Determining the circumstances under which
a lie told by the President
may be deemed by We the People and
our representatives in Congress to
constitute an impeachable
‘high crime or misdemeanor’
By
Dr. Richard Cordero, Esq.
Ph.D., University
of Cambridge, England
M.B.A., University
of Michigan Business School
D.E.A., La
Sorbonne, Paris
Judicial Discipline Reform
New York City
1. The U.S. Constitution provides
in Article II, Section 4, thus: “The
President, Vice President and all civil Officers of the United States, shall be
removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors”.
2. The Constitution does not state
what constitutes “High Crimes and Misdemeanors”. Nor can the Federal
Judiciary do so since there is no right to appeal an impeachment to any of its
courts. An impeachment is a political, not a judicial, decision, and so is the
definition of “High Crimes and Misdemeanors”. At stake is not the
impeached officer’s property, liberty, or life. Rather, We the People, the source of all political power, take back
through our representatives in Congress the office that we gave the officer.
Thus, whether the President commits an impeachable ‘High Crime or Misdemeanor’
when he lies to the People is
a matter for the latter and their representatives to decide.
3. Had the Constitution provided
for impeachment only for “High
Crimes”, the conduct underlying the impeachment would have to attain a
particularly conspicuous level of unacceptability to become a ‘High Crime’. But
also “Misdemeanors”support an impeachment. Hence, the level of unacceptability of a certain
conduct does not determine whether it is impeachable. Nor does it affect the punishment,
for impeachment always leads to the officer being “removed from Office”.
4. An
impeachment is in the nature of a recall, that is, the procedure under the
federal Constitution for effectuating the principle, “the People giveth,
and the People taketh away”. They are the masters in government of, by,
and for them. Officers are public servants and as such are answerable to their
masters, the People, who can impeach them.
5. Therefore, the impeachability of
an officer who lies must be determined in light of:
a. the circumstances evidencing
that he knew that his statement was counterfactual so that his making it anyway
was deceptive, a lie, and as a result, a betrayal of public trust on which his
forfeiture of public office can be predicated;
b. the motive for
lying, and
c. the consequences of
the lie, even if unintended, for an officer who due to incompetence cannot
foresee the consequences of his lie is also impeachable.
A. The circumstances evidencing knowledge of a counterfactual statement
6. Let’s make such determination concerning
President Obama’s vouching to the American public for the honesty of his first
nominee to the Supreme Court, Then-Judge Sotomayor(*>http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf >jur:65§1).
The circumstances evidencing his knowledge that
his statement was counterfactual are these:
*NOTE: All (parenthetical) and [bracketed] blue text is references to supporting
passages and footnotes, respectively, found in the study, Exposing Judges'
Unaccountability and Consequent Riskless Wrongdoing: Pioneering the news and publishing field of judicial unaccountability
reporting. That study is in the file downloadable through the external link
http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf. In the study and everything else in the file, the blue text represents active cross-referential
internal links that facilitate jumping to supporting passages and footnotes to
check them.
a. The New York Times, The Washington Post, and Politico[107a]
had suspected her of concealing assets. Concealment of assets is a crime[ol:5fn10] committed to evade taxes
or launder money of its illegal source and bring it back with the appearance of
being lawful so as to invest it openly without the risk of self-incrimination
attached to investing dirty, unlawfully obtained money.
b. The FBI must have
investigated such suspicion of concealment of asset, for it could have derailed
J. Sotomayor’s confirmation. Using its subpoena and search and seizure power, it
must have compelled production of, and obtained, documents that even those three
major news entities could not obtain employing only the means of lawful
investigative journalism. Had the FBI found a satisfactory explanation that
dispelled the suspicion, it would have given it to the President, who would
have made it public to put the issue to rest and spare himself a major embarrassment,
much worse than that experienced by P. Bush when Harriet Miers withdrew her
name under criticism that she lacked the qualifications needed to be a justice.
No such explanation was ever publicized. Far from it, these
news entities dropped the issue inexplicably and simultaneously. Yet, each
could have reasonably expected to win a Pulitzer Prize had it found the
concealed assets of J. Sotomayor or led her or the President to withdraw her
name, or even caused her to resign as a circuit judge, never mind be indicted
for concealing assets. Was there a quid pro quo between the President and those
entities?(jur:xlviii)
c. J. Sotomayor filed “complete” financial statements with the Senate Committee
on the Judiciary in response to its two judicial nomination
questionnaires and questions in letters. The Committee posted them on its
website[107b]. To avoid embarrassing
surprise(cf. jur:93¶211), the FBI must have
done its due diligence by checking them against the statements that she had
submitted to the President while he was considering candidates for his
nomination. It would have been cause for grave concern if she had submitted inconsistent
statements. After tabulating the figures in the statements filed with the
Senate, they lead to this conclusion:
Judge Sotomayor earned $3,773,824 since 1988 + received $381,775 in loans
= $4,155,599 + her 1976-1987 earnings, yet disclosed assets worth only $543,903
thus leaving unaccounted for in her answers to the Senate Judiciary Committee
$3,611,696 - taxes and the cost of her reportedly modest living[107c.i]
7. President Obama’s lie can be
established or dispelled by circumstantial evidence, and also objectively,
e.g., by his agreeing to release unredacted all the FBI vetting reports on J.
Sotomayor.
B. The motive for lying
8. The
motive of the President to lie about J. Sotomayor’s honesty was to
curry favor with those who were petitioning him to replace Retiring Justice
Souter with a woman and the first Latina, and from whom he expected in return
their support to pass through Congress the Obamacare bill. That was the central
piece of his legislative agenda, the one in which he had a personal interest
because its continued validity by the Supreme Court upholding its
constitutionality would make him go down in history as the president who
managed to pass universal health care while many others had failed trying to do
so.
C. The consequences of lying
9. The
consequences of the President’s lying by vouching for J. Sotomayor’s
honesty are substantially harmful and lasting. With respect to those who
supported her confirmation for the Supreme Court, it constituted fraud in the inducement, for he told
them a lie to induce them to support the confirmation of a person whom on his
word they took for honest.
10. With
respect to those petitioning for another women and the first Latina, it
constituted fraud in the performance, for
they could reasonably expect that out of a population of over 300 million people
and the pool drawn from it of women and Latinas qualified to be justices, he
would choose one who was also honest and would not disappoint and embarrass
them by being exposed later on as dishonest.
11. The
president heads the Executive Branch. His duty is to execute the bills of
Congress enacted into law. His execution of Congress’s acts through his
enforcement of the law is his function; it is not optional with him. His office
carries neither discretionary power to enforce the law nor the power to exempt
at will anybody from its enforcement. The president must enforce the law on everybody
equally, as provided by law, including tax, financial, and criminal laws.
12. By
failing to enforce those laws on J. Sotomayor, President Obama committed dereliction of duty. By so failing, he
also compounded the crime because
he knew of her concealment of assets, and should have known if instead of looking
with willful blindness at NYT, WP, and Politico’s suspicion that she
had concealed assets, and looking away with willful ignorance(jur:90§§b-c), he had diligently performed his duty to
vet her properly.
13. Since
Obamacare had not been passed by Congress yet, the President could not possibly
have nominated J. Sotomayor for a justiceship because she happened to agree
with its provisions, for nobody knew what the bill would look like in its final
form, that is, if it were ever passed. Moreover, the Democrats have been
criticized for having rushed Obamacare through Congress with almost no debate
so that the members had barely any opportunity to read it. The fact that the
bill ran well in excess of 1,000 pages made it all the more difficult for
anybody to read it in its entirety Thus, it is reasonable to assume that she had
not read it either.
14. By
the President not enforcing the law on J. Sotomayor upon an explicit or
implicit agreement that in exchange for nominating her to the Supreme Court she
would support the constitutionality of Obamacare when, as expected, it came
before the Court for review, he committed bribery.
In that unlawful swap of benefits, the President abused
his power of nomination to turn his nomination of her into the
benefit that he gave. In exchange, he obtained the benefit of an agreement to
prejudge Obamacare to be constitutional, whereby he intended
to deprive the challenging party of its right to its day in court
before a fair and impartial judge; and intended to
obstruct justice. Since J. Sotomayor was a public officer, the
President committed an act of corruption of a public
officer.
15. To
vouch for J. Sotomayor’s honesty, President Obama covered up her concealment of
assets. Since that is a crime, id. >he
became an accessory after the fact for
the crime already committed. He also became an accessory
before the fact for the crime that he knew she would continue to
commit, for J. Sotomayor could not thereafter declare her concealed assets
without her sudden and unexplainable possession of such assets incriminating
her. Therefore, relative to her continuing crime of keeping assets concealed, the
President incurs continuing accessorial liability.
16. Assets
are concealed to evade taxes and launder money of their unlawful origin. When
the President lied to cover up J. Sotomayor’s concealment of assets, he abetted
and continues to abet her evasion of taxes, which are collected for the common
good. So he inflicted a financial injury in fact
on the people and still inflicts a
continuing financial injury in fact. By
allowing her to engage in money laundering, he facilitated
and continues to facilitate financial
corruption.
17. A
judge who breaks the law shows contempt for it and those whose interests it
intends to protect. She cannot reasonably be expected to respect the law enough
to apply it fairly and impartially. In fact, due to practical considerations,
she cannot because a yet to be exposed law-breaking judge is impaired by a
conflict of interests: She has a duty to apply the law, but her application of
it can lead to investigations and the incrimination of third parties. They can
expose her law-breaking and cause those parties to enter into a plea bargain
whereby in exchange for leniency they provide information or testimony exposing
the judge’s law-breaking.
18. The
risk of exposure undermines her resolve to apply the law and renders her
vulnerable to, and extortionable by, third parties. She owes a debt of survival
to those who did not, or have agreed explicitly or implicitly not to, expose her. Her mutually dependent
survival, assured through
coordination(88§a)
becomes her first concern; doing justice is downgraded to only a request of
litigants. Her unfitness to discharge the duties of her office is foreseeable.
Such foreseeability makes applicable the principle that a person is deemed to
intend the reasonable consequences of his acts.
19. By
the President nominating for a justiceship J. Sotomayor, whom he knew to be
breaking the law by concealing assets, and by causing senators to shepherd her
confirmation through Congress(78§6), he exercised
power irresponsibly since he exercised power irresponsibly since he intentionally
caused a person known to him to be unfit for office to be vested with it.
He
also intentionally and knowingly undermined the
institutional integrity of the Supreme Court, the Federal Judiciary, and
the process of judicial confirmation.
20. By
so doing, the President has intentionally and knowingly inflicted
on the American people the dishonest service of J. Sotomayor. For her
next 30 years or so on the Supreme Court, just as she helps shape the law of
the land that she will hold others to obey, she will continue to break it and
harm others so as to resolve her conflict of interests in favor of her survival(jur:xxxv), her peers(jur:71§4), and those who can expose a source(jur:66§§2-3) of assets to conceal and the whereabouts of her
concealed assets.
D. Action that the readers, journalists, and We the People can take
21. The
readers of this article may share it with journalists and the rest of the
national public. Informed of its considerations at the start of the mid-term
election campaign, the public may demand that all candidates and politicians ask the President to release unredacted all
the FBI vetting reports on Justice Sotomayor. If they raise concerns about
her asset-concealing or other law-breaking, then he had at least circumstantial
evidence requiring that he not vouch for her honesty because to do so was
counterfactual and knowingly deceptive: a lie. Given his motive for, and the
consequences of, lying, We the People
and our current and would-be representatives
can determine whether his lie constitutes an impeachable ‘High Crime or
Misdemeanor’.
22. Journalists
can pursue an investigation(ol:66) guided by a proven
devastating query(jur:4¶¶10-14) that can
dominate the campaign: What
did the President know[23b] about J.
Sotomayor’s concealment of assets and when did he know it?(ol:54)
©2014
Richard Cordero. All rights reserved. A non-exclusive license is hereby granted
for distributing and reprinting this article, provided it is distributed and
reprinted in its entirety, without addition or modification and with inclusion
of this copyright note; proper attribution is made to the author, Dr. Richard
Cordero, Esq.; and its link accompanies it: http://Judicial-Discipline-Reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf >ol:70-72.
No comments:
Post a Comment