NEW CONST CALENDAR

 Time again for everyone's favourite blog post- Judge Hisch's Constitutional Calendar. Today he explores the history of Kush Patel's FBI- 

(and we are looking hard at the over 49 on the MNF Bengals/Cowboys snoozer)

On July 26, 1908, Charles Joseph Bonaparte, who held the unique distinction of being both the Emperor Napoleon’s grandnephew and Teddy Roosevelt’s attorney general, complied with an instruction given by the latter. He hired nine agents away from the Secret Service, and 25 other detectives, and appointed them the first special agents of the Department of Justice’s newly-formed Bureau of Investigation. Congressmen and senators, who had not voted to fund this new agency, conjured up comparisons to the Okhrana, the czar’s much-feared secret police force; and made references to Joseph Fouche, the powerful chief of the secret police under Napoleon.  

Not immediately, but during World War I and the “Red Scare” that followed it, many of these fears came to fruition.  Those who were suspected of German sympathies, or communist velleities, or lack of enthusiasm for federal office-holders and their policies, were likely to find their homes or offices ransacked without warrant, their phones tapped without legal authority, their friends and family members shadowed or intimidated.  These practices reached their apex during the attorney-generalship of Harry Daugherty, easily one of the greediest and most corrupt of public officials, who headed the Department of Justice during all of the Harding and some of the Coolidge administration.  

When Daugherty became an unbearable political liability, Coolidge replaced him with the squeaky-clean Harlan Fiske Stone, giving Stone a mandate to clean up DOJ and especially its Bureau of Investigation.  Stone set out to do so, issuing a series of press releases and interviews to make his intent clear.  “There is always the possibility,” he went so far as to admit, “that a secret police may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood.”  But in the end, “the enormous expansion of federal legislation, both civil and criminal, in recent years, has made a Bureau of Investigation a necessary instrument of law enforcement.”  Stone knew that change would have to come from the top.  He appointed, as acting director of the Bureau, a 29-year-old lawyer already serving in the Bureau. His name was J. Edgar Hoover.

In private correspondence with Harvard Prof. Felix Frankfurter (with whom Stone would later serve on the Supreme Court), Stone aired the view that Hoover should be kept on as director, and could be trusted to keep the agency from sinking to the nefarious “secret police” practices in which it had formerly engaged. Frankfurter wrote back, expressing some reservations. His correspondence seems to suggest that Hoover had been on good behavior because Stone was his boss, but that it was impossible to know how Hoover would behave under weaker, or less principled, attorneys general.  “Hoover might be a very effective and zealous instrument for the realization of the ‘liberal ideas’ which you had in mind for the investigatorial activities of the Department of Justice when his chief is a man who cares about these ideas as deeply as you do, but his effectiveness might be of a weaker coefficient with a chief less profoundly concerned over these ‘ideas.’”  

On December 10, 1924, Attorney General Stone informed Hoover that he was no longer merely “acting,” but was the director of the Bureau of Investigation (or, as it would become in 1935, the Federal Bureau of Investigation).

MILT HIRSCH'S CONSTITUTIONAL CALENDAR ..... & A POSTSCRIPT ON JASON BLOCH .....

 

THE CAPTAIN REPORTS:

MILT HIRSCH'S CONSTITUTIONAL CALENDAR .....

John Provoo passed away 23 years ago this week. Who is John Provoo you ask:

"In the weeks and months before December 7, 1941 – that “day that will live forever in infamy” – the plan was simple.  When the armies of Imperial Japan came sweeping through southeast Asia, the American forces based in the Philippines would fall back upon positions in and around Manilla Bay, there to await rescue by America’s Pacific Fleet.  The plan was simple because it had to be.  America’s military presence in that part of the South Pacific was inadequate for any purpose but tactical retreat, and Americans burdened by the Great Depression were in no mood to fund an expanded military presence on the far side of the globe.

In the wake of their surprise attack on Hawaii, the Japanese destroyed Clark Field, America’s airbase in the Philippines, as well as other military and naval installations in and around Manilla Bay.  The Pacific Fleet, which according to the plan was to rescue the American forces in the Philippines, had been sent to the bottom of Pearl Harbor.

American and allied forces fell back upon such positions as were available to them, chiefly upon a barren rock called Corregidor.  Bereft of supplies, bereft of reinforcements, bereft of hope, they held out for four full months, obliging the enemy to engage them until April 9, 1942.  The fate that awaited the souls who surrendered was reported in the American press as the “Bataan Death March.”

During and after the Death March one American soldier, John Provoo, formed an alliance with his Japanese captors.  He was given decent nutrition and sanitary living conditions.  In return, he acted as a guard and informer against his own comrades, and later even made radio broadcasts for Imperial Japan.

It was not until 1949 that the United States Department of Justice was prepared to go forward against Provoo on charges of treason and related crimes.  The delay was entirely understandable.  Provoo’s crimes, committed in 1942, were beyond the reach of the law until the war ended.  Even then, there were military, economic, and other claims on the nation’s post-war attention that took priority over the prosecution of Provoo.  And when prosecutors did begin to assemble their case, they had precious little to work with: most of the witnesses were dead, and many of the survivors were in far-off Japan or Australia.  

In the meantime, on September 5, 1946, Provoo had found the perfect hiding place: incredible as it seems, he had quietly reenlisted in the United States Army.  He was stationed at Ft. Meade, in Maryland.

In June of 1949, the Department of Justice arranged to have Provoo taken into custody at Ft. Meade; transported under guard to Fort Jay, Governors Island, New York; and ordered to accept an “undesirable discharge” from the Army.  He was then turned over to agents of the F.B.I. who arrested him for treason.  Provoo was tried in the Southern District of New York, convicted, and sentenced to life imprisonment.

Provoo’s lead counsel on appeal was George A. Spiegelberg.  Spiegelberg, the grandson of German-Jewish immigrants, was a Harvard Law grad; served prominently in World War II; and after the war was among the founders of the law firm that is today Fried, Frank .  He had little criminal-law experience, but when the Second Circuit appellate panel – an all-star team of Swan, Medina, and Harlan – asked him to undertake Provoo’s appeal, he agreed to do so on condition that he and his colleagues receive no compensation at all.  He would represent Provoo for principle, but not for money.  

On appeal, Spiegelberg had a powerful argument grounded in 18 U.S.C. 3238, which at that time provided that, “The trial of all offenses begun or committed . . . out of the jurisdiction of any particular state or district, shall be in the district where the offender is found.”  Provoo was “found” at Ft. Meade, in the District of Maryland.  His travel to New York was a contrivance of the Department of Justice.  It could not create venue.  In the words of the appellate court:

“We cannot blind our eyes to the fact that the real purpose in bringing [Provoo] to New York was to meet the wish of the Department of Justice to have him tried for treason under the indictment subsequently filed here.  Consequently we hold that the continuance of Provoo’s restraint in Ft. Meade . . . for the purpose of bringing him to New York for trial, was an apprehension for treason and that he was ‘found’ in Maryland within the meaning of the venue statute.”  United States v. Provoo, 214 F. 2d 531, 538 (2nd Cir. 1954).  

The Second Circuit’s opinion reversing Provoo’s conviction was dated August 27, 1954.  Of course the appellate ruling did not bar re-trial; on the contrary, it invited it.  On October 27, Provoo was indicted in the District of Maryland.  

The lawyers who represented him there dropped a bombshell: they moved to dismiss the charges against him on constitutional speedy trial grounds.  See Petition of Provoo, 17 F.R.D. 183 (D. Md. 1955).  In essence, the motion to dismiss claimed that the delay of approximately five years associated with trial and appeal in New York had prejudiced Provoo’s defense irremediably.  The motion identified defense witnesses who had died, and evidence that had become unavailable, in the intervening period.  

The resolution of the motion would turn in substantial part on the government’s reason for having Provoo transferred to New York for trial.  In the America of the 1950's, all television and radio networks were headquartered in New York City, as were several of the nation’s largest daily newspapers.  It was almost certainly the case that the prosecution’s real reason for trying to manufacture venue in New York was so that a notorious traitor could be tried and convicted before the largest possible audience.  

The Maryland case would proceed before U.S. District Judge Roszel C. Thomsen, who had been on the bench for no more than eight or nine months when the case came before him.  But what Judge Thomsen lacked in experience he made up for in fidelity to the Constitution.  To the unspoken argument that so vile a traitor as Provoo should not be permitted to go unwhipped of justice for a violation of his right to a speedy trial – a violation of the sort that the lay public refers to as a “technicality” – Judge Thomsen replied: “The offenses charged could not be more serious.  But it would be a poor tribute to [a fellow-soldier whom Provoo was accused of betraying] to deny to this defendant the rights for which [that fellow-soldier] gave his life.”  Petition of Provoo, 17 F.R.D. at 196.  He explained:

“It . . . appears that Provoo . . . was taken to New York in September, 1949, charged with treason, and held in custody for more than five years before being indicted and brought to trial in a district having jurisdiction to try the case.

“The government must have known that venue in New York was at least doubtful . . . yet the government caused Provoo to be taken under guard from Fort Meade to Fort Jay, for the supposed advantage of proceeding in New York rather than in Maryland.  It therefore appears that a large part of the long delay – at least five years – has been due to the deliberate choice of the government, exercised for a supposed advantage.

. . .

“. . .  The long periods of imprisonment have caused other prejudice to the defendant beside the deprivation of his freedom, with a capital charge hanging over him.  He has been handicapped in his ability to locate and keep in touch with possible witnesses.  But even more serious has been the effect on Provoo himself. . . .  His ability to cooperate with his counsel in preparing his defense, and to testify in his own behalf with respect to matters which occurred from 1942 to 1945, has obviously deteriorated during the years in prison.”  Id. at 195.  

The case was dismissed.  Provoo went free.  But his story doesn’t end there.

It ends with a small piece in a Honolulu newspaper – just a small piece down in the corner on the obituaries page.  It was dated August 28, 2001, exactly two weeks before the debacle of September 11, and it noted the quiet death of an 84-year-old Buddhist priest at Hilo Medical Center in Hawaii.  His name was John Provoo, and he was buried at Hawaii Veterans’ Cemetery. "

JASON BLOCH, POSTSCRIPT:

The Comments section from our last post was filled with a back-and-forth about Judge-Elect Jason Bloch. (To the educated reader it would appear that Jason or someone very close to him wrote many of the replies to the somewhat negative comments about his last stint on the bench, how he won the election this time, his net worth, how he earned that money, and on and on and on).

As Joe Friday liked to say "just the facts". So here are the actual facts:

Jason Bloch reported raising $13,300 for his campaign. He contributed (loaned his campaign) an additional $170,975. He spent $313,978 on his campaign. (I have not figured out how that is actually possible - he spent $129,703 more than he had in his campaign account. Maybe Judge Bloch can weigh in on that matter in the Comments section or privately email us).

His opponent, Bonita Jones-Peabody, raised $50,270 and loaned her campaign $80,025. She spent $90,790.

According to the publically available documents, Jason's net worth indicates he had about $68,000,000 as of December 31, 2023. How he acquired that wealth has also been the subject of debate in the comments. But, strictly for argument's sake, who cares. If Jason Bloch wants to serve the public as a judge, and if the people of Miami-Dade County choose to elect him, then why does it matter how much he is worth on paper, or how he acquired that money.  Certainly, his abilities on the bench are fair game, and he will once again be judged by the attorneys that appear before him over the next six years. But his net worth - sounds like just a little bit of jealousy out there.

As for past elections, Jason ran twice in contested elections for Circuit Court Judge. He spent 20 years working at the Miami-Dade County Attorney's office before being appointed to the bench by Governor Rick Scott in 2014.

Two years later, in 2016, he ran as the incumbent against challenger Marcia Del Rey. Bloch lost that election 52% - 48%.

In 2022, Bloch challenged incumbent Judge Oscar Rodriguez-Fonts. Bloch lost that contest 50.4% - 49.6% (a total of 262,589 votes were cast - Bloch lost by 1,851 votes).

Those are the facts.

CAPTAIN OUT .......
Captain4Justice@gmail.com

RACISM AND RELIGION

The Best Constitutional Calendar yet. 

Read it and remember when this country had heroes who fought side by side regardless of their different races and religions. 

A hearty well done to Judge Milt Hirsch who reminds us there was a time when heroes and bravery didn't always mean you carried a gun. 

On June 12, 1964, Martin Luther King wrote a letter to Rabbi Israel Dresner of Springfield, New Jersey.  Addressing his friend and fellow-clergyman by his nickname – “Dear Sy” – Dr. King explained that he was writing from the St. Augustine, FL, city jail.  King knew that Dresner was about to attend a “rabbinical assembly,” and asked that he arrange for a number of rabbis to come immediately to St. Augustine.  “It would do much to buttress our efforts here and across the nation.”  Dr. King knew how serious was the request he was making.  His letter concludes, “Perhaps if this letter could be read to your brethren next week, it might be considered a ‘call’ to St. Augustine.  I would imagine that some 30 or so rabbis would make a tremendous impact on this community and the nation.  We would hope that some would be prepared to submit to arrest.”

Rabbis heard Dr. King’s “call.”  And rabbis came to St. Augustine.

On June 19, 1964, it was their turn to write a letter from the local jail.  It was written, ironically, on the back of an arrest form.  Entitled, “Why We Went,” it included these words:

“We were arrested on Thursday, June 18, 1964.  Fifteen of us were arrested while praying in an integrated group in front of Monson’s Restaurant.  Two of us were arrested for sitting down at a table with three Negro youngsters in the Chimes Restaurant. . . .

“We came to St. Augustine mainly because we could not stay away.  We could not say no to Martin Luther King, whom we always respected and admired and whose loyal friends we hope we shall be in the days to come.  We could not pass by the opportunity to achieve a moral goal by moral means – a rare modern privilege – which has been the glory of the non-violent struggle for civil rights.

. . .

“We came as Jews who remember the millions of faceless people who stood quietly, watching the smoke rise from Hitler’s crematoria.  We came because we know that, second only to silence, the greatest danger to man is loss of faith in man’s capacity to act.

. . .

“We praise and bless God for His mighty acts on our behalf.  Baruch ata adonai matir asurim.  Blessed art Thou, O Lord, who freest the captives.”

Judge Frank Johnson

In light of the resignation of a judicial hugging giant on Friday, it's time for everyone's favourite Constitutional Calendar by Judge Milt Hirsch. You know it. You love it. You cannot live without it.  If we start a campaign maybe we can get the good Judge to start an Instagram Account "Constitutional Calendar By Milt" It would go viral with our help. 

And this one is about a true Judicial giant, a man who was directly responsible, at great personal risk to his life, with making rulings enforcing the civil rights acts of 1964 and voting rights act of 1965 when he was a district court judge in Alabama. As the picture shows, he was on the cover of Time in 1967 because of his courageous rulings. For you new judges Time was a weekly magazine that covered national and international issues. 

A magazine was....oh never mind. 

Judge Johnson was a man who swam against the tide of public opinion because he knew right from wrong. A man who was not beholden to anyone. He didn't just call balls and strikes. He was a man who saw wrong and did right. Our judges today, who are afraid of their shadow and the SAO, of whom we bet 99.9% would not be able to identify if Frank Johnson was a district and circuit court judge, or a place kicker for the Dolphins in the mid 1980s, would do well to read up about Judge Frank Johnson. 

On May 16, 1979, Judge Frank M. Johnson Jr. appeared before the Senate Judiciary Committee.  Johnson, a district judge in Alabama, was already a legendary figure for his role in desegregating the schools of his state.  His appearance before the Senate was in connection with his nomination to what was then the Fifth Circuit.

Unexpectedly, Johnson was presented with a “minority questionnaire” prepared by Strom Thurmond and other Republican members of the Committee.  The questionnaire’s second question was, “The Federal Judiciary has become the target of both popular and academic criticism that alleges that it has usurped many of the prerogatives of the legislative branch of the federal and state governments by engaging in their [sic; its] own law-making. ...  Please discuss whether or not you agree with these criticisms.  What are your own personal views on ‘judicial activism,’ the phrase often used to describe these judicial tendencies[?]”

Johnson responded:

The charge that federal judges have engaged in “law-making” is as old as the Constitution itself. ... In a democracy, the power of the courts to decide constitutional cases is not, and should not be, absolute.  The doctrine of separation of powers and the doctrine of “Our Federalism” properly circumscribe the role of the federal courts.  But these doctrines serve only to limit, not to bar, the exercise of judicial power.  Neither doctrine reserves to Congress or the states the right to violate the Constitution.  The balance between “law-making” and “law-interpreting” is a fragile one.  While a failure to defer to the decisions of coordinate branches of government is judicial intrusion and therefore improper, a blind deference to legislative and executive action is judicial abdication and is equally mistaken. The rights guaranteed by the Constitution are to be made effective in the present. 

 

The Constitutional Calendar (c) 2023 Judge Milt Hirsch, all rights reserved. Reprinted with semi-permission of the author. 

GILIUM CASE UPDATE: 

The government folded their tent and ran away. With the jury 10-2 for acquittal on the remaining  counts of fraud and money laundering, and with the not guilty on the false statement count, the government announced today that they will NOT re-try Gilium. In legal terms, they got their freaking ass kicked and said enough. 

Well done David and Margo and Katie Miller and Todd Yoder. 

Well done indeed. 

CONSTITUTIONAL CALENDAR PATRIOT EDITION

 What does patriotism and loyalty mean? Your Constitutional Calendar jurist - Judge Hirsch- has the very topical answer:

    The “Cold War” was already under way when, in the September, 1947, issue of Harper’s Magazine, preeminent American historian Henry Steele Commager published an essay entitled, “Who is Loyal to America?”.  That essay – which resulted in Commager being vilipended as a “commie” in hate mail and even in some newspapers –  included this memorable passage:

        "It is easier to say what loyalty is not than what it is.  It is not conformity.  It is not passive acquiescence to the status quo.  It is not preference for everything American over everything foreign.  It is not an ostrich-like ignorance of the other countries and other institutions.  It is not the indulgence in ceremony – a flag salute, an oath of allegiance, a fervid verbal declaration.  It is not a particular creed, a particular vision of history, a particular body of economic practices, a particular philosophy.

        "It is a tradition, an ideal, and a principle.  It is a willingness to subordinate every private advantage for the larger good.  It is an appreciation of the rich and diverse contributions that can come from the most varied sources.  It is allegiance to the traditions that have guided our greatest statesmen and inspired our most eloquent poets – the traditions of freedom, equality, democracy, tolerance, and the tradition of Higher Law, of experimentation, cooperation, and pluralism.  It is the realization that America was born of revolt, flourished on dissent, became great through experimentation."

Under information and belief, the Republican party has already denounced the Haper magazine's piece, Henry Steele Commager, and this blog as dangerous and radical and wrong.  MAGA loyalty is all about indulgence of ceremony and sum over substance, saying the pledge of allegiance, and the preference of everything American over everything else. In summary, Judge Hirsch has uncovered a missive 69 years from the past, to our current troubles. 

And who else but he could do so?

A PASSOVER CONSTITUTIONAL CALENDAR

 He reads and rhapsodizes over the Constitution and related stories. 

It's Judge Hirsch's Passover Constitutional Calendar. 

The evening of Friday, April 14, 1865, was the fifth day of the Jewish holiday of Pesach, or Passover; and was of course the beginning of Shabbat, or the Sabbath.  Only days earlier, Lee had surrendered to Grant at Appomattox.  In Cincinnati, Rabbi Max Lilienthal’s sermon for the evening drew the obvious parallel between the deliverance of Jews from slavery in Egypt and the deliverance of Blacks from slavery in America.  “Four years ago,” he asked, “how many of us were Abolitionists?  How many of us dreamt of the possibility that this sacred soil of liberty should be cleansed from the scourge of slavery?  How many of us had the moral courage enough to think that this great stain could be or should be removed from the brilliant escutcheon of the American people?”

The theme was taken up in synagogues across the nation that Friday evening.  And not just in synagogues: April 14 was Good Friday, and many church-goers heard similar sermons.

Of course not everyone went to church or synagogue that evening.  

President and Mrs. Lincoln went to the theater. 

Rumpole says, moral of the story is sometimes it's better to have a Seder, or a Shabbat dinner, or go to a Good Friday service  than see a play. 

CATO

 It's that time again. When Rumpole is in trial and has an appeal due and is otherwise occupied, there is nothing that brings a smile to our weary eyes then seeing a Judge Hirsch Constitutional Calendar in our mailbox. Short but sweet,  how can we not like political discourse conducted under pseudonyms? 

In September of 1787, Thomas Greenleaf’s New York Journal carried the first of seven essays by “Cato” (suspected of being Governor George Clinton) urging that the newly-proposed Constitution be rejected by New York. Another series, this one by “Brutus,” followed in the same newspaper in October.

Alexander Hamilton determined to reply. His first essay appeared in the New York Independent Journal on October 27,1787, under the pen name “Publius.”  The reference was to Publius Valerius Publicola, one of the men who overthrew the early Roman monarchy and founded the republic. Publius was remembered for his humility – he moved his house from a hilltop to the valley – and became known as the People’s Friend. 

Hamilton’s essay was, of course, the first of what would come to be known as The Federalist Papers. 

A CONSTITUTIONAL CALENDAR

 It's been a while and this one is short and sweet (not many of the otherwise admirable habits of the author of the CC): 

"When a man unprincipled in private life[,] desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits -- despotic in his ordinary demeanor -- known to have scoffed in private at the principles of liberty -- when such a man is seen to mount the hobby horse of popularity -- to join in the cry of danger to liberty -- to take every opportunity of embarrassing the General Government and bringing it under suspicion -- to flatter and fall in with all the nonsense of the zealots of the day -- It may justly be suspected that his object is to throw things into confusion that he may ride the storm and direct the whirlwind."

          --  Alexander Hamilton, Objections and Answers Respecting the Administration, Aug. 18, 1792

Biden. America. Afghanistan. John Kerry: "How do ask a man (or woman) to be the last man to die for a mistake." 

Prepare for this subject and discuss while we prepare the ultimate opinion on the matter. 

DON'T BE TOO DOWN

 Good Monday to you, Let's see....At least nine mass shootings this weekend. Second Amendment baby! How come none of these gun nuts ever show up and shoot the mass shooter? 

India is being overwhelmed with Covid. 300-400 thousand people getting infected every day. But ....you know...it's just like a cold right? No need for masks, or vaccines. Stop over reacting! 

Hmmm is there any good news? 

Wait! Just when you think all is lost, Judge Hirsch sends out a Constitutional Calendar missive and saves the blog and the day!

All rise for the CC...

Justice Brandeis’s concurrence in Ashwander v. TVA, 297 U.S. 288, 341 et. seq. (1936) teaches a lesson that cannot be repeated too often: Courts are not to adjudicate constitutional questions if the actual cases before them can be resolved on sub-constitutional bases, such as statutory or common-law grounds.  The temptation to ignore this lesson – to address constitutional questions first, rather than last – is one to which American judges and lawyers too often succumb.  On May 10, 1952, the prestigious British publication The Economist observed, “[A]t the first sound of a new argument over the United States Constitution and its interpretation the hearts of Americans leap with a fearful joy.  The blood stirs powerfully in their veins and a new lustre brightens their eyes. Like King Harry’s men before Harfleur, they stand like greyhounds in the slips, straining upon the start.” 

We read some more appellate opinions this weekend. When are we going to start talking about doing away with the contemporaneous objection rule? "The defendant was convicted and sentenced to life in prison. When the state compared him to Hitler in closing arguments there was no objection. It is clear the jury did not really think the defendant was Hitler and the error does not rise to fundamental error. We take this opportunity to remind the prosecutor that as much as possible such arguments should be avoided in the future. Comparing defendants to Hitler, Stalin, Bill Cosby. Idi Amin, Saddam Hussein, and Elon Musk serves no purpose in our system of justice. Finding the error was not fundamental we affirm on all counts, wish the defendant well and hope that he can take comfort in our belief the trial was not fair, we all personally feel bad for him, but unless his attorney objects there is nothing we can do. Good luck in prison living without hope. PCA." 

IMPEACHMENT!

 Ah the "I" word. It is more than you think, as this edition of the right and Hon. Judge M. Hirsch's Constitutional Calendar teaches: 

Thomas Jefferson swept into presidential office determined to purge the federal judiciary of the Federalist judges appointed by his two predecessors.  His weapon would be impeachment.  He would start with the low-hanging fruit and, he hoped, work his way up to the greatest prize of all: his bitter antagonist and distant kinsman, Chief Justice John Marshall.  

The very lowest-hanging fruit was John Pickering of the U.S. District Court for the District of New Hampshire.  Pickering, once a leading member of the bar and the author of his state's constitution, had degenerated into dementia and alcoholism.  On February 4, 1803, the president transmitted certain "letters and affidavits" to the House of Representatives with his encouragement that impeachment proceedings be instituted.  They were.

Trial before the Senate began on March 4, 1804.  But the Senate was immediately presented with a problem of constitutional interpretation.  Impeachment required that Pickering, like anyone to be impeached, be guilty of high crimes and misdemeanors.  The evidence that at all times material Pickering was insane and incapable of forming the intent to commit any crime was irrefutable.  In an ordinary criminal proceeding, this would render conviction impossible.  But surely Pickering was not entitled to remain in office as a United States district judge because he was too demented to form criminal intent.

The senators reconciled themselves to the notion that the "misdemeanors" referred to in the demised constitutional provision did not, or did not necessarily, refer to criminal misdemeanors, but was simply a catch-all phrase for misbehavior inconsistent with the duties of office.  On that basis, Pickering was convicted.  

CONSTITUTIONAL CALENDAR DECEMBER 21 2020

 It is the last Constitutional Calendar of the year by the noted Probate Jurist Milton Hirsch. And it is a good one. And then if you need some holiday reading, check out the concluding paragraph for purchase information. 

Lambdin P. Milligan was a “Copperhead” – he didn’t like the Civil War or the way Lincoln was prosecuting it, and he wasn’t unwilling to say so.  Military authorities convened a military commission, tried and convicted him, and sentenced him to death.  All this took place in Indiana, where there was no Confederate army and the civil courts were open and functioning.  

Before the Supreme Court, Attorney General Stanbery and former Attorney General Butler argued that the power of the executive to conduct war was unfettered by law.  Inter arma silent leges.

Justice David Davis rejected that position in the language for which he is best remembered.  “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”  See Ex Parte Milligan, 71 U.S. 2 (1866).

Although today J. Davis’s opinion is considered a pillar of the rights of liberty, at the time it was released it generated enormous controversy.  Southern editorialists argued vehemently that, after Milligan, Union forces should be withdrawn from the former confederacy and trials of crimes – notably, of the many murders of newly-freed blacks by vengeful and angry whites – should be left to local courts and local juries.  Not a few Northerners viewed Davis’s ruling as a surrender in the courtroom of what had been bitterly won on the battlefield.  

Milligan died on this date, December 21, in 1899.  

The Constitutional Calendar will be taking the remainder of the year off, resuming in early 2021.  To fill the gap in your leisure reading, and to better enjoy the holidays, read The Wheel of Justice, the last novel in my Judge Clark Addison mystery trilogy, available from Amazon for a paltry $14 and some cents.

PRESIDENT PARDONED FOR CRIMES!

 President Ford pardoned President Nixon September 8, 1974. It may have cost him the election in 1976, but historians judge his action as brave and presidential. You know what would be the worst punishment to Trump? If President Biden pardoned Trump. That would be the ultimate FU. 

In any event, you probably were expecting a Constitutional Calendar from your favourite circuit court judge on the Nixon pardon, and he did not disappoint: 

Article II sec. 2 of the Constitution vests in the president the power to grant “reprieves and pardons” (but not dispensations).  The most famous, or infamous, exercise of the presidential pardon power in modern times occurred on September 8, 1974:

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION
Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974.

Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment.

As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

NOW, THEREFORE, I, GERALD R. FORD, PRESIDENT OF THE UNITED STATES, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of September, in the year of our Lord nineteen hundred and seventy-four, and of the Independence of the United States of America the one hundred and ninety-ninth.

President Ford was bitterly criticized for his pardon of Nixon, some critics going so far as to suggest that Nixon and Ford had made a deal pursuant to which Ford would become vice-president upon Spiro Agnew’s resignation, in exchange for which he would guarantee Nixon a pardon if and when Nixon was forced from office.  After Ford left the White House in 1977, he privately justified his pardon of Nixon by carrying in his wallet a portion of the text of Burdick v. United States, 236 U.S. 79, a 1915 U.S. Supreme Court decision that suggests that a pardon carries an imputation of guilt and that acceptance of a pardon carries a confession of guilt. 

A NEW DAY

 A new day has dawned in Miami, and there is not much to celebrate. The election results are disappointing and the judiciary has been diminished. Make no mistake about that. We have no regrets. We spoke truth to power and we shall continue to do so. 

In these troubled and difficult times, it's best to turn our thoughts to history and seek solace in the words of those who have come before us. There is at least one new judge who could not pick the name of Judge Learned Hand out of a line-up if their job depended on it. But elections have consequences. 

Here is Judge Milt Hirsch's Constitutional Calendar for August 18, 2020. Enjoy. 

"[T]his much I think I do know — that a society so riven that the spirit of moderation is gone, no court can save; 

that a society where that spirit flourishes,

no court need save; 

that in a society which evades its responsibility by thrusting 

upon the courts the nurture of that spirit, that spirit in the end will perish."

          -- Learned Hand, in "The Contribution of an Independent Judiciary to Civilization"  (1942). 

Judge Hand died on this day, August 18, 1961

CONSTITUTIONAL CALENDAR

It's been a while, but we have been busy with...ahhh..something or other but the unusual event escapes us, but no matter. 
This is Judge Hirsch's Constitutional Calendar for June 9 and it is a great one:

In 1807, Aaron Burr, former Vice President of the United States, was tried for treason.  The trial was presided over by Chief Justice John Marshall.  Burr participated in his own defense, but was also represented by (among others) Luther Martin, a legendary trial lawyer of that era.  

On June 9, Burr made an application to the court: President Jefferson, in a proclamation to Congress the previous November 27, had referred to a letter and other papers received by him from General Wilkinson, the principal witness against Burr.  Burr had good reason to believe that these papers would exculpate him in part, and would demonstrate that the case against him was a political plot to discredit and destroy him.  He had applied to the Secretary of the Navy for permission for his counsel to inspect these papers, and had been denied.  “Hence,” claimed Burr, “I feel it necessary ... to call upon [the court] to issue a subpoena to the President of the United States, with a clause, requiring him to produce certain papers; or in other words, to issue the subpoena duces tecum.”

Marshall labored long and hard over the order adjudicating the motion.  That order concluded:

"It cannot be denied that to issue a subpoena to a person filling the exalted station of the [presidency] is a duty which would be dispensed with more cheerfully than it would be performed; but, if it be a duty, the Court can have no choice in the case.  If then, as is admitted by the counsel for the United States, a subpoena may issue to the President, the accused is entitled to it of course; and, whatever difference may exist with respect to the power to compel the same obedience to the process as if it had been directed to a private citizen, there exists no difference with respect to the right to obtain it."

The principle is as old as Magna Carta: Rex non debet esse sub homine, sed sub Deus et lege.  The king – or the president – is not subject to other men, but is subject to God and the law.

TRIAL UPDATE! Don't look now, but the "Trial of the Century" County Court style, scheduled for Monday morning in the misdemeanor division of County Court, with a bevy of heavy hitters on all sides, including everyone's favourite federal blogger, has washed out with a "conditional nolle prose" whatever that is. Maybe it's an "IF...THEN" scenario. "IF you eat Turkey AND stuffing, on Thursday, THEN we will dismiss the case." 
Either way it's a win. When you and your client walk out of court with no return date, it's a win (unless you pled to CTS, then it's  loss). 

Judge Hirsch's Constitutional Calendar for Thanksgiving is a repeat, but one worth repeating. And while we are at it, let's give a shout out to Probate's newest Judge, and his latest novel, available here on Amazon . A Judge. Criminal Court. Civil Court. A Museum Theft. What more could a reader ask for?

Well, perhaps the answer to this question: What does the 6th Amendment right to counsel, the decision in Gideon v. Wainwright, some Coca Cola and Whiskey, and Henry Fonda all have to do with the Florida Rules of Criminal Procedure? The answer is below.

     It was August, 1963, and readers of the Panama City News or the Panama City Herald could scarcely help but feel a sense of civic pride.  The front pages told of a local construction boom: A Howard Johnson’s Motor Lodge on West U.S. 98, Gainer Funeral Home’s building on North Cove Boulevard, and the Florida State Employment Office’s new quarters on Ninth and Magnolia.  In the advertising supplements the Cook Motor Company trumpeted the sporty new Ford Falcon for $1,795.  And on the sports pages, big things were foretold for the Bay High School Tornadoes and junior halfback Joe Wayne Walker.

It was August, 1963, and Panama City, Florida, was small-town Dixie, an unlikely epicenter for a constitutional earthquake.

That same month, while the Tornadoes ran their two-a-day drills, Clarence Earl Gideon was tried for the second time – this time with the assistance of counsel – for the theft of 12 bottles of Coca-Cola, 12 cans of beer, four fifths of whiskey and about $65 in change from the cigarette machine and jukebox of the Bay Harbor Pool Hall.  Neither the trial nor Gideon’s acquittal received any particular notice in the Panama City News or the Panama City Herald.

But in the highest echelons of Florida government, notice was taken.  In light of the Supreme Court’s decision in Gideon v. Wainwright and Gideon’s ensuing acquittal on retrial it was expected that hundreds, perhaps thousands of Florida prisoners would be filing habeas corpus petitions claiming that their judgments and sentences were unconstitutional because uncounseled.  The respondent in each such petition would be Louie Wainwright, the warden of the state penitentiary at Raiford.  Jurisdiction would lie in the circuit court of what was then Bradford County, a rural spot in the middle of the state that in 1963 had but one circuit judge; one judge, and hundreds, perhaps thousands of petitions.  Chaos would ensue.

Thus it was that as a result of Gideon v. Wainwright the State of Florida got what it had never had before: a rule of criminal procedure, aptly entitled Florida Rule of Criminal Procedure No. 1.  The rule provided that habeas petitions were to be filed in the circuit court in which the convictions under attack had been had. The expected flood of petitions would be fairly and evenly distributed throughout the state.  Chaos would be neatly averted.

Joe Wayne Walker and the 1963 Bay High Tornadoes never really got the chance to live up to expectations.  The big game against the Rutherford High Rams was played on the evening of Friday, November 22, and ended in a scoreless tie.  But President Kennedy had been assassinated earlier that day, and the football game didn’t seem so important.

The answer to the trivia question is mostly self explanatory based on Judge Hirsch's Constitutional Calendar, except for Henry Fonda, who played Clarence Gideon in the made for TV Drama about Gideon v. Wainwright. 

SATURDAY NIGHT MASSACRE & ANOTHER DAY ANOTHER STORY ABOUT JUDGE K

Before we begin our history lesson, make sure you scroll down and read about a comparison between the almighty and a member of the judiciary. And yes we recall the quip that goes "what's the difference between a federal judge and the lord? The lord doesn't think he's a judge."  And now, on with the show...

It went down in history as  "The Saturday night massacre" and it is a prime example of presidential power misused. Like a boomerang, what Nixon threw came around and hit him in the back of the head. 

The president believed he was above the law, so he ordered the Attorney General of the United States, Elliot Richardson to fire special prosecutor Archibald Cox (you don't meet many people named Archibald these days). Richardson refused and resigned. Next up in the DOJ was William Ruckelshaus, who also refused. As you will read below, Nixon did not get to an ASA assigned to the Hialeah Branch Court to do his bidding, but almost. 

Nixon refused to turn over the tapes made in the Oval Office, lost in the US Supreme Court in US v. Nixon, (which is now a bane to federal criminal defense attorneys everywhere seeking a rule 17(c) subpoena) and eventually resigned, consigned to history to be opined upon by the likes of the  Honorable Judge Hirsch, who provides us, free of charge, a timely constitutional calendar today:
(Longtime and careful readers know that this isn't our first post on this subject. You can review the other one here). 

          “Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit”

– Washington Post headline, Sunday, Oct. 21, 1973

A former aid to White House insider H. R. Haldeman revealed to a congressional Watergate committee that President Nixon had recorded secret conversations in the Oval Office.  Archibald Cox, the bowtie-wearing Harvard professor who had been appointed the Watergate independent special prosecutor, obtained a court order directing the Nixon White House to produce the tapes.  Nixon, furious and running for his political life, ordered his Attorney General, Eliot Richardson simply to fire Cox.  To the president’s astonishment and outrage, Richardson refused.  In what must have been a scene evocative of a Leoncavallo opera, Nixon responded with something like a curse: “Let it be on your head,” he seethed at Richardson.

Nixon then ordered the next in command at DOJ, Deputy Attorney General William Ruckelshaus, to fire Cox.  Ruckelshaus instead submitted his own resignation, writing to the president that, “I am, of course, sorry that my conscience will not permit me to carry out your instruction to discharge Archibald Cox.”  Finally, in Solicitor General Robert Bork Nixon found a man to do his bidding.  “I am, as instructed by the president, discharging you, effective at once, from your position as Special Prosecutor, Watergate Special Prosecution Force,” Bork wrote to Cox.  

Nixon had underestimated the national sense of outrage.  NBC news anchor John Chancellor told his viewers, “The country tonight is in the midst of what may be the most serious constitutional crisis in its history.”  David Broder of the Washington Post coined the phrase “the Saturday night massacre” to refer to what had happened, and the phrase stuck. Professor Cox released a statement which included the dire message, “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately for the American people.”

As talk of impeachment swirled around him, Nixon backed down.  He appointed the highly-respected Leon Jaworski as special prosecutor, and announced that he would produce the tape recordings

Judge K 
Can't get enough of the Judge K story of the day? Then head over the Mr. Markus's blog where he has a Palm Beach Post story covering the career of the former Dade State and Federal prosecutor. 
Or just click the link here to the story which opines that the Judge may have a G-d complex. 

YOM KIPPUR

Courts are closed today in observance of Yom Kippur, the day of atonement for Jews. 
As our life gets more complicated, more busy, more digital, we often struggle to find time for spin classes, yoga, and religion (not in that order).  You could fill a three-page pamphlet with the title of "Great Jewish Athletes of the 20th Century". (Don't start an email avalanche, we know there were plenty, it's a humorous line ). 

Tops among hall of fame pitches in the last century was Sandy Koufax. Kofax was as a great a pitcher you will ever see. Koufax, Bob Gibson, Tom Seaver, Doc Gooden, Jim Palmer, Steve Carlton. Take your pick. But Sandy Koufax was Jewish, and in 1965 his Dodgers were in the world series, often referred to as The October Classic, because it occurs in October. Sometimes Yom Kippur falls in October, like in this year. 
We let Judge Hirsch and his Constitutional Calendar take it from here......

The First Amendment purports to guarantee freedom of religion from encroachment by the federal government.  The Fourteenth Amendment incorporates that guarantee as against the states.  See, e.g., West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943); Hamilton v. Regents of the University of California, 293 U.S. 245 (1934); Meyer v. State of Nebraska, 262 U.S. 390 (1923).  

But for freedom of religion to exist in fact, and not merely in contemplation of law, what is required is acceptance and even support in the general community for those whose religious practices differ from those of the general community.  Such acceptance and support cannot be imposed by legislative fiat.  Either they exist as an expression of the American spirit, or they do not exist at all.

On October 6, 1965, Sandy Koufax, the ace of the Los Angeles Dodgers’ pitching staff and almost certainly the greatest pitcher in all of baseball at that time, declined to pitch in the first game of the World Series against the Minnesota Twins.  Koufax was Jewish, and the game fell on Yom Kippur, one of the most solemn religious observances in the Jewish calendar.

Dodger owner Walter O’Malley, even with all he had riding on the World Series, backed Koufax’s decision.  “I won’t let Sandy pitch on Yom Kippur under any circumstances,” O’Malley told the press. “I can’t let the boy do that to himself.”  (O’Malley joked to the press that he’d “ask the Pope what he can do about rain on that day.”)

"Nobody said a word. Nobody thought a bad thing about [Koufax],'' said Wes Parker, the Dodgers’ African-American first baseman. "We respected him because he was doing it because of his religion. He was being true to himself.''

"Most people admired Koufax for putting his religion before his job,'' Hall-of-Fame Dodgers broadcaster Vin Scully said. "It was his decision, and everyone respected it. They understood.''

In Koufax’s absence, the Dodgers gave the ball to Don Drysdale.  But Drysdale didn’t have his stuff that day.  He coughed up seven runs in less than three innings.  When Dodgers manager Walter Alston went out the mound to take out his starting pitcher, Drysdale quipped, “I bet right now you wish I was Jewish too.”

SCATTERED LIGHT

The doldrums of August shall not dissuade the courier of the Constitutional Calendar from the swift completion of his appointed rounds. (Go to 421 Eighth Avenue, Manhattan, and look up). Because we are not alone in disliking ado, we present this edition of Judge Hirsch's Constitutional Calendar without further of the subtance no one likes. 

On August 21, 1790, George Washington wrote a letter to the Jewish community of Newport, Rhode Island.  The quality of Washington’s prose reminds us how much we have lost in American public discourse.  More importantly, his obviously heartfelt expressions of religious tolerance make clear that America, unlike the principal nations of Europe, really meant to be that place in which every man might “sit in safety under his own vine and fig tree and there shall be none to make him afraid.”  I am not ashamed to say that, as an American Jew, I cannot read this letter without a tear coming to my eye.  Here’s the letter:

Gentlemen:

While I received with much satisfaction your address replete with expressions of esteem, I rejoice in the opportunity of assuring you that I shall always retain grateful remembrance of the cordial welcome I experienced on my visit to Newport from all classes of citizens.

The reflection on the days of difficulty and danger which are past is rendered the more sweet from a consciousness that they are succeeded by days of uncommon prosperity and security.

If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good government, to become a great and happy people.

The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy — a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship.

It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.

It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my administration and fervent wishes for my felicity.

May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants — while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.

May the father of all mercies scatter light, and not darkness, upon our paths, and make us all in our several vocations useful here, and in His own due time and way everlastingly happy.

G. Washington