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

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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, 201

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%. They end up pregnant, jobless, on government assistance, and/or, involved in crime or drugs. 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/