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I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney

It’s Worse Than Watergate

SURVEILLANCE - Nixon v. Obama

by Diane Rufino, Feb. 4, 2018

The Nunes Memo highlights just how easy it is to spy on an American citizen, and even a candidate for the highest office of the land, when the administration in DC is politicized enough and when it becomes corrupted by political ambition. This should scare everyone.

I. WATERGATE –

Richard Nixon won the presidency in 1968 in a tight contest with Democratic nominee, Hubert H. Humphrey. During that election, he ran as a moderate candidate, pledging to end the war in Vietnam with honor and to make a clean break from the controversial administration of Lyndon Johnson, his predecessor. By 1972, Nixon remained popular with most Americans and was expected to defeat his opponent, Senator George McGovern.

On June 17, 1972, two police officers responded to a report of a break-in at the Watergate, a hotel and office complex in Washington, D.C. where many political professionals lived and worked. That year, it was also the home of the Democratic National Committee (DNC). When the police arrived and entered the fifth-floor offices of the DNC, they surprised five men carrying surveillance devices they were trying to attach to the office phones. One of the men was James McCord, a former employee of the CIA and a Republican Party aide. In the address books of two of the burglars, police found the name H. Howard Hunt, a former CIA employee who, at the time, was associated with the White House. Over time, it became clear that Hunt was part of a group nicknamed the ‘Plumbers,’ because they stopped political leaks and who’d been conducting a ‘dirty tricks’ campaign against the Democrats for over a year. Their activities included canceling Democratic rallies, spying on candidates, and stealing confidential files.

In a nutshell, here’s what happened in the greatest presidential scandal in U.S. history:

• On June 17, 1972, McCord and four other men working for the Committee to Re-Elect the President (or CREEP — really) broke into the Democratic Party’s headquarters in the Watergate, a hotel-office building in Washington, D.C. They got caught going through files and trying to plant listening devices. Five days later, Nixon denied any knowledge of it or that his administration played any role in it.
• The burglars went to trial in 1973 and either pled guilty or were convicted. Before sentencing, McCord wrote a letter to Judge John Sirica, contending that high Republican and White House officials knew about the break-in and had paid the defendants to keep quiet or lie during the trial
• Investigation of McCord’s charges spread to a special Senate committee. John Dean, a White House lawyer, told the committee McCord was telling the truth and that Nixon had known of the effort to cover up White House involvement.
• Eventually, all sorts of damaging stuff began to surface, including evidence that key documents linking Nixon to the cover-up of the break-in had been destroyed, that the Nixon reelection committee had run a “dirty tricks” campaign against the Democrats, and that the administration had illegally wiretapped the phones of “enemies,” such as journalists who had been critical of Nixon.
• In March 1974, former Attorney. General John Mitchell and six top Nixon aides were indicted by a federal grand jury for trying to block the investigation. They were eventually convicted.
• While Nixon continued to deny any involvement, it was revealed he routinely made secret tapes of conversations in his office. Nixon refused to turn over the tapes at first, and when he did agree (after firing a special prosecutor he had appointed to look into the mess and seeing his new attorney general resign in protest), it turned out some of them were missing or had been destroyed. (They were also full of profanity, which greatly surprised people who had an entirely different perception of Nixon.)
• In the summer of 1974, the House Judiciary Committee approved articles of impeachment against the president for obstructing justice.

The Watergate scandal hinged on a pivotal question posed by U.S. Senator Howard Baker during a senate hearing: ‘What did the President know, and when did he know it? While it has never been proven that Nixon knew about the planning of the break-in or even of the break-in itself when it happened, it was his part in the cover-up that sealed his fate. The tapes clearly showed Nixon had been part of the cover-up. On August 8, 1974, he submitted a one-sentence letter of resignation, and then went on television and said, “I have always tried to do what is best for the nation.” He was the first and, so far, only U.S. president to quit the job.”

II. THE SURVEILLANCE (FISA) ABUSES UNDER THE OBAMA ADMINISTRATION –

SURVEILLANCE - FBI Spying (under Obama)

In a nutshell, the surveillance abuses under the Obama administration arose and played out as follows:

Timeline of Events:

January 2013: At an energy conference in New York, Carter Page, who founded an investment company in New York called Global Energy Capital, attended an energy conference (in New York), where he meet Victor Pobodnyy, later determined to be a Russian intelligence agent. Page provided documents to Pobodnyy about his energy business, thinking he was a businessman who could help with brokering deals in Russia. This was according to court documents. The two exchange contact information and have several more meetings discussing energy policy.

[A brief history of Carter Page: After growing up in New York and spending a few years in the navy in the late 1990’s, Page completed a few graduate degrees in International Relations and in Business. Then for most of the 2000’s, he worked at the investment banking firm Merrill Lynch, where he focused on investments related to Russia and Eastern Europe. His work led him to move to Moscow from 2004 – 2007, and it entailed advising Gazprom, the majority Russia state-owned oil firm, on deals. Soon afterwards, he moved back to the US, left Merrill, and went into business for himself, advising investors on Russia-related projects.]

June 2013: Learning about the documents given to Pobodnyy at the conference, the FBI decides to interview Page. But they decide that Page didn’t know Pobodnyy was a spy, and so they don’t charge him with anything. Page is dismissed as being a person of interest. (So why did the FBI later decide to target him again? There is no good answer for this. Refer to the entry below and the entry of July 2016)

Summer 2014: The FBI begins monitoring Page’s communications under a FISA warrant, owing to his 2013 contacts with Pobodnyy.

January 2015: Nunes, a six-term Congressman, becomes chairman of House Intelligence Committee.

January 26, 2015: Pobodnyy and two other Russians are charged with working as agents for Russian intelligence in New York. Court records include a transcript of a recorded conversation in which Pobodnyy talked about trying to recruit someone identified as “Male – 1,” which is later revealed to be Page. But Pobodnyy admits “I think he’s an idiot” in the transcript. Russian intelligence’s interest in Page goes no further.

December 2015: Feeling that the Trump campaign aligns with his ideas on Russia, Page asks Ed Cox, chairman of the NY Republican Party, to recommend him as an adviser. He is brought on right away. “Anyone with a pulse, a resume, and who seemed legit would be welcomed,” a campaign official admitted. Put another way, the only reason the Trump team took Page on was because “they were taking anyone with a pulse.”

March 21, 2016: Trump meets with the editorial board of the Washington Post. Asked about his foreign policy team, he names, among others, Page and George Papadopoulos.

March 2016: In March of 2016, Papadopoulos communicates with a London professor, Joseph Mifsud, who has ties to Russia. Mifsud reportedly tells Papadopoulos that Russia has “dirt” on Democratic presidential nominee Hillary Clinton, and then works with him to try to arrange a meeting between the Trump campaign and Russian officials. [In October, Papadopoulos will plead guilty to lying to the FBI about his attempts to contact Russian officials].

May 2016: In May of 2016, Papadopoulos converses over drinks at a British pub with a top Australian diplomat named Alexander Downer. He tells Downer that he knows that Russia has “dirt” on Hillary Clinton. Two months later, Australia passed this information on to American intelligence officials.

JULY 2016 –

Page joins a group dinner of Trump campaign National Security advisors, including then Senator Jeff Sessions, at the Capitol Hill Club in Washington. He later testifies that he casually told Sessions about an upcoming trip to Russia during dinner. [The trip was tentatively approved by Trump campaign manager, Corey Lewandowki, on the condition that he NOT act as an official representative of the campaign while in Moscow].

Page spends 2 days (July 6-7) in Moscow, where he gives a talk at the New Economic School that is critical of American policy towards Russia and favorable towards Russian president Vladimir Putin.

Receiving the tip from Australian diplomats that George Papadopoulos had bragged about the fact that he knew Russia had dirt on Hillary Clinton, the FBI initiates an investigation into Trump associates’ ties to Russia.

After learning of Page’s trip to Moscow, on July 19, 2016, former British intelligence (M-16) agent Christopher Steele files a report for what become known as his “dossier”; it focused on Page’s Russia trip. This would be the information he uncovered while doing opposition research on behalf of the DNC and the Hillary Clinton campaign. Citing Russian sources (not corroborated), he includes in his dossier:
• That Page had met with Igor Sechin, the CEO of Rosneft, the majority Russian government-owned oil company, and discussed lifting US sanctions
• That Page had also met with Igor Diveykin, a Russian intelligence official, and discussed Russian “kompromat” on Clinton (and Trump)

Around this time, Steele, who has admitted being extremely politicized against Donald Trump and would do anything to prevent him from being president, approaches an FBI agent with this information (more correctly, “rumors”) that he has “uncovered.”

In a later report, dated October 18, 2016, Steele makes an even more astonishing claim: That when Page allegedly met with Sechin, the oil executive had offered Page and Trump’s associates “the brokerage of up to a 19 per cent (privatized) stake in Rosneft in return” for lifting sanctions, and that Page “expressed interest” and confirmed that Trump would lift sanctions if he won.

But, note – and this is VERY IMPORTANT — that in the year and a half since, no one has yet managed to confirm or corroborate any of the claims in Steele’s dossier about Page’s trip. FURTHERMORE, Page has furiously denied the claims, saying that he’s never met either Sechin or Diveykin and disparaging what he calls the “dodgy dossier” both in media appearances and under oath. He continues to deny these claims today.]

*** In fact, Carter Page has filed a Freedom of Information (FOI) request, demanding to know what information the FBI and Justice Department compiled on him and what information they used to request the FISA warrants in order to surveille him. He has not received anything yet.

Back to the Timeline —

August 15, 2016: Just one month into the FBI’s investigation into the Trump campaign regarding ties to Russia, and only two weeks after the FBI had been given a copy of Steele’s anti-Trump dossier, one of the FBI’s top Russian counter-intelligence experts, Peter Strzok spoke of an “insurance policy” in the event that then-candidate Donald Trump was elected president. Strzok sent a text message to his lover, Lisa Paige, a senior FBI attorney, which read: “I want to believe the path you threw out for consideration in Andy’s office – that there’s no way he gets elected – but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40.”

August 29, 2016: Sen. Minority Leader Harry Reid writes a letter to then–FBI Director James Comey calling for an investigation into evidence suggesting that Russia may try to manipulate the results of the 2016 election. In the letter, he cites Page’s trip to Moscow and writes that “questions have been raised” about whether Page met with “high-ranking sanctioned individuals” during the trip. Also in the letter, he indirectly refers to Page’s speech in Moscow criticizing U.S. sanctions policy toward Russia.

Late Summer 2016: The FBI obtains another secret court order from a FISA Court judge to monitor Page’s communications, after convincing the judge that there was probable cause to believe Page was acting as an agent of a foreign power. The FBI waited until the Trump campaign had parted ways with Page to begin surveilling him. [Apparently. the bureau’s renewed interest in him in 2016 is sparked by concerns that Russian intelligence may be continuing to target him for possible use as an asset. Note that since 2013, the FBI had found no evidence that Page was actually being recruited, or that any credible attempts to recruit him were made; the fact is that it was clear to the FBI that Page was not even open to such a relationship. But apparently, Page continued to be a target they could continue to spy on, even if it was for the purposes of gaining information on others]

September 23, 2016: Michael Isikoff writes an article in Yahoo News reporting that the government was/is investigation Page’s ties to the Kremlin. The source of the information for this article was Christopher Steele. Amazingly, Steele then used this article in his dossier to support the “information” he collected on Page. (Can you believe this??)

September 23, 2016: In an article published in Politico magazine on Sept. 23, Trump spokeswoman Hope Hicks is quoted by a reporter working on a profile of Page saying that “he has no formal role in the campaign.”

September 25, 2016: Page sends a letter to then-FBI director James Comey, stating: “For the record, I have not met this year with any sanctioned official in Russia despite the fact that there are no restrictions on U.S. persons speaking with such individuals.” He also writes that he has sold his “de minimis” stake in Russian energy giant Gazprom at a loss. Bloomberg News reported on Page’s “deep ties” to Gazprom in March, but a Politico account in September suggested Page exaggerated his contacts with Gazprom.

September 26, 2016: In his first public comments about accusations that he met with Russian officials, Page tells the Washington Post’s Josh Rogin: “All of these accusations are just complete garbage.” He adds: “All the ones that are mentioned in the various articles, I didn’t meet with any of those guys. … It’s completely false and inconceivable that someone would even accuse me of that.” Page admits, however, that he did briefly meet and shake hands with Russian Deputy Prime Minister Arkady Dvorkovich, a fellow speaker at the New Economic School commencement address. Page also tells Rogin that he will take a leave of absence from the Trump campaign: “This is another distraction that’s been created here. … There’s so little time between now and the election, this is in the best interests of the candidate. It’s so ridiculous I want to have it behind us.”

October 2016: The FBI and the Justice Department obtain a FISA warrant (warrant under the Federal Intelligence Surveillance Act) to monitor Page’s communications after “convincing” a FISA court judge that there is probably cause to believe that Page is acting as an agent of a foreign power – namely, Russia. It is renewed three times, as required by statute, every 90 days. What is not clear is whether new evidence to support probable cause was presented each time, as required to continue surveillance.

December 2016: Partly in response to the Yahoo News article, Trump attorney Don McGahn, writes Page to “immediately cease” saying he is a Trump advisor. “You were merely one of the many people named to a foreign policy committee in March 2016 – a committee that met one time (and which you did not even attend),” McGahn writes. “You never met Mr. Trump, nor did you even ‘advise’ Mr. Trump about anything. Thus you are not an ‘advisor’ for Mr. Trump in any sense of the word.”

January 10, 2017 –

In sworn testimony at his confirmation hearing, Attorney General nominee Jeff Sessions testifies that he is “not aware of any communications” between the Trump campaign and the Russian government during the campaign.

BuzzFeed News publishes the full unsubstantiated dossier detailing President Trump’s alleged ties to Russia and claiming the Russian government may be blackmailing him. Christopher Steele leaked the dossier. Again, the dossier was created by Steele, who was extremely politicized against Trump and confessed he would do anything to prevent Donald Trump from being president. Steele’s dossier “alleges” that former campaign manager Paul Manafort used Page as an intermediary with the Russian government and that Page attended a secret meeting at the Kremlin in July of 2016. [Contents of the Steele Dossier: https://www.documentcloud.org/documents/3259984-Trump-Intelligence-Allegations.html ]

January 25, 2017: Nunes and ranking member Adam Schiff announce they’re investigating Russian election meddling, including possible communications between Russia and “political campaigns.”

January 12, 2017: At President-elect Trump’s first news conference, incoming White House press secretary Sean Spicer denies that Trump knows who Page is: “Carter Page is an individual whom the president-elect does not know and was put on notice months ago by the campaign.”

January or February 2017: The FBI applies for more surveillance on Page.

February 12, 2017: In an 8-page letter to the Justice Department’s Civil Rights Division, Page calls the Russia investigations “frivolous” and says that are “among the most extreme examples of human rights violations during any election in US History since Dr. Martin Luther King Jr. was similarly targeted for his anti-war views.”

February 15, 2017: In an interview with PBS News Hour’s Judy Woodruff, Page says he had no meetings with Russian officials in 2016: “I had no meetings, no meetings. … I might have said hello to a few people as they were walking by me at my graduation—the graduation speech that I gave in July, but no meetings.” (He would later re-assert that same statement – that he may have “met” someone from Russia, such as the Russian Ambassador Sergey Kislyak, who was at the Republican National Convention, but he had no “meetings.”)

March 2, 2017: Amid concerns about his January testimony and newly-revealed meetings with the Russian ambassador, Sessions announces that he will recuse himself from any investigation related to the Trump campaign.

March 4, 2017: Trump accuses Barack Obama of having Trump Tower “wiretapped”.

March 15, 2017: After initially defending Trump, Nunes says he does not believe Trump Tower was bugged. But he adds a caveat: Trump campaign communications could have been incidentally collected as part of wider surveillance efforts.

March 20, 2017: FBI Director James Comey testifies before the Intel Committee, and refutes Trump’s claims. Nunes reiterates that there was no “physical” wiretap, but repeats the possibility of incidental collection.

March 21, 2017: Nunes travels to White House grounds to review evidence of potential surveillance of Trump associates. The visit is not initially made public.

March 22, 2017: Nunes holds unexpected press conference and says an unnamed individual (or individuals) showed him intelligence reports indicating the Obama administration captured communications involving Trump and/or his associates. He said it appeared to be legal, incidental collection but nonetheless seemed “inappropriate” and troubling. Nunes briefs Trump before Schiff, despite Trump being a potential subject of the committee’s investigation. (Trump says he feels “somewhat” vindicated). The following day, Nunes expresses regret for failing to brief Intel committee before White House.

March 27, 2017: News of Nunes’ White House visit emerges. He says he needed to visit the White House in order to access to secure system, an explanation that is immediately challenged. Schiff calls on Nunes to recuse himself from Russia investigation.

April 11, 2017: The Washington Post first reports on the existence of the FISA warrant on Page from the summer of 2016. In an interview, Page again compares the surveillance to the FBI’s eavesdropping on Dr. King. “This confirms all of my suspicions about unjustified, politically-motivated government surveillance,” he says.

Late April or Early May 2017: The FBI applies for more surveillance on Page. (This application is approved by newly sworn-in Deputy Attorney General Rod Rosenstein)

May 7, 2017: In an angry nine-page letter to the Senate intelligence committee, Carter says he had only “brief interactions” with Pobodnyy in 2013 and calls requests for more information a “show trial” based on “the corrupt lies of the Clinton/Obama regime.”

July or August 2017: The FBI applies for more surveillance on Page. (This application is also approved by Deputy Attorney General Rod Rosenstein. Rosenstein appointed Special Counsel Bob Mueller to investigate the Trump campaign for any ties to Russia. Therefore Rosenstein is Mueller’s boss and has the power to oversee the investigation of Donald Trump – to set limits, to define the scope of, etc)

October 18, 2017: During five hours of testimony before the Senate Judiciary Committee, Sessions is grilled about his contacts with Russians during the campaign. When asked if any surrogates from the Trump campaign had contact with the Russians, he responds: “I did not — and I’m not aware of anyone else that did. I don’t believe that it happened.”

October 30, 2017: In wide-ranging interview MSNBC’s Chris Hayes, Page discusses Papadaopoulos’ guilty plea, admitting that he was on campaign email chains with Papadopoulos about Russia. “I genuinely hope, Carter, that you are innocent of everything, because you are doing a lot of talking,” Hayes says.

November 2, 2017: During six hours of closed-door testimony with the House intelligence committee, Page testifies that he told Sessions about his trip to Russia ahead of time. During the testimony, Page invokes the Fifth Amendment when asked to produce documents that could potentially be relevant to the investigation.

November 3, 2017: In an interview with CNN’s Jake Tapper, Page says that the fact he told Sessions about his upcoming trip to Russia was a “nothing event” made “totally in passing.” He adds that Sessions was not the only one on the campaign that he told before he took the trip. “I mentioned it to a few other people,” he says.

January 29, 2018: The House Intelligence Committee votes along party lines to publicly release a classified memo overseen by Republican Rep. Devin Nunes which criticizes the FBI’s handling of a FISA warrant on Page, alleging that relied too heavily on information in the Steele dossier. In a rare public statement, the FBI says it has “grave concerns” about the memo.

The Memo Reveals the Following:

• The “dossier” compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump’s ties to Russia.
(a) Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.
(b) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actors were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of—and paid by—the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.

• The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News. Steele has admitted in British court filings that he met with Yahoo News—and several other outlets—in September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele’s initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.
(a) Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations—an unauthorized disclosure to the media of his relationship with the FBI in an October 30, 2016, Mother Jones article by David Corn. Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September—before the Page application was submitted to the FISC in October—but Steele improperly concealed from and lied to the FBI about those contacts.
(b) Steele’s numerous encounters with the media violated the cardinal rule of source handling—maintaining confidentiality—and demonstrated that Steele had become a less than reliable source for the FBI.

• Before and after Steele was terminated as a source, he maintained contact with DOJ via then-Associate Deputy Attorney General Bruce Ohr, a senior DOJ official who worked closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the election, the FBI began interviewing Ohr, documenting his communications with Steele. For example, in September 2016, Steele admitted to Ohr his feelings against then-candidate Trump when Steele said he “was desperate that Donald Trump not get elected and was passionate about him not being president.” This clear evidence of Steele’s bias was recorded by Ohr at the time and subsequently in official FBI files—but not reflected in any of the Page FISA applications. Furthermore, during this same time period, Ohr’s wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. Ohr later provided the FBI with all of his wife’s opposition research, paid for by the DNC and Clinton campaign via Fusion GPS. The Ohrs’ relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.

• According to the head of the FBI’s counterintelligence division, Assistant Director Bill Priestap, corroboration of the Steele dossier was in its “infancy” at the time of the initial Page FISA application. After Steele was terminated, a source validation report conducted by an independent unit within FBI assessed Steele’s reporting as only minimally corroborated. Yet, in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steele dossier, even though it was—according to his June 2017 testimony—“salacious and unverified.” While the FISA application relied on Steele’s past record of credible reporting on other unrelated matters, it ignored or concealed his anti-Trump financial and ideological motivations. Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.

• The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos. The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok. Strzok was reassigned by the Special Counsel’s Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an “insurance” policy against President Trump’s election.

III. FISA and FISA COURTS

What is the History of the Foreign Intelligence Surveillance Act (FISA) ?

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) and President Carter signed it into law. That law established essentially five things: (1) First, that non-criminal electronic surveillances within the United States were only permissible for the purpose of collecting foreign intelligence and/or foreign counterintelligence. (2) Second, it identified foreign powers and agents of foreign powers as the entities and persons that could be targeted for electronic surveillance. (3) Third, it articulated a probable cause standard that had to be met before an electronic surveillance was permissible. (4) Fourth, the Act established the Foreign Intelligence Surveillance Courts (FISC), one at the district court level for initial review of surveillance applications, and one at the appellate level should the government appeal a district level denial of an application. (5) Finally, the Act established the only circumstances under which an electronic surveillance could lawfully be conducted in the United States for the purpose of collecting foreign intelligence or foreign counterintelligence.

The FISA Court is a secret court that operates in secrecy. It was designed to address abuses uncovered in the 1970s by congressional investigations. Prior to FISA, presidents claimed authority to engage in electronic surveillance for national security reasons without any court oversight. That led to uncontrolled domestic spying by the National Security Agency, the CIA and the FBI. FISA was passed by Congress, therefore, to bring law to a lawless area. The FISA court, it was hoped, would stop those abuses by only approving legitimate surveillance requests, and without tipping off terrorists and spies. To do that, everything about the court has to remain secret; its proceedings are not revealed to the public, and if they are revealed to Congress, they’re revealed in a classified setting. The secret nature of the FISA court, and in fact the entire FISA system, makes it difficult even for members of Congress to raise question and also to get answers. The FISA system is so secret that victims of FISA warrants almost never find out they were bugged.

What Must the Government Show to Get a Warrant for a Wiretap?

It is very hard to get a FISA surveillance warrant. The statute requires a high standard of proof and a rigorous procedure for the precise reason that government officials not abuse the civil rights of the American people – specifically, the Fourth Amendment’s guarantee against unreasonable searches and seizures. Citizens have the rightful expectation that their government will not spy on them. In order to obtain a FISA warrant from the secret court that oversees them, the following steps are required:

First, the bureau does a “threat assessment” to determine whether a suspect might be working with foreign intelligence. If so, an investigation is opened and agents gather initial material for a warrant, such as information gathered from other methods like human sources, physical surveillance, bank transactions or even documents found in the target’s trash. Evidence that a suspect spoke with a foreign government is not enough to get a warrant from the Foreign Intelligence Surveillance Court. The FBI still needs to demonstrate that the suspect knew he or she was helping the foreign government, and not just chatting innocuously. There has to be evidence of some action.

Once evidence is gathered, a warrant application is written by lawyers in an FBI field office before getting sent to headquarters in Washington DC for more approvals. After that, there is one more check. Lawyers from inside the FBI’s National Security Division must undertake certain procedures to further ensure the veracity of the information in the application; these procedures are known as the “Woods Procedures.” Specifically, the goal of these procedures is to ensure accuracy with regard to: 1) the facts supporting probable cause; 2) the existence and nature of any related criminal investigations or prosecutions involving the subject of the FISA; 3) the existence and nature of any prior or ongoing asset relationship between the subject and the FBI. Only after all that does a senior Senate-confirmed Department of Justice official sign off on the application. And then, the warrant request package is finally sent to the Foreign Intelligence Surveillance Court.

How Was the FBI Able to Get a FISA Warrant to Spy on an American Citizen?

50 U.S. Code Sect. 1801 identifies two categories of potential targets for surveillance under FISA. The first is a foreign power and the second is an agent of a foreign power. So, to be targeted for secret surveillance under the FISA law, the FBI had to provide proof that Carter Page was an “agent of a foreign power.”

The renewal FISA warrant applications submitted to the FISA court by the FBI and DOJ under President Obama accused Carter Page (without much actual evidence; mostly based on “rumor” and salacious and unverified claims) of acting as a Russian agent.

According to the statute, including the intent of Congress in enacting the statute, in order to obtain the warrant involving Mr. Page, the government needed to show probable cause that he was acting as an agent of Russia. It does not mean that the government had to prove that he, himself, was a spy (spying on the US). An American may be targeted if he knowingly aids or abets someone involved in clandestine intelligence gathering that may involve a violation of criminal statutes. The “definitions” section of the 1978 FISA Act, Section of Sect. 1801, reads:

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;’
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

In applying for the warrant and using the Steele dossier as the substance to support probable cause, the Obama FBI and DOJ did not meet the standards set by the FISA statute. As the Nunes memo points out, the FBI and DOJ have an obligation of candor and honesty to the court, which they ignored. The dossier knowingly contained unverifiable and unverified information (such as the Yahoo News article written by Michael Isikoff , as noted in the Memo and in the Timeline section]. It also was prepared and pursued by highly politicized officials and investigators (Steele), some of whom disclosed how strongly they would work to prevent a Trump presidency. The agents who presented the application to the secret court withheld material and relevant information concerning the original of the dossier and the purposes it was created. Such information goes to the likely credibility of the information.

IV. WATERGATE versus FISA ABUSES: WHICH WAS WORSE?

We can see similarities and differences between Watergate and the FISA abuse. Both occurred in the midst of a presidential election campaign and for the purpose of gaining a political advantage (by discrediting the opponent), and both involved the Executive branch. Both used illegal means to wiretap, and both involved paying ex-spies (ex-CIA agent E. Howard Hunt, for instance, in the case of Watergate and Christopher Steele in the case of the Obama FBI) to dig up information.

As for the differences, the FISA abuse was perpetrated by government agencies (and hence represented State Action) while the Watergate break-in was the handiwork of the president’s campaign operatives. One could possibly speculate if Nixon had FISA at his disposal would he have abused that power as the Obama’s FBI and DOJ did?

The key difference is that government agents, perhaps with knowledge and with the blessing of President Obama, weaponized the government against an American citizen in order to build a sham of a case against candidate Donald Trump and now to somehow finagle Trump into obstructing the sham investigation so Democrats can claim obstruction of justice. In Nixon’s case, there was a real crime. It was undeniable because the Plumbers were caught in the act. And because it was a real crime and because he took extreme and questionable measures to interfere with the investigation by Special Prosecutor Archibald Cox, it was a legitimate case of obstruction of justice. Neither is the case for Donald Trump. In Trump’s case, there is a fabricated case of Russian collusion based on a fabricated dossier as evidence. Does he dare try to interfere with the witch hunt?

Rogue elements within the Obama administration, using all their intelligence and counter-intelligence training and tools, created the illusion that Donald Trump, through members of his campaign, colluded with the Russian government to rig the election in his favor. The investigation continues to try to dig up any evidence, even manufactured evidence, to show that the president is lying and covering up his crimes. In criminal law, if the warrant is faulty, then any evidence collected in pursuance of that warrant is inadmissible and must be thrown out as “fruits of the poisonous tree.” (The Exclusionary Rule)

But the Democrats don’t care about the Rule of Law or even lawlessness; they thrive on it. Forty-five years ago, the Watergate scandal forced a president out of office. In 1974, Nixon resigned from office not because he had any complicity in the actions that precipitated the scandal (the break-in at the Watergate Hotel) but rather, because he tried to keep it quiet and cover it up after he found out. He resigned because he obstructed the investigation; he obstructed justice. It’s most likely that Democrats expect they can do the same with Donald Trump. Is it any wonder we keep hearing allegations that “Trump is obstructing justice,” as in the case of the Nunes memo and President Trump’s decision to declassify it and allow it to be released. Is it any wonder that Nancy Pelosi and other Democrats have threatened Trump that should he attempt to remove Deputy Attorney General Rod Rosenstein from office (even though there is plenty of good reasons for him to do so) would be seen as an attempt to obstruct justice (in the Mueller investigation)? Democrats know what they are doing.

But the Nunes Memo (and the countless documents and hours of testimony that it was based on) makes clear that said rogue elements within the FBI and the Justice Department abused and broke the law. They deceived the judges of the FISA court by assuring them, through the signatures on the application, and by allowing them to conclude that Steele was reliable and without bias and motivation in his assembly of evidence against Carter Page. They had a statutory obligation and a duty of candor, that comes with any pleading to a court, to the FISA judges to present all relevant and material information. Fraud includes offering false and misleading information, as well as making false and misleading comments. It equally includes the omission of material and relevant information. In the case of the FBI and DOJ, the agents willfully and knowingly omitted relevant and material information.

Looking at the totality of the circumstances surrounding the FISA warrants and all the actors involved, it is quite evident that these rogue elements abused and broke the law in an attempt to use the surveillance and police power of the United States government first to throw the election to Hillary Clinton and then to destroy the presidency of Donald Trump.

Secret courts have great power, as I have pointed out in an earlier section. But with great power comes the tendency or temptation for abuse of that power. And in the case of the 2016 election, that is exactly what we have seen.

We must remember and recognize the reason that procedural safeguards are put in place in our court systems. They are there to protect the precious liberties of the people who can be arbitrarily hurled in front of the courts. We should learn from history of such abuses of the safeguards. In particular, we should look back to some history that actually influenced the rights protected in our Bill of Rights – the Star Chamber of England.

In medieval England, the Star Chamber was a secret court named for the decorative stars emblazoned on the ceiling of the wood-paneled room in which its judges deliberated. The Star Chamber oversaw the proceedings of the local courts; it was also able to decide matters involving wealthy and powerful people whose influence made them immune to the decisions of lower judicial bodies. Over the centuries, the Star Chamber was often used to break up the power of England’s land-owning elites. Although the court could order torture, prison and fines, it did not have the power to impose the death sentence. Under the Tudors, Star Chamber sessions were public. Under the Stuarts, the power of the Star Chamber increased greatly.

By the 17th century, under Charles I, it had become a vehicle for prosecuting political dissent. The Chamber was comprised of judges friendly and loyal to the king and would basically do his bidding. Charles famously, or infamously, used the court to examine cases of sedition – rebellion or even opposition to the king’s policies. Court sessions were held in secret, with no witnesses, no juries, and no right of appeal. Evidence was presented in writing and those dragged before its bench often had no idea what the charges were against them before punishment was handed down. This made it exceedingly easy for King Charles to allege false crimes, which he often did to get rid of political enemies and opponents.

Over the tenure of his reign (1615-1649), the Star Court evolved into an effective political weapon. Interestingly, the Star Chamber was used to punish religious dissent, such as that posed by the Puritans and Pilgrims. This persecution of Puritans ultimately drove the Puritans to seek refuge in the New World (America). Due to its excesses, the Star Chamber was abolished by Parliament in 1641, with the Habeas Corpus Act.

I look at the abuse of the secret Start Chamber and I look at the abuse of the secret FISA court. The actions of King Obama – I mean, the rogue FBI and DOJ agents under Obama’s reign – come frightfully close to the abuses of King Charles I.

In Charles’ case, his abuses inspired our protections for the criminally accused. In Obama’s case, he simply ignored them.

V. WHAT WE KNOW AND WHAT WE STILL DON’T KNOW

The FISA Abuse Memo is out and now we know why the Democrats were desperate to keep its contents hidden from the public: it confirms the worst fears not just of President Trump’s supporters but of everyone concerned about the abuse of police power, government corruption, and the sanctity of our elections. It outlines in very clear and concise form how rogue officials in the FBI and DOJ put partisan politics above the Rule of Law and Duty and Fidelity to the Constitution.

The memo shows that there was calculated interference in the 2016 presidential election by hostile elements within a United States intelligence agency. It wasn’t the Russians we had to worry about—it was rogue actors at the highest levels of the FBI and Department of Justice. Left unanswered is to what extent the West Wing knew about or was complicit in this gross abuse of power.

What we know:

1. The FBI’s case to the FISA (the Foreign Intelligence Surveillance Act) Court was based almost entirely upon a partisan hit-job bought and paid for by the Democratic National Committee and the Clinton campaign. Christopher Steele, the source of the dossier, had “financial and ideological motivations” to undermine Donald Trump according to the Nunes memo. In fact, the FBI’s file records that Steele told Associate Deputy Attorney General Bruce Ohr that “he was desperate that Donald Trump not get elected and was passionate about him not being president.”

2. Ohr’s wife was one of just seven employees at FusionGPS, the firm that was paying Christopher Steele. The personal financial relationship between the Ohrs and the dossier was concealed from the court.

3. The FBI could not corroborate the information in the Steele dossier, calling it only “minimally corroborated” but did not disclose this fact to the FISA Court thus leading it to believe that the information in the dossier was either FBI work-product or that it had been independently corroborated by the FBI. Neither was true.

4. The FBI did not disclose that the source of the information which formed the basis of their FISA application was a paid political operative of the Clinton campaign and the DNC.

5. The FBI and the Department of Justice intentionally misled the FISA court in their applications to obtain authority to spy on Trump campaign advisor Carter Page. They did this not once, but on four separate occasions over the course of a year, including after Donald Trump was in office. The misleading applications were signed off by James Comey (three times), Andrew McCabe, Sally Yates, Dana Boente, and Rosenstein. This certainly casts the actions of each of them in a much different light. Recall that Yates was briefly the acting attorney general under Trump before the president fired her when she refused to defend the administration’s travel moratorium in court. At the time she was lionized in the media and claimed that she had to defend “this institution’s solemn obligation to always seek justice and stand for what is right.” Likewise, Rosenstein’s nearly yearlong failure to fulfill his legal obligation to produce a lawful charter as a predicate for the Mueller investigation which now appears, in context, to be nothing more than the continuation of the Democrat’s campaign against Trump using the FBI as willing collaborators.

6. Comey lied to the president about the investigation while he was FBI director.

7. FBI agent Peter Strozk and his mistress FBI attorney Lisa Page met with Deputy Director Andrew McCabe to discuss an “insurance policy” against Trump being elected president. We don’t yet know the names of all of those who attended the meeting.

8. The texts between Peter Strozk and Lisa Page contain, “extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an ‘insurance policy’ against Trump’s election.”

9. The Nunes memo is just the beginning. There is more to come.

What We Still Don’t Know:

1. What role did Hillary Clinton play?

2. Was Attorney General Loretta Lynch involved with these efforts to surveil associates of the Trump campaign and, if so, to what extent?

3. We know that Susan Rice and Samantha Power were both involved in unmasking the names of U.S. citizens who were being targeted in this surveillance. Were they coordinating with elements within the FBI and/or the Justice Department? Were they coordinating with the DNC and Clinton campaign to give Hillary an electoral advantage?

4. What did Loretta Lynch and Bill Clinton really discuss during their tarmac meeting in Phoenix on June 27, 2016.

5. Did Barack Obama know about and/or participate in a conspiracy to use the police and surveillance powers of the federal government to undermine Donald Trump and rig the presidential election? Senator Ron Johnson (R-Wis.) wants to see Obama and Clinton’s emails.

6. Who else was at the meeting attended by McCabe, Strozk, and Page where they discussed an “insurance policy” against Trump’s election? How often did they meet, where did they meet, and what did they discuss?

7. Why couldn’t the FBI, which touts its forensic expertise, locate the Strozk-Page texts but the Inspector General did it in two days?

8. What is the “insurance policy” Strozk and Page discussed? Is that a reference to the conspiracy itself?

9. To whom in the media did the FBI leak information about their Trump spying? How long and how extensive was this disinformation campaign.

10. What discussions took place among Justice Department resisters about refusing to obey Trump’s direction as president?

We now know that almost every accusation leveled against the president with regard to so-called Russian collusion” actually reflects the actions of what amounts to a cabal of Democratic Party operatives working with FBI and Justice Department fellow-travelers.

Among other things, it has become clear that Rod Rosenstein must resign. He was either complicit in the conspiracy to mislead the FISA Court or he was too dumb to see what was happening. Either way, he’s demonstrated criminality, incompetence, or both and needs to go.

The picture painted by the Nunes memo is one of federal law enforcement officials who believe they are a wholly independent power, accountable to no one but themselves, and able to pick winners and losers in elections.

Based on what we know now, the conspiracy to undermine candidate Trump and later to destroy President Trump may have been limited to the Justice Department and FBI. But looking at the totality of the plan to influence the 2016 election, it seems hard to believe that Obama had no knowledge of what was going on.

VI. CONCLUDING REMARKS:

How bad are the revelations in the Nunes’ memo? It’s very bad. As the title of the article states, it is worse than the underlying crimes in the Watergate scandal that brought down President Richard Nixon. Greg Gutfield put it best when he said: “Using an unvetted dossier to obtain a FISA warrant to spy on an American citizen is like using Monopoly money to buy a Porsche.”

If the conduct of the Obama administration FBI and DOJ is OK, then Donald Trump should do the same thing in the 2020 presidential election season. He should hire someone like Christopher Steele, have a dossier concocted on his opponents, and then present that information (without disclosing anything explaining how that information originated, was collected, or even why it was collected) to a FISA judge to get a surveillance warrant to spy on those opponents.

References:
The Steele Dossier (contents) – https://www.documentcloud.org/documents/3259984-Trump-Intelligence-Allegations.html

Chris Buskirk, “Worse Than Watergate,” American Greatness, Feb. 2, 2018. Referenced at: https://amgreatness.com/2018/02/02/worse-than-watergate/ [The Entire Section V is reproduced from this excellent article]

Text of Nunes Memo – https://www.theatlantic.com/politics/archive/2018/02/read-the-full-text-of-the-nunes-memo/552191/

Watergate – https://study.com/academy/lesson/the-watergate-scandal-summary-facts-timeline.html

Watergate – http://www.dummies.com/education/history/american-history/president-richard-nixon-and-the-watergate-scandal/

Charlie Savage, “How to Get a Wiretap to Spy on Americans, and Why That Matters Now,” NY Times, January 29, 2018. Referenced at: https://www.nytimes.com/2018/01/29/us/politics/fisa-surveillance-applications-how-they-work.html

Dave Lawler, “Timeline: Davin Nunes and Trump Surveillance Claims,” AXIOS, March 30, 2017. Referenced at: https://www.axios.com/timeline-devin-nunes-and-trump-surveillance-claims-1513301236-c0c83abe-26be-4651-96b7-3dc84bbd203a.html

Ryan Teague Beckwith and Alana Abramson, “Who is Carter Page? Meet the Donald Trump Advisor at the Center of the GOP Memo,” TIME, Feb. 2, 2018. Referenced at: http://time.com/5128614/carter-page-gop-memo-fisa-warrant/

Andrew Prokop, “Carter Page, Star of the Nunes Memo, Explained,” VOX, February 2, 2017. Referenced at: https://www.vox.com/policy-and-politics/2018/2/2/16956014/nunes-memo-carter-page

Zachary Fryer Biggs, “Republican ‘Release the Memo” Conspiracy Ignores How Difficult it is to Get a FISA Warrant,” Newsweek, February 1, 2018. Referenced at: http://www.newsweek.com/how-get-fisa-warrant-797323

Artin Afkhami, “A Timeline of Carter Page’s Contacts with Russia,” Slate, November 7, 2017. Referenced at: http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/a_timeline_of_carter_page_s_contacts_with_russia.html

“Carter Page Did Not Need to be a Spy to Be Targeted Under FISA,” EmptyWheel, January 29, 2018. Referenced at: https://www.emptywheel.net/2018/01/29/carter-page-did-not-need-to-be-a-spy-to-be-targeted-under-fisa

Larry Abrahmson, “The History Behind America’s Most Secret Court,” NPR Morning Edition, June 7, 2013. Referenced at: https://www.npr.org/2013/06/07/189430580/the-history-behind-americas-most-secretive-court

James G. McAdams III, Legal Division, “Foreign Intelligence Surveillance Act (FISA): An Overview.” Referenced at: https://www.fletc.gov/sites/default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/research-by-subject/miscellaneous/ForeignIntelligenceSurveillanceAct.pdf

APPENDIX: Foreign Intelligence Surveillance Act (FISA), of 1978

(1) pursuant to an order issued by the FISC; or (2) in emergency circumstances, pursuant to Attorney General approval, so long as an application is thereafter made to the FISC within 24 hours.

FISA identifies two categories of potential targets for surveillance under FISA. The first category is foreign powers. A foreign power is –

(1) a foreign government, (2) a diplomat, other representative or employee of a foreign government, (3) a faction of a foreign nation that is not substantially composed of U.S. persons, (4) an entity openly acknowledged by a foreign government to be directed and controlled by it, or (5) a group engaged in international terrorism or activities in preparation therefore.

A second category of FISA targets are agents of foreign powers. An agent of a foreign power is –

(1) anyone, other than a U.S. person, who acts in the United States as an officer or employee of a foreign power, or (2) anyone who acts as part of or in support of a foreign power’s efforts to engage in clandestine intelligence gathering activities in the U.S.

An agent of a foreign power is also anyone, including a U.S. person, who –

(1) knowingly engages in clandestine intelligence gathering activities for a foreign power which activities constitute a violation of U.S. criminal statutes; (2) knowingly engages in sabotage or international terrorism, or activities in reparation therefore, on behalf of a foreign power.

For purposes of the Act, a U.S. person is defined as any of the following:

(1) a citizen of the U.S.; (2) an alien lawfully admitted for permanent residence; (3) an unincorporated association a substantial number of which are U.S. citizens or aliens lawfully admitted for permanent residence; or (4) a U.S. corporation. Under the Act, international terrorism is defined as:

(1) activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any state, or that would be a criminal violation if committed within the jurisdiction of the United States or any State; (2) acts that appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnapping; and

(3) activities that occur totally outside the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.

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Speech on College Campuses: Free or Censored?

FREE SPEECH - and Snowflakes (college campus)

by Diane Rufino, February 4, 2018

Parents, take notice. If your children are heading to college, you’ll want to know what crazies they might encounter – and I’m talking about college professors and college administrators !

My daughter is currently in her last year at UNC-Greensboro, arguably a very liberal college. It has a history of suppressing conservative speech while encouraging the most extreme of liberal speech. She is taking a course on how to communicate ethically and they are now talking about the First Amendment and Free Speech. To address that topic, the professor assigned a chapter out of a book to read about “Free Speech on College Campus” which argues that freedom of speech is important but that people want to limit it on campuses to respect the feelings of certain people and certain groups. The assignment is for students to write a paper to articulate their opinion on what position the college should take. She called me last night to talk about the First Amendment. She knew I would enjoy that conservation !!

First of all, as I told my daughter, I believe any course on such a topic should start off by discussing what the First Amendment recognizes, what it means to have the right of “Free Speech,” and why this right is so important in a free society. This alone is a very important civic lesson. She agreed.

We talked for awhile and then she hung up to work on her paper. A short while later, she texted me to review some of the points she made in her paper:

If we limit speech so as not to hurt people’s feelings then it isn’t really “free speech,” is it? And if a college limits it, then it teaches a bad lesson – that it doesn’t respect the First Amendment’s guarantee.. that freedom is not alive and thriving on that campus. There are other bad messages implied in limiting speech on college campuses: A campus that does so doesn’t treat it’s students as mature; it treats them as children. Also, it doesn’t help prepare its students for their place in the real world. Colleges can’t call themselves bastions of learning when they don’t allow students to listen to all opinions, articulate their responses, apply lessons and information they’ve learned, and push the bounds of their viewpoints. A person can never really know deeply they hold an opinion until they hear all other views and are forced to talk about it and defend it. An open forum provides this.

I am so proud of the fact that she “gets it,” and that she isn’t so fragile that she needs the speech that reaches her ears to be limited and those who want to speak to have to self-censor themselves. She is confident in herself, in what she believes, and in her ability to discern that most speech, in fact, is intended for other reasons other than to hurt someone’s feelings. I am proud that she is not a snowflake.

In a country so obsessed with civil liberties, how are even entertaining this absurd notion that speech on college campuses should be limited to protect feelings?

The Truth About the 13th Amendment

LINCOLN MEME - Dishonest Abe

Excerpted from Lawrence “Mike” Scrugg’s book, The Un-Civil War: Shattering the Historical Myths (Chapter 7: “The First Thirteenth Amendment”). 2011, Universal Media (Charlotte, NC) –  with some additions and commentary by Diane Rufino

Mike Scrugg’s book, THE UN-CIVIL WAR, is an excellent book – an excellent reflection on the causes, treatment, and aftermath of the Civil War. I am posting this excerpt, which is the entire seventh chapter of the book (“The First Thirteenth Amendment’) for the primary purpose of introducing you to this book and encouraging you to purchase it and read it.

Ludwell H. Johnson used the words The American Illiad in the subtitle for his comprehensive book on the American “civil war,” entitled NORTH AGAINST SOUTH. The Iliad analogy is very appropriate for two reasons. First, the war was a traumatic, bloody, and nation-changing event. The enormous casualties and destruction alone would sear its battles, personalities, and tales of heroism into America’s memory. Second, what most Americans know about the causes of the war is pious myth.

Most Americans are at least vaguely aware that the 13th Amendment to the US Constitution passed by Congress and approved by the States in December 1865 following the “civil war” abolished slavery. But this was actually the second 13th Amendment. The US House of Representatives had passed, with the required 2/3 majority, a 13th amendment on February 28, 1861. This same amendment was passed by the US Senate on March 2, 1861. It was then send to the States for final approval. As per Article V of the Constitution. 3/4 of the States must approve the amendment before it can officially become part of, and hence “amend,” the Constitution. Two days after the Senate’s approval of the amendment, the newly-elected president of the United States, Abraham Lincoln, promised to support it in his inaugural speech.

But what was this first 13th Amendment and what became of it?  Here is the wording:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of such State.”

The first 13th Amendment would have forever prohibited any Constitutional change that interfered with slavery in any state!

Lincoln endorsed this amendment, which would have permanently engraved slavery into the Constitution by two statements in his inaugural address:  First, self-quoting what he had written earlier to New York Tribune editor, Horace Greeley: “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no right to do so, and I have no inclination to do so.”

Later in the speech, he specifically promised to support this first 13th Amendment with these words: “I understand a proposed amendment to the Constitution has passed Congress to the effect that the federal government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose, not to speak of particular amendments, so far as to say that, holding such a provision to now be implied Constitutional law, I have no objection to its being made express and irrevocable.”

In other words, Lincoln had no problem with an amendment which would have prohibited the federal government from interfering with slavery in the States!  In addition, he felt the Constitution already prohibited the federal government from interfering with slavery in the States !!!

The reason for this first 13th Amendment was, of course, to reassure the Southern States that were threatening to leave the Union that there was not and never would be any danger of Congressional or federal interference with slavery in the States. [Remember that by the time the Senate approved the amendment, seven Southern States had already seceded from the Union – South Carolina, Georgia, Florida, Louisiana, Mississippi, Alabama, and Texas]. The slavery question was a concern to the Southern States, of course. The South had an agrarian society and its economy was supported by the exporting of its crops. The Northern States had gradually phased out slavery, but then again, there had been but a few slaves in the North. Phasing out slavery in the North was a much less daunting social and economic endeavor. It would be an enormous undertaking in the South. The calls of radical abolitionists in the North for immediate abolition of slavery regardless of the economic cost to the South and heedless of the hardship it would suddenly inflict on the slaves themselves, though not really a prevalent Northern sentiment, was a worry to the South. Slavery was by no means universally popular in the South, and many Southern States and individual Southerners were already struggling with how they might phase out the institution of slavery without devastating the Southern economy. But Southern States preferred to handle the slavery question when, if, and however they saw fit. Like Lincoln and many other political leaders in the North, the South considered how to handle the slavery question to be the Constitutional right of each State respectively.

Slavery was an issue that caused tensions between North and South, but it was by no means the only issue. If slavery was the only crucial issue, the South had no reason to secede. The first 13th Amendment would have guaranteed the question in their favor.

But there were other important issues to the South… more important ones.  One enormous issue was the question of the protective tariffs and in particular, the Morrill Tariff that had been passed by the predominantly Northern Congress with the support of only one Southern congressman. It was passed by the Senate and signed by President Buchanan only two days before Lincoln took office, and Lincoln pledged to support it. The Morrill Tariff, like others in the past, was a severe economic hardship to the agricultural South (in particular to South Carolina and the Gulf States), but a protective benefit for the industrial North – for its manufacturers. To make matters worse, most of the revenue was collected at Southern ports but subsequently used to the benefit of Northern States. In other words, the South was being plundered for the benefit of the North. To look at it a different way, the federal government, which was supposed to be a common government for ALL the States, to serve their interests equally, was effecting policy to benefit only one section of the country, while knowingly and intentionally harming another. Southern States were furious over this tariff, which had just been raised from an average under 20% to an average which would reach 47% (and would affect more items). The Morrill Tariff was part of Lincoln’s and the Republican Party’s campaign platform. In fact, Lincoln further endorsed the Tariff in his inaugural speech and strongly implied that even if the South seceded, the tax would be collected by the Union Navy at Southern ports.

There were other issues as well. North and South had developed different views of government. The South favored the limited and decentralized federal government of the Constitution, but the North was strongly tending towards a powerful centralized government. Early in the years of the American republic, the South and especially Virginia had dominated national politics. But massive waves of immigration to Northern manufacturing States now made them much more populous and politically dominant. Between 1845 and 1855 more than 1.5 million Irish adults and children alone emigrated to America (because of the great potato famine).  And then there was the outright hostility and even violence towards the South. John Brown and his sons butchered 5 pro-slavery settlers in Kansas and then led a raid on Harpers Ferry. The radical abolitionists exhibited unmitigated hatred of all things southern and continued to aggravate tensions.

The first 13th Amendment became a moot issue, though, after the firing on Fort Sumter and then Lincoln’s call for 75,000 troops to invade the South. The outbreak of the “civil war” that would claim the lives of over 620,000 Union and Confederate soldiers and as many as 50,000 Southern civilians effectively cancelled the first 13th Amendment.

On March 2, 1861, the same day the first 13th Amendment was passed by the Senate, another Amendment to the Constitution was also proposed. This amendment would have outlawed secession. This is a good indication that most of Congress indeed realized that the right of secession was implied when the Constitution was originally ratified by the States and effectively reinforced by the 10th Amendment. If that wasn’t so, why would they attempt to outlaw it?  In fact, textbooks used at West Point for years before the war had explained the validity of the right of secession.

Indeed,  most members of Congress understood each State had a fundamental right to secede (as the colonies did from Great Britain in declaring their independence). Lincoln himself, at one time, believed the same. As a junior representative from Illinois, Lincoln addressed Congress on the Mexican-American War, asserting that the US should take only that portion of the Texas territory that represents the desire of the people to secede from Mexico (and not the additional 500,000 square miles of land from Mexico it was seeking – territory comprising Arizona, New Mexico, and California; otherwise, the US would be imperialistic).  On January 1848, he spoke these words: “Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable – a most sacred right – a right, which we hope and believe, is to liberate the world.”  [http://teachingamericanhistory.org/library/document/the-war-with-mexico-speech-in-the-united-states-house-of-representatives/ ]

Yet, when the Southern States actually exercised this fundamental of sovereign states’ rights and left the Union, Lincoln had a change of heart. All of a sudden, he no longer recognized secession as an “inherent” or “natural” sovereign right. And this was a problem, because he was the president and as it always seems to be, the views of the president become the views of the government.  In his first Inaugural Address, he articulated his “new understanding” of the right of secession:

“I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it–break it, so to speak–but does it not require all to lawfully rescind it?   Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”  (First Inaugural Address, March 4, 1861; http://avalon.law.yale.edu/19th_century/lincoln1.asp ]

The notion of a States’ right of secession – to withdraw from the Union – HAD to be dispelled and de-legitimized if Lincoln was to be able to claim power to preserve the Union and then make good on that promise. There could be no rightful exercise of federal power to force the States to remain together when the States possessed (reserved) the supreme sovereign power, restated by the 10th Amendment, to withdraw from the Union.

On July 22, 1861, the now Northern only Congress passed a joint resolution (“The Crittenden-Johnson Resolutions on the Objects of the War, 1861”) defining the federal government’s goals in the war:

“Resolved.. That the present deplorable civil war has been forced upon the country by the dis-unionists of the Southern States now in revolt against the constitutional Government and in arms around the capital; that in this national emergency Congress, banishing all feelings of mere passion or resentment, will recollect only its duty to the whole country; That this war is not being prosecuted upon our part in any spirit of oppression, not for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution and all laws made in pursuance thereof and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired; and that as soon as these objects are accomplished the war ought to cease.”

In other words, the Northern Congress stated in that resolution that preserving the Union and NOT interfering with the institution of slavery was the purpose of the war.

Later, on August 22, 1861, Lincoln explained his thinking on the war to editor, Horace Greeley, an abolitionist:

“My paramount object in this struggle is to save the Union, and it is not either to save or destroy slavery. If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing some an leaving others alone, I would also do that. What I do about slavery, and the colored race, I do because I believe it helps save the Union.”

Nearly two years into the war, in September 1862, Lincoln found it expedient to issue the Emancipation Proclamation. This proclamation actually freed no slaves in any territory under Union control. It was done primarily as a war measure. Lincoln hoped that the Proclamation would encourage slave uprisings in the South, thus causing Confederate troops to be diverted. The overwhelming majority of the slaves, however, proved remarkably loyal to the families of their Southern masters, most of which were away in the Confederate Army. Some say that it was also to please the anti-slavery British and thus keep them from coming into the war on the side of the South. The British did not come into the war on the side of the South, but they were also not so stupid as to be fooled by this ruse. The North, after all, imposed the protective tariffs on the South, which had harmed trade with Great Britain. Though the Proclamation had disappointing military results, and only made the British more skeptical of Northern intentions, it did please those radical abolitionists who did not seem to mind the hypocrisy of a document that did not free a single slave in Southern territory occupied by the Union Army. After a period of discontent in the North and in the Union Army over the Proclamation, the abolition of slavery began to be used to bolster the moral purpose of the war. Ever since then, it has been a prime propaganda tool justifying and glorifying the war as a just and noble and moral cause.

However, as can easily be seen in the first 13th Amendment, Lincoln’s speeches, and Congressional resolutions, slavery cannot be said to have been the cause of the war. It was an issue causing much tension, but it was not the cause of the war. These tensions are very much misunderstood today. Contrary to current misinformed public opinion, most Northern objections to slavery were not really of a high moral tone. Many Northern States, such as Lincoln’s Illinois, severely restricted the possibility of any Blacks, free or slave, taking up residence within their borders. Ohio and Indiana even prohibited free Blacks from even entering their states. Northern attitudes towards Blacks that drove much of the “Free State vs. Slave State” controversy can best be summarized by an October 16, 1854 quote by Abraham Lincoln himself:

“Whether slavery shall go into Nebraska, or other new territories, is not a matter of exclusive concern to the people who may go there. The whole nation is interested that the best use shall be made of these territories. We want them for the homes of free white people. This they cannot be, to any considerable extent, if slavery shall be planted with them.”

A common, but practical solution of what to do with the emancipated slaves was colonization (repatriation). That meant sending them back to Africa or to Central America. Lincoln himself was strongly in favor of colonization. Lincoln was a great admirer of Senator Henry Clay, who first proposed the colonization solution in 1827. Lincoln frequently stated his advocacy of colonization and spoke to black pastors and leaders about it, and on December 1, 1862, in a message to Congress, stated: “I cannot make it better known than it already is, that I strongly favor colonization.”

This was undoubtedly spoken to reassure Northern politicians who were uneasy with the possible migratory consequences of the Emancipation Proclamation.

Lincoln opposed slavery and was in favor of gradual, compensated emancipation and colonization. But he obviously considered the Union (preserved) and Northern business interests a much higher priority than eliminating slavery. To his credit, he recognized and hated the dangerous fanaticism of the radical abolitionists. But all the current and post-war talk (propaganda) about the war being a noble crusade to free the slaves and of Lincoln being the great Emancipator is a shameless fraud.

Preserving the Union was the principal purpose stated by the North. That might be called noble – if using violence, killing 620,000 young men, killing women and children (civilians), starving families by killing livestock and scorching the land, and forcing states to bear a subservient and exploited status in an unwanted and, to them, an unprofitable Union at gunpoint can be called ‘noble.” The North had more than just territory in mind when it said it wanted to preserve the Union. Loss of the Southern States would mean loss of most of the tax revenue, of which over 90% came from the tariff duties that were paid by the South States and so burdened them. They would also have to compete with the South’s proposed free-trade policies, which would have wreaked economic havoc on the North, just as the protective tariff had wreaked economic havoc on the South. The South would have gained economically by independence, whereas the North would have lost considerably both in tax revenues and in trade.

The real reason Lincoln sought to preserve the Union was to preserve the ability of the federal government to continue collecting tariff revenue from the Southern States. He admitted as much when he was sworn in as president.  Referring back to the section of his first Inaugural Address above where he dispelled the right of the States to secede from the Union, he continued:

“It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.

I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it……   I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself.  In doing this there needs to be no bloodshed or violence, and there shall be none unless it be forced upon the national authority. The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere.”

Notice that when he spoke the words “the declared purpose of the Union that it will constitutionally defend and maintain itself” he is really declaring that the federal government has as its primary purpose the obligation to ensure its preservation. This is in absolute, direct contradiction to the cherished principles of the Declaration of Independence.

Despite the tension that divided the South from the North, beginning in 1828, over the protective tariffs (recall the Nullification Crisis which nearly precipitated secession in 1832) and the concerns of South Carolina over Lincoln’s (and the Republican Party’s) platform in the 1860 presidential election, Lincoln chose to ignore such concerns in his Inaugural Address. He said: “One section of our country believes slavery is right and ought to be extended, while the other believes it is wrong and ought not to be extended. This is the only substantial dispute.”

The so-called “Civil War” was not really a civil war after all. A civil war implies that both sections of the “same country” were fighting for control of the same government. The South had seceded from that government; it wanted nothing more to do with it. Two names for the war are fare more appropriate:  For the South, it was the “War for Southern Independence” and for the North, it was the “War to Prevent Southern Independence.” It was not a glorious crusade to free slaves. Unfortunately, most Americans today accept the pious fraud that the “Civil War” was all about ending slavery. The first 13th Amendment, however, provides shattering documentary evidence disproving that cherished humbug.

BOOK - The Un-Civil War (Mike Scruggs)

 

To Purchase THE UN-CIVIL WAR:  Amazon –  https://www.amazon.com/Civil-War-Shattering-Historical-Myths/dp/098343560X/ref=sr_1_fkmr0_1?ie=UTF8&qid=1517505890&sr=8-1-fkmr0&keywords=Lawrence+Scruggs%2C+The+Un-Civil+War

House Intelligence Committee Votes to Release Nunes’ Memo

DEVIN NUNES

by Diane Rufino, Jan. 30, 2018

“One of the worst things a government can do is to use law enforcement as a political weapon, our Founding Fathers about that exact situation.” – Tucker Carlson

This article reviews the origin of the Nunes’ Memo and the decision of the House Intelligence Committee to allow it to be made public.

The infamous Nunes’ Memo is a 4-page memorandum written by Rep. Devin Nunes (R-CA), chairman of the US House Intelligence Committee, outlining a series of Obama-era abuses of the executive branch’s surveillance authorities, including on ordinary American citizens, under federal law by the Justice Department, specifically the Foreign Intelligence Surveillance Act (FISA). The memorandum is the culmination of an investigation undertaken by the Committee, as announced on January 25, 2017, to investigate the unmasking of classified government information, as well as Russian meddling and any connections to political campaigns. The US House Permanent Select Committee on Intelligence (HPSCI), created in 1977, is a committee of the House of Representatives, essentially tasked with the oversight of the entire Justice Department and more. It is officially charged with oversight of the United States Intelligence Community, which includes the intelligence and intelligence-related activities of the following seventeen elements of the executive branch of the US government and the Military Intelligence Program – including Homeland Security, FBI, CIA, Director of National Intelligence, State Department, NSA, Defense Intelligence Agency, DEA, Treasury Department, Army, Navy, Air Force, and Marine Corp.

Last evening, the House Intelligence Committee voted to release the Nunes’ Memo. Currently, the memo is sitting with President Trump. Although the president now has five working days to review the 4-page memo and voice any objections to its release, it seems most likely that he will give his blessing. Republicans who have read the memo have described its severity as “Watergate on steroids” and “earth-shattering.” Tucker Carlson tweeted: “Several Republicans who have seen the memo say it exposes massive and terrifying abuses of our civil liberties, presumably committed for political gain.”

Unless and until we read the document, or otherwise find out what revelations it contains, what we do know is that there is definitely enough for at least one criminal conviction.

What we have learned so far, as Carlson explained on his show last evening, is that Andrew McCabe, who coincidently announced his resignation yesterday as well, is the subject of at least one internal DOJ investigation potentially linking him to politically-motivated abuses of power. DOJ Inspector General Michael Horowitz has been in investigating politically-motivated conduct at the Bureau during the 2016 presidential election. Is the investigation the reason McCabe resigned? Is there something in the memo that prompted it?

We also know that one subject of the FISA warrants by the Justice Department was Carter Page, affiliated with the Trump campaign as a foreign policy adviser. The Obama DOJ argued before a FISA judge that Page was “an active agent of a hostile foreign government (Russia)” – that is, a Russia spy or operative. As we know now, that claim was ridiculous and fabricated. No evidence has ever surfaced to even suggest it might be true. Besides, if he were a real suspect, why wasn’t he investigated or arrested? Instead, he is a frequent guest on MSNBC. Yet on the basis of that fraudulent, fabricated claim, the Justice Department was able to surveille the Trump campaign and Page. And then when the Obama administration to expand its surveillance, again centering on Page, it relied on information contained in the now-discredited Russian dossier, requested and paid-for by the Hillary Clinton campaign and the DNC (of which she had final control of its finances, per a contract agreement), and maybe even the federal government.

There are extremely good reasons for Nunes and his staff to create a summary of abuses, including: (1) There has been a severe erosion in public confidence in the US Department of Justice, a department that has historically been considered the most impartial, objection, effective law enforcement agency in the world; (2) There has been the overwhelming appearance that the Justice Department had become politically-motivated and intent on protecting Democratic political elites over ordinary Americans, and (3) The American people believe they are entitled to, and deserve, to know when their government is abusing its powers (they want transparency!).

The main questions that We the People need answered are:

•    Were associates of President Trump, members of his campaign, or even Trump himself, subjected to foreign-intelligence surveillance (i.e., do the FISA applications name them as either targets or persons whose communications and activities would likely be monitored)? Loading ad Was information from the Steele dossier used in FISA applications?

•    If Steele-dossier information was so used, was it so central that FISA warrants would not have been granted without it?

•    If Steele-dossier information was so used, was it corroborated by independent FBI investigation?

•    If the dossier’s information was so used, was the source accurately conveyed to the court so that credibility and potential bias could be weighed (i.e., was the court told that the information came from an opposition-research project sponsored by the Clinton presidential campaign)?

•    The FBI has said that significant efforts were made to corroborate Steele’s sensational claims, yet former director James Comey has acknowledged (in June 2017 Senate testimony) that the dossier was “unverified.” If the dossier was used in FISA applications in 2016, has the Justice Department — consistent with its continuing duty of candor in dealings with the tribunal — alerted the court that it did not succeed in verifying Steele’s hearsay reporting based on anonymous sources?

[This list of questions comes from: Andrew C. McCarthy, “The Clamor Over the Nunes’ FISA-Abuse Memo,” Washington Review]

Why was the Memo created?

First of all, we must remember the reason for the Foreign Intelligence Surveillance Act (FISA) – to find out if hostile foreign governments are spying on, trying to influence our institutions, or otherwise seeking to do harm to our country. FISA was expanded after 9/11 to help in the war on terrorism. FISA proceedings are classified, and applications for surveillance warrants from the FISA court typically include information from classified sources – informants who spy at great risk to themselves, intelligence techniques (e.g., covert surveillance), etc. Disclosing such applications and/or the underlying intelligence reporting on which they are based could thus jeopardize lives, national security, and other important American interests. Thus, the problem: How do we convey important information without imperiling the sources and methods through which it was obtained?

Congress addressed that problem by prescribing a process for dealing with such potentially classified information by passing the Classified Information Procedures Act (CIPA). There are various remedies: Sometimes the classified information can be declassified and disclosed without causing danger; sometimes the classified information can be redacted without either jeopardizing sources or compromising our ability to grasp the significance of what is disclosed. When neither of those solutions is practical, the preferred disclosure method is to prepare a declassified summary that answers the relevant questions without risking exposure of critical intelligence secrets and sources. (See CIPA section 4 — Title 18, U.S. Code, Appendix.)

The preparation of a summary (ie, Memorandum) is a routine and sensible way of handling the complicated tension between the need for information and accountability, on the one hand, and the imperative of protecting intelligence, on the other. Conforming to House rules, Chairman Nunes has taken pains to make his memo available to all members of Congress before proceeding with the steps necessary to seek its disclosure. Interesting, outside the Committee, 190 Republican members of Congress have read the memo while only a dozen Democrats have bothered to read. Yet every Democrat, to the man, has expressed opposition to its release. Without reading it, they contend that it is misleading and partisan, and a stunt designed to discredit Special Counsel Robert Mueller’s investigation, or at least distract attention from its subject matter – Russian interference in the 2016 election. They demanded that a memo drafted by the Democrat members of the House Intelligence Committee be made public. Rep. Adam Schiff (D-CA) led that effort, but the Committee voted it down.

Congressman Nunes is a smart guy, and he clearly knows he will look very foolish if he plays fast and loose with the facts. It is in his interest not to do that, and the careful way he has gone about complying with the rules, rather than leaking classified information, as Trump’s opponents have been, wont to do suggests that his memo will prove to be a fair representation of the underlying information. On that last point, it would be hard to imagine a more one-sided partisan screed than the Steele dossier. Democrats seem to have had no hesitation about using it as a summary of purported Trump collusion with Russia. The Justice Department and the FBI are reportedly angry that, after they complied with the Intelligence Committee’s demand that they make classified and investigative materials available for inspection, Nunes will not permit the FBI to inspect his memo summarizing that information before moving to disclose it. The irony here is rich. These executive-branch agencies did not cooperatively comply with congressional investigators; they stonewalled for five months. To this day they are stonewalling: Just this past weekend, they belatedly fessed up that the FBI had failed to preserve five months’ worth of text messages (including between key characters Peter Strzok and Lisa Page), something they had to have known for months. An American who impeded a federal investigation the way federal investigators are impeding congressional investigations would swiftly find himself in legal jeopardy – obstruction of justice.

Moreover, it is not like the Justice Department and FBI did Nunes a favor and are thus in a position to impose conditions; Congress is entitled to the information it has sought in its oversight capacity. There is no Justice Department or FBI in the Constitution; rather, these agencies are part of the executive branch, created by statute. Congress created them, they are dependent on Congress for funding, and Congress has a constitutional obligation to perform oversight to ensure that the mission they are carrying out – with taxpayer support and under statutory restrictions – is being carried out appropriately. Republicans tend to be favorably disposed toward law enforcement’s preferences. They would surely have preferred to have non-confrontational interactions with vital executive agencies led by Republican appointees of a Republican president. Indeed, most Republicans are puzzled by the lack of cooperation – by the failure of the White House to direct the president’s subordinates to comply with congressional requests for information about potential abuses of power carried out under the prior, Democratic administration. This is a reciprocal business. If the Justice Department and FBI want accommodations, they have to exhibit cooperation – they have do the little things, like maybe remember that congressional subpoenas are lawful demands, not suggestions or pleas. On the record thus far, the committee has every reason to believe that submitting the Nunes memo for review by the Justice Department and FBI will result in more delay and foot-dragging. Clearly, there is a strategy to slow-walk compliance in hopes that events – such as, say, a midterm-election victory that returns the House to Democratic control – will abort congressional investigations of the investigators. Nunes is wise not to play into that strategy. As he knows, if the House ultimately moves to declassify and publicize information, the chamber’s rules require giving the president five days’ notice. (See Congressional Research Service, “The Protection of Classified Information: The Legal Framework” page 3 and note 23.) Thus, the Justice Department and FBI will have an opportunity to both review the memo and try to persuade the president to oppose disclosure. There’s no reason to hold up the works at this point. [This paragraph comes in most part from Andrew C. McCarthy’s article, “The Clamor Over the Nunes’ FISA-Abuse Memo”]

As Tucker Carlson said: “One of the worst things a government can do is to use law enforcement as a political weapon.” But perhaps the worst thing it can do is to collude – that is, to use its greatest resources – in order to influence a political election and assure a certain outcome. That would deny We the People of our most precious guarantee: “a government of the people, by the people, for the people” (or as the Declaration of Independence promises: “government among Men, deriving their just powers from the consent of the governed..”). A government that can influence elections destroys our constitutional republic and creates a government established by a political party for political elites who never have to live under the laws it passes.

In the coming week, or perhaps even next week, the 4-page Nunes memo should be read into the Congressional Record for all to hear and all to access. We already know the allegations and crimes are far more troubling than the underlying crimes committed in the Watergate scandal. The questions will be: How will the Democrats react to its wrong-doing and complicity in the constitutional crisis of our time? How will Congress respond to the wrongdoing and how will it attempt to repair the reputation of the US Department of Justice? How will the liberal media treat the accusations and crimes? And perhaps most importantly: How will voters react in the mid-term elections this November?

Timeline of Events Leading up to the Nunes’ Memo: [From: Philip Bump, “A Complete Timeline of the Events Behind the Memo That Threatens to rip D.C. in Two,” The Washington Post]

Sep. 11-12, 2012. Terrorists attack two American facilities in Benghazi, Libya, killing four people including Ambassador J. Christopher Stevens.

Feb. 1, 2013. Hillary Clinton steps down as secretary of state. During her tenure, she used a private email address for department business, hosted on a server located at her home in Chappaqua, N.Y.

June. Carter Page, an energy industry consultant, is interviewed by the FBI after it records a Russian agent, Victor Podobnyy, discussing a plan to hopefully leverage a relationship with Page to get information. “It’s obvious that he wants to earn lots of money,” Podobnyy allegedly said of Page. [No evidence and no information obtained by the FBI investigation was able to show that such a plan really existed or was ever discussed personally with Page]

July 29. James B. Comey becomes director of the FBI, replacing Robert S. Mueller III.

May 8, 2014. The House votes to establish a select committee to investigate the attacks at Benghazi and any failures of Clinton‘s State Department to prevent them.

2015

March 2. The New York Times reports that Clinton used a private email account during her time as secretary of state. The revelation came after the Benghazi committee requested records of communications between Clinton and her staff.

March 11. Jill McCabe, wife of FBI then-associate deputy director Andrew McCabe, announces her candidacy for the Virginia state Senate. McCabe begins the process of resolving any conflicts within the FBI that day. April 12. Clinton announces her candidacy for the Democratic presidential nomination.

June 16. Donald Trump announces his candidacy for the Republican presidential nomination.

Summer. Hackers believed to be linked to the Russian Federal Security Service access the servers of the Democratic National Committee. This is one of the first overt acts the Russians take as part of what American intelligence officials come to believe is an attempt to influence the results of the 2016 election.

July. The State Department inspector general alerts the FBI’s counterintelligence office that classified information was being stored on Clinton‘s private server. The FBI initiates an investigation. Among those involved in the investigation is an agent named Peter Strzok.

Autumn. The conservative website Free Beacon hires a firm called Fusion GPS to investigate Republican candidates for the presidency, including Trump.

October. A PAC called Common Good VA, tied to Terry McAuliffe, then Virginia’s governor, makes several large donations to Jill McCabe’s campaign, as it does to other Democrats seeking office.

Nov. 3. McCabe loses her bid for the state Senate.

2016

Feb. 1. Andrew McCabe is promoted to the position of deputy director. In that role, he assumes responsibility for the Clinton email server investigation.

March 4. FBI agent Strzok texts with an FBI attorney named Lisa Page (not related to Carter), with whom he’s involved in an extramarital affair. Among the texts are a series, following a Republican primary debate, in which Strzok calls Trump “an idiot” and says that Clinton should win “100,000,000 – 0.” (He later jokes that he may vote for Trump because “he was pretty much calling for death for Snowden.” He adds: “I’m a single-issue voter…. Espionage Machine Party.”)

The texts continue for the duration of the campaign and include disparagement of Trump by Strzok as a “f—ing idiot.”

March 21. During a conversation with The Post, Trump announces his foreign-policy team, including Page and an energy consultant named George Papadopoulos.

April. With Trump‘s nomination all but inevitable, Fusion GPS approaches the Clinton campaign and the DNC about continuing its research into Trump. Marc Elias, a lawyer representing the two organizations, hires the firm.

April 26. Papadopoulos is told by a contact with connections to the Russian government that it has “dirt” on Clinton in the form of emails. The next month, Papadopoulos mentions this during a conversation with an Australian diplomat.

May 26. Trump clinches the Republican nomination.

June 6. Clinton secures the Democratic nomination.

June 15. The first documents stolen from the DNC are released, including a party opposition research file on Trump.

June 20. Christopher Steele, a former British intelligence officer hired by Fusion GPS, files the first of 17 reports that, together, will come to be known as the “dossier.” The first report focuses on what Steele describes as Russian efforts to “cultivate” Trump and suggests that the Russians have dirt on both presidential candidates.

Early July. Steele, after consulting with Fusion GPS founder Glenn Simpson, reaches out to the FBI about what he has heard.

July 2. Clinton is interviewed by the FBI.

July 5. Comey announces that the FBI has completed its investigation and that he would not recommend charges against Clinton, despite “evidence of potential violations.”

July 7. Page travels to Moscow with the campaign’s approval to give a speech.

July 19. Steele writes a report alleging that Page met with high-ranking Russians during his trip to Moscow. At some point in this period, Steele writes an undated memo outlining allegations from an “ethnic Russian close associate” of Trump that the campaign is conspiring with Moscow.

July 22. Shortly before the Democratic convention begins, WikiLeaks starts releasing more emails stolen from the DNC.

July. After receiving a tip from the Australian diplomat apparently spurred by WikiLeaks’ release of material stolen from the DNC, the FBI begins a counterintelligence investigation into Russian meddling, including any connections between the Trump campaign and Russian agents.

Summer. At some point, without information or evidence to support the claim (the FBI interview/ investigation yielded nothing), the FBI obtains a warrant to surveil Page. The secret warrant is authorized under the Foreign Intelligence Surveillance Act, or FISA.

Sep. 21. Former New York congressman Anthony Weiner, husband of top Clinton aide Huma Abedin, is accused of sexually explicit online interactions with a minor.

Late September or early October. Steele again meets with an FBI contact in Rome.

Early October. FBI agents investigating the Weiner allegations find emails on one of Weiner’s computers that were sent using Clinton‘s private server to and from Huma Abedin.

Oct. 7. The government issues an unusual warning about attempts by Russian actors to influence the election.

That same day, WikiLeaks begins releasing emails stolen from the email account of Clinton campaign chairman John Podesta.

Oct. 23. Trump tweets out a Wall Street Journal article about the contributions that McCabe‘s wife received.

McCabe becomes a fixture in Trump‘s stump speeches about the corruption of Washington.

Oct. 28. Comey informs Congress about the discovery of the new emails and indicates that they are being assessed to determine if they include classified information or are otherwise pertinent to the email server investigation.

Oct. 31. The New York Times reports that the FBI doesn’t see a clear link to Russia. According to later testimony from Fusion GPS‘s Simpson, this alarms Steele and prompts him to cut off contact with the Bureau. There had reportedly been some discussion about the FBI paying Steele for his research, which didn’t come to fruition, though the Bureau did reimburse Steele for some of his expenses.

Nov. 6. Comey announces that the new emails don’t change the FBI’s position on charges against Clinton.

Nov. 8. Trump wins the presidential election.

Dec. 13. Steele writes the last of the dossier’s reports, dealing with an alleged trip to Prague by Trump Organization lawyer Michael Cohen to contact Russian actors. Cohen denies that he took such a trip.

2017

Jan. 6. Comey, along with other intelligence officials, travel to Trump Tower to brief Trump on the investigation into Russian meddling in the 2016 election. Comey briefs Trump on the dossier.

Jan. 20. Trump is inaugurated as president.

Jan. 24. National security adviser Michael Flynn is interviewed by the FBI about his conversations with the Russian ambassador the previous month.

Jan. 25. The House Intelligence Committee, chaired by Rep. Devin Nunes (R-Calif.), announces its intent to investigate Russian meddling and any connections to political campaigns.

Jan. 26. The Trump White House learns that Flynn provided information to the FBI that conflicts with what Vice President Pence was saying publicly.

Jan. 27. Trump invites Comey to dinner at the White House. Comey later testifies under oath that Trump asked him for his loyalty during that meeting.

Feb. 8. Jeff Sessions is confirmed as attorney general.

Feb. 14. At another meeting in the White House, Trump indirectly asks Comey to drop the investigation into Flynn, who had resigned the previous day.

March 2. After it is revealed that he had provided inaccurate information about his contacts with Russian officials during his confirmation hearing, Sessions recuses himself from anything involving the Russia investigation.

March 4. Trump, spurred by a Breitbart report, alleges on Twitter that the administration of Barack Obama had wiretapped Trump Tower prior to the election.

March 20. The House Intelligence Committee holds a hearing in which it takes testimony from Comey and the head of the National Security Agency. It is at this hearing that Comey publicly reveals the existence of the investigation into meddling and Trump’s campaign. During the hearing, Comey also denies that Trump was the focus of wiretapping.

March 21. Nunes is invited to the White House complex to view information about surveillance of people associated with Trump‘s campaign. At least some of the intelligence was collected by surveilling foreign agents, which would normally mean that Americans whose communications were “incidentally” collected — meaning they were not the targets of the surveillance — would not be identified. (There are restrictions on surveillance of American citizens that do not apply to foreign individuals.) Nunes is shown “unmasked” intelligence — meaning that this anonymity has been removed. Some of the intelligence appears to involve Flynn’s conversations with the Russian ambassador. *** Nunes‘s visit is not revealed until several days later.

March 22. Nunes holds a news conference accusing the Obama administration of unmasking the names of Trump transition team members even though the intelligence is not related to the Russia investigation. He does not indicate how he learned about this unmasking — a term that becomes central to Trump‘s defense of his tweets about having been wiretapped.

April 6. Nunes recuses himself from the Intelligence Committee’s Russia investigation after the House Ethics Committee announces that it is investigating whether he made an unauthorized disclosure of classified information.

April 25. Rod J. Rosenstein, the U.S. attorney for Maryland since his appointment under George W. Bush, is confirmed as deputy attorney general following a nomination from Trump. With Sessions’ recusal, this effectively puts Rosenstein in charge of the FBI’s Russia investigation.

May 9. Trump fires Comey, citing as his rationale a report from Rosenstein criticizing Comey‘s handling of the investigation into Clinton‘s email server. (Trump later tells NBC’s Lester Holt that he was thinking about “this Russia thing” as he contemplated axing Comey.) With Comey out, McCabe becomes the acting director of the FBI.

May 10. Trump reportedly calls McCabe to chastise him for allowing Comey to return to D.C. on an FBI-owned plane after being fired.

May 12. Apparently responding to a Times story detailing Trump‘s request for loyalty from Comey, Trump tweets out a threat. This inspires Comey to ask a friend to leak information to the Times about Trump‘s request to let the Flynn investigation go. That story, implying an attempt to obstruct the investigation, runs on May 16. (Trump later accuses Comey of leaking classified information, an allegation that is not supported by the available evidence.)

May 17. Rosenstein, as acting lead on Russia following Sessions’ recusal, appoints Mueller as special counsel to investigate Russian meddling and any links to the Trump campaign. Strzok and Lisa Page are both included on Mueller‘s team.

July. Mueller learns about the Strzok-Page texts. Page has already left his team; Strzok is reassigned.

Aug. 1. Christopher A. Wray is confirmed as director of the FBI.

Aug. 22. Fusion GPS‘s Simpson testifies before the Senate Judiciary Committee.

Sep. 1. Nunes, despite his recusal, sends a letter on behalf of the House Intelligence Committee to Sessions claiming that the Department of Justice has been slow to respond to subpoena requests.

Oct. 24. The Post reports that the Steele dossier was funded by the DNC and the Clinton campaign.

Oct. 30. Mueller‘s team charges Trump‘s former campaign chairman, Paul Manafort, with conspiracy and money laundering. The team also reveals that Papadopoulos has admitted lying to the FBI and has apparently been cooperating with the investigation.

Dec. 1. In documents released by Mueller‘s team, Flynn admits lying to the FBI.

Dec. 2. The Strzok-Page texts are reported by The Post.

Dec. 7. Nunes is cleared of wrongdoing by the Ethics Committee on charges that he revealed classified information. This was the predicate for his recusal from the Intelligence Committee’s Russia investigation.

2018

Jan. 4. In a letter to Rosenstein, Nunes suggests that his committee is expanding its investigation to include the Department of Justice’s handling of the Russia investigation itself.

Jan. 9. Sen. Dianne Feinstein (D-Calif.) releases the transcript of Simpson’s Senate testimony.

Mid-January. Staffers for Nunes compile a four-page document summarizing classified information to argue that the FBI abused its power in its investigation of Trump‘s campaign. While the document is not public, it appears to argue that the FISA warrant issued for Page relied on information compiled by Steele, implying that the warrant should not have been issued and, apparently, that the process for requesting it was tainted by politics.

Jan. 18. Republicans and their allies — particularly in the media — rally around the memo, arguing that it should be released to the public.

Jan. 23. Axios reports that Sessions, at Trump‘s behest, had been pressuring FBI Director Wray to fire McCabe. In response, Wray reportedly threatened to quit.

Jan. 24. The Justice Department, which was not allowed to view the memo, warns the House Intelligence Committee that releasing it without allowing the FBI and Justice to review its contents would be “extraordinarily reckless,” risking the sources and methods used to collect the information underlying the information it contains.

Jan. 28. Wray is allowed to review the memo. Politico reports that Wray was told he could flag any concerns. Intelligence Committee ranking member Adam B. Schiff (D-Calif.) tells the outlet that Wray informed him that his concerns about the release of the memo were not entirely addressed.

Jan. 29. McCabe leaves his position as deputy director of the FBI effective immediately. Wray suggests that McCabe‘s early departure (he was scheduled to retire later this year) was in part a function of an upcoming inspector general’s report about the Clinton email investigation. The Times reports that Trump’s interest in the memo may stem in part from his belief that it casts Rosenstein in a negative light, since Rosenstein approved a request to renew the Page warrant after taking office last year. Rosenstein, as lead on the Russia investigation, is the only person directly authorized to fire Mueller.

Jan. 29, evening. The House Intelligence Committee votes, along party lines, to release the memo.

References:
Andrew C. McCarthy, “The Clamor Over the Nunes’ FISA-Abuse Memo,” Washington Review, January 25, 2018. Referenced at: http://www.nationalreview.com/article/455757/release-the-memo-lets-see-in-it

Zack Beauchamp, “The Real Reason the Nunes Memo Matters,” VOX, January 30. 2018. Referenced at: https://www.vox.com/world/2018/1/30/16950782/numes-memo-release

Tucker Carlson, FOX News, January 29, 2018. Referenced at YouTube: https://www.youtube.com/watch?v=QBpZ2wLcOfw

Philip Bump, “A Complete Timeline of the Events Behind the Memo That Threatens to rip D.C. in Two,” The Washington Post, January 30, 2018. Referenced at: https://www.washingtonpost.com/news/politics/wp/2018/01/30/a-complete-timeline-of-the-events-behind-the-memo-that-threatens-to-rip-d-c-in-two/?utm_term=.05c6da3df6e6

Nancy Pelosi: “Trump’s Immigration Plan is a Campaign to Make America White Again!”

PELOSI - Trump's Plan is Campaign to Make America White Again

by Diane Rufino, January 28, 2018

House Minority Leader Nancy Pelosi (D-CA) slammed President Trump’s framework for immigration reform that was submitted to lawmakers on Capitol Hill last Thursday, as he promised to do. The deranged, self-admitted “progressive left Democrat” vomited her opinion of the framework in a public statement: “Last night, the President put forth a plan….  That plan is a campaign to make America white again.”

She continued to spew the rantings of a demented diseased mind: “The Administration’s anti-immigrant framework is an act of staggering cowardice which attempts to hold the DREAMers hostage to a hateful anti-immigrant scheme. The 50 percent cut to legal immigration in the framework and the recent announcements to end Temporary Protected Status for Central Americans and Haitians are both part of the same cruel agenda. The DREAMers will not be ransomed for a hateful agenda that betrays our sacred American values.”As with the rest of “progressive left Democrats,” Pelosi has no clue whatsoever what “our country’s sacred American values are.”

 

Most of us in the Tea Party movement and in other conservative movements – as well as on shows like Tucker Carlson and Mark Levin – have spoken about how offensive the Democrat Party has become and how anti-America it has become over the years. In order to advance the Democrat Party, its leaders and members must trash America. There are enough single-issue voters, far too many ignorant and dependent-on-government individuals, and a growing number of social and psychological/biological misfits out there… conservative values stand in their way of living a life without producing anything or contributing anything, of getting other people’s money, or living their perverse lifestyles. They hate religion, they hate the notion of studying honest history (god forbid they learn something and it makes sense!), they hate the notion of education in general and being prepared to take a meaningful place in the workforce, they hate the notion of personal responsibility, they hate the notion of a stable traditional nuclear family, and they hate the fact that people cling to time-honored truths and values such as biology and the greatest obligation of a human being – to have and properly raise their next generation. Progressive Democrats must trash religion, the Constitution, our founding fathers, our founding principles, historic figures, and our history itself (except, of course, slavery. That topic must be emphasized again and again and again and again. Every time period in history must be de-emphasized EXCEPT for slavery and Jim Crow). They need poverty; they need people who live below the poverty line, and they need people who are content to live in poverty. People like that will never question anything as long as entitlement checks and programs support them.

Pelosi and Schumer, and in fact, almost the entire Democrat Party, take the side of illegals over the interests and concerns of American citizens. These party leaders live as royalty in this country and have no idea how illegal immigration is affecting our day-to-day lives, our communities, and even our ability to live an existence that isn’t consumed by politics and political correctness. Sanctuary cities… really???  Who really thinks this is a good idea? A jury that couldn’t provide justice for Kate Seinle….  Is it any wonder why it hardly feels like America anymore??  Day after day we learn about the deaths of innocent children – legal Americans – at the hand of illegals, including DREAMers, and the families that will forever grieve, and as well as other violent crime, including an increase in the drug traffic. They don’t talk about this aspect of illegal immigration. The liberal media doesn’t focus on any of this. They want Americans to believe that DREAMers and illegal immigrants are good and decent and loving and productive individuals, and a benefit to our country. They criticize those who point out the deaths and the violence and the increase in drugs and claim that a few bad examples must not condemn the entire population of DREAMers or illegals. Yet they had no problem condemning all those who voted for Donald Trump as “deplorables” and “racists.” They have no problem labeling all conservatives as “racist,” “islamophobic,” “homophobic,” “xenophobic,” and now, as “white supremacists.”

They give you the impression that DREAMers are just like other Americans and are on their way to contributing to our country. But they neglect to mention some very telling statistics about DREAMers. DREAMers have a 21% high-school drop-out rate. The national average is 5.1%. In Arizona, DREAMrs commit crime at two times the rate of ordinary legal citizens. And then there are the plain facts that Democrats find completely unimportant: that illegal immigration costs the US taxpayer $116 billion and it leaves our country open to those who mean to harm us and our children

Legal Americans dream too. But the Democrat Party doesn’t care about them, unless, of course, they are minorities, poor, and need something from government. Legal Americans dream that the country will be a decent place for them to live and that when they finish their education, find a job, build a career, start a family, and live a good and decent life that government won’t plunder their paychecks to subsidize those who can’t and won’t provide for themselves. Those who are citizens of the United States are guaranteed the “opportunity” to live the American Dream. That opportunity is increased the more the individual has some resources and is willing to get the education and use the ambition to seek it. That’s all they – we – are guaranteed. Our legal DREAMers want that opportunity – not reduced because others, not even entitled, are being offered it too. Those here illegally, no matter how they got here and no matter how heartbreaking the situation, are not ENTITLED to anything..  not to automatic citizenship and not to the American Dream. They MAY apply to become a legal citizen.

Legal citizenship comes with certain rights and privileges, such as protection under the US Constitution and access to our education and social programs, including healthcare. It also comes with a burden – a citizen must pay federal incomes taxes and live according to all the laws of the land, federal and state. Illegals want the best of both worlds – protection under our laws and access to education and social programs, but without the obligation of obeying our laws.

For those who are unclear as to what the term “DREAMer” stands for, it refers to those individuals, aged 18 or younger, who came to this country by their (illegal) parents. Because they came here through no fault of their own and have come to think of the United States as their home, Democrats (and Republicans like Lindsey Graham) have sought a plan to establish a  path to citizenship for them, known as the DREAM Act. Since 2001, Democrats have tried to pass a Dream Act but have never been successful in doing so. In 2012, President Obama was frustrated that Congress would not give him a bill, as he demanded, and so, as he promised, he used his pen to create an equivalent program. He signed an Executive Order creating the Deferred Action for Childhood Arrivals (DACA), a program that gave the head of Homeland Security the discretion to protect them (as a class) from deportation. DACA, even though it was an unconstitutional exercise of presidential power, must be renewed every two years, and President Trump has announced he would not renew it. Hence, the outcry from Democrats for a DREAM Act – a law protecting them by providing them a path to citizenship (amnesty).

Nancy Pelosi stands for everything ordinary Americans stand against. Every time she opens her mouth, she makes the case that our government is comprised of a bunch of useless bunch of individuals who care more about the longevity of their party than the longevity of our country. She is profoundly offensive.

Equally offensive are the protests of DREAMers and other illegals in response to the proposed Immigration plan that President Trump released on Thursday. Guaranteed citizenship (amnesty), albeit according to a 10-12 year timeline, is not good enough for them. Being protected under this plan from deportation is not good enough for them. I see Democrats are creating yet another class of ENTITLED individuals. God knows we already have too many of them of that kind already.

 

VIDEO:  https://www.youtube.com/watch?v=iwP_gB4bghs

 

Our Modern-Day Interposer, Judge Roy Moore

JUDGE ROY MOORE - with his statue

by Diane Rufino, January 25, 2018

I just wrote an article explaining the doctrine of Interposition and how vital a remedy it is against federal tyranny. (“Interposition: The Duty to Say “NO!”). In that article, I wrote: “Our challenge is to stand up as a people, and as individual States, to the government officials, the government bodies, and yes, even federal judges who are violating, ignoring, eroding, or otherwise re-interpreting the Constitution our Bill of Rights. Each unconstitutional act usurps the powers delegated or reserved to the People and the States. Nature’s Law supersedes man’s law. Every failure to resist the tyranny posed by an unconstitutional act tightens the noose around freedom’s neck.”

Explaining Interposition, I wrote

Since the Tenth Amendment cannot enforce itself, interposition is one of the doctrines that allows the States and the People to stand up for the rights that are reserved to them. Right now, the federal government has a monopoly over the meaning and scope of its powers. Congress makes the laws, the president signs the laws and enforces then, and the courts review them for constitutionality. It wasn’t always this way. The federal courts were originally only supposed to render an “opinion” to the other branches. They were to take that opinion under advisement and amend the particular law or alter their conduct. The “check” that the “opinion” offered was that it was public; once the States found out the opinion, as sovereigns and as the co-parties to the compact known as the US Constitution, they always had the option to nullify and refuse to enforce a law or policy that the court deemed as unconstitutional. But the judicial branch made sure that its power was much more substantial than rendering a mere opinion. The federal monopoly was established when Chief Justice John Marshall handed down the Marbury v. Madison opinion in 1803. Essentially the decision asserts that the Supreme Court is the tribunal tasked with interpreting the Constitution and as such, it’s “opinions” are not really “opinions” at all but binding decisions. Whatever the men in robes decide is the meaning and the intent of the Constitution IS the meaning and intent and its decisions are final and binding.

But rights and liberties are never secure when men and women have the power to interpret while also being motivated by political opinions, personal passions, etc. The Tenth Amendment MUST not be left to the federal government monopoly to ignore or re-interpret as it sees fit.

The remedy always available to those who hold the reserved powers is interposition – to recognize that certain acts are unconstitutional and exceed delegated powers (and hence are null and void and legally unenforceable) and then to take the necessary steps to make sure that they are NOT enforced. To allow them to be enforced is allowing government usurpation.

We saw an act of Interposition in 2010 or so when the state of Arizona took on the federal government. The Arizona state government was fed up with the fact that the Obama administration refused to enforce immigration laws. The State was being overly burdened by illegal immigration and without enforcement of federal laws or even an immigration policy, the problem was increasingly getting worse. So, the Arizona legislature passed a law giving its state law enforcement powers to determine which immigrants were undocumented and to require employers to do the same in the hiring process (e-verify). Without the ability to work in the state or to be free of law enforcement checks, perhaps the immigrants would leave. The Arizona legislature and Governor Jan Brewer interposed for the benefit of their citizens and for the proper functioning of the State. Quickly, however, Obama sued the State. How dare it interpose.

And then we saw the case of Judge Roy Moore in Arkansas. He dared to stand up to judicial tyranny.

It’s been a sad several years in America. Several decades actually. For 8 years, we had a president whose approach to government was that if he didn’t get what he wanted, “I’ve got a pen and I’ve got a phone.” When he didn’t get amnesty for illegals (The Dream Act), he acted by Executive Order to establish the DACA program (which is temporary amnesty for illegals, ages 18 and younger, brought to the US by their parents). It was UNCONSTITUTIONAL. He created a law which is the sole domain of the legislative branch. In fact, his action went directly against the actions of the legislature since Congress would not pass the Dream Act. He misled – no, LIED – to the American people with the Affordable Care Act, which eventually became law as a new tax. The law is UNCONSTIUTTIONAL as exceeding the bounds of the taxing power (the mandate is a “punishment” for not signing up for Obamacare and that is one of the classifications that the taxing power is not allowed to be used for). He refused to allow the federal government to enforce DOMA (Defense of Marriage Act), claiming that marriage is between any two consenting people, even same-sex. The Supreme Court would rule that the States have no right or power to define marriage narrowly so as to only be between a man and a woman. In other words, the Court handed down an UNCONSTITUTIONAL opinion by usurping a traditional power reserved to the States by the Tenth Amendment. Similarly, Obama threatened and attempted to coerce the states of North Carolina over bathrooms according to biological gender. He said that civil rights law would be “interpreted” (even though there was no court history to back him up and the law includes clear definitions) to include protection for transgenders in the term “it is unlawful to discriminate against an individual because of his or her sex.”

The Civil Rights Act of 1964 was enacted “To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity (EEOC), and for other purposes.” (intro of the bill). The Act provides that “It is unlawful to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.”

In the definition section of the Act, it provides: “(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions…”

Obama used the IRS to subdue the voice of Tea Party and other conservative groups by not allowing them to form into organizations and therefore participate in elections, he obstructed justice on too many matters to list here, and colluded with the DNC and Hillary Clinton and her campaign to use the full powers of the federal government to prevent Donald Trump from becoming president. His disdain for the US Constitution, for the Rule of Law, and for the rightful role of government was so palpable that the Tea Party arose. In fact, judging by the turn-out and the energy in 2016 and the election of Trump, it is abundantly clear that the American people are, at heart, Tea Partiers. They want limited government. But yet the media and the liberal left (the no-brainers) are still willing to give Obama a pass on all his acts of absolute tyranny.

We have Senator Chuck Schumer who intentionally shut down the government over a matter that nothing to do with the government funding bill and over a class of individuals who have no legal recognition in this country nor claim to protection under any of our laws. We have Nancy Pelosi who admits not only that she shouldn’t have to actually read a bill before signing it but that the Constitution means nothing to her. As if ignorance wasn’t her only defining characteristic, she also had the absolute gall to refer to a major tax cut for middle class Americans (one that has real meaning and real tangible benefits to most Americans) as “crumbs” (because, after all, we aren’t as wealthy as her – ie, we all didn’t have the opportunity to enrich ourselves while serving in office, AND we don’t have a government slush fund to cover our expenses) and to take all House Democrats out to a swanky Italian feast to celebrate the fact that they had just stopped paying our men and women serving in uniform, including at the dangerous Mexican border. And we have Rep. Maxine Waters who uses her office NOT to serve in the capacity she was elected to but rather to cry “racism” at every chance she gets, to continually label the president as racist, incompetent, rude, etc and to try to have him impeached on these unimpeachable claims. We have other representatives also so colossally incompetent, useless, and reckless.

But Judge Moore, a man who singlehandedly stood up to judicial tyranny and tried to set the Constitution right, is vilified. A man like him was not elected to DC. Democrats want Obama back, and in fact, they wanted someone worse (more corrupt) – Hillary Clinton. But Judge Moore was not suitable.

Just how did Judge Roy Moore interpose? In 1868, the Fourteenth Amendment was added to the US Constitution. I did not write “In 1868, the Fourteenth Amendment was passed” because it never did legally pass. And it wasn’t an amendment as much as it was “punishment” for the Southern states. The North forced it on the subjugated southern states. In fact, the amendment is not legitimate at all under the required process outlined in Article V. But for a moment, let’s suppose that it was. The amendment was intended as a codification of the Civil Rights Law at the time, the Civil Rights Act of 1866.

The Civil Rights Act of 1866, enacted on April 9, 1866, was the first federal law to define citizenship and affirm that all citizens are equally protected by the law. It was mainly intended to protect the civil rights of persons of African descent born in or brought to the U.S., in the wake of the American Civil War. In other words, it was intended to over-ride the portion of the Dred Scott decision of 1857 that said that persons of African descent (all blacks) were never intended to be citizens and therefore could not be so, and as such were not entitled to the protections of the US Constitution. The Civil Rights Act was actually enacted by Congress in 1865 but was vetoed by President Andrew Johnson. In April 1866, Congress again passed the bill as a companion to, and in support of, the Thirteenth Amendment. Although President Johnson again vetoed it, a two-thirds majority in each chamber overcame the veto and the bill became law. Rep. John Bingham (R-OH) and some other congressmen argued that Congress did not yet have sufficient constitutional power to enact this law and then the idea came to memorialize the Civil Rights Act in constitutional amendment form and force the former confederate states to ratify it (as a condition to being re-admitted to the Union. Note, they had been admitted to the Union implicitly by including them in the ratification process for the Thirteenth Amendment. But then they were “kicked out” again for the sole purpose of conditioning their re- re-entry on ratification of the Fourteenth Amendment !!]

So, assume the Fourteenth Amendment’s purpose (stated purpose in fact) was to provide citizenship for the newly-freed slaves and to recognize that as citizens, they also have the same rights and privileges as every other US citizen and they are entitled to equal protection under the laws. When the slaves were freed, the North wanted to make sure that the South couldn’t tacitly continue to treat them as slaves by denying them the rights and privileges necessary to assume an equal and meaningful place in society. Secretly, the North just wanted to make sure the freed slaves stayed in the South. The Supreme Court, however, found a way to use this amendment to usurp the original meaning of the Bill of Rights and to strip the States of their powers. Beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

Prior to the ratification of the Fourteenth Amendment and the development of the “Incorporation doctrine,” the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendments did not apply to state governments. [See Richard Aynes’ law journal article on the meaning and intent of the Fourteenth Amendment]. But the temptation to strip the States of its ability to remain free from the constraints of the Bill of Rights was too great. And little by little, areas historically reserved to the States to regulate have been taken away by nine men in black robes.

For example, with respect to the First Amendment: The guarantee against an Establishment of Religion was incorporated against the States in 1947 (Everson v. Board of Education – the infamous “Wall of Separation” case); the guarantee of one’s Free Exercise of Religion was incorporated against the States in 1940 (Cantwell v. Connecticut); the guarantee of Freedom of Speech was incorporated in 1925 (Gitlow v. New York); the guarantee of Freedom of the Press was incorporated in 1931 (Near v. Minnesota); the guarantee of Freedom of Assembly was incorporated in 1937 (DeJonge v. Oregon); and the guarantee of the Right to Petition for Redress of Grievances was incorporated against the States in 1963 (Edwards v. South Carolina). Now, most Americans might think that it’s a good thing to guarantee that the States can’t infringe these essential liberty rights, but history has shown that the Supreme Court has actually stripped individuals of their rights to self-governance in their States and localities by the Incorporation Doctrine. The federal courts are using it to establish a one-size fits all model across the United States. Each state will feel, and BE the same. There used to be the notion that each state had their own “character,” their own social environment and their conditions of living, as determined by those who live in that “backyard.” And those who don’t like the character or condition of their “backyard” are free to move to a state that is more to their liking. State borders are supposed to mean more than mere physical boundaries and confines of legal jurisdiction.

Alabama Supreme Court Judge Roy Moore understood the unconstitutionality of the Incorporation Doctrine. He understood the decisions amounted to judicial over-reach and judicial tyranny. And so, in 2001, when the first of two lawsuits was brought demanding that he take down the a 5,280-pound (2,400 kg) block of granite with the Ten Commandments engraved on it, which was placed in front of the Alabama state courthouse, he stood his ground. In the case Glassroth v. Moore (Fed District Court, 2003) [and the companion case Maddox and Howard v. Moore], the court agreed with the plaintiffs, lawyers who were concerned that their clients might feel they would not be treated fairly if they didn’t agree with the Judeo-Christian tenets, and held that the statue is an impermissible establishment of religion, violates the First Amendment as incorporated against the state of Alabama by the Fourteenth Amendment, and therefore had to be removed. Judge Moore refused. He appealed to the Federal Court of Appeals for the 11th Circuit but the panel of judges affirmed the lower court decision. Again Judge Moore refused to take the statue down. If the federal government wanted to erase any connection to the Ten Commandments at any federal court because God forbid it might convince someone that the government is establishing a national religion, then that was within the government’s right. But according to Moore, if the state of Alabama wanted to have the Ten Commandments at their courthouse to remind them “of a higher law,” to remind them of the moral foundation of law, and to also remind them of the provision including in the very preamble to the state constitution “that in order to establish justice we must invoke ‘the favor and guidance of almighty God,’” it had the right to do so under the rightful interpretation of the US Constitution and Bill of Rights, including the Fourteenth Amendment.

The other judges of the Alabama Supreme Court finally stepped in and had the statue taken away from the courthouse, and Judge Moore was removed from office for his refusal to comply with the federal court decision.

Indeed, as Mike Scruggs put it: “A great opportunity to insist on both States’ Rights and Religious Liberties was forfeited when the Governor and most of the Alabama Supreme Court failed to back Judge Moore in his resistance to federal judicial tyranny.”

All tyranny needs is people to do nothing.

Our government in Washington DC is full of people who don’t know how to say NO or even how to conduct themselves as government officials in accordance with the rightful authority given to them. Day upon day, we allow government tyranny, and especially, judicial tyranny. Do we even realize how many of our rights have been burdened over the years? We say we are “Free” but freedom implies the ability to exercise our God-given rights without condition and without government intervention or regulation. How “freely” are we really able to exercise our rights? Think on that as you self-censor, as you hide the cross around your neck in certain situations, as you decide not to put a bumper sticker on your car, as you decide not to say a prayer before your meal because someone might see you doing so, as you watch 1/3 of your hard-earned money get siphoned off by the government to spend predominantly on items that are unconstitutional, as you break into a sweat when April 15 comes around and you question whether you have saved all your receipts and if you have listed everything on your taxes so that you aren’t audited, and as you lose your job because someone in some cubicle somewhere was offended by something you said, posted in your private cubicle, wrote on FB, or something you wore around your neck or embossed on a tote bag.

Judge Moore may have been an unfavorable candidate, but it is most likely that the allegations against him were fabricated. He may be a flawed individual, but he is the RIGHT kind of individual for government. He is an unashamed, unapologetic, and undeterred interposer. Thomas Jefferson was a flawed man, as the left loves to point out, but he gave us the most consequential and meaningful document that any man has produced for mankind – the Declaration of Independence. The world has never been the same.

References:

VIDEO – President Obama, in a press conference, stating “I have a pen and I have a phone.” Referenced on YouTube: https://www.youtube.com/watch?v=G6tOgF_w-yI

Richard L. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal, October 1993, Pg. 57. Referenced at: http://www.constitution.org/lrev/aynes_14th.htm

Title VII of the Civil Rights Act of 1964 – https://www.eeoc.gov/laws/statutes/titlevii.cfm

“The Short History of the Battle Over the Ten Commandments in Alabama.” http://www.wsfa.com/story/421482/short-history-of-the-battle-over-the-ten-commandments-in-alabama

Lawrence “Mike” Scruggs, The Un-Civil War: Shattering the Myths; 2011, Universal Media (Charlotte, NC), Chapter 6.

INTERPOSITION: The Duty to Say “NO!”

NO - Just say NO (signs)

by Diane Rufino, January 25, 2018

The word Interposition means “to place between; cause to intervene.” In the context of the Constitution and the system of government it has established in this country, interposition is the doctrine that says that an individual State may oppose any federal action it believes encroaches on its sovereignty. It is a doctrine tied to the Tenth Amendment. The Tenth Amendment, as we all know, is a restatement of the fact that government power is split between two sovereigns, the federal government and the individual States. The Constitution establishes a horizontal separation of powers between the executive, legislative, and judicial branches at the federal level. By the very nature of its limited grants of delegated powers to those branches, the Constitution also establishes a vertical separation of powers between the federal government and the State governments. By “vertical,” we mean that the federal and State governments are co-equal sovereigns. The Tenth Amendment is a restatement of the fact that the Union is not a consolidated one with unlimited power at the federal level but rather a federation of sovereign states with most of the day-to-day running of people’s lives and governing of communities being reserved to the States and the powers to regulate for safety and security, immigration, commerce, and currency being delegated to the common government. Dual Sovereignty. The Tenth Amendment, quite simply, reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

Since the Tenth Amendment cannot enforce itself, interposition is one of the doctrines that allows the States and the People to stand up for the rights that are reserved to them.  Right now, the federal government has a monopoly over the meaning and scope of its powers. Congress makes the laws, the president signs the laws and enforces then, and the courts review them for constitutionality.  It wasn’t always this way. The federal courts were originally only supposed to render an “opinion” to the other branches. They were to take that opinion under advisement and amend the particular law or alter their conduct. The “check” that the “opinion” offered was that it was public; once the States found out the opinion, as sovereigns and as the co-parties to the compact known as the US Constitution, they always had the option to nullify and refuse to enforce a law or policy that the court deemed as unconstitutional. But the judicial branch made sure that its power was much more substantial than rendering a mere opinion. The federal monopoly was established when Chief Justice John Marshall handed down the Marbury v. Madison opinion in 1803.  Essentially the decision asserts that the Supreme Court is the tribunal tasked with interpreting the Constitution and as such, it’s “opinions” are not really “opinions” at all but binding decisions. Whatever the men in robes decide is the meaning and the intent of the Constitution IS the meaning and intent and its decisions are final and binding.

But rights and liberties are never secure when men and women have the power to interpret while also being motivated by political opinions, personal passions, etc. The Tenth Amendment MUST not be left to the federal government monopoly to ignore or re-interpret as it sees fit.

The remedy always available to those who hold the reserved powers is interposition – to recognize that certain acts are unconstitutional and exceed delegated powers (and hence are null and void and legally unenforceable) and then to take the necessary steps to make sure that they are NOT enforced. To allow them to be enforced is allowing government usurpation.

I. Interposition: Its Roots in the Magna Carta –

Interposition is a doctrine that the federal government abhors. Arizona tried to interpose in 2010 or so when it was fed up with the fact that the Obama administration refused to enforce immigration laws and the State was being overly burdened by illegal immigration. It passed a law giving its state law enforcement powers to determine which immigrants were undocumented and to require employers to do the same in the hiring process (e-verify). The Arizona legislature and Governor Jan Brewer interposed for the benefit of their citizens and for the proper functioning of the State. Quickly, however, Obama sued the State. How dare it interpose.

Where did this doctrine come from???

It has its roots in the Great English Charter itself – the Magna Carta, signed in the year 1215 by King John to formally recognize the “rights” recognized by ancient tradition and custom of the barons and other lower-class Englishmen. (Remember, this was Medieval England, the era of serfdom)

At the end of the Charter, the English barons included a section providing for the enforcement of its provisions. Section 61 read:

“Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us.”

Put simply, Section 61 established a representative group of 25 barons, to be selected as they see fit, who would be tasked with the responsibility of making sure that the promises made by King John when he signed the Charter are kept, even at the point of rebellion against him. This group of 25 “shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter.”

In other words, because the King may eventually ignore the promises he made, those who hold the rights and liberties have the right to decide when they’ve violated and then to take any and all steps to make sure that such violation is remedied.

I would argue that inherent in any compact that protects individual rights is the right of those who hold those rights to decide when they’ve been violated and then to take any and all steps to make sure that such violation is remedied.

I would also argue that in any social compact where government power is delegated and powers are reserved, that each party (the one receiving the delegated power and the ones holing the reserved powers) has the right to prevent the other from taking what is legally theirs. This doctrine therefore applies to the Constitution, itself being a social compact.

How did the Magna Carta come about?

II. The History – The Meeting at Runnymede and The Story of King John and the Magna Carta [Constitutional Rights Foundation, 2001. Referenced at: http://www.crf-usa.org/foundations-of-our-constitution/magna-carta.html ]

A. Who Was King John?

Myth and history are intertwined in the England of 800 years ago. We all remember the outlaw, Robin Hood. From his hideout in Sherwood Forest, he and his band of Merry Men preyed on the rich and gave to the poor. Their archenemy was the Sheriff of Nottingham, who took his orders from the sinister Prince John. While Robin Hood never existed, John certainly did. He was the central character in a real life drama that led to a milestone in human liberty: Magna Carta. Prince John’s older brother, Richard, became king of England when their father, Henry II, died in 1189. King Richard I (also called Richard the Lionhearted) spent almost the entire 10 years of his reign away from England. He fought in tournaments, led crusades and waged several wars on the continent of Europe.

Since Richard needed revenue to pay for his adventures, he taxed his subjects heavily. At one point Richard was captured by his enemies and held for ransom (a common practice in feudal Europe). Richard’s tax collectors in England had to raise an enormous sum of money to free him. Despite Richard’s demands, the people back home in England loved him as a conquering hero.

When Richard died in 1199, John became King. Unlike his brother, John tended to stay at home and run his kingdom on a day to day basis. John, however, continued his brother’s harsh tax policy. Because John lacked Richard’s heroic image and charisma, his subjects began to hate him for his constant demands for more tax money

B. King John vs. The Church –

King John made more enemies when he refused to accept the appointment of Stephen Langton as Archbishop of Canterbury, the most important position in the English Catholic Church. By so doing, John challenged the authority of Pope Innocent III in Rome, who punished John by excommunication. John retaliated by taxing the Church in England, confiscating its lands and forcing many priests to leave their parishes.

While King John carried on his dispute with the Pope, powerful English landowners called barons conspired against him. Fuming over John’s heavy taxes and other abuses of power, the barons plotted rebellion. To head them off, King John made an unexpected move.

In 1212, King John agreed to have Stephen Langton become Archbishop of Canterbury. John also promised to compensate the Church for its money and lands. John even went so far as to make England a fief of the Pope. King John still ruled England, but, as John’s liege lord, the Pope gained tremendous prestige throughout Europe. Pope Innocent was delighted and in 1213 ended John’s excommunication. With John now under the protection of the Church, the resentful barons retreated—at least for a while.

C. King John vs. the Barons —

Convinced that his throne was again safe, King John returned to one of his favorite projects. For years he had dreamed to retake possession of lands in France that had once belonged to his ancestors. Once before, John had led a military expedition to France. Although he won a number of battles, John failed to decisively defeat the French king. Now, in 1213, John planned another campaign.

An invasion of France required many soldiers and more money. Under feudal law, a liege lord had the right to call upon his vassals to provide knights or money during times of war. From the English barons, all vassals of King John, he demanded men-at-arms or gold to support his new French war. Many of the barons refused, having little interest in John’s quarrel with the French king. Enraged, King John set out to punish them by attacking their castles.

Early in 1214, he abandoned his domestic quarrels and left with a force of loyal barons and mercenaries (paid soldiers) for France. History repeated itself. John succeeded in winning some battles, but failed to gain control of the disputed lands.

D. The Road to Runnymede —

Soon after returning to English soil in October 1214, King John resumed his demand for money from the rebellious barons. His demands fell on deaf ears. Sensing John’s weakness after his failure in France, the barons began to make their own demands. In January 1215, a group of them appeared before King John asking for a written charter from him confirming ancient liberties granted by earlier kings of England. Evidence suggests that the newly appointed Archbishop Stephen Langton may have encouraged these demands.

John decided to stall for time; he would give the barons an answer later in the spring. In the meantime, John sent letters to enlist the support of Pope Innocent III, and also began to assemble a mercenary army.

In April, the barons presented John with more specific demands. John flatly rejected them. He remarked: “Why do not the barons, with these unjust exactions, ask my kingdom?”

In response, the barons withdrew their allegiance to King John, and started to form their own rebel army. At the head of the rebel forces was Robert FitzWalter, who called himself “Marshal of the army of God and Holy Church.” In an effort to cool things off, John proposed that the Pope settle their differences. With the Pope openly siding with King John, the barons refused. John ordered his sheriffs to crush the rebel barons and they retaliated by occupying London.

A stalemate ensued. The 40 or so rebel barons and their forces held London as well as their own fortified castles throughout England. King John commanded a slightly smaller force of loyalist barons and mercenaries. Unaligned were about 100 barons plus a group of church leaders headed by the ever-present Archbishop Stephen Langton. Langton (who was sympathetic to the rebels if not one himself) began to work for a negotiated settlement to prevent all-out civil war and arranged a meeting to be held at Runnymede, a meadow on the Thames west of London.

E. Meeting at Runnymede —

King John and his supporters, the rebel barons, the neutrals, church leaders and Archbishop Langton all met at Runnymede on June 15, 1215. Actually, the Charter was negotiated at Runnymede between 10 and 15 June 1215, with King John riding down each day from Windsor, and the barons encamped in their tents across the meadows beside the Thames. Significantly, while most of King John’s fighting men were scattered throughout his kingdom, the rebels appeared at full military strength.

Little is known about the details of this historic meeting, but we do know that King John placed his seal of approval on a document called the “Articles of the Barons.” Over the next few days these articles were rewritten, expanded, and put into the legal language of a royal charter. At some point, probably on June 19, King John put his seal on the final draft of what we call today “Magna Carta” or “The Great Charter.” In exchange, the rebellious barons renewed their oath of allegiance to King John, thus ending the immediate threat of civil war.

With the document, the nobles compelled John to execute this recognition of rights for both noblemen and ordinary Englishmen. The Charter begins with Article 1, which, besides asserting that “the English Church shall be free,” also states: “We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.” Besides recognizing the right of the church to be free from governmental interference, the Magna Carta also recognized the rights of all free citizens to own and inherit property and to be protected from excessive taxes through representation in a “common counsel.” It established the principles of due process and equality before the law, the right to a jury of one’s peers, and the right of widows who owned property to choose not to remarry. It also contained provisions forbidding bribery and official misconduct.

And, as mentioned earlier, it included an enforcement provision: Section 61 read: “61. Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us.

Tricky to the end, however, King John left off the names of the 25 barons who were to be tasked with the enforcement of the charter’s terms. By doing so, John intended to downplay the enforcement provision and in general hoped the Charter would become no more than a toothless symbol of his generosity to the kingdom.

Magna Carta of 1215 was not really intended to be a list of rights for Englishmen or even the barons themselves. It was more like a contract in which John bound himself to abide by its provisions. The barons only wanted King John to satisfy their complaints against his abusive rule, not overthrow the monarchy. The real significance of this document lies in the basic idea that a ruler, just like everyone else, is subject to the rule of law. When King John agreed to Magna Carta, he admitted that the law was above the king’s will, a revolutionary idea in 1215.

F. Aftermath —

King John surrendered significant power when he agreed to Magna Carta. It is doubtful that he really ever intended to live up to all his promises. Certainly, the barons hoped that its terms would be rigorously enforced. While John did satisfy some of the barons’ personal grievances, he secretly wrote the Pope asking him to cancel Magna Carta on the grounds that he signed it against his will. At the same time he continued to build up his mercenary army. Not trusting John’s intentions, the rebel barons held on to London and maintained their own army.

Pope Innocent III replied favorably to King John’s appeal. He condemned Magna Carta and declared it null and void. By September 1215, King John and his army were roving the countryside attacking the castles of individual barons, but he avoided the rebel stronghold of London. The barons charged that King John had defaulted on his agreement with them and they were justified in removing him from the throne. They offered the throne to the son of the French king, if he would aid their rebellion.

A long and bloody civil war loomed across England, when suddenly, King John died. A round of heavy eating and drinking apparently led to a case of dysentery causing his death on October 18, 1216. Ten days later John’s nine-year-old son, Henry, was crowned as the new king of England. With John out of the way, the conflict gradually ceased. Less than a month after Henry was crowned, his supporters confirmed Magna Carta in his name. This time it received the approval of the Pope.

Magna Carta, carrying with it the idea of “the rule of law,” was reconfirmed a number of times over the next 80 years, becoming a foundation of English law. Eventually, Magna Carta would become the source of important legal concepts found in our American Constitution and Bill of Rights. Among these are the principle of no taxation without representation and the right to a fair trial under law. These foundations of our own constitutional system had their beginnings in a meadow beside a river almost 800 years ago.

III. CONCLUSION

As I hope you all remember from school, the Magna Carta was a crucial turning point in the struggle to establish freedom and recognize individual rights. The ancient laws and customs by which England had been governed, and which had been abused by the King, were enumerated most clearly and explicitly on its parchment. His signature, his assent, was demanded by those who refused to be mistreated any longer by him. These ancient laws and customs, defended strongly by those who believed were not to be transgressed by the King, would eventually be thought of as human rights.

The next recorded milestone in the development of these “human rights” would be the Petition of Right, drafted in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties and a reminder of the obligation of Kings to recognize that the throne is not above the law. (See my recent article “The English Roots of American Liberty,” January 20, 2018)

Winston Churchill once admonished the free world to learn to pronounce the word “No.” Summoning the wisdom of Alexander the Great, Churchill, in the face of Nazi aggression, challenged the free world to muster the courage to tell Hitler “no.” In his famous October 16, 1938, broadcast to the United States and England, termed “The Defense of Freedom and Peace: The Lights are Going Out”, Churchill reflected: “Alexander the Great remarked that the people of Asia were slaves because they had not learned to pronounce the word ‘No.’ Let that not be the epitaph of the English-speaking peoples or of Parliamentary democracy, or of France, or of the many surviving liberal States of Europe.”

If we don’t learn to say “NO,” then it may also become the epitaph of the United States.

It takes courage to stand up against a person or a body having great power. It often comes at some personal sacrifice. Our challenge is to stand up as a people, and as individual States, to the government officials, the government bodies, and yes, even federal judges who are violating, ignoring, eroding, or otherwise re-interpreting the Constitution our Bill of Rights. Each unconstitutional act usurps the powers delegated or reserved to the People and the States. Nature’s Law supersedes man’s law. Every failure to resist the tyranny posed by an unconstitutional act tightens the noose around freedom’s neck.

References:
The Magna Carta – http://www.constitution.org/eng/magnacar.htm

“The Meeting at Runnymede: The Story of King John and Magna Carta,” 2001, Constitutional Rights Foundation, 601 South Kinglsey Drive, Los Angeles, CA 90005. Referenced at: http://www.crf-usa.org/foundations-of-our-constitution/magna-carta.html [Section II, Parts A, B, C, D,, and F are taken directly from this source. Only a part of Section E comes this source].

Diane Rufino, “The English Roots of American Liberty,” For Love of God and Country (Diane’s blog), January 20, 2018. Referenced at: https://forloveofgodandcountry.com/2018/01/24/the-english-roots-of-american-liberty/

Jason K. Allen, “Pronouncing the Word ‘No’: The Most Important Lesson I Learned from Al Mohler,” Jason Kallen’s Blog, Nov. 9, 2015. Referenced at: https://jasonkallen.com/2015/11/pronouncing-the-word-no/