Posted on 10/21/2022 12:14:07 PM PDT by Jim Noble
I'm posting a vanity to try to get this discussion going. Congressional committee "hearings" or "investigations" are required to have a discrete legislative purpose (separation of powers). Congress is not a permanent Grand Jury or a Star Chamber.
The practice of making "criminal referrals" to avoid breaching the authority of Article II (Executive) or Article III (Judicial) co-equal branches is not one of the "Legislative powers herein granted" when we created Congress. In fact, Congress is FORBIDDEN from Bills of Attainder against individuals for the exact reason that Congress is NOT an Executive or a Judicial body.
It appears that the January 6 "committee", by the words of some of its members, was created for the PURPOSE of investigating a private citizen with the desired RESULT of getting him punished for an alleged crime.
If this is not an effort to pass a Bill of Attainder against Donald Trump, it comes very close - so close, in fact, that it amounts to an evasion of the specific prohibition placed on Congress by the Constitution.
Can some of out legal eagles please comment?
Sure smells like one to me.
cf: the proposed “censure plus” floated by Dems in Congress as an alternative to Peach-Mint over Monica Lewinsky and suborning perjury.
They all knew they were lying through their foul teeth, as it would have been struck down as Unconstitutional, letting Clinton off the hook, before the ink on the documents was dry.
Makes sense to me, but I am not a lawyer. Seems like they make their own set of rules and get away with it.
Try sending an email about this to Paul Carron (Legal Insurrection blog, he’s at the Law School at Pepperdine); or else Glenn Reynolds (Instapundit blog, Yale Law grad and Law Professor at Tennessee).
They’ll either be in a position to answer, or know the right people to ask.
No. It is not a Bill of Attainder.
the DOJ is supposed to take such referrals and decide whether they should be investigated. If they should be then they begin doing so and gathering evidence. If the evidence accumulates sufficiently, a grand jury is empaneled and determines if indictments are in order.
So no, its not a bill of attainder. There have been many times where the DOJ has refused the referrals. A bill of attainder would not give them the discretion to decide one way or another.
Yep... They are using it for blatantly unconstitutional purposes. Period. But they are smoke screening the masses into believing they have the legal authority to do this.
They DO NOT. Full stop...
Bannon has shown all of us the way from this point forward. When you receive a congressional subpoena, do the following:
- Buy a plane ticket, (round trip) to DC
- Reserve a hotel room
- Show up to the hearing
- Exercise your 5th Amendment protections
- Fly home
- Continue online ranting about the J6 Committee you just gave the finger to
A criminal referral by Congress to the DOJ is not a bill of attainder, because Congress is not inflicting a punishment by itself, and the accused person still gets the procedural safeguards of a trial, such as they are in this country.
The Supreme Court dealt with an argument by Richard Nixon that the Presidential Records Act was a bill of attainder against him. They rejected the argument, ruling that making him turn over presidential papers to the National Archives was not a punishment. Nixon v. Administrator of General Services, 433 US 425 (1977) (this was a 7-2 decision, with Chief Justice Burger and Justice Rehnquist dissenting on other grounds). Here is pertinent language from the court’s decision relative to the concept of “bill of attainder”:
In England a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death.35 Article I, s 9, however, **2806 also *474 proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution. United States v. Lovett, supra, 328 U.S., at 323-324, 66 S.Ct., at 1082-1083 (Frankfurter, J., concurring); Cummings v. Missouri, supra, 4 Wall. at 323; Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 97 (1956). Generally addressed to persons considered disloyal to the Crown or State, ‘pains and penalties’ historically consisted of a wide array of punishments: commonly included were imprisonment,36 banishment,37 and the punitive confiscation of property by the sovereign.38 Our country’s own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal. See, e. g., Cummings v. Missouri, supra (barring *475 clergymen from ministry in the absence of subscribing to a loyalty oath); United States v. Lovett, supra (barring named individuals from Government employment); United States v. Brown, supra (barring Communist Party members from offices in labor unions).
Needless to say, appellant cannot claim to have suffered any of these forbidden deprivations at the hands of the Congress. While it is true that Congress ordered the General Services Administration to retain control over records that appellant claims as his property,39 s 105 of the Act makes provision for an award by the District Court of ‘just compensation.’ This undercuts even a colorable contention that the Government has punitively confiscated appellant’s property, for the ‘owner (thereby) is to be put in the same position monetarily as he would have occupied if his property has not been taken.’ United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970); accord, United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336 (1943). Thus, no feature of the challenged Act falls within the historical meaning of legislative punishment.
2
21But our inquiry is not ended by the determination that the Act imposes no punishment traditionally judged to be prohibited by the Bill of Attainder Clause. Our treatment of the scope of the Clause has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee. The Court, therefore, often has looked beyond mere historical experience and has applied a functional test of the existence of punishment, analyzing whether the law under **2807 challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive *476 legislative purposes.40 Cummings v. Missouri, 4 Wall., at 319-320; Hawker v. New York, 170 U.S. 189, 193-194, 18 S.Ct. 573, 575, 42 L.Ed. 1002 (1898); Dent v. West Virginia, 129 U.S. 114, 128, 9 S.Ct. 231, 235, 32 L.Ed. 623 (1889); Trop v. Dulles, 356 U.S. 86, 96-97, 78 S.Ct. 590, 595-596, 2 L.Ed.2d 630 (1958) (plurality opinion); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.
Look at the last sentence: “Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers”.
Terrific. Except that is not the definition of a bill of attainder.
A criminal referral is not a bill of attainder because it does not impose a criminal or civil sanction. A referral is not even guaranteed to initiate a prosecution.
Yes. Yes it is.
I grant you that the law strictly follows words.
But I put it to you that the INTENT of the prohibition is to prevent what is happening right now.
i realize it’s unintended, but your excellent question underscores the superior wisdom and vision of our Founders, by calling out the great expense (unfortunately ours) and effort our enemies have to make to get around what they obviously would like to do directly with a Bill of Attainder.
I don’t think you’re right on this. A bill of attainder would declare Trump guilty. They are always mentioned with laws ex post facto (banning something after the fact) because they make it so someone cannot choose to obey the law. The law may compel someone to do something.
That said, I’m not exactly sure what you’ve heard. If Congress compels Trump’s testimony, and Trump refuses or if he perjurs himself, he can be referred to the Justice Department for trial. If they’re saying they will find him guilty, then you’re correct.
given the public statements of intent to “get” PDJT, it is clear that this committee is not legitimately constituted ... and is operating ultra-vires (outside of legal authority).
in other words, it is just another prejudicial and unsubstantiated attack on him (just like Congress’ two ridiculous “impeachments” were...)
we have a criminal conspiracy running “our” Congress... one that we need to remove asap
You’re probably right. As far as Trump is concerned they are moving quite slowly because they are playing politics with him. They probably don’t have constitutional grounds to subpoena a former president. It will be well after the election when the issue is adjudicated. The effect of issuing a subpoena is to get people talking about it instead of the guy who mows down a Home Depot employee while stealing a cart full of power tools.
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