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The Constitution Issue, Part 1: Milley Sends a Message; The Little Stamp That Could, And Did

Charles Krause 4 weeks ago

THE CONSTITUTION ISSUE

Wiseguy wannabe, he is
George Washington, he ain’t

swamp report

jim boden

Call Out my Praetoria Guard by Jim Boden (collage and watercolor on paper) 2020

The Weekend Swamp

12/14 June 2020
Section 1A 

This issue of The Swamp is dedicated to the memory of Dr. Henry Abraham, the dean of Supreme Court scholars and a lifelong mentor and friend, who taught me Constitutional Law at the University of Pennsylvania before his appointment as a Thomas Jefferson professor of political science at the University of Virginia. Henry and his family were refugees from
Nazi Germany who came to the United States in the 1930s;
he died this year in Charlottesville at the age of 98.

The CONSTITUTION ISSUE


Never in our history has a president
so egregiously violated his oath of office,
to “preserve, protect and defend
the Constitution of the United States”
as our 45th President, The Donald Trump.

Swamp analytica

Joint Chiefs signal they will
defend the Constitutional order
if/when the showdown comes

Can you remember the last time the Chairman of the Joint Chiefs of Staff felt the need to publicly apologize for having his picture taken with the President of the United States? Constitution

Or the last time the Attorney General of the United States personally ordered National Guard troops to violate the Constitutional rights of American citizens peacefully protesting the policy failures of their Government in Lafayette Park, across the street from 1600 Pennsylvania Avenue NW?

Or the last time a former Secretary of Defense and retired four star general issued a public statement essentially saying the president he served was a danger to the country, reminding the active duty officers he once commanded that they are under no obligation to carry out illegal orders from their Commander-in-Chief?

Fortunately for us, Our Leader (der Fuhrer, in German, btw) panicked and tipped his authoritarian hand, a symptom of his malignant Narcissist Personality Disorder, a tad early last week when faced with the first angry protesters to descend near the White House since he took up residence there three and a half long years ago.

Washington has been awash with speculation for some time that Donald Trump will not leave office voluntarily next January. Biden has said he believes Trump will try to rig or abort the election if he thinks he’ll lose.

Or, if he miscalculates and does lose, he and Bill Barr will try to find a reason not to turn over the presidency to the winner. That’s what the Michael Flynn-Obamagate “scandal” seems to be about; a fall-back justification for a sitting president not to turn over the Government to a tainted President-elect.

We interpret the Chairman of the Joint Chief’s apology as a signal to all who cared to read it, that the United States armed forces will not be used to help a President who’s lost or tampered with an election remain in office but will, instead, side with the American people to preserve the Constitutional order.

The military will bear a heavy burden because their intervention will itself be a disruption of the peaceful transition of power that has distinguished the United States from virtually every other country in the world for nearly 250 years.

It should make us all feel a bit better, not if, but when, the time comes. Constitution


THANKS TO DR. ABRAHAM’s COURSE
CONSTITUTIONAL LAW 101 

We sued on behalf of
the little stamp that could…
and finally did…expose the
Post Office’s unconstitutional rules defining political
speech

stamp

Hear Ye! Hear Ye!
Anatol Zukerman and Charles Krause Reporting LLC
v United States Postal Service

THE US COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA ISSUED WHAT MAY HAVE BEEN A PRECEDENT-SETTING DECISION IN OUR CASE THIS WEEK EXPANDING THE RIGHT TO POLITICAL FREE SPEECH. Constitution

MERRICK GARLAND WAS ONE OF THE THREE JUDGES WHO ISSUED THE UNANIMOUS OPINION DECLARING THE RULES THE UNITED STATES POSTAL SERVICE AND ITS AGENT, ZAZZLE INC, RELIED ON, AND THEN RE-WROTE, IN ORDER NOT TO PRINT OUR CITIZENS UNITED STAMP, WERE UNCONSTITUTIONAL.

REALIZING LATE IN THE GAME THAT THE NEW RULES MIGHT NOT BE ENOUGH TO CONVINCE THE APPEALS COURT THAT OUR COMPLAINT WAS MOOT, WHICH WAS THE WHOLE POINT OF RE-WRITING THE RULES, USPS THEN SENT A LETTER TO THE APPEALS COURT SAYING IT WAS PLANNING TO DISCONTINUE THE CUSTOM STAMP PROGRAM ALTOGETHER.

THAT DIDN’T WORK, EITHER. IN FACT, EVERYTHING THE POST OFFICE TRIED, FAILED—INCLUDING FIRING ZAZZLE, THE THIRD PARTY VENDOR THAT WAS PRINTING CRUZ FOR PRESIDENT AND BUSH/ TEXAS STAMPS WHEN ZAZZLE REFUSED TO PRINT OURS ON THE GROUNDS THAT IT WAS “TOO POLITICAL.” HA!


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EXHIBIT A
USPS did everything it could, including changing the Rules of the game
in the middle of the game, to avoid having to explain why the Cruz
stamp wasn’t “political” while our Citizens United stamp was .
The Court of Appeals seems to think that’s
an explanation worth hearing.


THANKS TO THE FAIR-MINDED, NO-NONSENSE APPEALS COURT JUDGES AND OUR EXCELLENT LAWYERS FROM THE KELLOGG, HANSEN FIRM, WHICH TOOK OUR CASE PRO BONO AND DEVOTED A HUGE AMOUNT OF TIME WORKING ON IT OVER THE PAST FIVE YEARS (THE ORIGINAL SUIT WAS FILED IN 2015), WE WON ON APPEAL. Constitution

THE COURT’S OPINION, WRITTEN BY SENIOR JUDGE HARRY EDWARDS ON BEHALF OF HIMSELF AND JUDGES GARLAND AND NEOMI RAO, IS 35 PAGES LONG AND HAS ABOUT AS MANY LEGAL CITATIONS PER PAGE AS THERE ARE PAGES, WHICH IS TO SAY EVEN FOR A STUDENT OF DR. ABRAHAM’S, READING THE OPINION WAS ENOUGH TO MAKE ONE’S HEAD SWIM.

WHAT’S MORE, THE ISSUES IT DEALS WITH ARE ALL PROCEDURAL, PRELIMINARY TO THE CENTRAL ISSUE OF WHETHER THE POST OFFICE ENGAGED IN IMPERMISSIBLE VIEWPOINT DISCRIMINATION WHEN ZAZZLE PRINTED STAMPS WITH POLITICAL MESSAGES IT LIKED, REFUSING TO PRINT OTHERS, LIKE OURS, IT DIDN’T.

D.C. DISTRICT COURT JUDGE CHRISTOPHER COOPER NEVER GOT TO THE MERITS OF OUR CASE BECAUSE HE ULTIMATELY AGREED WITH USPS THAT OUR SUIT WAS MOOT AFTER THE POST OFFICE ADOPTED ITS NEW RULES IN 2018, WHICH INCLUDED A BLANKET BAN ON POLITICAL STAMPS, PERIOD, FULL STOP.

NOT ONLY DID THE APPEALS COURT RULE THE NEW RULES DIDN’T MOOT OUR CASE, TO EVERYONE’S SURPRISE IT ADDED INSULT TO INJURY BY DECLARING THEM UNCONSTITUTIONAL , TO BOOT. The blanket ban on “political” content fails the “objective, workable standards” test articulated by the Supreme Court in Minnesota Voters Alliance v. Mansky,” JUDGE EDWARDS WROTE. “For that reason, it cannot pass constitutional muster.”

THIS IS, APPARENTLY, A BIG DEAL, PRECEDENT-SETTING APPLICATION OF A RECENT SUPREME COURT DECISION THAT WILL MAKE IT MORE DIFFICULT FOR THE GOVERNMENT TO PROHIBIT POLITICAL SPEECH IN GOVERNMENT PROGRAMS (OR “FORA,” AS THEY’RE CALLED)..

INSTEAD OF JUST BANNING POLITICAL MESSAGES AND LEAVING IT UP TO GOVERNMENT EMPLOYEES OR AGENTS TO DECIDE WHAT’S POLITICAL AND WHAT’S NOT, FROM NOW ON GOVERNMENT FORA WILL HAVE TO PROVIDE “OBJECTIVE, WORKABLE STANDARDS” THAT EVERYONE CAN SEE, SO EVERYONE WILL KNOW AHEAD OF TIME HOW “POLITICAL” IS DEFINED (WE HAD TO FILE SUIT TO FIND OUT WHAT ZAZZLE’S RULES WERE)..

THE APPEALS COURT ALSO OVERTURNED THE LOWER COURT’S RULING THAT OUR COMPLAINT WAS MOOT FOR ANOTHER REASON. JUDGE COOPER ACCEPTED USPS’S POSITION THAT THE NEW RULES MADE CERTAIN THAT WHATEVER HAPPENED TO US (WITHOUT DECIDING WHETHER WHAT DID HAPPEN TO US VIOLATED OUR FIRST AMENDMENT RIGHTS) WOULD NEVER HAPPEN AGAIN BECAUSE OF THE BAN.

NOT SO FAST, THE APPEALS COURT SAID, THE POST OFFICE HAD A “HEAVY BURDEN” TO SHOW THAT IT HAD LEARNED ITS LESSON–A BURDEN ITS ELABORATE EFFORT TO DENY US OUR DAY IN COURT ON THE MERITS OF OUR CASE, HAD NOT MET. THE COURT ALSO FOUND THAT WE HAD A CONTINUING INJURY THAT HADN’T BEEN REMEDIED. TO WIT, THE POST OFFICE HADN’T STOPPED THE OTHERS WHOSE POLITICAL STAMPS WERE PRINTED FROM USING THEIRS, WHILE WE COULDN’T USE OURS BECAUSE OURS WEREN’T.

TO GIVE YOU AN IDEA OF WHAT THIS ALL COST, WE ESTIMATE THAT IF KELLOGG HANSEN HAD BILLED US FOR ITS LAWYERS’ TIME, OUR LEGAL FEES WOULD BE IN THE NEIGHBORHOOD OF $2 MILLION, SO FAR. AND WE STILL DON’T HAVE THE $60 WORTH OF STAMPS WE TRIED TO ORDER..

SO, OUR LITTLE STAMP THAT COULD, AND DID, LIVES TO FIGHT ANOTHER DAY. AS WELL IT SHOULD—FOR SEVERAL REASONS I WILL ELABORATE ON IN NEXT WEEKEND’S SWAMP.

FOR NOW, LET’S JUST CELEBRATE OUR COURTS AND THE ROLE THEY’RE STILL ABLE TO PLAY SAFEGUARDING OUR INDIVIDUAL LIBERTIES—AND LAWYERS LIKE CHRIS TODD AND GEOFFREY KLINEBERG, THE KELLOGG, HANSEN PARTNERS WHO RECOGNIZED THE INJUSTICE THAT OCCURRED AND LED THE TEAM OF LAWYERS WHO LITIGATED OUR CASE, RESPECTIVELY.

ALL INVOLVED DID A MAGNIFICENT JOB AND WE ARE GRATEFUL.


BELOW: OTHER WORKS BY ANATOL ZUKERMAN, WHOSE CITIZENS UNITED DRAWING EXPOSED THE POST OFFICE TO SCRUTINY IT COULD NOT WITHSTAND, PROVIDING ANOTHER EXAMPLE OF THE HARM CITIZENS UNITED HAS CAUSED.

 

constitution

LEFT: Trickle Down, RIGHT: Back to the USSR

IN SECTION II OF THE CONSTITUTION ISSUE

Why a Religious Zealot
Shouldn’t be Attorney General
+
The Tribe of Abraham

COMING SOON

constitution

Trump stands in front of the historic St. John’s Episcopal Church on June 1 for a photo op, after peaceful protesters were forcibly removed from the vicinity with the use of tear gas. (Multiple sources for this photo.)

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CHARLES KRAUSE/REPORTING FINE ART, All rights reserved.
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