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Friday, December 11, 2020

Briefly Noted: DoD v. CIA, Constitutional Considerations re Texas' Lawsuit

We'll start with a story from yesterday, in its ABC version:


Pentagon weighs cutting most of its support to CIA's counterterrorism missions

CIA counterterrorism missions rely on military for logistical support, personnel


The basics are short and sweet:


In a surprising move, the Pentagon has told the Central Intelligence Agency that it is weighing an end to the majority of the military support it provides to the agency's counterterrorism missions, according to a former senior administration intelligence official.

It is unclear how the decision would impact the spy agency's worldwide counterterrorism missions that often rely on the U.S. military for logistical support and personnel.


Later in the article we learn that the withdrawal of 700 Special Forces personnel from Somalia is directly related to this proposed move:


Last week, a CIA paramilitary officer was killed in Somalia, according to Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, who disclosed in remarks to a think tank that the deceased CIA officer had previously served in the military as a Navy SEAL.

The Pentagon announced last week that President Donald Trump had ordered the withdrawal of most of the 700 U.S. military personnel in Somalia, though it said it would continue to carry out counterterrorism missions against al-Shabab, the al-Qaida affiliate.


Read it all. My guess is that this may have to do with CIA essentially making foreign policy and then wagging the DoD dog. No doubt there are pro-CIA factions within DoD, too, and that may also play into the recent personnel moves at the top of DoD. Trump is seeking control over policy making--let's hope he'll be around to follow this up. Lots to unpack there.

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Two items outline interesting aspects of Texas's election case that is now before the SCOTUS.. James DeLong at AmThinker has a brief blog that discusses a matter that has shown up repeatedly in comments here--the Guarantee Clause of the US Constitution:


A little known clause of the Constitution has a huge bearing on the Texas election lawsuit


For reference, here's the actual text of Article IV, Section 4:


The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.


What, you ask, is a "republican form of government"? DeLong quotes a passage from the amicus brief filed by ID, AK, and AZ--which cites a 1947 case from TX:


It is a fundamental idea in all republican forms of government that no one can be declared elected * * *, unless he * * * receives a majority or a plurality of the legal votes cast in the election.


Oh! That seems very relevant. The amicus brief goes on to state:


An elite group of sitting Democrat officers in each of the Defendant States coordinated with the Democrat party to illegally and unconstitutionally change the rules established by the Legislatures in the Defendant States, thereby depriving the people of their states a free and fair election — the very basis of a republican form of government.

The Guarantee Clause places an obligation upon the United States to ensure that such an unlawful election not be carried to fruition.  This Court is the sole forum available for the enforcement of that obligation under the circumstances faced by the nation today[.]


Now ask yourself: Who is "the United States"? Well, of course that would be the Federal government, which consists of three branches. Currently this election controversy is before the highest court of the Judicial Branch. In a very powerful way this brief is presenting an fundamental issue to the SCOTUS: Does the Constitution still hold good? Do you justices uphold the Constitution or not? If the basis of our union is a union of federated states that share the common basis of a republican form of government, can the the SCOTUS fail to act when a party cabal overthrows the "fundamental idea in all republican forms of government"? The SCOTUS, can't dodge that one. They can try, but they'll fool no one.

The other implied issue--implied in the notion that "the United States shall guarantee to every state in this union a republican form of government"--is this. The executive power of "the United States" is vested in the President. Not a committee, not in the Legislative or Judicial branches. Congress passes laws, the Judiciary interprets laws, but in the real world a nation must also act--not just make statements. That is the executive power, and Donald Trump is the constitutional officer who exercises the executive power to act--which is what is meant by a Unitary Executive: the executive power is vested in the person of the president, who is Donald J. Trump. And so the Constitution specifies that:


The President shall be commander in chief of the Army and Navy of the United States ... he shall take care that the laws be faithfully executed.


I take it that the Constitution is the fundamental law of the land and that the President must take care that it shall be faithfully executed. This means that the very nature of our Union is at stake in this case, and that President Trump has joined the case before the SCOTUS, not as a political actor, but as the Constitutional officer in whom the executive power to uphold the Constitution is vested.

Will the SCOTUS dare to suggest that the federal government, charged with guaranteeing republican forms of government to each and every state, has no interest in the fair conduct of federal elections? Systematic and intentional disenfranchisement cannot be ignored if we are to take the Constitution seriously. That's the question before the SCOTUS.

Moving on ...

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Shipwreckedcrew weighs in on the issue of original juridsiction--disputes between states. The way his article relates to the foregoing is this: There are at least two justices currently on the SCOTUS who are on record as considering that the SCOTUS has no business attempting to evade its responsibility to decide disputes between or among the states by claiming that the Court's jurisdiction is "discretionary". Those two are Clarence Thomas and Samuel Alito. Those two were on the short end of a 7-2 decision just four short years ago.

When that decision came down the overwhelming majority of seven included: Roberts, Scalia, Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor.

The SCOTUS is a very different place now--at least that's my hopeful way of viewing things. In place of Scalia, Kennedy, and Ginsburg we now have Gorsuch, Kavanaugh, and Barrett. You can read all about Thomas' (and Alito's) views on the proper exercise of original jurisdiction in the article:


Two Supreme Court Justices Are of the View the Court MUST Hear Cases Involving Disputes Between States -- Are There Three Others?


SWC concludes by suggesting that these considerations of jurisdiction are what lie behind Alito's decision to drop the PA motion (but not the case) and then, the same day, take up the TX case:


In my opinion, there is simply no question that the Texas lawsuit is the result of discussion among this segment of the legal and judicial community who were well aware of the views of the Justices on this question. It would be my suspicion that there is also some “insider” knowledge about where Justices Gorsuch, Kavanaugh, and Barrett might stand as well.

Rather than being a “review” of lower court proceedings with poor records, or less than ideally developed evidentiary presentations, the advantage of this proceeding is that it is not burdened by the deficiencies in lower courts, nor is it bound by traditional limitations on the “scope of review” — the types of questions the Court can examine and the bases upon which it might overturn lower courts’ decisions. It hears evidence in the first instance, and decides questions on legal and factual issues for itself.

The Texas Complaint is not slapped together.  It is the result of extensive research and drafting. It was likely a work-in-progress for weeks, and I do not believe that work would have been undertaken on a lark as a political stunt.

Those on both sides of this partisan issue who are dismissing the Complaint as an unserious effort are failing to consider what I believe to be a crucial consideration in whether or not to allow Texas — and the other 18 states who have now joined — to “have their day in court.”

There is only one forum where Texas can present what it believes is evidence supporting the allegations it makes in the Complaint against the four defendant States. Only one tribunal has the authority to hear and consider witnesses and documentary evidence of this dispute.


To put it the way that Texas itself frames the matter, this case is one of pure Constitutional issues. The SCOTUS, therefore, is not limited in any way by what has happened in the lower courts--the case comes directly to the SCOTUS and the SCOTUS can review all matters that the Complaint raises.


37 comments:

  1. If there is anything less than a 9-0 vote to hear the case, the SCOTUS is more broken than I thought. Even the left wing should agree that this is a serious matter that only they can adjudicate otherwise they themselves are irrelevant and our Republic is over

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  2. I am not a lawyer (thank goodness!), but it seems to me to be a simple matter (even though the law is rarely simple, if ever) - if a state decided to allow 16 year old non-citizens vote in a Presidential election, wouldn't that likely "bother" some other states not so inclined? And, if so, what recourse would they have other than filing a protest with the Supreme Court of the land?

    Now, please bear with me if I am comparing apples to oranges in a legal sense, mea culpa, mea culpa, mea maxima culpa...please point out the error of my ways in that event.

    Otherwise, if a state brought up such a dispute with another state before an election, would they be told that move is too soon and they must wait until harm is done (i.e., election over and "illegal" votes already cast?). Beats me, I leave that to others more educated and sophisticated than I. Bottom line for me: don't see how the egos of these 9 justices can simply "let this one go" without opining...but what do I know?

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    1. @Hotlanta

      I'm with you (and, regretfully, I was a lawyer for 40 years...). I think the Supreme Court has to decide this.

      I would even say the case before the Supreme Court is stronger than the one you suggest. Not only have the four states allowed the equivalent of 16 year old non-citizens to vote, but they have done so in express violation of their own state constitutions and statutes. In other words, they have counted 'illegal' votes. That is an unconstitutional dilution of the vote of every citizen in each of the states and in the country who voted legally.

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    2. Cassander, you have restored my faith in the legal profession with one short comment :o) That being said, every warrior I worked with in my 40+ years at DoD had a "hankerin'" to get into some sort of scrap just to see what they were made of...and everyone who did could never forget what they saw.

      Along those lines, I think every lawyer who aspires to be a judge imagines himself/herself on the SCOTUS...and why would you want to be there if not to take on the really BIG issues? After all, there are only so many Marbury v Madisons OR Roe v Wades to go around. Taking on this matter has implications for generations on how we vote in Federal elections and, truly, in a Republic, what else matters?

      BTW, if SCOTUS takes the case, what would it be called? I'd love a Bush v Gore repeat - Trump v Biden has a nice ring to it, but I guess it would involve Texas in some way, but hey, what do I know?

      Finally, always enjoy your comments - keep on posting!

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    3. depends on how the "State" decided to do that...if the legislature decided it properly, it complies with the clause in the Constitution at issue. If some cronies in a back room decided it, then not. In minds of the framers, legislatures and House were viewed as much more accountable to the will of the people than other parts of government.

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  3. Does SCOTUS do “discovery” on “witnesses and documentary evidence”? Or do they only opine on matters of law/constutionality?

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    1. The parties are the ones who would do discovery if necessary, not the Court. In a case of original jurisdiction the Court can take evidence (witnesses, documentary) and decide on factual matters--not just legal/constitutional issues.

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  4. Replies
    1. great*

      (I should preview before posting.)

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  5. I see a clear connection between the attempt to "decouple" the CIA from DoD and the removal of all the Tribe Davos members from the DPB several weeks ago. The CIA has acted as a supra-agency, above and outside the Executive, literally since its creation. While some may argue that the DPB has no real power I would not agree. Tribe Davos has always functioned as a force of influence rather than blunt-force trauma, and the DPB has great influence, due to prestige of its members if nothing else, when it comes to appointments, promotions, etc.

    As to the lawsuit: I have brought up Art IV; sect 4 twice in the last three weeks. Interesting that some are just now entertaining the notion that the Constitution wasn't written as just a bunch of word salad, but that every clause has purpose and meaning.
    Tom S.

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    1. DPB = Defence Procurement Board, or what?

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    2. Defense Policy Board
      Tom S.

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  6. I suspect this is the wolf's den where all those corrupt psyops like; Gladio (in Italy), Ergenekon (in Turkey) have been coordinated. These clandestine operations started as counter terrorism against SSCB during cold war, and spiraled out of control growing its own illegal structures for its own survival.

    All those flase flags (for manipulating public opinion or starting very profitable wars), drug cartels (for funding its illegitimate existence independent of elected government scrutiny), and color revolutions in old iron curtain countries have been carried out by these structures.

    Interestingly, Ergenekon mentioned above is the etimologic origin of the "deep state" phrase.

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    1. One of the reasons drug use has been mis classified historically.

      Should be treated as a health issue, and completely decriminalized.

      CIA Crackers made Crack.

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  7. This comment has been removed by the author.

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    1. Zerohedge is reporting that Barr hid the Hunter Biden investigation(s) until after the election. Maybe this is what Trump meant when he said at a campaign rally that the Dems should be thankful that Barr is a good man (or to that effect)?

      https://www.zerohedge.com/political/ag-barr-concealed-hunter-biden-probes-public-during-election

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    2. Possibly. But think about it. Do we really want DoJ going around trumpeting investigations, which may or may not pan out? Trying cases in the media before there's even an indictment? Those types of things are for Congress, so where have the Congressional GOPers been on this?

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    3. Thinking along similar lines here.

      I think SCOTUS will have to act sometime between this evening after markets close and before electoral college gathers on 14th.

      As soon as the ball is thrown back to state legislations or to the US Congress, BLM ANTIFA will be set loose to influence the legislations (as planned in the TIP document). At that very moment, Trump can turn the tables and use the same weapon against its owners, by claiming BLM ANYIFA violance forces him to establish law & order, so that the legislations can decide without fear. He will have to show the tip of the foreign influence evidence as you describe, and declare emergency powers (EO 13848 ?).

      The rest will be history for future generations, if critical forces stay loyal to the President.

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    4. point taken, I should have been clearer, I meant to say that Barr's behavior up til now would be explained for me by my theory, and that following some kind of ruling by SCOTUS that throws it back to state legislatures or to house or rep, at that point, BOTH sides will be conducting a trial of public opinion in which there will be all kinds of information / propaganda flowing and that in that atmosphere I would expect more to be revealed about what the Trump side has to indicate foreign influence. I say Trump side, because it is really quite startling and unprecedented to have Sidney Powell running around on TV claiming various state officials are fraudsters and are abetting hostile foreign governments in subverting our elections and to NOT have the Attorney General or the DNI or anyone directly refute those, haul her ass in for questioning or slap a restraining order on her or something. Its one thing for the dem/left to simply smear her as "crazy conspiracist" but doesn't DOJ have a responsibility to you know, INVESTIGATE her claims so we can all know/rest assured whether or not she's making it up and be sure of the integrity of our election?

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    5. Well, on that note I have my own conspiracy theory which gives me the chills whenever I think of it.

      Lets consider the possibility that, had DoJ officially started investigations, Trump side might not be able to present all the dirty laundry in the laptop from hell. Could it be possible, Barr was asked to wait until after the elections? Is it plausible all the negative comments from Barr, were to look he's distanced from Trump side, so that he cannot be targeted by the coup plotters (demsheviks) as several times indicated in the TIP document?

      I don't know, Barr is very difficult to read.

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  8. An issue we hadn’t heard much about recently:

    A St. Louis judge, citing “improper fundraising emails” has removed Soros-backed Circuit Attorney Kimberly Gardner from a gun case involving two residents who protected their property from Black Lives Matter protesters last summer.

    https://pjmedia.com/news-and-politics/rick-moran/2020/12/11/theres-been-a-huge-development-in-the-mccloskey-case-n1204512

    DA Gardner, like Foxx in Chicago and others, was supported with campaign funds from Soros.

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  9. Margot Cleveland on Judge Sullivan’s Flynn dismissal opinion:

    The Judge’s Opinion In Michael Flynn’s Case Was So Bad It Should Be Vacated

    On Dec. 8, federal Judge Emmet Sullivan dismissed as moot the criminal charge against Michael Flynn following President Trump’s pardon of the retired lieutenant general.

    Those outraged over the vindicative and unjust targeting of President Trump’s former national security advisor by the Obama-Biden administration and then the special counsel’s office celebrated the conclusion of the case. Yet Judge Sullivan’s dismissal came in the form of a vindictive, unconstitutional advisory opinion, designed to convict Flynn of a crime he did not commit and to disparage President Trump and the Justice Department.

    Flynn and the Department of Justice should not allow Sullivan’s final irrational and unhinged act of judicial defiance to go unanswered. Flynn and the Department of Justice should file a joint motion to vacate the opinion. When Judge Sullivan refuses, they should seek review by the D.C. Circuit Court of Appeals. While such a procedure is rare, it is justified in this case.


    https://thefederalist.com/2020/12/11/the-judges-opinion-in-michael-flynns-case-was-so-bad-it-should-be-vacated/

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    1. I saw that but haven't had time to read it yet--too much else. What I've seen is that Sullivan violated canons of judicial ethics. Who even knew there was such a thing!

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    2. Cleveland, doing what really good investigative journalists are supposed to do. Too few these days. Most “reporters” are just propagandists. Human copying machines spitting out the Deep State’s narratives and talking points.

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  10. "Last week, a CIA paramilitary officer was killed in Somalia"

    BTW just a few days after this news appeared without attracting much attention, sometime last week naturalnews.com claimed this officer was actually killed in the server operation in Frankfurt Germany. In the same article, citing retired military officers, another news article claiming 5 US soldiers died in a helicopter accident also claimed as the coverup for lost soldiers in the fight in Frankfurt, when capturing the Dominion servers.

    Here is the said articlw from November 27th.
    https://www.naturalnews.com/2020-11-27-situation-update-nov-27th-dod-vs-cia-covert-war.html

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  11. https://www.theepochtimes.com/arizona-republicans-file-election-appeal-to-us-supreme-court_3614741.html?utm_source=news&utm_medium=email&utm_campaign=breaking-2020-12-11-3

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  12. Well I feel vindicated. I was pushing the Guarantee Clause weeks ago. My point is that the Court can say being a third world tin horn dictatorship run by politicians self appointed through party machinations is not a 'republican form of government'. And then they declare the mass distribution of anonymous ballots not an election but legalized ballot box stuffing.

    Hence, untracked mail-in ballots are unconstitutional.

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    1. Well crap. Just heard SCOTUS punted. I suspect some ugliness will be coming in the future. Just remember when the Usurper Government tries to sue Free States in the Supreme Court, the answer is, "You have no standing."

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  13. It’s over. Only the funeral follows.
    Aletheia

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    1. Well, there is also the wake.
      Aletheia

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  14. It appears the scotus has just bloen off the Texas suit

    https://www.zerohedge.com/political/supreme-court-tosses-texas-bid-overturn-election

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  15. SCOTUS declined. Legal channels exhausted.

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  16. Well it's over for the USA. Damned SCOTUS cowards

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  17. Aaaand its done.

    Anyone still waiting for a hero to ride into the sunset saving the republic? Few of us wanted to have to make the choice on whether to consent or not, but I feel like finally here we are. Its in the people's hands. I think its safe to say we can stop waiting for the next case, the next "breaking news" the next whatever.

    Your move, citizens.

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  18. https://kunstler.com/clusterfuck-nation/sometimes-life-really-is-like-a-bad-dream/

    Like me, James Howard Kunstler has been dreaming. My dream (as posted here earlier this week) is that the Supreme Court will order new elections in the defendant states (and perhaps AZ and NV, too) before Inauguration Day. The elections would be strictly monitored by both parties, state officials and the DoJ, as well as the US military. I have little doubt of the outcome.

    Kunstler's dream is...well...more of a nightmare. Whether likely or not it is possible and underscores the importance of the Supreme Court's deliberations and decision-making.

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  19. I hate to be the first one to comment on this disgraceful news, but SCOTUS has betrayed us all yet again and denied cert to the Texas case. As reported by Epoch Times. Only Alito and Thomas voiced opinion that court had to take case.

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