Monthly Archives: January 2021

The past few weeks have been a tumultuous time in US politics and a historic second impeachment for President Trump could be on the cards at the end of a presidency that has often been hard to predict. Taken fromImpeachment: What Everyone Needs to Know ,we look at some of the key questions surrounding such an action to remove him from office:

There is a general expectation that most issues pertaining to a presidents performance in office are to be dealt with through the electoral process (if the president runs for re-election) and the other checks recognized as applying to presidential conduct, such as popularity, the press, the judgment of history, and congressional oversight. Impeachment is a last resort for handling misconduct that cannot be dealt with by other means and that involves misconduct sufficiently serious to constitute treason, bribery, or other high crimes and misdemeanors.

Instead of being subject to a statutory mechanism like the Judicial Discipline and Disability Act, presidents are subject to the Twenty-fifth Amendment, which was ratified in 1967. It provides a mechanism for handling a presidents becoming subject to some disability that prevents him from doing his job, such as a major stroke or serious mental illness. This mechanism seems better suited than impeachment for dealing with incompetence resulting from some mental or physical disability.

The Twenty-fifth Amendment has four sections. The first section codifies the precedent set by John Tyler, which clarified who became president when a president died in office. Tyler claimed that the presidents death automatically elevated him from the vice presidency to the presidency. The Twenty-fifth Amendments first section now makes that practice a constitutional directive.

Section 2 of the Twenty-fifth Amendment provides a procedure for replacing a vice president who resigns, dies, or is incapable of further performing the duties of his office. If any of those things happens, the president is empowered to nominate a replacement, who has to be approved by a majority of each chamber of Congress.

Section 3 of the Twenty-fifth Amendment provides a procedure for temporarily empowering the vice president to take over the responsibilities and duties of the presidency. It provides that when a president transmits a written declaration to the president pro tempore of the Senate and the speaker of the House that he is unable to perform his duties, the vice president assumes those duties until the president sends another written communication to the same officials declaring that he is capable of resuming his duties.

The fourth section of the Twenty-fifth Amendment provides a procedure to be followed if the president becomes disabled but is unable to produce the written communications required in Section 3. This procedure allows the vice president, together with a majority of either the principal officers of the executive departments or of such body as Congress may by law provide, to declare the president unable to discharge the powers and duties of his office through a written declaration submitted to the speaker of the House and the president pro tempore of the Senate.

Section 4 is the only section of the Twenty-fifth Amendment that has never been invoked. Sections 1 and 2 were invoked three times during the Watergate scandal and Section 3 has been invoked three times to appoint vice presidents as acting presidents all for medical reasons.

The short answer is that it depends on the facts, but as we know from the plain language of this section, it comes into play if the vice president and a majority of the cabinet (or some other authority that the Congress has designated by statute) determine that the president has become disabled because of some mental illness or other problem.

This analysis cannot be a substitute for the kind of fact-finding that would have to be undertaken if this portion of the amendment was ever invoked. We know, from the congressional debates on the Twenty-fifth Amendment that these provisions were intended to address mental or physical incapacitation, as well as situations where a president might be out of reliable communication or kidnapped. We know as well that the purpose of this section is not to provide a means for a no-confidence vote but is designed to provide clarity and therefore some safeguards on circumstances when presidential incapacity requires putting his second in command in charge of the government, at least temporarily. The requirements themselves suggest a high threshold for its implementation, depending on the presidents own allies and appointees to come together to a significant degree for the sake of the country.

If Congress has to determine a Section 4 dispute between the vice president and the president, the Constitution makes it highly likely that the president will win (as he should, given the likelihood that he is the one who has been elected to the office). The requirements (1) for the acting president and a majority of the cabinet to send a second declaration that the president is incapacitated in response to the presidents issuing a challenge within four days of their initial declaration and (2) for two-thirds of each chamber of Congress within twenty-one days to express their agreement with the second declaration of the presidents incapacity (as a prerequisite for the vice presidents continuing to serve as acting president) are powerful checks on the vice president and cabinet stealing the office from the president. The acts high thresholds create a default rule that the president remains in office unless they can be met.

Whether that two-thirds support actually exists would of course depend on the facts and public perception at the time as well as the congressional and public perceptions of the vice president and the cabinet. If, for example, the vice president and the majority of the cabinet were widely considered to be acting out of the best motives and perceived to have been loyal and credible, the public and members of Congress, particularly the presidents partisan allies, might be more receptive to the determination of the need to replace the president temporarily. The presumption underlying the structure is that if the two-thirds threshold were met there must be compelling or strong evidence to declare the president incapacitated and thus unable to perform his duties.

Featured image by Alejandro Barba.

Link:
Questions on a Trump impeachment and invoking the Twenty-fifth Amendment - OUPblog

HIDALGO COUNTY, Texas (KVEO) More than 20 relatives of people buried at the Eli Jackson Cemetery have joined in a lawsuit to stop border wall construction near the gravesite.

On Friday, the U.S. District Court for the Southern District of Texas heard arguments on whether to approve an emergency temporary restraining order filed from the relatives to momentarily stop Southwest Valley Constructors Co. from constructing the border wall near the cemetery.

According to the relatives, Southwest Valley Constructers are causing damage to the cemetery as well as to the church building and cemetery at the nearby Jackson Ranch Church and Cemetery.

The restraining order asks construction to not take place within 500 feet of the cemetery.

The construction company argues in court documents that damages at the site were present before construction began. They state there is no legal reason to halt construction for the restraining order or for the lawsuit in general.

However, the relatives claim the construction near the cemetery violates the Texas Constitution, Article 1, Section 19 and the Fifth Amendment of the United States Constitution as they have a property interest in the cemetery that would be harmed by the border wall.

While the court did hear the argument on Friday and faced evidence from both parties, court documents do not show that a conclusion was made on the restraining order.

The Eli Jackson Cemetery and Jackson Ranch and Cemetery are located about a mile from the Rio Grande River in a remote part of Hidalgo County south of Pharr.

Border wall construction is taking place north of the cemetery, which would leave the gravesite in a no mans land facing Mexico. Family members and visitors would have to pass through the wall in order to reach the cemetery if construction is completed.

The ranch was founded in 1857 by Nathaniel Jackson and Matilda Hicks who originally traveled from Alabama. The pair migrated to south Texas to escape the prejudices of interracial marriage found in Alabama.

Jackson used the ranch as a refuge for enslaved people who escaped from Texas or other parts of the south.

When Jackson died in 1865, his son Eli established the location as a cemetery as well. Veterans of the Civil War, Korean War, World War I and II, among others, were later buried at the site.

The Jackson Ranch and Cemetery were certified by the Texas Historical Commission in 1983. The Eli Jackson Ranch was certified in 2005.

Read the original:
Restraining order filed in lawsuit to stop border wall construction near Eli Jackson Cemetery - KGBT-TV

FridayJan15,2021at12:15AM

Should Joe Biden attempt to "look forward" and fail to hold the soon-to-be-not-president accountable for his actions, not only will he suffer the same ignominy that befell Gerald Ford in the wake of the Nixon pardon, but he will also guarantee a Democrat annihilation in the 2022 midterms and beyond.

The Democrats fortunes, however, are not the point.

Hoping to dodge the fallout that followed In the wake of Barack Obamas ill-advised (guided by "norms") decision to "look forward" after the misdeeds of the George W. Bush administration would be stunningly hypocritical. You simply cannot mouth the words "no one is above the law" and then short-circuit the law because its ... uncomfortable.

There is a massive record that exists already, used as a basis for the wholly successful impeachment by the House. The Mueller Report oft vilified but still left simmering spells out 10 instances of possible obstruction of justice. Start there, Merrick Garland. And subpoena those tawdry pardon recipients who no longer enjoy Fifth Amendment protections on the subject.

But look at everything because dozens of allegations go beyond the abandonment or destruction of the aforementioned norms. The past decisions of the DOJ, or the FBI, or any other body with jurisdiction not to investigate or bring charges are not dispositive. Take the time NOW to render essential justice.

While many smile at the prospect of orange jumpsuits lets all realize the result is less important than the process, if only marginally. A factual record is paramount, as it will guide the decision-making and legislation of the future.

To wit, Congressman Huizenga, your recorded vote on electoral certification will stand forever as a pathetic attempt to gloss over your recorded signature on Ken Paxtons unconstitutional lawsuit.

Some guidance is gained, and some lessons are learned, harder than others.

Richard Wolfe

Park Township

Read more:
Letter: Hard lessons we are learning - Opinion - HollandSentinel.com

Updated at 4 p.m.: Revised to reflect statements from attorneys involved in the case.

The states highest criminal court agreed to review the murder conviction of Roy Oliver, a former Balch Springs police officer who fatally shot a Black teenager while on-duty in 2017.

The Texas Court of Criminal Appeals announced Wednesday that it will examine the case but will not hear oral arguments in the murder of 15-year-old Jordan Edwards.

Oliver, 41, was convicted of murder in 2018 and sentenced to 15 years in prison and a $10,000 fine.

Jordan was leaving a party the night of April 29, 2017, with his two brothers and two friends when Oliver, who is white, shot into the car as it was driving away. Gunshots had been fired nearby by people unaffiliated with the party, and the other teens in the car have said they were driving away because they were afraid.

Oliver testified that he thought the car was going to hit his partner, who had responded with him to a complaint about a loud party.

During the trial, Olivers partner, Tyler Gross, testified he didnt fear that he was going to be run over by the car during the incident.

Mike Snipes, a former Dallas County prosecutor who won the murder conviction against Oliver, said hes not surprised to see the case move so far in the appeals process because of its significance.

We feel very confident about what we did procedurally and at trial during that case, and so I welcome the review, Snipes said. I just think at the end of the day, the conviction will be upheld.

Robert Gill, Olivers attorney, said the appeal is largely related to Garrity v. New Jersey, a 1967 Supreme Court decision that says law enforcement officers and other public employees have Fifth Amendment protections when they give a statement about an incident, meaning the statement cant be used against them in criminal proceedings.

Olivers lawyers argue that some information that Oliver gave in initial statements after he shot Jordan should have been withheld.

There isnt very much Texas law on the issue surrounding the Garrity case and an individuals Fifth Amendment rights ... so were glad to see the court wants to review that, Gill said.

Lee Merritt, an attorney who represents Jordans family, said the same issue that came up early on in the trial.

We actually dont have any issue with the review. We dont believe that particularly on that very narrow issue we dont believe that it will be significant enough to overturn the results of the case, he said.

Merritt said Jordans family continues to mourn his death and that their civil lawsuit is still active.

Oliver appealed his case to the 5th Court of Appeals in Dallas, which ruled last August to uphold the conviction.

Olivers lawyers argued that a jury would have agreed that Oliver was acting to protect his partner had they received different instructions before deliberating.

There is no timeline for the Court of Criminal Appeals to make a decision.

Oliver is currently serving his 15-year sentence at the W. F. Ramsey prison in Rosharon, Texas.

Staff writer Dana Branham contributed to this report.

More here:
States highest criminal court to review murder conviction of Roy Oliver, ex-cop who killed 15-year-old - The Dallas Morning News