitutionally Appointed US Attorneys

Ref What to do about unconstitutional US Attorney Appointments. Ref: H. R. 580


US Attorneys have been illegally appointed through procedures in an unconstitutional act of Congress. Congress has no power to "restore" something that was illegally ignored as a Constitutional requirement.

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The Government has no power to use unconstitutional methods to enforce the law, nor illegally adjudicate criminal activity. US Attorneys have not been properly appointed. The convictions under those appointments are not lawful.

Governments which violate the law are permissibly sanctioned for illegal activity by striking the fruits of that illegal activity. When the government violates the law to procure evidence, that evidence is stricken from the record; illegal prosecutions can be overturned.

Legal counsel for defendants prosecuted by illegally appointed US Attorneys should move to have the punishments and court orders reversed; and the prisoners immediately released from their unlawful detentions and punishment, and released from their probation requirements.

Required reforms:

A. A system that prohibits illegal acts from being implemented;

B. Timely consequences on the US with swift prisoner releases related to all illegally appointed US Attorneys;

C. Denying punishment to criminal defendants when they are illegally charged by unconstitutionally appointed prosecutors, costs to the Government; and

D. Ensuring all evidence of this unconstitutional conduct should be subject to timely discovery by defense counsel, costs to the government.

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Illegal Appointment Statute

The Constitution outlines the procedure which the President must follow. Congress has illegally passed a statute which ratifies an illegal change to the Constitution. This President has illegally violated the Constitution.

It is not appropriate, as a remedy, for Congress to "undo" something that the President has unlawfully refused. As with the Habeas restoration Act, I support the Constitutional requirements. I do not support Congress being asked to submit to the possible threat that the President might not "approve" a restoration of what was not legally taken away, denied, or change.

Rather than require a person with sanding to get he courts to strike down the law; it would be appropriate if there was a mechanism from the outset that would have prohibited Congress from enacting this legislature to begin with.

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1. The Constitution is the Supreme Law.

2. The original efforts to circumvent the Constitutionally requiring appointments-nomination process was illegal. The agreed-to exceptions apply to officers not applicable in this case. The exceptions are not allowable; and Congress had no power to waive these Constitutional requirements. The Constitution does not permit Congress to agree to lesser standards of appointment. It is irrelevant that the President may, at any time, fire a US Attorney; the appointment shall comply with the Constitutional requirements.

3. Congress has no power to "restore" something that was not legally taken away. Asking Congress to "approve" a restoration of something -- that was not legally taken away -- impermissibly gives the President the right to block enforcement of that restoration; or refuse to restore that which was not legally taken away.

4. The original Congressional Act illegally abrogating the Constitution is evidence of alleged 5 USC 3331 oath of office violations.

6. The procedures, polices, and other things which the President and other are relying on to circumvent the Constitution are not enforceable, illegal, and contrary to the law.

7. All appointments made outside the Constitutional requirements are illegal; and all defendants who have been adjudicated or prosecuted by any of the prosecutors who have been illegally appointed are not lawful prosecutions.

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The United States should have known through the Constitution that it was at risk of losing jurisdiction, control, and public trust in their federal prosecutions. The possible legal consequences are lost on this government.

This President has well stated his overt intent not to enforce states he views as being illegal or Unconstitutional. There is no credible statement to be made by any DoJ Staff counsel that the President could not have done the same with this statute.

The President had the option not to enforce something that violated the Constitution, but he chose to implement procedures he knew, or should have known, were not consistent with the Constitution. This is a problem the President created, supported, and did not lawfully prevent.

Signing statements are reviewable, and are evidence of the President's decision, option, and legal authority to not enforce illegal Acts of Congress. Signing Statements may not be unilaterally used as an excuse to ignore the Congress; but then enforce illegal statutes.

This is a mess that the President created through

A. unlawful enforcement of this illegal statute;

B. refusal to enforce the law against Congress in refusing to enforce this illegal act; and

C. refusal to comply with the mandatory appointments process in the Constitution.


Here, where there is illegal activity to violate the Constitution, the remedy is to punish the government for that illegal activity; and impose a meaningful consequence on the government violating the Constitution.

As an appropriate punishment on the President for his illegal violation of the Constitution, counsel for all defendants prosecute by any of these illegally appointed prosecutors should be encouraged to, inter alia :

A. Challenge the lawfulness of the original trials;

B. Requesting courts overturn, invalidate, and strike as null and void the original prosecutions;

C. Strike from the evidence and record all statements defendants made related to their activity; and

D. Seek immediately release all prisoner-clients detained, imprisoned, or awaiting trial in all jurisdictions where the President has illegally violated the Constitution and unconstitutionally appointed US Attorneys as prosecutors.

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Ref Legal Action to find appointments unconstitutional

with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States Ref

Issue1: Is a US Attorney an inferior officer which the President may directly appoint?

No, a US Attorney is a public "consul" as described in Article II, requiring Senate confirmation.

Inssue2: Did the President intend to circumvent the Constitution by mislabeling US Attorneys as "interim" counsel?

The President's intent is irrelevant. Congress has no power to pass a statute permitting the President to circumvent the Constitution. Regardless whether someone is a recess appointment, "Indefinite interim counsel" is an unconstitutional direct appointment violating the Constitution. The appointment must comply with the Constitution.

Issue3: Does an illegal appointment amount to an invalid prosecution mandating conviction reversal?

Yes, convictions can be reversed because of an illegal appointment; or for not following legal requirements. [ Reddell v. State, 170 P. 273 (Okla. Crim. App. 1918, see 1988 OK AG 45 ]. Hamdan finds government must comply with legal requirements. [ Ref Prosecutor misconduct. ]