John Eastman

The 14th Amendment vs. Trump

Published by Papa Giorgio

This will be my first installment to a legal challenge just getting underway in keeping Trump from office. Some say this is new, it is not. Some say Trump being charged with “insurrection” isn’t needed, it is. David Frum correctly says the Court will decide in the end. Frum also notes that if this tactic is opened up, our body-politic will be riddled with keeping our political foes from office. More distortions of the law will surely come as the Left uses Lawfare to attack the “Democracy” they say they want to protect. As more is written on these challenges and the hyperbole from the MSM and politicians splash into our lives, I will be posting on this more in the future.

This old challenge reignited “anew” by a couple Federalist legal scholars [as well as some Leftist scholars] is that Trump can be barred from future office positions due to “insurrection.”

This will be a thing.

THE CHALLENGE EXPLAINED A BIT

  • Two Federalist Society law professors have published their findings stating that Trump is disqualified from serving as President based on the originalist interpretation of the 14th amendment ban on anyone who has engaged in insurrection against the United States from running for office. (MTN)
  • Donald Trump is ineligible to become president again, leading conservative scholars argue. “The Fourteenth Amendment, Section 3 says that anybody who takes an oath to uphold the Constitution and thereafter engages in or gives aid and comfort to an insurrection cannot hold any office under the United States, period,” Harvard University Carl M. Loeb University Professor of Constitutional Law Emeritus Laurence Tribe tells Joy Reid. (YAHOO NEWS)

Firstly, as much as the Left opines that an insurrection conviction isn’t needed, it is, in reality, in order to bar Trump from office. If the Left tries to push this thru without a solid legal ground, the electorate will clearly note this and there will be hell to pay.

And, I assume, in the end the Supes will need to get involved. Especially if pushed thru before the election like Trump’s 2nd shampeachment.

More on SCOTUS from David Frum below.

COURT CASE ALREADY STARTED

Here is a recent news story of a Florida case already being pushed thru:

A Florida lawyer is challenging former President Trump’s ability to run for president in 2024 under the U.S. Constitution’s 14th Amendment, citing the Jan. 6, 2021, Capitol attack.

Lawrence Caplan, a tax attorney in Palm Beach County, filed the challenge in federal court Thursday, pointing to a clause in the amendment that says those who “have engaged in insurrection or rebellion” against the government cannot hold office.

(YAHOO NEWS)

Here is a video, also Left leaning, explaining the issue well:

  • MeidasTouch host Ben Meiselas reports on a new disqualification lawsuit filed against Donald Trump in Florida federal court under the 14th Amendment Section 3.

PUSHING BACK ON THIS IDEA

[As an aside: just to note officially on my site, the current cases against Trump are being rushed through the courts, however, Alan Dershowitz and Jonathan Turley both say isn’t going to happen.]

THE FEDERALIST has this response to a recent 126-page paper on Trump not being eligible for the Presidency:

….Despite the scenes of the attack on the Capitol and extensive investigations, the American people do not seem to agree that Trump took part in an insurrection or rebellion. Almost half the respondents in a THE HILL rejected the claim that the events of Jan. 6 were an actual “insurrection” (with the divide tracking partisan lines), and 76 percent viewed it as a “protest gone too far.”

Other considerations also call into question the claim that Trump instigated an “insurrection” in the constitutional sense. If it were clear that Trump engaged in insurrection, the Justice Department should have acted on the Jan. 6 Committee’s referral for prosecution on that charge. Special Counsel Jack Smith should have indicted him for insurrection or seditious conspiracy, which remain federal crimes. If it were obvious that Trump had committed insurrection, Congress should have convicted him in the two weeks between Jan. 6 and Inauguration Day. Instead, the House impeached Trump for indictment to insurrection but the Senate acquitted him.   

The Senate’s acquittal is the only official finding by a federal or state institution on the question of whether Trump committed insurrection. The failure of the special counsel to charge insurrection and the Senate to convict in the second impeachment highlights a serious flaw in the academic theory of disqualification.

According to Luttig and Tribe, it appears self-evident that Trump committed insurrection. They assume Trump violated the law without any definitive finding by any federal authority. According to their view, he must carry the burden of proof to show he is not guilty of insurrection or rebellion — a process that achieves the very opposite of our Constitution’s guarantee of due process, which, it so happens, is not just provided for by the Fifth Amendment, but reaffirmed in the same 14th Amendment that contains the disqualification clause. It would be like requiring Barak Obama to prove he was native-born (a constitutional prerequisite for being president) if state election officials disqualified him for being foreign-born.

The Electoral College Chooses Presidents, Not State Officials

If this academic view were correct, it would throw our electoral system into chaos. One of the chief virtues of the Electoral College system is that it decentralizes the selection of the president: State legislatures decide the manner for choosing electors, with each state receiving votes equal to its representation in the House and Senate. States run the elections, which means that hundreds, if not thousands, of city, county, and state officials could execute this unilateral finding of insurrection. A county state election official, for example, could choose to remove Trump’s name from printed ballots or refuse to count any votes in his favor. A state court could order Trump barred from the election. A state governor could refuse to certify any electoral votes in his favor. The decentralization of our electoral system could allow a single official, especially from a battleground state, to sway the outcome of a close race in the 2024 presidential election.

Allowing a single state to wield this much power over the federal government runs counter to broader federalism principles articulated by the Supreme Court. In our nation’s most important decision on the balance of power between the national government and the states, McCullough v. Maryland, Chief Justice John Marshall held that a single state could not impose a tax on the Bank of the United States. Marshall famously observed that “the power to tax is the power to destroy.”

Marshall may well have frowned upon single state officials deciding to eliminate candidates for federal office on their own initiative. The Supreme Court lent further support for this idea in United States Term Limits v. Thornton (1995), which held that states could not effectively add new qualifications for congressional candidates by barring long-time incumbents from appearing on the ballot. Writing for the majority, Justice Stevens argued that allowing states to add term limits as a qualification for their congressional elections conflicted with “the uniformity and national character [of Congress] that the framers sought to ensure.” Allowing state election officials to decide for themselves whether someone has incited or committed insurrection, without any meaningful trial or equivalent proceeding, would give states the ability to achieve what term limits forbid.

[….]

We are not apologists for Trump’s spreading of baseless claims of electoral fraud or his efforts to stop the electoral count on Jan. 6. But as with the weak charges brought by the special counsel, the effort to hold Trump accountable for his actions should not depend on a warping of our constitutional system. Prosecutors should charge him with insurrection if they can prove it and have that conviction sustained on appeal. Congress should disqualify Trump if it can agree he committed the crime. Ultimately, the American people will decide Trump’s responsibility for the events of Jan. 6, but at the ballot box in 2024’s nominating and general elections for president…

TRUMP NOT CHARGED with INSURRECTION

Insurrection is still key in this endeavor, and, as mush as Laurence Tribe thinks it is self evident, the case has not been made. In THE AMERICAN SPECTATOR has a great little article worthy of noting,

For 31 months, the Democrats and their allies in the corporate media have characterized the Capitol Hill chaos that erupted on Jan. 6, 2021 as an “insurrection.” The House of Representatives reinforced this version of events by impeaching then-President Trump for “incitement of insurrection.” The Senate acquitted him, of course. Nonetheless, the House Select Committee to Investigate the January 6th attack referred the case to the Justice Department for further investigation. Consequently, it was something of a surprise that the formal indictment unsealed last Tuesday by Special Counsel Jack Smith failed to charge Trump with fomenting insurrection.

This must have been particularly frustrating for those who have long insisted that the 14th Amendment prohibits Trump from serving a second presidential term. The primary purpose of the 14th Amendment was, of course, to grant citizenship to emancipated slaves. However, it also includes language in Section 3 that bars anyone who has “engaged in insurrection or rebellion against the [United States]” from holding office in the federal government. This passage was included to prevent former officials of the Confederacy from returning to Congress and creating more mischief. The problem with using this clause against Donald Trump is explained by constitutional law professor Josh Blackman in Reason:

In some legal circles, advocates contend that it is so obvious that Trump committed insurrection. Yet, the special counsel, after studying the issue for months, opted not to bring that charge. Why? Perhaps Smith determined that he could not prove beyond a reasonable doubt that Trump engaged in insurrection. Or maybe Smith determined there were considerable legal questions about how to obtain such a conviction – most critically, was there an actual insurrection? (Yes, for the Supreme Court to knock Trump off the ballot, you need five votes to say that there was an insurrection as a matter of law – good luck with that!)

It evidently never occurred to the victims of Trump Derangement Syndrome that “insurrection” is a legal term with an actual definition in the U.S. Code. In order to convict former President Trump of this crime, the Special Prosecutor must prove that he fits the following description in 18 U.S.C. § 2383: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” Anyone convicted of insurrection can expect a long prison term and a hefty fine. It would be difficult to convict Trump under this statute, considering that not one participant in the Jan. 6 riot has been charged with insurrection…..

DAVID FRUM’S ATLANTIC PIECE

And it may be a 50-state attempt, which will push it to the Supes sooner rather than later. David Frum, a #NeverTrump guy, notes this will be a failed endeavor by simply stating in his ATLANTIC piece:

  • “The fourteenth amendment won’t save us from Donald Trump.”

Continuing he states:

….The least of these problems is the legal one: whether Trump’s scheme to seize the presidency by fraud, then violence, amounts to a “rebellion” or an “insurrection” under the amendment. There will be a lot of disagreement on that point, enough to generate litigation. But let’s suppose that the excluders win in court or that the courts abdicate altogether, kicking the dispute back to the elected branches of government as a “political matter.”

In that case, the use of the section to debar candidates would not stop at Trump. It would become a dangerously convenient tool of partisan politics.

LET’S RECONSIDER the text:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Because Section 3’s meaning seemed so obvious in 1866, a lot of the hard questions about its interpretation and application were shrugged off. I’ll nominate just two examples.

First, the section does not apply only to candidates for president—it does not even mention the president. It mentions senators, House members, electors, and civil and military officers of the United States or any state. The section appears to apply to the presidency only as part of that final catchall category.

Second, that phrase “aid and comfort to the enemies thereof”—what does that mean? The language is copied from Article III, Section 3 of the Constitution. But there, the language was drafted to make it difficult to convict an accused person of crime: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

David H. Gans: The Fourteenth Amendment was meant to be a protection against state violence

Section 3 of the Fourteenth Amendment strips away all of the 1787 restrictions: the overt act, the two witnesses, the requirement of public confession. The question of what constitutes “aid and comfort” is left to the judgment of … wait—Section 3 gives no clue about how it should be enforced or by whom. Again, that’s understandable. In 1866, none of this looked complicated. But in a modern context, that enforcement question of a reactivated Section 3 will be nasty.

Consider the scenario in which Section 3 is invoked against Trump in 2024. Although he has won the Republican nomination, Democratic secretaries of state in key states refuse to place his name on their ballots, as a person who engaged in insurrection against the United States. With Trump’s name deleted from some swing-state ballots, President Joe Biden is easily reelected.

But only kind of reelected. How in the world are Republicans likely to react to such an outcome? Will any of them regard such a victory as legitimate? The rage and chaos that would follow are beyond imagining.

And then what? If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as “aid and comfort” to enemies of the United States. Didn’t progressive Representative Ilhan Omar once seemingly equate al-Qaeda with the U.S. military? Do we think that her political enemies will accept that she was making only a stupid rhetorical point? Earlier this year, Tennessee Republicans tossed out of the legislature two Black Democrats for allegedly violating House rules. Might Tennessee Republicans next deem unruly Democrats “rebels” forbidden ever to run for office again?

Where are the federal courts in all this? Do they actually stand aside as local officials exercise veto power over who’s a loyal enough American to be listed on the ballot for county commissioner? Do they really let the “elected branches” decide? And what would that mean in practice? The section transfers an otherwise presidential prerogative, the pardon power, to Congress. If the courts step back, does that not imply that the House and Senate must somehow find a way to wield the power of the section together?

That seems unlikely. But the alternative of judicial decision is fraught with institutional risks too. Imagine a serious effort to block Trump from appearing on ballots in 2024, and then suppose he challenges that block in court—and ultimately wins a ruling in his favor from the Supreme Court, by a margin of 5–4 or even 6–3. Now the rage and chaos would be reversed. A pro-Trump Thomas-Alito-Gorsuch-Barrett-Kavanaugh majority might obliterate whatever deference the Court still commands among Democrats and liberals. Although much is wrong with the present Court, this country will not be in a better or happier place if it loses its last, imperfect arbiter….

UPDATED ON 09/18/2023 | CNN Transcript

A CNN interview was just pointed out to me where a “not-fan of Trump” said rationally what David Frum said, and that is, allowing states to go down this path will create vindictive cross-fire that will spread through our body-politic:

STERLING: What we need to do is focus on the voters. We have a Constitutional Republic of laws that essentially empowers voters to make decisions. They make good ones. They make bad ones. They generally come out OK. We have to trust the voters in this. And anybody using an electoral scheme or a constitutional interpretation to remove anybody from the ballots is going to be a dangerous precedent.

Because I can guarantee you what happens, it start up from the Bork hearings in ’86. One side does one thing, the other side does something else. The other side blames the last side for doing it. There will be a Republican saying, you have violated your oath of office under the Constitution. I’m barring you from the ballot. That’s all we’re going to see happening. We need to have grown-ups in the room look at the long term implications of these things. Whether we disagree with the individual candidate or loved a individual candidate.

FRUM IS RIGHT

Bottom line?

IN THE END, SCOTUS SAVES THE DAY

And Frum is exactly right on this point as well: Republicans will hunt for Democrats to disqualify. As much as I love the GOP using the Dems tactics against them. Take for instance Mitch McConnell’s warning to Harry Reid, which came to fruition when the Republicans [thankfully] used to get judges onto the bench that were center-right. If this “insurrection/sedition” tactic is unleashed, our system will have a ton of these potholes, forever disrupting the turnover of power peaceably.

ALREADY TRIED

The WASHINGTON TIMES also notes that this effort has already been unsuccessful with other Republican candidates

….According to the Congressional Research Service, a nonpartisan shared staff to congressional committees and members of Congress, “Invocation of the Disqualification Clause raises a number of novel legal questions involving the activities that could trigger disqualification, the offices to which disqualification might apply, and the mechanisms to enforce disqualification.”

CRS’ analysis of the 14th Amendment relating to the Capitol events adds, “The clause has been seldom used, and the few times it has been used in the past mainly arose out of the Civil War—a very different context from the events of January 6.”

Citizens for Responsibility and Ethics in Washington have joined Free Speech for People with plans to hit Mr. Trump‘s campaign with legal broadsides under Section 3 of the 14th Amendment.

They have written letters to state election officials requesting them to block Mr. Trump from the ballot and are preparing voter lawsuits and state election board complaints.

Section 3 of the 14th Amendment, enacted after the Civil War during Reconstruction, disqualifies someone from holding office after taking an oath to uphold the U.S. Constitution but later engages in “insurrection or rebellion” against the country.

The clause was intended to deal with Confederate rebels who went to war against the Union or provided aid or comfort to national enemies.

Throughout 2022, liberal organizations such as Free Speech for People and Our Revolution sent letters urging election officials in all 50 states to disqualify Mr. Trump and his allies from qualifying for the ballot.

The groups cited the 14th Amendment, ratified in 1868, to make a case for barring lawmakers and the former president from running campaigns because of their perceived role in inciting the protest.

Liberal activists’ 2022 legal attempts under the 14th Amendment, however, to throw Republican House lawmakers they contended were “insurrectionists” off ballots in their home states were all unsuccessful.

These lawmakers were Reps. Marjorie Taylor Greene of Georgia, Paul Gosar and Andy Biggs of Arizona, Tom Tiffany and Scott Fitzgerald of Wisconsin, Madison Cawthorn of North Carolina and Sen. Ron Johnson of Wisconsin.

A law firm recently filed a lawsuit arguing that former President Donald Trump can be disqualified from the elections. And while this is new, it pulls from an agenda that the establishment has been proposing since 2021. The basis is Section 3 of the 14th Amendment, ratified in 1868 just after the Civil War. It says a person can be banned from election or appointment to any level of government office if they “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.” The establishment has been arguing this could apply to President Trump’s actions to challenge the 2020 election, and for his alleged role in Jan. 6.

HOWEVER, as pointed out, Joshua Philipp points out this has already been tried, and failed:

MORE TO COME IN THE FUTURE, FOR SURE.

Federalist Bonus
John Yoo & John Malcolm

Below are four excerpts from a longer FEDERALIST SOCIETY discussion between John Malcolm and John Yoo: “A Conversation on the Right: The Current State of Presidential Power”.

EXCERPT ONE:
John Yoo Says That January 6th Was “Thee Most Important Legal Event”

In this excerpted discussion John Yoo notes that the January 6th stuff is not nearly as strong as the Mara-Lago case (and in the fuller video he throws cold water on that as well). John Malcolm also discusses the ability of counsel to delve into all sorts of avenues of legal thought and advice. Jack Smith laid out an argument that undercuts his and Georgia’s entire case [should watch the above linked video for more]:

3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He w6as also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful. (HERITAGE FOUNDATION)

EXCERPT TWO:
Insurrection and Sedition Not Part of Indictments | PLUS: Trump’s State of Mind

In this excerpted discussion John Yoo notes the lack of “insurrection” or “sedition” in the indictments. John Malcolm speaks to Trump’s clear words of “peacefully and patriotically marching” – which he says is not in the record of the indictment. Trump’s state of mind is discussed a bit.

EXCERPT THREE:
Brad Raffensperger/Trump Phone Call Dissected by John Malcolm

In this excerpted discussion John Malcolm quickly notes the failure of any criminal law breaking in the phone call between Georgia Secretary of State Brad Raffensperger and Donald Trump regarding the “finding” of votes. The worst of intentions is applied to Trump by those that dislike him, however, the law done well looks beyond people’s opinions of him.

EXCERPT FOUR:
A Question About What Type Of Legal Advice John Eastman Gave

This is a question regarding John Eastman’s legal advice from the Q & A portion of the video.

Trump’s Lawyer, John Eastman, Explains Why He Claimed the 5th

Published by Papa Giorgio

As you will hear, his oath to the law made him take the 5th. I truncate a larger interview between John Eastman and Dennis Prager (12-6-2021). “Everyone knows the Jan 6th committee is a sham. It is filled with Democrats and two hand-chosen Republicans [against House rules] who are trying to save their political careers” (PALMIERI REPORT).

Here is an excerpt from AMERICAN GREATNESS that is a good read

Eastman is a highly respected constitutional law professor who acted as an attorney to President Donald Trump. Eastman has been called to appear before the House of Representatives’ “January 6 Committee.” This committee is an extraordinary departure from the role of Congress and from basic procedural fairness. The very legality of the committee is in question, as it includes no ranking minority member. It appears to have been stacked by House Speaker Nancy Pelosi (D-Calif.) with partisans for whom the outcome of the investigation is known before the investigation has begun. Eastman has very wisely declined to participate in this partisan denigration of procedural fairness, and has invoked his Fifth Amendment right against self-incrimination. 

No person may be compelled to be a witness against himself in a criminal case. This is fundamental to our republican form of government. The origin of this rule, as illustrated at length by the famous Claremont professor Leonard Levy, is the necessity of forcing the state to produce evidence of a crime, to guard against the political persecution of enemies and the possibility of manufacturing evidence through coercion. Our legal tradition holds that no inference should ever be made as to guilt by the invocation of this sacred Constitutional right and rule of procedural fairness.

These safeguards are more urgent now than ever before. Every intelligent and educated citizen who is willing to face the truth, to look past the official narratives of the establishment media, can see the facts and the direction in which events are moving.

[….]

But, for those deemed enemies of the regime, no protection is given for the express right to a trial prior to punishment. 

The rule of law itself is at stake in this controversy. This growing danger must be firmly resisted now, before it is too late.

You can contribute to John Eastman’s legal defense fund HERE. 

The following is a link to a three hour video of people that probably have already been arrested and need felony assault charges [again, probably already done].

Of course none of this would have happened if they listened to Trump and Federal Authorities**… which is why they illegally banned [and thus made the J6 Committee illegal] Rep. Jim Jordan and Rep. Jim Banks:

  • “Pelosi Owns The J6 Commission, And That’s Why It Failed” (THE FEDERALIST)

Here is an excerpt:

….Pelosi’s decision to politically exploit the riot at the Capitol was a no-brainer. Democrats nearly lost the chamber in 2020 when Democrats took control of the Senate and presidency. The president’s party almost always loses significant numbers of House seats during midterm elections. The only time that didn’t happen in recent history was 2002, following the 9/11 terrorist attacks. Pelosi understandably felt her best bet to preserve power was, with a massive assist from left-wing media, to somehow turn disgruntled Donald Trump supporters’ riot at the Capitol into the next 9/11.

There were massive problems with the scheme. For one thing, Republicans had immediately and vociferously denounced the riot. This was a far cry from the Summer of Violence, when Democrats and their media enablers cheered as leftist groups destroyed sectors of cities throughout the country, resulting in “some 15 times more injured police officers, 23 times as many arrests, and estimated damages in dollar terms up to 1,300 times more costly than those of the Capitol riot.”

Democrats did not condemn these serious and lengthy attacks on the White House, federal courthouses, police buildings, private businesses, and homes. Instead, they joined with the rioters in calling for the defunding of police and other radical measures.

The riots were the result of a deeply destructive lie, pushed by top Democrats, that the country and its policing are irredeemably evil and racist. What’s more, any and all attempts to quell the siege of federal buildings were condemned in the most hysterical terms by Pelosi and other Democrats.

Kamala Harris, then a senator from California and the Democrats’ vice-presidential nominee, supported bailing out rioters who destroyed much of Minneapolis. Pelosi pooh-poohed the destruction of federal statues and historical markers. Republicans had consistently opposed political violence, beginning in the summer of 2020, but Democrats had not…..

END NOTE

** What is not known by the typical cable news watcher, probably, is that both the Capital Police and the mayor of D.C. turned down offers to help secure the government areas before and as the mob of crazed Lefties and Righties descended on the Capital:

  • …Three days before the riot, the Pentagon offered National Guard manpower. And as the mob descended on the building Wednesday, Justice Department leaders reached out to offer up FBI agents. Capitol Police turned them down both times, according to senior defense officials and two people familiar with the matter. Despite plenty of warnings of a possible insurrection and ample resources and time to prepare, police planned only for a free speech demonstration. (WASHINGTON TIMES)
  • Washington, D.C. Mayor Muriel Bowser told federal law enforcement to stand down just one day before a mob of Trump supporters breached the U.S. Capitol on Wednesday, smashing windows, entering the chambers, and forcing lawmakers and congressional staff inside into lockdown. “To be clear, the District of Columbia is not requesting other federal law enforcement personnel and discourages any additional deployment without immediate notification to, and consultation with, MPD if such plans are underway,” Bowser wrote in a letter to acting U.S. Attorney General Jeffrey Rosen, acting Secretary of Defense Chris Miller, and Secretary of the Army Ryan D. McCarthy. According to Bowser, D.C.’s Metropolitan Police Department in coordination with the U.S. Park Police, Capitol Police, and Secret Sevice were well-equipped to handle whatever problems could come up during the Trump rallies planned for Wednesday. (THE FEDERALIST)

John Eastman’s Thoughts On 2020 Election Fraud

Published by Papa Giorgio

Rumble — Larry Elder had Dr. John Eastman on his show to discuss the legal challenges of the Trump team and where they are today. I actually do not include the beginning of the interview — rather, I wanted to isolate the discussion of the voter fraud and the recent forensic look at one counties Dominion machines.

  • “The allowable election error rate established by the Federal Election Commission guidelines is of 1 in 250,000 ballots (.0008%). We observed an error rate of 68.05%. This demonstrated a significant and fatal error in security and election integrity,” the report states. “The results of the Antrim County 2020 election are not certifiable. This is a result of machine and/or software error, not human error.” (GATESTONE)
  • Here’s Fulton County’s election director admitting to adjudicating 94% of his county’s ballots. Is anyone going to ask him why 94% of the ballots registered an error? Doesn’t that seem too high? (PJ-MEDIA | “Georgia Elections Director Casually Admits That 94% Of 113,000 Ballots Needed Adjudication“)

Separation of Church and State

Published by Papa Giorgio

Nearly every American knows the phrase “separation of church and state.” Do you know where it’s from? Here’s a hint: it’s not in the Constitution. John Eastman, professor of law at Chapman University, explains how and why this famous phrase has played such an outsized role in American life and law.

An excerpt from a larger paper (the below was originally posted Jul 26, 2015):

…The First Amendment never intended to separate Christian principles from government.  Yet today we so often hear the First Amendment coupled with the phrase “separation of church and state.  The First Amendment simply states: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

Obviously, the words “separation,” “church,” or “state” are not found in the First Amendment; furthermore, that phrase appears in no founding document!  While most recognize the phrase “separation of church and state,” few know its source; but it is important to understand the origins of that phrase.  What is the history of the First Amendment?

The process of drafting the First Amendment made the intent of the Founders abundantly clear; for before they approved the final wording, the First Amendment went through nearly a dozen different iterations and extensive discussions.

Those discussions – recorded in the Congressional Records from June 7 through September 25, 1789 – make clear their intent for the First Amendment.  For example, the original version (followed by later versions) introduced in the Senate on September 3, 1789, stated:

  • “Congress shall not make any law establishing any religious denomination.”
  • “Congress shall make no law establishing any particular denomination.”
  • “Congress shall make no law establishing any particular denomination in preference to another.”
  • “Congress shall make no law establishing religion [denomination] or prohibiting the free exercise there of.”

By it, the Founders were saying: “We do not want in America what we had in Great Britain: we don’t want one denomination running the nation.  We will not have Catholics, or Anglicans, or any other single denomination. We do want God’s principles, but we don’t want one denomination running the nation.”

Of interest is the proposal that George Mason – a member of the Constitutional Convention and “The Father of the Bill of Rights” – put forth for the First Amendment:

  • “All men have equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians [denomination] ought to be favored or established by law in preference to others.”

Their intent was well understood, as evidence by court rulings after the First Amendment.  For example, a 1799 court declared:

  • “By our form of government, the Christian principles – we do want God’s principles – but we don’t want one denomination to run the nation.”

Again, note the emphasis: “We do want Christian principles – we do want God’s principles – but we don’t want one denomination to run the nation.”

[….]

On the day the Founding Fathers signed the Declaration of Independence, they underwent an immediate transformation.  The day before, each of them had been a British citizen, living in a British colony, with thirteen crown-appointed British state governments.  However, when they signed that document and separated from Greta Britain, they lost all of their State governments.

Consequently, they returned home from Philadelphia to their own States and began to create new State constitutions.  Samuel Adams and John Adams helped write the Massachusetts constitution; Benjamin Rush and James Wilson helped write Pennsylvania’s constitution; George Read and Thomas McKean helped write Delaware’s constitution; the same is true in other States as well.  The Supreme Court in Church of Holy Trinity v. United States (1892) pointed to these State constitutions as precedents to demonstrate the Founders’ intent.

Notice, for example, what Thomas McKean and George Read placed in the Delaware constitution:

  • “Every person, who shall be chosen a member of either house, or appointed to any office or place of trust… shall… make and subscribe the following declaration, to wit: ‘I do profess faith in God the Father, and in Jesus Christ, his only Son, and in the Holy Ghost, one God, blessed forever more, and I acknowledge the Holy Scripture of the Old and New Testament to be given by divine inspiration.’”

Take note of some other State constitutions.  The Pennsylvania constitution authored by Benjamin Rush and James Wilson declared:

  • “And each member [of the legislature], before he takes his seat, shall make and subscribe the following declaration, viz: ‘I do believe in one God, the Creator and Governor of the Universe, the rewarded of the good and the punisher of the wicked, and I do acknowledge the Scriptures of the Old and New Testament to be given by Divine Inspiration.’”

The Massachusetts constitution, authored by Samuel Adams – the Father of the American Revolution – and John Adams, stated:

  • “All persons elected must make and subscribe the following declaration, viz. ‘I do declare that I believe the Christian religion and have firm persuasions of its truth.’”

North Carolina’s constitution required that:

  • “No person, who shall deny the being of God, or the truth of the [Christian] religion, or the Divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office, or place of trust or profit in the civil department, within this State.”

You had to apply God’s principles to public service, otherwise you were not allowed to be a part of the civil government.  In 1892, the Supreme Court (Church of Holy Trinity v. United States) pointed out that of the forty-four States that were then in the Union, each had some type of God-centered declaration in its constitution.  Not just any God, or a general God, say a “higher power,” but thee Christian God as understood in the Judeo-Christian principles and Scriptures.  This same Supreme Court was driven to explain the following:

  • “This is a religious people.  This is historically true.  From the discovery of this continent to the present hour, there is a single voice making this affirmation….  These are not individual sayings, declarations of private persons: they are organic utterances; they speak the voice of the entire people….  These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.”

…READ MORE… [PDF]

JOHN ADAMS

  • “…we have no government, armed with power, capable of contending with human passions, unbridled by morality and religion. Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

John Adams, first (1789–1797) Vice President of the United States, and the second (1797–1801) President of the United States. Letter to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, 11 October 1798, in Revolutionary Services and Civil Life of General William Hull (New York, 1848), pp 265-6. (PDF found here)

The Left Rejects Separation of Church and State

(July 7, 2016)

GAY PATRIOT notes that at one time the left wanted a strict separation of church and state. Now they wish to regulate it! In the NATIONAL REVIEW article GP links to, we read:

I’m old enough to remember when Christians who expressed concern that LGBT activists would attempt to regulate church services were dismissed as paranoid nutjobs. Well, welcome to our new paranoid future. My friends and colleagues at the Alliance Defending Freedom announced today that they were filing suit against the Iowa Civil Rights Commission to block enforcement of gender identity guidelines that purport to regulate “a church service open to the public.” News flash — virtually every church service is open to the public.

[….]

Incredibly, the document contains an FAQ specifically directed at churches. Here it is:

DOES THIS LAW APPLY TO CHURCHES?

Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to a bona fide religious purpose. Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public).

It’s unclear to me how a branch of the Iowa state government has determined that a “church service open to the public” does not have a “bona fide religious purpose,” but there it is. Under current guidance, churches in Iowa must become “members only” to exercise their religious liberty. It’s tough to imagine this guidance surviving even liberal judicial review, but even if struck down it shows where some on the Left want to take the law. Not even the sanctuary is safe.

Dr. John Eastman Discusses The “Whistleblower”

Published by Papa Giorgio

Larry Elder had John Eastman call into the radio show (from vacation) to discuss the “whistleblower” and what I see as the continued propensity to weaponize government to harass and criminalize countering points of views. The latest example of this is the secret change JUST BEFORE the release of this choreographed release of the whistleblower [so-called] to the law regarding it: “Intel Community Secretly Gutted Requirement Of First-Hand Whistleblower Knowledge“.

PAST EXAMPLES:

  • Obama’s Weaponization of Government (FORBES);
  • President Obama Weaponized Government – Phase Two Was Positioned to Monetize Government… (CONSERVATIVE TREE HOUSE);
  • Judicial Watch: New Documents Reveal DOJ, IRS, And FBI Plan To Seek Criminal Charges Of Obama Opponents (JUDICIAL WATCH)

Mueller vs. Starr & Barr

Published by Papa Giorgio

Larry Elder is in his prime on 870 and his growing affiliates. (If I had time I would do excerpts like this for an 870AM YouTube channel to grow their listener base.) Larry plays competing report outcomes by Robert Mueller and Ken Starr. John Eastman weighs in as well, and as usual, he is correct… I add Bill Barr at the end saying the same thing Mark Levin, John Eastman, Andy McCarthy, and others have been saying. But as usual, CNN and the MSM are way behind the curve… in fact they are off the track all together.

Professor John Eastman Discusses Trump’s Taxes and the Courts

Published by Papa Giorgio

Larry Elder asks professor John C. Eastman (Henry Salvatori Professor of Law & Community Service at Chapman University Fowler School of Law) about Trump’s use of Executive Privilege and then discussion of U.S. District Judge Amit Mehta saying Trump must turn over his taxes.

Democrats Weaponize the IRS… Again

Published by Papa Giorgio

Dr. John Eastman was on Larry Elder’s show discussing the Democrats wanting Trump’s tax returns. Much like Mitch McConnell warning about “shoes on other’s feet,” the Democrats should tread lightly… because IF this passes Constitutional muster, Trump can order tax returns to be released as well. Good insights from the professor as usual.

Professor Eastman On Mueller Indictments

Published by Papa Giorgio

Larry elder and Chapman University’s Henry Salvatori Professor of Law and Community Service and Director of the Center for Constitutional Jurisprudence, John Eastman, discuss the latest regarding Mueller’s “witch hunt.” A passing comment comparing Whitewater is made that is informative. Good stuff, but will soon be dated.

Birthright Citizenship and the Constitution (John Eastman)

Published by Papa Giorgio

John Eastman in THE NEW YORK TIMES:

…“Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.”

And Senator Jacob Howard, who introduced the language of the clause on the floor of the Senate, contended that it should be interpreted in the same way as the requirement of the 1866 Civil Rights Act, which afforded citizenship to “all persons born in the United States and not subject to any foreign power.”

The Supreme Court has never held otherwise. Some advocates for illegal immigrants point to the 1898 case of United States v. Wong Kim Ark, but that case merely held that a child born on U.S. soil to parents who were lawful, permanent (legally, “domiciled”) residents was a citizen.

The broader language in the case suggesting that birth on U.S. soil is alone sufficient (thereby rendering the “subject to the jurisdiction” clause meaningless) is only dicta — not binding. The court did not specifically consider whether those born to parents who were in the United States unlawfully were automatically citizens.

The misunderstood policy of birthright citizenship provides a powerful magnet for people to violate our immigration laws and undermines the plenary power over naturalization that the Constitution explicitly gives to Congress. It is long past time to clarify that the 14th Amendment does not grant U.S. citizenship to the children of anyone just because they can manage to give birth on U.S. soil.

Here is part of the NATIONAL REVIEW article by Andrew McCarthy:

…My friend John Eastman explained why the 14th Amendment does not mandate birthright citizenship in this 2015 New York Times op-ed. In a nutshell, the Amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The highlighted term, “subject to the jurisdiction thereof” was understood at the time of adoption to mean not owing allegiance to any other sovereign. To take the obvious example, if a child is born in France to a married couple who are both American citizens, the child is an American citizen.

I won’t rehash the arguments on both sides. With due respect to our friend Dan McLaughlin (see here), I think Professor Eastman has the better of the argument. As I have observed before, and as we editorialized when Donald Trump was a candidate (here), this is a very charged issue, and it is entirely foreseeable that the Supreme Court (to say nothing of the lower federal courts teeming with Obama appointees) would construe the term jurisdiction differently from what it meant when the 14th Amendment was ratified….

Professor John Eastman Discusses the SCOTUS Cases and More

Published by Papa Giorgio

Larry Elder interviews Professor John Eastman in regards to the recent Supreme Court decisions and the nomination process for Justice Kennedy’s replacement. Discussion about the Courts purpose and how States should have more say, and audio of Kennedy attacking Bork is added (the start of this whole politicization of the nomination process BTW). Enjoy.

IRONY | Maxine Waters Is Violating the KKK Act of 1871

Published by Papa Giorgio

Professor John Eastman notes that Maxine Waters may in fact be violating the Ku Klux Klan Act of 1871. Here is a posrtion of the HISTORY CHANNEL article on this:

…After 1870, Republican state governments in the South turned to Congress for help, resulting in the passage of three Enforcement Acts, the strongest of which was the Ku Klux Klan Act of 1871.

For the first time, the Ku Klux Klan Act designated certain crimes committed by individuals as federal offenses, including conspiracies to deprive citizens of the right to hold office, serve on juries and enjoy the equal protection of the law. The act authorized the president to suspend the writ of habeas corpus and arrest accused individuals without charge, and to send federal forces to suppress Klan violence. This expansion of federal authority–which Ulysses S. Grant promptly used in 1871 to crush Klan activity in South Carolina and other areas of the South–outraged Democrats and even alarmed many Republicans. From the early 1870s onward, white supremacy gradually reasserted its hold on the South as support for Reconstruction waned; by the end of 1876, the entire South was under Democratic control once again….