Constitution – birdpuk

April 18, 2021April 18, 2021

Defending the Constitution From the ‘Living Constitutionalists’

Commentary by Rob Natelson

“Originalism” means applying the Constitution as the Founders understood it. Originalism is just a modern name for how English and American judges and lawyers have read most legal documents for at least 500 years (pdf).

By respecting the understanding behind a document, originalism keeps the document alive.

By contrast, there’s no simple definition of “living constitutionalism” because “living constitutionalists” differ greatly among themselves. They’re united by dislike of many of the Constitution’s rules and standards, and they all want to adjust the Constitution to serve their political goals. But beyond that, their unity ends: They sometimes have different goals, and they propose different ways of justifying constitutional manipulation.

“Living constitutionalism” is a misnomer, because when we abandon a document’s rules and standards, the document dies. In practice, “living constitutionalism” converts our Constitution into a parchment loin cloth to cover political pudenda.

Among the inconsistencies of living constitutionalists are claims that the Constitution is both “too rigid” and “too vague.” One who thinks it’s too rigid is David A. Strauss, a law professor on President Joe Biden’s Supreme Court commission. He wants constitutional law to evolve much as the common law evolves. Such “common law constitutionalists” underappreciate the fact that our decision to adopt a written Constitution was a clear rejection of the British-style “evolving” constitution.

By contrast, William Brennan, a living constitutionalist who afflicted the Supreme Court from 1956 to 1990, thought much of the Constitution was so vague as to be virtually meaningless. He referred to constitutional provisions as “luminous and obscure.” He wanted judges to replace the shimmering fog with structures of their own making.

The “too vague” and “too rigid” accusations are not only inconsistent with each other. They also are incorrect.

Let’s apply a dash of common sense to a serving of history. The Constitution’s framers weren’t the kind of people who write overly rigid or meaningless terms. They included Oliver Ellsworth of Connecticut, John Dickinson of Delaware, and John Rutledge of South Carolina, each the leading attorney in his respective state. Eight framers had been educated in London’s Inns of Court, the schools for training English barristers. The framers included other celebrated lawyers as well, such as James Wilson of Pennsylvania and Alexander Hamilton of New York. Even most of the non-lawyers, such as James Madison and Nathaniel Gorham, had been immersed in legal subjects throughout their careers. The framers had composed written legal documents in business, in law practice, in the state legislatures, and in Congress.

They were, moreover, deeply familiar with the 600-plus-year Anglo-American tradition of composing constitutional-style documents.

They drafted the Constitution as a legal document should be drafted: tuning each provision to the level of rigidity or flexibility necessary to its purpose.

As a result, some constitutional phrases are rigid—but properly so. For example:

The president “shall hold his Office during the Term of four Years.”
“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Few of us would want to live under the “living constitutionalist” versions, which might read:

“The president shall hold [insert politically correct pronoun here] office as long as the judges, balancing all factors, decide it promotes good social policy,” and
“A person may be convicted of treason if the judges find the evidence persuasive after they have balanced its reliability and quantity with the needs of social justice.”

But when rigidity wasn’t appropriate, the framers could write terms flexible enough to satisfy any living constitutionalist. For example:

“Each House shall keep a Journal … and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy,” and
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (Italics added)

And as explained below, the Constitution also has many provisions that are neither particularly rigid nor overly flexible.

One reason some people think the Constitution is too vague or too rigid is that they don’t understand what many of its clauses actually mean.

For 25 years I’ve been working to cure that by writing a series of research articles exploring sections of the Constitution. My research has demonstrated that many charges of rigidity or vagueness are wrong.

For example, some law professors used to laugh at how “rigid” the Coinage Clause is. The Coinage Clause (Article I, Section 8, Clause 5) grants Congress power “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” The scoffers assumed that “To coin Money” meant only to strike metallic coin. They said that in modern society this is impractical: We need paper and electronic money as well.

But if they’d read the clause carefully, they might have noticed that interpreting “coin” as only metal made no sense. When the Constitution says “regulate the Value … of foreign Coin,” it means setting foreign exchange rates. If “Coin” meant only metal, then Congress could set exchange rates for foreign metal tokens but not for foreign paper money. Surely the Founders didn’t intend such an absurd result.

And they didn’t. As I documented in a 2008 article (pdf) published by one of the Harvard journals, the Founders understood the Constitution’s word “coin” to include money in any medium, including paper. The scoffers were flat wrong: The Coinage Clause wasn’t rigid at all!

I also have disproved the once-common charge that the Constitution permits only male presidents, and other scholars have rebutted (pdf) the charge that its original meaning permits segregation of schools.

The living-Constitution crowd leveled the opposite accusation against the Necessary and Proper Clause (Article I, Section 18, Clause 18). They claimed it was so open-ended they branded it the Elastic Clause.

The Necessary and Proper Clause grants Congress power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

“What in the world does ‘necessary and proper’ mean?” the scoffers asked. “And what about these powers ‘in the Government of the United States’? Is that a drafting mistake? The Constitution grants powers to government departments and officers, but not to ‘the Government of the United States.’” Some living constitutionalists even claimed it refers to federal authority not otherwise mentioned in the Constitution.

Most constitutional commentators have had little experience practicing law. But I had, and to me the Necessary and Proper Clause looked like a phrase I’d seen in agency and trust documents. I suspected “necessary and proper” was a common term in 18th century documents and had a specific meaning.

Investigation proved my hunch correct. During the Founding Era, “necessary and proper” and variants of that phrase were exceedingly common in legal documents. In this context, “necessary” was a technical term for “incidental,” and “proper” meant “in compliance with fiduciary duty.” I don’t have space here to explain all of these legal expressions, but I can assure you they’re not “vague.”

The Necessary and Proper Clause authorized Congress to undertake a limited number of subordinate activities the Constitution doesn’t list explicitly. My investigation also showed that the Supreme Court had misapplied the Clause in some very important cases.

I also found—contrary to what the scoffers were saying—that the part of the clause referring to powers granted to “the Government of the United States” wasn’t a drafting error or a reference to mysterious extra-constitutional authority. The Constitution explicitly grants some powers to the federal government as an entity. This last point became clear from examining colonial documents familiar to the framers but unknown to most commentators.

My Necessary and Proper Clause findings were published in a book published by Cambridge University Press and in other outlets (pdf).

Over the past quarter century, I have examined many other parts of the Constitution previously pronounced rigid, vague, or meaningless. I have found that all have fairly well-defined meanings. Moreover, most are flexible enough to accommodate modern political activity consistent with the Constitution’s underlying principles of freedom, federalism, and limited government. Admittedly, they’re inconsistent with the goals of many of the “living constitutionalists”—regimentation, centralization, and cultural destruction.

Of course, altered conditions occasionally do require constitutional change. To respond, we can use the amendment process. We don’t need to kill the Constitution on the pretense of letting it live.

Robert G. Natelson practiced law for 11 years, then served as a law professor for 25. Among other subjects, he taught constitutional law, constitutional history, First Amendment, and advanced constitutional law. In 2010, he returned to the private sector. He is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and author of “The Original Constitution: What It Actually Said and Meant.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Source: Defending the Constitution From the ‘Living Constitutionalists’

February 11, 2021February 11, 2021

Trump Impeachment ‘Political Theater,’ Ignores US History: Constitutional Lawyer

Constitutional lawyer Rick Green in an interview with "American Thought Leaders." (The Epoch Times)

The impeachment effort against former President Donald Trump is “political theater” that goes against the history of the United States and the American Constitution itself, according to constitutional attorney Rick Green.

“When we have political actors involved, we get political theater. And that’s a lot of what we’re getting here. Is this the judiciary now? Is the Senate now the judiciary that will try any citizen? Because an impeachment is specifically for someone that is in office, according to the American Constitution,” Green, a former Texas state representative and co-founder of the Patriot Academy, told “American Thought Leaders.”

Trump’s attorneys have stated that it goes against the Constitution to impeach or try a former office-holder.

“Virtually everyone agrees that impeachment in our Constitution is designed for those three categories listed in Article 2, Section 4. And that’s the president, the vice president, and civil officers—so people that are still serving in office,” Green said.

He said the concept being pushed currently in the impeachment trial—that if Trump isn’t convicted he will get away with doing “horrible things,” and future presidents will be able to “do whatever they want and get away with it”—is “a total red herring.”

“It’s literally fantasy,” the attorney said.

House Democrats, joined by 10 Republicans, voted on Jan. 13 to approve a single article of impeachment (pdf) against Trump for “incitement of insurrection,” making him the first president to be impeached twice. On Feb. 9, he became the first former president to stand trial.

Democrats allege that the president incited violence at the Capitol in a speech he delivered near the White House on Jan 6. In his address, Trump used the words “fight like hell” in reference to his team’s legal efforts around election integrity. The Democrats allege that Trump used the words to incite his followers to commit violence.

However, Democratic House impeachment managers, led by Rep. Jamie Raskin (D-Md.), in their arguments on Feb. 10, presented no new evidence to support the allegation that Trump incited an insurrection at the U.S. Capitol last month.

donald trump, trump — President Donald Trump at the Save America rally in Washington on Jan. 6, 2021. (Lisa Fan/The Epoch Times)

Green suggested that in this case, constitutional provisions are being abused in order to “silence” the “opposition.”

“My fear is a separation of powers conflict here that the Senate becomes more and more the judiciary… and now if they can go after someone that’s a citizen like Donald Trump is today, well, they can indict you. They can indict me, they can prevent us from running for future office.

“I know that was not the view of the Founding Fathers. And when you abuse a constitutional provision in one instance, then other people will be able to abuse it in other instances in the future.”

The constitutional attorney accused the Democratic House impeachment managers of stringing elements of the American Constitution together in order to argue that a former president can be impeached.

“I’ve said this throughout this whole process that what they’re doing and pulling together different parts of the Constitution and creating these new rules is more worthy of a banana republic than a constitutional republic,” he said.

Green said language from Article 1, Section 3 of the Constitution was taken, “separated,” and mixed with some of the language in Section 3 of the 14th Amendment, in a way that was both “masterful” and “deceptive.”

“The reason they’re doing that is because on one hand, they want to say he’s the president. On the other hand, they want to say, it doesn’t matter if he’s the president, he did something awful, and we can still impeach. Putting those things together is the way that they’re trying to make their case. It’s when we say political theater,” he explained.

“They took a few kernels of truth—a few phrases out of the Constitution that are obviously there, and even few historical stories. They used those to weave that together to create a fantasy of a situation that has never been done in history—but it feels like it’s accurate and is truth because of the little kernels of truth that were thrown out there. That’s frankly good political theater,” Green said of the impeachment managers in the way that they presented their arguments.

The attorney said that at this point, the United States is living “post-Constitution,” and urged Americans to read the text of the Constitution themselves.

“We’re literally ignoring the constitutional history and the plain text of the Constitution. I think it’s important for us to actually as citizens, to go look at the Constitution ourselves, and not just listen to the silver tongue rhetoric,” he said.

He added: “It’s just like any other trial, you walk into a trial. If trial attorneys are really good, they paint the picture that they want you to believe and I’m afraid they’ve done that in this case, but it is new territory, and it ignores 240 years of history in the United States. And most importantly, it ignores the Constitution itself.”

The Democrats face an uphill battle in convincing enough Republican senators that Trump should be convicted. Forty-four Republicans voted on the first day of the trial that the Senate doesn’t have jurisdiction to try Trump because he’s now a private citizen. Several Republican senators said on Feb. 9 that the vote is an indicator of how the GOP members will ultimately vote on the question of whether the former president is guilty.

Democrats need the votes of at least 17 Republicans in order to secure the supermajority needed to convict Trump. If the vote from the first day of the trial is any indication, the impeachment managers need to change the minds of at least 11 Republicans, a task which even liberal media commentators concede is virtually impossible.

https://www.scribd.com/document/494198699/Impeachment-Resolution

Source: Trump Impeachment ‘Political Theater,’ Ignores US History: Constitutional Lawyer

February 6, 2021February 6, 2021

Supreme Court to Consider 2020 Election Challenge Lawsuits in February Conference

The Supreme Court is seen in Washington, on Nov. 5, 2020. (J. Scott Applewhite/AP Photo)

The U.S. Supreme Court on Friday scheduled several high-profile contest-of-election lawsuits, including ones brought by attorneys Sidney Powell and Lin Wood, and the Trump campaign, for consideration at its Feb. 19 conference.

According to a case listing, the lawsuits include Sidney Powell’s Michigan case(20-815), the Trump campaign’s Pennsylvania lawsuit (20-845) and Wisconsin lawsuit (20-882), the Pennsylvania lawsuit brought by Rep. Mike Kelly (R-Pa.) (20-810), and Lin Wood’s Georgia case (20-799).

All cases allege some form of unlawful election-related conduct affecting the result of the election, including expansion of mail-in balloting by elections officials changing rules in contravention of state election laws, lack of adequate security measures around mail ballots, issues with machine vote tabulation, and denial of meaningful access to poll watchers.

The Supreme Court declined to grant relief or fast-track the cases as requested in respective petitions filed ahead of the Jan. 20 inauguration of President Joe Biden.

Powell’s Michigan petition (pdf) sought “emergency declaratory relief avowing that the presidential election results certified by Michigan officials were unconstitutional and otherwise contrary to law, together with injunctive relief de-certifying those results.”

Wood’s Georgia petition (pdf) asked the Supreme Court to “enter an emergency order instructing Respondents to de-certify the results of the General Election for the Office of the President.”

The Kelly petition (pdf) asked the court for an injunction “that prohibits the Executive-Respondents from taking official action to tabulate, compute, canvass, certify, or otherwise finalize the results of the Election.”

The Trump campaign suits similarly called for emergency injunctive relief in the form of expedited hearings and blocking certification of the electoral college votes for Biden.

Some of the lawyers in the cases said that seeing the challenges through is important as they could have an impact on long-term election fairness.

“Our legal issue remains important in need of the court’s review,” attorney John Eastman told the Washington Examiner, referring to Pennsylvania’s conduct during the 2020 election.

Greg Teufel, Kelly’s lawyer, told the Washington Examiner that the congressman has no intention of dropping the suit.

The Supreme Court has kept its distance from Trump’s election challenges. In December, it rejected a lawsuit filed by the Republican attorney general of Texas and backed by Trump seeking to decertify the election results in four states.

If, at the Feb. 19 conference, the Supreme Court decides to take up any of the election lawsuits, they most likely won’t be heard until October.

In a sweeping report on the integrity of the 2020 election, Trump adviser Peter Navarro concluded that the allegations of irregularities surrounding the vote in key battleground states were serious enough to warrant an urgent probe and substantial enough to potentially overturn the results.

“If these election irregularities are not fully investigated prior to Inauguration Day and thereby effectively allowed to stand, this nation runs the very real risk of never being able to have a fair presidential election again,” Navarro warned in his report.

Source: Supreme Court to Consider 2020 Election Challenge Lawsuits in February Conference

February 3, 2021February 3, 2021

Patrick Byrne: How Donald Trump Lost the White House

Authored by Patrick Byrne via Deep Capture

On the evening of Friday, December 18, Sidney Powell, Mike Flynn, a sharp female attorney on Sydney’s team (whom I will call “Alyssa”), and myself decided to call an SUV and get driven to the entrance that serves the Eisenhower Executive Office Building, which is on the grounds of (and connects to) the White House. We had a vague plan regarding how we were going to get through all the rings of Capitol Police, Secret Service, and Marines without any invitation: Sidney and Mike were the center of global attention, and we were going to try to use that to bullshit our way past them all and get to the Oval Office. Beyond that, we’d be playing it by ear (I did say the plan was “vague”). There was a fine young NSC staffer whom I had gotten to know who, a real mensch, and I called him and left a message that I was accepting the open offer he had extended to drop by his office anytime, and was coming over … right then. At 6:15 PM. Not knowing if he would play ball, I may have been less than clear that there would be some people with me.

We were dropped off a block from the security gate, and walked through the light snow falling in the darkness. We got to the first security booth, and Sidney and Mike approached to talk. The Police and Secret Service saw it was General Flynn (“The People’s General”), and stiffened to attention. There was no appointment scheduled but they clearly were confused and trying to figure out what to say. Suddenly my staffer-buddy came out from inside, and when he saw Flynn and Sidney he froze and looked at me with raised eyebrows. I gestured that we were all together, and he looked shocked for a moment….. then did the right thing, strode over to the guard, flashed his ID, and asked him to let us all in, even though none of the requisite paperwork was arranged. With muted relief the guards quickly said, “Take care, General” and we were through the first layer. For the second layer my staffer-buddy and another of his colleagues who had joined up walked into the inner ring entrance before us, and spoke for us: again, when they saw Mike the guards again all stiffened to attention, looked puzzled for a moment (I think there is no such thing as a high-level visitor like that coming in without it being in the books), then briskly and professionally processed us all through as quickly as they could. They were silent and asked no questions, apparently guessing we might not have good answers if they did. I was the last one through, and as they handed my ID back to me one leaned in and said quietly and intimately, “Thank you Mr. Byrne.” I was surprised, and it was the first time I understood that in the constellation of Michael Flynn and Sidney Powell, there was a faint little star of my own.

NB Since publishing this it has been brought to my attention that I had an incomplete picture of the situation. Besides my communication with Staffer 1 described above, others were in communication with Staffer 2, who was also making arrangements. Thus, things were more greased/arranged than I understood, and certainly no one was trying to evade security processes.

We were ushered inside to an office, to use as Base Camp.

If I recall correctly, we were in Base Camp for about 30 minutes before making a move for the office of another NSC staffer, another young and principled person, with an office closer to the Oval Office. Camp 2.

Once there, Mike Flynn made contact with someone with whom he had worked in his brief stint as National Security Advisor, someone with an office that could serve as Camp 3, from which would come the final assault on the summit (the Oval Office). “Hey yes it’s Mike, how you’ve been? ….. Oh my Gosh, so great to hear your voice too….. Yeah yeah, it was unbelievable…. Where am I? Oh actually I’m in the White House! Yeah, just came by to see … See me? Sure well how about I just swing by… sure sure see you in a moment.”

We launched for Camp 3. And sure enough, when we got there, as Mike Flynn stood talking to his former colleague, Sidney and I had a 20 foot line of site down into the empty Oval Office…… After a few minutes, through a private door on the far side, Donald Trump walked into the Oval Office. He was dressed in a sharply creased blue suit and tie, still, at 7:30 PM. He came through and glanced out the doorway to where Sidney Powell and I were already walking towards him, greeting him like he should be expecting us. President Trump’s eyebrows knitted in puzzlement but his face showed he recognized us, and after a moment he beckoned us in. Within seconds General Flynn, Sydney Powell, and I were all sitting in the Oval Office with President Donald J. Trump, with the door shut behind us.

So that happened. Really.

The President sat across the Resolute desk and made small chat with Mike, asked him how he’d been. It had been almost four years since they had seen each other (when Flynn had left the White House, weeks into Trump’s first term). He asked after Sidney as well. I gave and received no more than a nod, letting Mike and Sidney take the lead. As I have noted publicly, the first thing I noticed about him was how measured, gracious, and even soft-spoken Trump seemed to be, so unlike the character that has beamed at us for years through the media.

Eventually he glanced at me again, raised an eyebrow, and gave a small chuckle. Apparently he knew about me, as I thought my be the case. He said something quietly, civil and kind. I said, “Thank you Mr. President…” He cocked his head quizzically and said something softly about knowing that I had not voted for him, and had said a number of critical things of him. I let him know the truth, that I had said some harsh things before the 2016 election, but while he was President my estimation of him had grown, and that in any case none of it was relevant, that I was there because I was confident the election had been hacked. I told him, “We think there is a much shorter route through all of this than your team is pursuing,” I closed saying, “But Sir, entrepreneur to entrepreneur, I feel I must mention something. As you may know, I have been swimming around the outside of your administration for a couple months now, and I must tell you, I do not think you are being well-served by many people in the White House. I can bring in young staffers who will tell you that some of your senior leadership don’t want you to win. They want you to concede.”

The President raised his eyebrows at my frankness. Then, like a man who knew the answer, he asked quietly, “Why?”

“I’m not sure,” I said, “but I hear people are getting signals that if they’re good boys and get you out the door, there will be jobs waiting for them. But if they don’t, they won’t be getting offers from the right law firms, they won’t be getting invitations from the right country clubs, they won’t be getting invited to the socialite parties on Manhattan…” Trump grimaced, and we moved on.

Sidney and Mike began walking the President through things from our perspective. In brief: there was a quick way to resolve this national crisis because he had power to act in ways he was not understanding. Under an Executive Order that he had signed in 2018, and another Executive Order that President Obama had signed in 2015, he could “find” that there was adequate evidence of foreign interference with the election, and while doing so would give him authority to do a number of big things, all he had to do was one small thing: direct a federal force (we suggested US Marshall Service + National Guard) to go to the six counties in question (the Problematic 6), and re-count (on livestream TV) the paper ballots that were held as fail-safe back-up. It would only take a few days. Even more conclusive would be if they imaged the hard-drives and those images could be examined forensically (which would make the project last no more than a week, as we had already cracked the Antrim County machines and knew precisely what to do going forward). In either case, if there was no mischief found, then President Trump would concede the election. But if (as we suspected) evidence of hundreds of thousands of improper votes was found in each of the six counties in question, then he would have a wide variety of options. He might have those six states re-counted. Or he might have 50 states recounted on livestream TV by federal forces, and America would finally have its answer to, “How much election fraud does our nation suffer?” Or he might skip that and have the National Guard re-run the elections in those six states. We pointed out that, it being December 18, if he signed the paperwork we had brought with us, we could have the first stage (recounting the Problematic 6 counties) finished before Christmas. And even if the result was hinky enough it demanded a rerun of the election in those states, it could be done before January 20, so that the January 20 Constitutional deadline would not be disrupted. The more time that he let slide by, the more compressed things would become. If he waited to see what the January 6 outcome was, however, and then decided to follow a plan such as ours, it would engender accusations of “sore-loserism”, so he had to act quickly. The alternative was an election that 47% of Americans doubted, which would not go down peacefully.

“You know Pat,” he said to me (the only people who call me “Pat” are either friends from childhood, or men from a background like my own family’s), “you know…” He caught my eye and gave a little snort of humor. “You know, I could leave here and my life would be really …. fine. I could be with my family, my friends, I could be playing golf …” We looked at each other and shared a moment as may occur only with CEO’s and other “leaders”: people think our lives are glamorous, but in many ways they are unpleasant. I had a little flashback: the first time I was running a firm, a 24-person manufacturer of industrial torch tips in New Hampshire, I went on a sales trip to Europe. Some great colleagues (engineers) and I spent a couple weeks of crawling around on plasma machines in a shipyard in Spain, a crane manufacturer in Belgium, knocking on factory doors in Hamburg, then attending a gigantic conference in Essen so we could walk around getting business cards and grabbing people to sit with us for a bagel to hear a sales pitch because we could not afford our own booth, but we needed a big order so we could make payroll the next quarter. After a few weeks of it we were home to New Hampshire, being received by colleagues like we were jet-setting royalty. “Oh Spain! How was Spain? Belgium! Germany!… Gosh I always wanted to travel, what was it like?” That’s when I realized that people do not understand how being in such leadership positions is generally not nearly as fun as people think, dreaming of taking it easy, of being able to take a walk without worrying about the (in my case at the time dozens, in Trump’s case, hundreds of millions) of people depending upon you. I understood why Trump was chuckling, and I nodded and chuckled along with him. I got just what he was hinting: he was thinking that from a personal (74 year old’s) standpoint, leaving the White House and going to Florida and golfing had a real appeal. “So Pat, on January 20 I could walk to Marine One and climb aboard and go have a really good life….” He continued, talking softly to me, directly. “But this? Knowing I was cheated, that they rigged this election? How can I just walk away from that?”

Other than that, of that first 30 minutes we had alone with the President, most of the conversation was among the President, Mike, and Sidney, so I had a lot of time to watch and study President Trump, and I was surprised on many fronts. When he questioned Sidney’s legal reasoning that he had the power to do such a thing, she pulled out the Executive Order he had signed in 2018 and described one from Obama in 2015: Trump took the E.O. and scanned it quickly, then began asking pertinent questions from it. The same with the finding that he would need to sign: he asked questions of both Sidney (regarding legalities) and Mike (regarding substance), who discussed with him the kinds of information regarding foreign interference covered in the last chapter. Throughout what I saw was a sharp executive mind, taking in information quickly and calculating decision-trees. It takes a lot to impress me that quickly, but what I saw was a sharp mind in action. It surprised me how I had seen no mention of it in four years.

Finally, Trump stopped and scanned the three of us, and asked simply. “So what are you saying?” Thinking of the difference between the highly organized and disciplined approach I had experienced with Flynn and Sidney, versus the college sophomore bull-session approach of the Campaign and Rudy-World, I spoke up again: “Mr. President, I think you should appoint Sidney Powell your Special Counsel on these election matters and make General Flynn your Field Marshall over the whole effort. I know Rudy’s your lawyer and friend, and he can have a great role in this. Rudy should be personally advising you, and we don’t want to do anything to embarrass him. But it needs to be Sidney taking point legally on this. And if you really want to win, make General Flynn here the Field Marshall. If you do I put your chances at around 50-75%. You should see how he well he has this planned, it would run like clockwork…”

The President shook me off, saying, “No no, it’s got to be Rudy.”

After some time (20-30 minutes), three lawyers appeared together. They did not introduce themselves, and stood huddling in the back of the Oval Office, listening. In addition, Mark Meadows and someone else joined us by speaker phone. Eventually the lawyers in the back began muttering things to make their displeasure and disagreement evident. Finally President Trump said something indicating this was new to him, wondering why no one had shown him this route through the impasse. I said again, “Sir, again, CEO to CEO, you are not being served well by those around you in the White House. I’ve gotten to know staffers in your White House, and they tell me they are being told that leadership here is telling them to get you to concede.”

Trump started to say something to Mike and Sidney, but he stopped himself and turned back towards me. “Who?” He asked angrily, “Who wants me to concede?”

I was taken aback by his anger, because I thought what I was telling him was common knowledge. I thought it was generally understood that about half the White House was in on the program of getting him to concede, for that was the estimate I was repeatedly told. “Sir, I am surprised you’re surprised…. In your White House leadership is telling junior staff this everywhere. I am told that this fellow Pat Cipollone [indicating the lawyers behind me as I spoke, not knowing which was Cipollone] has been telling people since November 4, ‘Just help us get the President to concede.’ And for the last couple of weeks, Mark Meadows has been telling staff, ‘Help get the President into transition mode.’”

Trump turned to White House General Counsel Pat Cipollone, who began sputtering. “Mr. President, you know how hard I work, you know how many hours I have been putting in…” Both of which were mealy-mouthed, and neither of which was a direct denial, as was obvious to everyone in the room. Trump faced him, his face darkening in anger.

“Sir,” I continued, “in 30 minutes I can have a number of staffers from within your White House here to tell you that those are quotes from Pat Cipollone and Mark Meadows. This guy is lying to you through his teeth. They want you to lose.”

Trump turned, knowing I was correct. He indicated one of the other lawyers, said, “Did you know that this is his last day? He has a job starting Monday at a law firm up the street, getting paid 10 times what I can pay him here.” He continued wistfully, “Pat, can you imagine what I could have gotten done here, if I had not been fighting my own people?”

Cipollone and the other two lawyers scurried out the back door of the Oval Office. I heard them stay out in the ante room, caucusing. Meanwhile, the President, Sidney, Mike, Alyssa, and myself continued for a while walking through more of the details, reviewing some of what we had said earlier. At some point Allyssa, that quiet but razor-sharp female lawyer assisting Sidney, took over for a few points, and concisely explained aspects of the executive order, always clarifying with great precision whatever needed to be clarified.

After 10 minutes the three lawyers walked back into the room and stood, this time not in the back, but abreast and to the left of we four visitors: Alyssa, myself, Mike, and Sidney, sitting in chairs in a half-moon in front of the Resolute desk. Mike continued taking operational questions that arose, while Sidney and Alyssa handled the legal questions that arose. The three male lawyers edged closer to the front, and then as though as some hidden signal, they all started being bitches.

First was some comment about it not being right to use the National Guard. “The optics are terrible, Mr. President,” said one. “It would have to be the DHS.” I liked the National Guard idea because we needed to reestablish trust of the American people in the electoral process, and the US institution with the most trust is the one where people dress in military uniforms. Yet the National Guard is local, they are all around us, our colleagues at work, our “Citizen Soldiers”. But perhaps in a sign of flexibility, Flynn and Sidney allowed as how one could use the DHS instead of the National Guard.

“The press would tear your apart,” predicted Pat Cipollone at one turn in the conversation. Sidney said what Mike and I were both thinking: The press is going to tear him apart? Really? What are they doing now?

At some point Cipollone objected, “Never in American history has there been this kind of a challenge to an election!” Flynn responded, “Never in American history has there been a situation like this, with counting being shut down for hours, foreigners connecting to our equipment, …..” and so on.

“He does not have the authority to do this!” Cipollone thundered eventually. Sidney rejoined, “Of course he does,” citing EO 13848 (and something else signed by Obama). “Without question he has the authority.” Alyssa whipped out EO 13848 again and showed the relevant language that we had just covered. Trump looked at Cipollone with an expression that said, You never even brought this to my attention, Pat. He said to Cipolloner, “You know Pat, at least they want to fight for me. You don’t even fight for me. You just tell me everything I can’t do.”

By this point Cipollone was getting hot under the collar. Raising his voice to the President, he said, “Hey if you want to do this you don’t need my permission. You don’t even need a pen or a piece of paper. You can just say, ‘I hire Sidney Powell as White House Special Counsel,’ and it’s done.” But then he went on with more objections to everything he was hearing, all of which continued to sound stretched. Even frivolous.

After half-a-dozen of such frivolous objections from the White House General Counsel, Mike and I looked at each other dumbstruck. Mike grew calm and silent, his brow knit in bafflement. Finally I calmly announced to the room: “This is the most surreal conversation I have ever experienced.”

Around that time Alyssa spoke up on a legal point: he clearly had enough grounds to find that those Problematic 6 counties had enough peculiarities in their election, that under his powers under those EO’s, he was sending in federal teams to recount the ballots in those six counties. It was a defensible, reasonable action to take (which she said in legalese). What happened after that would be determined by what was found. But now the three male lawyers who were on their feet began speaking to her rudely. They challenged her, asking something like, “What do you think you know about the law?” She replied, “Well I am a lawyer. I work for Sidney, and-” they cut her off, snorting derisively.

Flynn sprung to his feet with a grace and ease that surprised me, a surfer getting up on his board. He turned to face the three lawyers standing over and barking at Alyssa. In a measured tone he asked of the three lawyers, “Let’s get something clear. What do you think happened on November 3? Do you think was a fair election? There was nothing unusual about it in your eyes?”

The three lawyers looked down, stuck their toes in the dirt, glanced at each other out of the corners of their eyes, and would not give an answer.

President Trump looked directly at me and said gently, “You know Pat, all my life I’ve had the best lawyers. People call me from all over the world, ‘What lawyer should I use on this? What lawyer should I use on that?’ But here…. You know, the other side breaks every rule in the book, but me….? All I have are lawyers who tell me ‘You can’t do this, you can’t do that…’ Do you see what I have been working with for four years? Can you imagine what I could have gotten done……” He broke off, then turned to Cipollone, asked “Where’s my Durham report? Where’s ….” and started rattling off his legal disappointments.

Standing there next to his two colleagues, Cipollone started shouting back at Flynn, still on his feet, and at the President. Still shouting, he stepped rudely towards us, standing over (and inappropriately close to) Alyssa from behind. Before I knew it I was on my feet, shoulder-to-shoulder with Flynn, back mostly to the President, with a mental trigger that if Cipollone moved another inch towards Flynn, Alyssa, or me I was going to bury my knuckles in his throat.

President Trump said, “Hey hey hey!” We all turned. With both hands waiving at us to calm down, and a quarter-smile of disbelief on his face, he said, “Heeey calm down….” Cipollone turned to storm out the door again, his two butt-boys in tow. Before he was out Sidney said, “Let him leave. I’ll take the job and you’ll win.” Trump said after him, “Go ahead Pat. Leave. Don’t come back as far as I am concerned.” As the door shut, Trump said softly, “Ahhh, I don’t mean that. You know, Pat’s a friend, and…” his voice trailed off. I winced at the dawning of my understanding.

I took another shot at it with the President. “Again Sir, I know that Rudy is a friend of yours, he’s wonderful. He’s America’s Mayor. I love Rudy, I don’t want to embarrass him. But you should see how what Mike and Sidney have got going. It is so organized, so well-planned-” Again he cut me off, saying, “No no, it’s got to be Rudy…” On the inside I slumped.

There was a third round where the lawyers came back in to interject themselves into what the rest of us were talking about. A third round of frivolous push-back, but this time in the end it was President Trump who got ticked off (in a weary kind of way) at the push-back from his own people, the searching for things they could oppose. Again he muttered something to me along the lines of, Can you imagine what I would have been able to accomplish these four years if I had not had to put up with this? Finally, when President Trump asked why such-and-such a course of action Sidney was proposing had not been explored by Cipollone, the lawyer responded, “Well we’re not the campaign lawyers.”

I did not even know what he meant by it, but it was painfully obvious that Cipollone was being purely obstructionist, coming from a place of, “How do I stop this?”

Trump sighed, and wearily said to Cipollone, “You know Pat? A few minutes ago you said that I can do it just by saying it. Well…. OK. I have decided, now I’m saying it. ‘Sidney Powell is hereby appointed as White House Special Counsel’. There, that’s it.”

“She needs a clearance!” interjected one of the other lawyers. “It’ll take months to get her a clearance!”

Even I knew how frivolous that objection was, but Flynn spoke up first, in disbelief. “Mr. President,” Flynn said, “you can do the same thing with a clearance. You can grant any clearance you want, on the spot, verbally.”

Sadly and defiantly, President Trump looked at his three lawyers and said, “I hereby grant Sidney Powell a Top Secret security clearance.”

Again they stormed out of the room. Again the conversation continued amongst the President, Sidney, Mike, Alyssa, and myself. That is where I realized I was having an emotional reaction quite different than I had ever expected. There was a moment of real warmth, where I saw him for what he was: a 74 year old man, tired, knowing he was being cheated out of his re-election, mostly defeated, ruing his errors, dwelling on what might have been. I wanted to walk behind his desk and put my arm around him, and tell him, Yes, I do understand now what you have been facing.

Eventually President Trump said that we would all meet in 30 minutes in the living quarters, in the “Yellow Oval” (I believe the room is called). In the meantime, Rudy was coming in and we had to find a way to make things work between Rudy and Sidney. As we parted he said, “You know, in 200 years there probably has not been a meeting in this room like what just happened…”. As he was leaving he brushed past me, stopped, and speaking low and quiet, said something quite kind and meaningful, showing me that he knew a lot more about me than I had guessed.

A few minutes later Sidney, Mike, Alyssa, and I were in the Cabinet Room. waiting for Rudy. It was dark, and we had to find a couple lamps to turn on. Mike and I were intent on making sure the meeting went well between Sidney and Rudy, so everyone could work happily together.

After 10 minutes Rudy came in, tying his tie, and said in not too gruff a manner, but with perhaps the gruffness of a man disturbed from his evening meal, “You know Sidney, if we are going to work together you have to share information.” I did not take his tone as being too aggressive, but one of trying to turn over a new leaf in a relationship, perhaps.

Sidney immediately told him, “I do share information Rudy. You never read your emails, you never read your texts.”

“That’s not true Sidney! I just need you to stop keeping me in the dark-“

“”Rudy I don’t keepo you in the dark! You-”

“Sidney you have to stop keeping everything to yourself! I cannot work with you if you don’t share with me!”

Within moments the conversation had spiraled out of control. After a minute of squabbling I tried to interject something helpful. “Mr. Mayor, it is true that since I arrived, everything we ever brought Sidney, she always said, ‘Get this to Rudy right away.’ It’s true. Absolutely everything we turned up, she told us to share with you. She never asked us to keep you in the dark about anything.” But it went poorly. Fuming, we all went up to the living quarters of the White House.

The President was there, waiting, and after we walked in the three lawyers joined again. Meadows entered as well. A waiter brought out a bowl of small, bottle-cap sized Swedish meatballs, with share plates. Trump motioned for them to be placed at the small table so that everyone could indulge, but the table was in front of me, for which I was grateful. I actually keep vegetarian from time to time, especially when I travel, but how often does one sit with a President serving meatballs from his grandmother’s recipe? And they were good. For the rest of the meeting there were two and only two people eating meatballs: myself, scarfing them down like popcorn, and occasionally the President, who would get up, walk over to me, and refill a small share plate. Nobody else had any.

There meeting continued for a couple hours up in those quarters. No substantial new ground was covered: we walked through the reasoning we had gone through in the Oval Office, and explained the plan. President Trump was decisively onboard, and none of the other parties pushed back. Instead, they glumly asked a few questions about how such-and-such was to be done, and Mike or Sidney explained. Finally, around 12:15 AM, we all began fading, and wrapped up. We walked outside in the hall, waiting, until the President came out to say goodbye. We each had a moment with him, and again he said something meaningful and quite kind to me. But we were all exhausted, I think, and glad that the meeting was over.

I wish to emphasize that at no point in the evening or in any segment of the discussion was there mention of martial law, or Insurrection Act, or anything of the sort. All claims to the contrary are lies, propagated (I would imagine) by Pat Cipollone, who (according to multiple sources) regularly leaks to Maggie Haberman of the NYT. Even cursory review of Haberman’s writings on the White House, which never fail to give stroke to Cipollone, would support that claim.

A few minutes later Alyssa, Sidney, Mike, and I were walking on the sidewalk in front of the White House, light snow still falling in the dark. We saw Meadows and Rudy leaving out another entrance and walking away together to the west. The four of us strode east, elated: with Sidney Powell ensconced as White House Special Counsel, and Mike (even from the outside) providing organizational skills and his vast expertise of matters DC, we were in good standing, and I believe at that moment we all weighted the chances of our success high. As we walked home in the falling snow we confided in each other, You know, for me this is not really about Trump. But we cannot let a rigged election stand. If we do, it could mean civil war, and even a Chinese take-over of our country. All we need to do is follow this plan, expose what happened in those six counties by checking the ballots. If there is nothing amiss, then Trump gets in his helicopter and leaves, and there’s no civil war. But if we find chicanery, it will give an opportunity to blow this scheme up for the whole nation. Who knows how much fraud there is going to turn out to be in US elections? I think ‘a lot,’ what do you think? Around and around we went, excited for our success in the meeting, like we had been thrown a Hail Mary and caught it in the endizone. After a few blocks our long-forgotten SUV found us in the snow flurries, we got in, and he drove us the rest of the way to the hotel. I had my first good night’s sleep in weeks.

The next day, Saturday, Sidney called Meadows and said, “Well now that I’m White House Special Counsel, I am going to need an office over there.”

Meadows told her, “Yeah we’re looking into that, we don’t have anything immediately but we are going to soon…”

“Then I will need a White House ID, so I can come and go,” replied Sidney.

“Yeah well we are working on that too, there might be a problem with that, we’ll see what it is going to take, …” said Meadows.

We all had a terrible sinking feeling, and by Monday or Tuesday, we learned that Sidney’s “White House Special Counsel” position was not going to happen. The plan we had discussed so extensively in the White House, the one that got an answer before Christmas (and depending upon the evidence found, either permitted a peaceful transition of power, or justified more extensive federal involvement that would get to the bottom of what the intent of the People truly was), that plan…. had been called off.

Instead, Rudy was going to continue his slog through the courts and the hotel-room hearings in the states….

Authored by Patrick Byrne via Deep Capture

Source: Patrick Byrne: How Donald Trump Lost the White House

January 31, 2021

1776 Commission Director: Abolishing the Commission Won’t ‘Get Rid of These Principles’

Dr. Matthew Spalding, a professor of constitutional government and Dean of the Van Andel Graduate School of Government at Hillsdale College was interviewed by The Epoch Times’ program American Thought Leaders. He was the executive director of the 1776 Commission, created by executive order by former President Donald Trump.

The host of the program, Jan Jekielek, asked him some key questions highly relevant to the current intense political zeitgeist, allowing Spalding to cast lucidity on the partially forgotten, at least for the younger generations, ideals of 1776.

The new Biden administration has abolished the 1776 commission, a history-centered, patriotic education program that calls for remembrance of and upholding the nation’s founding principles.

Spalding spoke about the clashing points that juxtapose the New York Times’ controversial “1619 Project” and the United States’ founding history, along with the ideological and theological ramifications.

Spalding noted that current popular educational trends are unfair to students because they don’t reflect the true picture of the founding of America. The Declaration of Independence and the Constitution are regarded as “dusty old documents” rather than honored documents that hold in them powerful truths that led to the founding of the first nation with the assertion that all men are created equal and are endowed by their creator with unalienable rights.

Epoch Times Photo — A replica of the U.S. Constitution. (WikiImages/Pixabay)

He asserted that America has not always lived up to the principles that the founders believed in, but should not be judged due to its deficiencies.

One of the most obvious deficiencies is the subject of slavery.

When questioned about the irony of some of the founders owning slaves and at the same talking about abolishing slavery, he acknowledged the legitimacy of the criticism, but that it’s important to see how overcoming slavery and realization of these flaws were part of history. It shouldn’t invalidate the greatness and nobility of the founding principles, something that he said should still be loved and inspire patriotism.

“Slavery clearly existed. They were arguing about it at the time, Jefferson held slaves at the same time he wrote a condemnation of the slave trade in the draft of the Declaration of Independence. George Washington owned slaves. But by the time he writes his final will, he frees them, those that are in his estate, because he has come to detest slavery,” said Spalding.

He stated further that slavery didn’t grow out of the founding itself.

“The principle [of equality and freedom] had been established. So they can then carry it out at the appropriate time. They made compromises, but we have to understand that they were compromises, compromises in light of the Declaration of Independence. That’s the only way to understand it. Because otherwise, you must condemn the whole thing. And I think that’s just not good history. And that’s not fair to them,” he said.

Spalding asserted the necessity to understand something in order to love it, and in contrast to other regimes, the love is not to be imposed on the people.

“You can love this country, despite its flaws, because it has done so much to advance that cause. And that’s what makes it a great and wonderful, successful nation,” he said.

Spalding then turned to the subject of education, and important topics that are not taught properly anymore, such as civics.

“What is a genuine education? And what the report is especially concerned about is what is education about civics? What does one need to know to be a good citizen?

“In America, to be a citizen means you actually need to know something about American history, how American government works, the debates over what the declaration means, alternatives, great figures in history, those kinds of things. And that’s not the way civics is taught much anymore. And we think a recovery of that would be a large step in the right direction.”

Spalding then highlighted a controversial view of progressives, who ironically over-empower government and interpret “truth” rather than give people the capability to govern themselves.

“The intellectual point they make is that ‘the idea that there are truths isn’t true. They’re only historical truths or truths that progress with time.’

“Instead, what they turn to, at least the early progressives turned to science, expertise, or the idea of bureaucrats, people that have been specially trained to run things, whether that’s in the economy, in the academy, or say in government. And this is how they reshaped and rethought government to that they have themselves into this administrative state.

“It’s no longer about the fundamental ends of government. It’s about the process. And so yes, they very much introduced in its place, in the place of a Constitution granted on the principles as understood by the founders. Having unmoored it from the principles, they now kind of re-invented this new way of thinking about how to run things.

“And I think that’s something that has stuck in American history in politics, and we continue to have a kind of a troublesome problem in our politics is the fights over bureaucracy, the so-called fourth branch of government.”

On the topic of religious liberty, Spalding asserted that it was a “core right” and that it is intrinsically related to civil liberty. He added that securing rights should “garner the most respect and protection” over the increasing dominance of government.

The removal of the 1776 report from the White House webpage, Spalding believes, is due to the incompatibility of the founding principles with some of the policies that the new administration is attempting to empower or instill, such as identity politics and critical race theory.

He believes the removal gave the report, which is available in other institutions, more prominence.

“I think by abolishing the commission and removing the report, they actually drew more attention to it. Thank you very much,” he said.

Spalding was asked about the future of the 1776 commission.

“The commission, in some form, will carry on.”

“You could abolish the commission, but you can’t erase history, you can’t get rid of these principles. That’s what we’re dedicated to. And that’s what we will continue teaching and working to defend,” Spalding said at the conclusion of the interview.

Source: 1776 Commission Director: Abolishing the Commission Won’t ‘Get Rid of These Principles’