Open Letter to President George W. Bush
Re: Stay of Execution

March 1, 2001

OPEN LETTER TO:

The Honorable George W. Bush
President, United States Government
[The White House]

(The text of this letter may be reviewed at http://www.legalreality.com)

Mr. President:

Thank you, to you and your family, for your willingness to serve our country in this capacity. Congratulations on your inauguration, and may our Lord guide you and your administration in your term of Office.

Things “at home” are continuing nicely. Should time permit, the review about Mr. Perry in the most recent Texas Aggie is worth a thorough reading. 

Summary

The request made here is this: Will you please interpose a temporary stay of execution regarding Timothy McVeigh, in order that a small group of us may present our Amicus Curiae effort, probably through a Writ of Habeas Corpus, which effort includes issues not before heard by our court system. Without your involvement at this stage in this matter, there is no real expectation that any court should make time to listen.

Overview

Mr. President, this is not a matter of opposition to the death penalty as proper punishment for murder, nor is this some out of left field support for the attitudes and behavior that have culminated into the current circumstances. The death penalty is, in the proper case, the appropriate form of punishment for murder, and we have zero interest in being even remotely associated with those of Mr. McVeigh’s “political persuasion.”

This concerns the very essence of the United States Constitution, and the Government that it formed. While a complete review of the facts is in order, those are already fairly well known. Please see http://www.okcbombing.org/. (This effort is led by the Hon. Charles Key, former State Representative.) To know the facts is to conclude, reasonably, that it is most doubtful that McVeigh had anything to do with the cause of the building collapse, which building collapse caused those tragic and untimely deaths. All the popular reporting of this case has characterized this case as an “explosion” case, and has then endeavored to link McVeigh with one of the several explosions that morning, which additional explosion(s) is(are) carefully not mentioned. But this is not an “explosion” case, because it wasn’t an “explosion” that caused the deaths that we, as a country, mourn. This is a “building collapse” case, and the proper focus is on which explosion caused that building to collapse. Attributed to McVeigh is the infamous “truck bomb.” This is all that is attributed to McVeigh. Yet, to say that a single, distant, ground-based, point source, of nitrates, caused that building to come down is to say that one, pristine, “magic” bullet went through both President Kennedy and Governor Connally, and then ended up on a stretcher in Parkland Hospital. The physics in this one just don’t add up any better than the “magic” bullet theory. But, an even clearer telltale sign of what we’re dealing with is an understanding of the applicable Law from the Constitution. And, rather than being discussed openly, these points have been relegated consistently to the background in this matter, if they’ve been discussed at all.

To cut to the chase, the actual reality of any matter always comes out, sooner or later. The country probably does not yet appreciate the details shared here, and there is no real knowing when, or even if, that will change. A great many know the facts, as well as the angle presented in the popular media, and just feel that something is not right with the proceedings to date, but that there is little else to do. The exact opposite is true; there is plenty to do. This case is no more “over” than the Kennedy Assassination case is “over.” And, should the country’s awareness and appreciation of the legal reality presented here change in the near future, and yet if the execution goes forward, we’ll all have to live [with] the fact that this is the administration that had the “last chance” to review the matter. The country doesn’t need that; Texas doesn’t need that, and you and your administration don’t need that. Thus, whether this information is learned quickly or slowly, we must ask the question, “How do we want to be remembered?” 

This is not a request for clemency, but simply for a temporary stay in order that the legal points presented here may be presented, for the first time, and where they belong, which is in the court system.

This request is not about one man’s life. This request is about one Government’s life. The contribution of this request and what comes after isn’t quite the same as that of our Armed Forces, who deal with facing the ultimate sacrifice in their line of work, to maintain the continuity of the life of the United States Government. But if we turn our backs in the courtroom, and allow to fade away that which the Armed Forces personnel risk their lives to protect and preserve, what is the point in having either the Armed Forces personnel or the courtroom? For our system to work, we must have both. For this one Government to continue, we must have both.

We’ve seen the former administration’s attitude about our Armed Forces, up to and including the effort to exclude their votes in Florida in the November 2000, election. We’ve seen the former administration’s attitude about truth and integrity. The former holder of the Executive Office is temporarily disbarred for his acts of false statements of material fact under oath, yet look at what Judge Starr experienced in his efforts to investigate the matter. Ron Brown and Vince Foster will be names forever connected to the phrase “Clinton Administration.” As regards the former administration’s perspective of justice, we have the 11th hour “pardons,” at least one of which is currently under investigation in the U.S. Senate, as Congress discusses of yet more “impeachment” proceedings. In this discussion, we learn just how far the Article III judicial Power was contorted to produce the current circumstances involving McVeigh and Nichols.

Primary Issues

Point 1: Does every court in Colorado lack subject matter jurisdiction to try criminal charges that arose completely in Oklahoma?

Summary: The Colorado court had no authority to try these charges, and the Attorney General’s Office should have known this. This case turns extradition on its ear! Not even Treason can be tried outside the State in which that case occurred.

Point 2: Does every United States District Court in the country lack subject matter jurisdiction to try the “murder” charges alleged in this case?

Summary:

“Murder” is a matter for the State governments. Outside the military and maritime contexts, Congress has zero authority to define and punish “murder” by way of “admissible evidence of Law of the United States.” There is nothing about relabeling “murder,” into, say, “terrorism,” that alters either the nature of the crime of “murder” or Congress’ expressly limited authority to address the subject matter of “murder.”

Congress can, and arguably must, define and punish “murder,” as a “necessary and proper” part of the authority granted for several identified subject matters. However, outside the military and maritime contexts, the authority to do so arises solely from the “exclusive legislative Authority” found in the second to last clause in Article I, § 8. By such authority, any Bill defining and punishing “murder” that Congress might propose can become “admissible evidence of Law” only for cases

        geographically limited to
            (1) the Seat of the Government of the United States (the “District”), and
            (2) the property owned by the United States Government. 

“Yes, but, this was a ‘federal’ building, so that qualifies under (2), right?” Perhaps, but the two items of proof required to establish the indictment language as “admissible evidence of Law” were not offered at trial, and neither can that crucial evidence be anywhere found, generally. In other words, since the required evidence doesn’t exist, it’s somewhat difficult to offer it as the necessary proof in a court of law.

For the United States Government to own a parcel of land, there must be at least two documents: (1) some form of receipt, such as a deed, and (2) a Joint Resolution by the State in which that parcel is found “Consenting” to the transfer into the ownership of the United States Government.  This, too, is set forth in Article I, § 8. Since neither of these items of documentary evidence appears of Record in the case against McVeigh or the case against Nichols, or in the Oklahoma County records, or in the records of the Oklahoma State Legislature, it follows that we’re not talking about United States Government property, but rather private property.

From there, the rest follows as a matter of course.
    (A) The “language” in the indictment, on which are based the charges of “murder,” is not “admissible evidence of Law” in this case (not in Oklahoma, not in Colorado, not in any State); meaning
    (B) the United States Grand Jury had zero authority to indict any such “murder” charge;
    (C) the Attorney General’s Office had zero authority to prosecute any such “murder” charge; and
    (D) the indictment is insufficient on its face, as regards those charges of “murder.” (And the Attorney General should have known this.)
Thus, (E), those “murder” charges in no way belong in any United States District Court, not even one in Oklahoma.

Should the U.S. Attorney’s Office prove “Consent” by the Oklahoma Legislature, at some point, it still follows that such charges as were brought here can only be tried in the State (county) courts. The Article III subject matter jurisdiction does not extend to matters arising under “Law of the District.” And, again, the U.S. Attorney’s Office, the U.S. Grand Jury and the U.S. District Court are just not to be involved in “murder” cases, generally.

Conclusion

Mr. President, there is a lot of popular misinformation, both factual and legal, regarding this case. All we can do is start to clean up the mess. The Colorado court, i.e., the transferee court, never had the authority to hear the case, any of it, much less pass sentence. And no United States District Court in our country, not even the one in Oklahoma City that transferred the cases to Colorado, could possibly have authority over the “murder” charges. Further, to give credit where credit is due, surely there arises a question to a reasonable mind as to why a judge, who is well acquainted with the concepts of “extradition,” the embodiment of the State-line limit on criminal cases, would so blatantly violate that limitation. Is he telling us something that only someone close to the events would know, in the only way permissible, given his Office? Among the available options, why did he make it impossible for any trial court to exercise subject matter jurisdiction in any of the charges against McVeigh and Nichols, even the ones that arguably may be properly within the limited Article III judicial Power to hear?

The exercise of judicial Power in Colorado is the very sort of judicial abuse that helped motivate our Founders to send their “note” to King George. If the least deserving among us is allowed to suffer it, all we can then ask is, “Who’s next?”

There is certainly nothing personal to be gained by this effort, except preserving through the courtroom what our Armed Forces preserve in battle. To the best of our knowledge and study, neither of these issues has been presented to any court in such a way as to get the issues heard. And, before a man, who is not guilty of causing the building to collapse in the first place, is executed for murders he didn’t commit, doesn’t the country deserve the modicum of respect that would be shown by determining whether these “murder” charges even belong in a United States District Court?

Finally, there’s the timing issue. One of the standard renderings of Isaiah 9:6 reads this way:

        For unto us a child is born, unto us a son is given: and the government shall be upon his shoulder: and his name shall be called Wonderful, Counsellor, The mighty God, The everlasting Father, The Prince of Peace. 

Isaiah 9:6 (emphasis added).

A somewhat more detailed translation renders that verse as follows:

        For a Son has been born, a Gift to us,--
        On His shoulder the Princedom rests,--
        The Wonderful Counsellor, call His name,
        Great Leader, Time’s Father, the Prince of Peace!

Isaiah 9:6 (emphasis added).

The point is that once we accept Who created Time, we also know Who created “timing.” It just cannot be accidental that we have the time to review this matter under the supervision of an administration that is keen on a strong national defense, integrity and justice.

Request for Relief

For these reasons, I, as Amicus Curiae, request of you, as President, a temporary stay of execution of Timothy McVeigh, for sufficient duration that these matters may be presented and heard in the normal course of our judicial processes, most likely by way of a Writ of Habeas Corpus. Since these issues raise matters of subject matter jurisdiction, these issues cannot by “waived.” Therefore, they have not been waived, and are fully able to be presented and heard in the appropriate court(s). (Since “murder” is a matter for the States to define and punish, generally, and certainly as those Laws apply in this case, there’s zero authority in the Office of the President to grant any “clemency,” or “pardon,” for these “murder” charges, anyway. These are not Offenses against the United States.)
 

Presentation of the Issues

Point 1: Does every court in Colorado lack subject matter jurisdiction to try criminal charges that arose completely in Oklahoma?

Summary: The Colorado court had no authority to try any of these charges. Not even a case of Treason can be tried outside the State in which that case occurred.

Authority:

The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed in any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. U.S. Const. art. III, § 2 (emphasis added).

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. U.S. Const. art. IV, § 2 (emphasis added).

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law …. U.S. Const. amend. VI (emphasis added).

Discussion:

What happened to these cases turns “extradition” on its ear! Even Treason, the one crime defined in the Constitution, must be tried in the State in which the overt act is alleged to have occurred.

A. To understand Article III, § 2, Article IV, § 2, and the Sixth Amendment is to understand that there really are only two relevant facts in the matter before us:

        (1) The crimes occurred in Oklahoma City, Oklahoma, but
        (2) the trial took place in Denver, Colorado.

Further, to understand the simplicity of these two facts is to understand the value of executive intervention and supervision of the judicial process in this case. These facts are simply too basic to miss, and yet a man awaits execution (he has been sentenced to death) because, to date, these simple, basic facts have been ignored.

Mr. President, under the prior administration we see that these very simple facts were completely ignored by our judiciary. We see that our trial judges, the transferee court in particular, purported to exercise judicial authority that clearly doesn’t exist. Isn’t it worth our time to find out what is so different about this case that would have perfectly able jurists turn their back on their oath to support the Constitution, thus turn from respecting their own limits in exercising the judicial Power? Why did a senior member of the trial bench render it impossible for a judgment to survive (proper) review, by transferring these criminal cases across the State line?

B. Article III, § 2.

The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed in any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. U.S. Const. art. III, § 2 (emphasis added).

Either Oklahoma is a State, or it isn’t.

If what we’re learning here is that Oklahoma is not a State, for purposes of the Constitution, then let’s become aware of that fact. Our family, friends and neighbors there will be quite surprised to learn of this perspective, but for something like this, sooner may be better than later. If Oklahoma isn’t really a State, then we have the matter of a crime “not committed within any State.” If that’s the case, then the suitable provisions approved by Congress are relevant to determine the place of trial.

“[S]uch Trial shall be held in the State where the said Crimes shall have been committed.” The crimes took place in Oklahoma City, County of Oklahoma, State of Oklahoma. Therefore, the trial had to take place at least somewhere in the State of Oklahoma. Yet, the trial took place in a different State, the State of Colorado. Based on these two facts, alone, we know that something is not right with this case, and it was not right from the very outset.

The presumption is made here that transfer of venue of a criminal case to an adjoining County may be permissible. Based on the concept of vicinage (State and district, i.e., County, or Parish) there’s good authority to doubt this, but we’re not arguing that point, here. Given, by way of presumption, that transfer of venue, in general, to an adjoining County, may be permissible, it is still the case that the Constitution is very clear that any “transfer of venue” does not contemplate “transfer of State.” In fact, it’s clear from the Constitution that such transfer of criminal cases across State lines is, in general, strictly forbidden.

It’s not that “transfer of State” is impossible. It’s just that those cases are rather unique. In fact, there are only two fact patterns that come to mind. First, let’s take the hypothetical case of a murder that occurs in the District, the Seat of the Government of the United States, which geographic area is not a State. Therefore, such crime, as a matter of Law, cannot have been committed in any State. Therefore, “transfer of State” is at least conceivable. Should it not be possible to obtain a fair trial in either of the two Counties in DC, then it’s conceivable for Congress to establish Virginia, or Maryland, as suitable “venues” for trial of such crime. And, let’s say that one venue is attempted, and is found unworkable, for reasons of justice, then, conceivably, that case could then be transferred to the other State. There is no heartburn, here. The case did not occur within any State, making venue subject to determination by (pre-existing) legislation.

In the second fact pattern that comes to mind, if there’s a crime that encompasses more than one State, the issue arises as to which State has the authority to try that crime. And, again, should one venue be determined, for reasons of justice, to be unworkable, it is conceivable that transfer to the other State is not offensive to the Constitution. However, it’s precisely because both States have legitimate basis to claim jurisdiction outright that ‘transfer of State” is even conceivable. Yet, when the State in which the trial is held has no basis in which to claim subject matter jurisdiction, it’s inconceivable how jurisdiction in that State can withstand review.

It has been labeled the “Oklahoma City bombing” from the outset. For most of us, that means that this took place in the State of Oklahoma, in fact, in Oklahoma County. Given that fact, there’s no basis for transferring this case across the State line, because no other State in the Union has a court with authority to try those criminal cases. If most of us have missed something, and if that something is the fact that Oklahoma is really not a State, which is the only way Article III, § 2 doesn’t outright prohibit this “transfer of State,” then we’ve missed something, and Article III, § 2 may not be an issue.

Mr. President, under the prior administration, there was even some question as to the understanding of the term “is.” Either Oklahoma was not considered a State in our Union, or the unequivocally clear State-line limit on the judicial Power that exists for all criminal cases was purposefully ignored. Is it the understanding of this administration that Oklahoma is a State? And if so, are the people there entitled to their State Sovereignty claim, chiseled into the stone that is the United States Constitution, that all crimes committed within its boundaries are subject to trial within its boundaries?

C. The Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law …. U.S. Const. amend. VI (emphasis added).

These crimes were committed in Oklahoma City, Oklahoma County, Oklahoma.

The key item to note here is that while the Sixth Amendment maintains the State line as the limitation on judicial authority in criminal prosecutions, what it adds is the venue concept of “district” within the State. Thus, it is not the State that is “previously ascertained by law,” but rather the “district” within that State. In short, this language is clear that transfer across the State line is prohibited. (In fact, this language is foundational in questioning the “transfer of venue” practice in any criminal case, but that is not the issue raised in this case.)

Also, it is the district that is “to be ascertained by law.” This phrasing doesn’t say, “ascertained by Congress,” but rather, “ascertained by law.” The point is that the State Legislatures are just as authorized to establish legislation regarding the proper district for the State Law matters as Congress is for matters of U.S. Law. However, both Congress and the State Legislatures are limited in this exercise of legislative authority, because it is the district (i.e., County, or Parish), not the State, that is subject to (prior) legislative ascertainment.

 Why would a “transfer of State” question even come up? For a case that involves solely matters of State Law, it’s unlikely that the thought of “transfer of State” would even arise. Why in the world would a State (county) trial court in Oklahoma even remotely consider transfer of a murder case to Topeka, Jefferson City, Little Rock, Austin, Santa Fe, or Denver? It would just never happen. It’s solely because there are some matters that, arguably, do come within the realm of “admissible evidence of Law of the United States” in this case that clouds the matter and even tolerates the thought. However, as is further clarified in the next section, namely the discussion of Article IV, § 2, there’s nothing about defining and punishing a crime by way of an Act of Congress that increases or in any way alters the Article III limits on the exercise of the judicial Power. Since Congress can’t alter the Article III judicial Power directly, as properly held in Marbury v. Madison, they most certainly cannot do it indirectly.

 Mr. President, under the prior administration, the limitations found in the Sixth Amendment were completely ignored. No court in Colorado can satisfy the limitations imposed by the Sixth Amendment, yet the trial proceeded. Is it the understanding of the current administration that the Sixth Amendment is binding on our judicial officers, and that, given that the State in which these crimes were committed is Oklahoma, and the “district” within that State would be Oklahoma County, that the proper location for the trial of these crimes was in Oklahoma County, Oklahoma?

D. Article IV, § 2.

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. U.S. Const. art. IV, § 2 (emphasis added).

This is the basis for what we call “extradition.” What happened in the present cases has turned extradition on its ear! Even Treason is subject to the State-line limit!

The very clear understanding from this language is that there is one, and only one, State that has “jurisdiction of the Crime.” In fact, the “jealously” among sovereign States is fully acknowledged in this provision. This is the provision that “mandates” that one State return an escapee to the State making the request. The issuance of any such Demand is discretionary, but the response to one, once issued, is not.

Just as clear is that even Treason, the one crime defined in the Constitution, which is the highest authority in the Land, must be tried in the State in which it is alleged to have occurred. Where criminal matters defined in the Constitution are confined to the State line, what authority can possibly exist in Congress, through (mere) Acts of legislation, that could exceed or extend that limit?

The term “State” appears in this provision four times, and it is always in the singular. Thus, extradition exists for a very good reason: the exercise of judicial authority in criminal matters is confined to the State line. This provision makes no distinction between matters of State Law and matters of U.S. Law. To the contrary, it quite clearly puts all such matters into the same bucket, and by purposeful and intentional design. For the Constitution to define a crime, which it does by defining Treason, and then to mention specifically that crime, as just one example in a list that encompasses all possible criminal activity, and then to limit all items in that list to the jurisdictional limits of the State line, establishes a pretty clear line in the sand. In fact, one could call it unequivocal.

Consider the alternative. If the State line were not the limit, then there’d be zero purpose for extradition. The clear example here is a criminal matter clearly within the authority of State Law, such as the case with “murder.” Without extradition, the State in which the suspect is arrested and held (by a Grand Jury having no authority to investigate the matter?) could conceivably apply the proper “choice of Law” rule, and where appropriate, the second State could simply apply the Law of the first State. In civil matters, the application of this form of “choice of Law” rule happens every day. But that’s in the civil matters, not in the criminal matters.

For matters based on State Law, there’s a “bright line” concept that seems intuitive. And, where the basis for the criminal charge is found in a legislative Act of Congress, the State line is the same State line. When the charge is based on “admissible evidence of Law of the United States,” it’ll be the same Law that applies, regardless of the State in which the violation is alleged, which means there’s no “choice of Law” rule to apply. However, geographic limitations exist in criminal cases for reasons other than merely what Law applies. See Drew L. Kershen, Vicinage 29 Okla. L. Rev. 801 (1976) (Parts I and II), 30 Okla. L. Rev. 3 (1977) (Parts III and IV). Even when there is one applicable Law, each community has the responsibility, the duty, to apply that Law in their own community. Given the language found in the Constitution, that the proper “State and district” be ascertained, confirms that the Founders intended this community-by-community duty be maintained as part of the judicial process.

And, the history of this community responsibility in judicial matters has an ancient origin. When Moses came across Jethro in the desert, Jethro suggested to Moses that Moses stop trying all the cases. Taking Jethro’s advice, Moses set up judges over the thousands, the hundreds, the fifties and the tens, reserving to himself only those matters that could not be resolved in the “lower courts.” Ex. 18:17-27. The judicial Office of the Hundreder is still so named in various counties of Great Britain, Scotland and Ireland, and from this same line of thought we get our highest judicial office in each county, the Sheriff. (Contrary to popular thought, the Sheriff of Nottingham, of “Robin Hood” fame, is not a corrupt “policeman.” He’s a corrupt judge. The judicial character of that office has never changed. [Oh, Really?!] It’s fascinating that our family, friends and neighbors in the County of Denver, Colorado, have become so enamored with the “federal government” to cease to elect a Sheriff. One wonders how their courts function at all.)

By reflecting on the fact that even judicial trials of cases of Treason are limited to courts within the State line, one concludes that nothing defined and punished, whether by the State Legislature, or by Congress, can be tried in any court outside the State in which it is alleged to have occurred. (And those matters that didn’t arise within a State pose a different question, which, unless we’ve greatly missed our mark, is not a concern raised in these cases.)

Mr. President, how is this State-line limitation satisfied when a criminal matter that belongs in Oklahoma is “exported?” The following questions are ridiculous, but if we’re now into “exporting” criminal matters, we’ll have to answer them. If “exporting” criminal cases is now acceptable, where’s the limit? Is New York too far removed from Florida to qualify as venue for matters that arise in Miami? Shall we send matters that arise in Virginia to San Diego for trial? Will it matter whether it’s a matter of State Law or of United States Law? What Law do we apply, the Law of the transferor court, of the transferee court? Does the Grand Jury of the vicinage still have exclusive indictment authority, or can we put the Grand Jury in Seattle to work on matters that arise in Chicago? Laws on prostitution are a little different in Nevada. Shall we now  “export” those cases to a State in the Bible belt for indictment, trial, or both?

E. Article V—The Amendment Process.

For the Article III judicial Power to exist in the Colorado court, there would have to be a constitutional amendment. And, since nowhere in that section of the Constitution is there any mention that “demonizing” publicity is sufficient basis by which the Constitution is amended, “demonizing” publicity, as aptly described by the Oklahoma trial court, didn’t amend the Constitution so as to create “transfer of State” authority.

What the “demonizing” publicity did was interfere with the judicial process. Whether or not that interference rises to the level of actionable “obstruction of justice” charges is a question best left in the hands of the authorities that may feel their efforts have been obstructed by those wanton acts of yellow dog journalism. (Hasn’t a crowd of journalists recently met with Congress for their wanton and irresponsible acts of election return coverage regarding the November, 2000, election? Does the governmental prohibition on proscribing speech, found in the First Amendment, extend so far as to allow “obstruction of justice?”) What, if anything, about that instantaneous, nationally choreographed, and ill-founded media frenzy could motivate a senior member of the trial bench to make it impossible for any trial judgment to withstand (proper) review?

In short, there’s absolutely nothing about irresponsible journalism that amends the Constitution. Thus, there’s nothing about irresponsible journalism that creates “transfer of State” authority.

Mr. President, what source of influence shall determine the location of trial? Under the prior administration, the source was the media. Under the current administration, is it the media, or the Constitution?

F. Related “transfer” cases.

It is not forgotten that the trial of the Branch Davidians was transferred from Waco, to San Antonio; from one of the lowest per capita “federal employment” communities in our State, to one of the highest, if not the highest, per capita “federal employment” communities in our State. (You may remember that four former Clinton bodyguards were killed in that incident.)

It is not lost that the cases at issue here were transferred from a State governmental community with a not insignificant “federal government” employment base (Oklahoma City) to one of our nation’s leading “federal government” centers (Denver). (You may remember that one of the Oklahoma City victims was a very recently transferred (from Washington, D.C.) Clinton administration appointee.)

It is also not lost that the trial of the World Trade Center bombing was transferred nowhere. That trial stayed right there in New York.

Mr. President, why do non-resident, (alleged) international hoodlums get more Article III, Article IV and Sixth Amendment judicial respect than American Citizens and American residents? And, given this was the policy and attitude of prior administrations, is this something this administration intends to maintain and continue, or to correct?

Conclusion—Point 1.

In sum, the State line is the jurisdictional limit for all criminal cases, regardless of whether founded in State or U.S. Law. In the cases at hand, there are only two facts that really matter. (1) These cases arose in Oklahoma, but (2) they were tried in Colorado. So far, these two facts have been run over roughshod. The transferee court, the Colorado court, lacked subject matter jurisdiction to hear anything, to try anything, to order anything. The judgments and sentences against McVeigh and Nichols are properly vacated on this one point, alone. 
 

Point 2: Does every United States District Court in the country lack subject matter jurisdiction to try the “murder” charges alleged in this case?

Summary:

“Murder” is a matter for the State governments. Outside the military and maritime contexts, Congress has zero authority to define and punish “murder” by way of “admissible evidence of Law of the United States.” There is nothing about relabeling “murder,” into, say, “terrorism,” that alters either the nature of the crime of “murder” or Congress’ expressly limited authority to address the subject matter of “murder.”

Congress can, and arguably must, define and punish “murder,” as a “necessary and proper” part of the authority granted for several identified subject matters. However, outside the military and maritime contexts, the authority to do so arises solely from the “exclusive legislative Authority” found in the second to last clause in Article I, § 8. By such authority, any Bill defining and punishing “murder” that Congress might propose can become “admissible evidence of Law” only for cases

        geographically limited to
            (1) the Seat of the Government of the United States (the “District”), and
            (2) the property owned by the United States Government. 

“Yes, but, this was a ‘federal’ building, so that qualifies under (2), right?” Perhaps, but the two items of proof required to establish the indictment language as “admissible evidence of Law” were not offered at trial, and neither can that crucial evidence be anywhere found, generally. In other words, since the required evidence doesn’t exist, it’s somewhat difficult to offer it as the necessary proof in a court of law.

For the United States Government to own a parcel of land, there must be at least two documents: (1) some form of receipt, such as a deed, and (2) a Joint Resolution by the State in which that parcel is found “Consent[ing]” to the transfer into the ownership of the United States Government.  This, too, is set forth in Article I, § 8. Since neither of these items of documentary evidence appears of Record in the case against McVeigh or the case against Nichols, or in the Oklahoma County records, or in the records of the Oklahoma State Legislature, it follows that we’re not talking about United States Government property, but rather private property.

From there, the rest follows as a matter of course.
    (A) The “language” in the indictment, on which are based the charges of “murder,” is not “admissible evidence of Law” in this case (not in Oklahoma, not in Colorado, not in any State); meaning
    (B) the United States Grand Jury had zero authority to indict any such “murder” charge;
    (C) the Attorney General’s Office had zero authority to prosecute any such “murder” charge; and
    (D) the indictment is insufficient on its face, as regards those charges of “murder.” (Something the Attorney General should have known.)
Thus, (E), those “murder” charges in no way belong in any United States District Court, not even one in Oklahoma.

Should the U.S. Attorney’s Office prove “Consent” by the Oklahoma Legislature, at some point, it still follows that such charges as were brought here can only be tried in the State (county) courts. The Article III subject matter jurisdiction does not extend to matters arising under “Law of the District.”

Authority: This is more a matter of what’s not there, than of what is there. But as regards two provisions that are there, we find this:

[The Congress shall have Power] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) [10 miles on a side, or 100 square miles] as may, by Cession of the particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazine, Arsenals, dock-yards, and other needful Buildings[.]

U.S. Const. art. I, § 8 (clause 17) (emphasis added).

        The judicial Power shall extend
            to all Cases, in Law and Equity, arising under
                this Constitution,
                the Laws of the United States, and
                Treaties made, or which shall be made, under their authority;

            --to all Cases affecting Ambassadors, other public Ministers and Consuls;
            --to all Cases of admiralty and maritime Jurisdiction;

            --to Controversies to which the United States shall be a party;
            --to Controversies
                between two or more States;
                --between a State and Citizens of another State;
                --between a State and Citizens of another State;
                --between Citizens of different States,
                --between Citizens of the same State claiming Lands under Grants of different States, and
                between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Const. art. III, § 2.

Discussion:

A. “Federal enclave.” Once understood, this term actually confesses private ownership. For our purposes here, it is sufficient to recognize that a “proclamation” that this or that property is a “federal enclave” hardly answers the question of whether the property is owned by the United States Government. And property ownership matters greatly, because for language that is the product of the “exclusive legislative Authority” to be “admissible evidence of Law” at all, the burden is simple: Prove that the location is either (1) the Seat of the Government of the United States, or (2) United States Government property.

In these cases, the first is impossible, so we focus on the second. The second is also impossible, for there is no paperwork, not in the trial record, and not even generally, that establishes that this land is, in fact, owned by the United States Government. In sum, it’s not some “pronouncement” that is at all relevant. It’s the paperwork that matters, and the U.S. Attorney’s Office has the burden to prove that the property on which that building stood was sold to the United States Government. Key to their fulfilling that burden is proving “Consent” by the Oklahoma State Legislature.

Mr. President, it is fair to suggest openly that the view of the limitations found in the Law as seen by the prior administration were a little different than the traditional view. Is this administration inclined to maintain the standards of the prior administration, or to insist that the Constitution be respected?

B.  Subjects for Congress. Here is the exhaustive list of the subjects granted to Congress for them to address (whether by Bill or by Order, Resolution or Vote). As each is identified, the question to ask is this: Does this subject include, as “necessary and proper,” the authority to define and punish “murder?” The bold titles are the subjects where “murder” is properly addressed.

· Direct Taxes. Representatives and direct Taxes shall be apportioned among the several States, which may be included within this Union, according to their respective Numbers[.]  Art. I, § 2 (third paragraph).

· The Enumeration. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten years, in such Manner as they shall by Law direct. Id.

· House Officers; Impeachment. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Id. (fifth paragraph).

· Classes. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. Art. I, § 3 (first paragraph).

· Senate Officers. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. Id. (fifth paragraph).

· Impeachment. The Senate shall have the sole Power to try all Impeachments. Id. (sixth paragraph).

· House, Senate Election Procedures. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. Art. I, § 4 (first paragraph). [Note: Amendment 17 does not amend the exception stated here.]

· Opening Day. The Congress shall assemble at least once in every year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Art. I, § 4 (second paragraph).

· Election Review; Attendance. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Art. I, § 5 (first paragraph).

· In-house Procedure; In-house Discipline. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Id. (second paragraph).

· Journal Content. Each House shall keep a Journal of its Proceedings, and from time to time publish the Same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the at the Desire of one fifth of those Present, be entered on the Journal. Id. (third paragraph).

· Adjournment Duration. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Id. (fourth paragraph).

· Compensation. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. Art. I, § 6 (first paragraph).

· Raising Revenue. All Bills for raising Revenue shall originate in the House of Representatives, but the Senate may propose or concur with Amendments as on other Bills. Art. I, § 7 (first paragraph).

· Pay Debts, Provide Common Defense and general Welfare, of United States. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts, and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States[.] Art. I, § 8 (clause 1).

· Borrow Money. [The Congress shall have Power] To borrow Money on the credit of the United States[.] Id. (clause 2).

· Regulate Commerce. [The Congress shall have Power] To regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes[.] Id. (clause 3).

· Naturalization; Bankruptcy. [The Congress shall have Power] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States[.] Id. (clause 4).

· Money—Coin, Value; Weights and Measures. [The Congress shall have Power] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures[.] Id. (clause 5).

· Counterfeiting. [The Congress shall have Power] To provide for the Punishment of counterfeiting the Securities and current Coin of the United States[.] Id. (clause 6).

· Post Office; Roads. [The Congress shall have Power] To establish Post Offices and post Roads[.] Id. (clause 7).

· Intellectual Property. [The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.] Id. (clause 8).

· Trial and Appellate Courts. [The Congress shall have Power] To constitute Tribunals inferior to the supreme Court[.] Id. (clause 9).

· Admiralty, Maritime Offenses. [The Congress shall have Power] To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations[.] Id. (clause 10).

It should be clear from this clause that it is “necessary and proper” that Congress can (and arguably must) define and punish “murder” in the admiralty, maritime context. Since admiralty and maritime jurisdiction in the courts extends only to matters involving ships, vessels, inland waterways, coastal waterways and the high Seas, the legislation won’t (can’t) exceed those limits, either.

· War, Marque and Reprisal, Captures. [The Congress shall have Power] To declare War, grant Letters of Marque and Reprisal and make Rules concerning Captures on land and Water[.] Id. (clause 11).

Letters of Marque and Reprisal, having to do with acts shy of acts of war, in response to acts done against us as a Sovereign Nation, include the authority of Congress to respond to acts done against the United States, such as killing of prisoners. In order to have a Letter of Reprisal, it follows that Congress must first have a definition of what constitutes the problem, such as the killing of prisoners. While this concept may be part of the famous Geneva Convention, it is still within Congress’ “necessary and proper” authority to define what it is that justifies a Letter of Reprisal issued by and in the name of the United States. Note, though, that a Letter of Marque or of Reprisal is not something “sued out” in a court of Law. Thus, while the “definition” may be “on the books,” the “punishment” is not a judicial process. It’s more in line with military activity. To contrast, the “suing out” of indictments of “war crimes” is a judicial process, although this is more likely conducted in a Court Martial.

· Financing Armies. [The Congress shall have Power] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer term than two Years[.] Id. (clause 12).

· Financing a Navy. [The Congress shall have Power] To provide and maintain a Navy[.] Id. (clause 13).

· Regulation of Land and Naval Forces. [The Congress shall have Power] To make Rules for the Government and Regulation of the land and naval Forces[.] Id. (clause 14).

It should be clear that it is “necessary and proper” that Congress have the authority to define and punish “murder” as that may occur within the context of the military, whether in peacetime or in war.

· Calling forth the Militia. [The Congress shall have Power] To provide for calling forth the Militia to execute the Law of the Union, suppress Insurrections and repel Invasions[.] Id. (clause 15).

· Organizing, Arming and Disciplining the Militia. [The Congress shall have Power] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress[.] Id. (clause 16).

It should be clear that Congress has the authority (arguably, the duty) to organize, arm and discipline the Militia. This discipline is the same concept as that for the land and naval forces, and arguably is “necessary and proper” that this discipline must include the defining and punishing of “murder” in that context.

· “Exclusive Legislative Authority.” [The Congress shall have Power] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) [10 miles on a side, or 100 square miles] as may, by Cession of the particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazine, Arsenals, dock-yards, and other needful Buildings[.] Id. (clause 17) (emphasis added).

This is the provision relied upon to justify as Law the language used as basis for the indicted murder charges against McVeigh and Nichols. On the one hand, it should be clear that it is “necessary and proper” that Congress have the authority (and arguably the duty) to define and punish “murder” for the District, and for all United States Government property, wherever situated.

On the other hand, the party alleging that Article III, § 2, subject matter jurisdiction exists has the burden to prove it. Here, since no part of Oklahoma City is in the District, fulfilling that burden entails proof that the State Legislature “Consent[ed]” to the purchase of the land claimed to be United States Government property. Unless the property comes within the “exclusive legislative Authority,” language applicable solely to such property cannot possibly be “admissible evidence of Law.”  The failure of proving “Consent” by the State of Oklahoma isn’t merely a “no evidence” point, but is, rather, a lack of subject matter jurisdiction point, because Article III subject matter jurisdiction is limited, and the burden to show that such jurisdiction exists for any case rests with the party alleging that the jurisdiction exists.

· Authority to Carry Out Their Authority. [And, the Congress shall have Power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof. Id. (clause 18).

This “necessary and proper” clause is not a “blanket grant” of legislative Power on just any and every topic whatsoever. Quite to the contrary, it is nothing more than the reasonably necessary reality that if Congress, for example, is going to set up trial and appellate courts, then Congress had also better be able to compensate the court staff personnel necessary to make the judicial process function, e.g., the judges and justices, clerks, computer operators, mailroom staff and janitorial staff, as well as for the equipment, e.g., desks, air conditioners, lights, security equipment, computers, copy machines, fax machines, filestamp machines, as well as the supplies, e.g., paper, pens, pencils, erasers, receipt books, as well as space in which to perform their duties, e.g., whether by buying property outright, and building on that property, or simply renting space in privately owned buildings.

The analogy here is that a court always has the authority to determine whether it has subject matter jurisdiction. In the same way, Congress has the authority to determine and protect its authority. If this authority were understood to be so broad as to include defining and punishing “murder,” there would be no such thing as State Law for any subject or topic. Why enumerate a list of subject matters, and then subsume them with a “blanket grant” clause? That makes no logical sense.

Further, as has already been noted in context, the bolded subject titles are the ones for which it is arguably “necessary and proper” for Congress to define and punish “murder.” And, it’s because there exists the “necessary and proper” clause that the topic of “murder’ can be addressed under those subject matters.

· Immigration. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight [1808], but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. Art. I, § 9 (first paragraph).

· Habeas Corpus. The Privilege of Habeas Corpus shall not be suspended, unless when in Cases of rebellion or Invasion the public Safety may require it. Id. (second paragraph).

· Direct Tax. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. Id. (fourth paragraph).

· Appropriations. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. Id. (seventh paragraph).

· Gifts. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Id. (eighth paragraph).

· State-based Imposts and Duties. No State shall, without the Consent of the Congress lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. Art. I, § 10 (second paragraph).

· States’ War Preparedness; Compacts. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Id. (third paragraph).

It seems reasonably “necessary and proper” for Congress to have the authority to distinguish between acts of War and acts of “murder,” when actions are undertaken by, and in the name of, a State.

· Counting Elector Votes for President. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. Art. II, § 1 (third paragraph).

· Electing the President. [A]nd if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. Id.

· Electing the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. Id.

· Setting the Electoral Vote Day. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. Id. (fourth paragraph).

· Officer to Succeed to Office of President. In Case of the removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. Id. (sixth paragraph).

· Vote on Treaties. He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur[.] Art. II, § 2 (second paragraph).

· Vote on Appointments; Establishment of Offices. [A]nd he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, who Appointments are not herein otherwise provided for, and which shall be established by Law. Id.

· Vesting Appointment Authority. [B]ut the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Id.

· Establishing Trial and Appellate Courts. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Art. III, § 1.

· Appellate Jurisdiction of Supreme Court. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. Art. III, § 2 (second paragraph).

· Place of Trial when Crime not Committed in any State. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Id. (third paragraph).

· Punishment of Treason. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. Art. III, § 3.

As another example of the difference between “admissible evidence of Law of the United States,” and legislative Acts that are not, any statutory provisions created by Act of Congress that purport to define Treason are not “admissible evidence of Law of the United States.” Congress has no authority to define Treason, but only to Punish it, and then, only within the given restrictions. (And, the States don’t even have the authority to Punish it.)

· Manner of Proof of Public Acts, Records and Proceedings. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Art. IV, § 1.

· New States. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. Art. IV, § 3 (first paragraph).

· U.S. Government Property. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States[.] Id. (second paragraph).

· Guarantee of Republican Form of Government. [This actually applies for all three branches of the United States Government, not just Congress.] The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. Art. IV, § 4.

· Amendments. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress[.] Art. V.

· Imminent Domain Compensation. [N]or shall private property be taken for public use, without just compensation. Amend. V.

When the United States Government exercises “imminent domain,” and upon “Consent” by the Legislature of the State in which the property is found, Congress then exercises its Appropriations authority.

· Electing the President [as amended]. –The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, then House of Representatives shall choose immediately, by ballot, the President. Amend. 12.

· Electing the Vice-President [as amended]. –The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President[.] Amend. 12.

· Slavery. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation. Amend. 13.

· Removal of Disability. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Amend. 14, § 3.

· Enforcement of 14th Amendment. The Congress shall have power to enforce by appropriate legislation, the provisions of this article. Amend. 14, § 5.

The topics of the 14th Amendment are these: Citizenship of U.S., and of State; States are prohibited from abridging privileges and immunities; due process of law; equal protection; apportionment, and how the number of each State is determined; adjustment of such number if voting by those age 21 or above is abridged without cause; disability and removal of disability; validity of public debt; void obligations from insurrection or rebellion, and from emancipation of slaves.

· Protection of right to vote. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation. Amend. 15.

· Confirmation of Source of Income. Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. Amend. 16.

· [18th Amendment—Prohibition]

· Protection of right to vote. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation. Amend. 19.

· Opening Day. The Congress shall assemble at least one in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. Amend. 20, § 2.

· Officer to Succeed to Office of President. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. Amend. 20, § 3.

· Election of President and of Vice President. The Congress may by law provide for the case of the death of any of the person from whom the House of Representative may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. Amend. 20, § 5.

· Electors from Seat of U.S. Government. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. The Congress shall have power to enforce this article by appropriate legislation. Amend. 23.

· Protection of right to vote. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or by any State by reason of failure to pay any poll tax or other tax. The Congress shall have the power to enforce this article by appropriate legislation. Amend. 24.

· Confirmation of Vice President. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Amend. 25, § 2.

· Body to determine President’s Ability to Discharge the Office; Determination of Ability Issue. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representative their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the power and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the power and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or if Congress is not in session, within twenty-one days after Congress is required to assemble, determine by two-thirds vote of both House that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. Amend 25.

· Protection of Right to Vote. The right of citizens of the United States, who are eighteen year of age or older, to vote shall note be denied or abridged by the United States or by any State on account of age. The Congress shall have power to enforce this article by appropriate legislation. Amend. 26.
 

In sum, having reviewed each and every possible source of authority granted to Congress by which Congress could (and arguably should) define and punish “murder,” as part of the “necessary and proper” authority incumbent with the legislative Power specifically granted to Congress, it is impossible, as a matter of Law, to say that the statutes used as the basis for indictment on the “murder” charges in this matter are Law the United States. That language may be fully “admissible evidence of Law of the District.” That language may be fully “admissible evidence of Law regarding all United States Government property, wherever situated.” But, that language is not, and cannot ever be, “admissible evidence of Law of the United States.”

The reason this matters is that Article III subject matter jurisdiction extends to matters that arise under Laws of the United States. But such subject matter jurisdiction does not exist for matters that arise under Laws of the District.
 

C.  No Article III, § 2, Subject Matter Jurisdiction for These “Murder” Cases.

        The judicial Power shall extend
            to all Cases, in Law and Equity, arising under
                this Constitution,
                the Laws of the United States, and
                Treaties made, or which shall be made, under their authority;

            --to all Cases affecting Ambassadors, other public Ministers and Consuls;
            --to all Cases of admiralty and maritime Jurisdiction;

            --to Controversies to which the United States shall be a party;
            --to Controversies
                between two or more States;
                --between a State and Citizens of another State;
                --between a State and Citizens of another State;
                --between Citizens of different States,
                --between Citizens of the same State claiming Lands under Grants of different States, and
                between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Const. art. III, § 2.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. 11.

In other words, what the 11th Amendment tells us is that the States can sue the Citizens of another States, or the Citizens or Subjects of a foreign state, in the forum of a United States court, but those Citizens (or Subjects) are not permitted to sue any of the United States in the United States judicial system. Such plaintiffs, when suing such defendants, need to use the State judicial system.

And, the key item of note is that nowhere does Article III, § 2, extend to matters that arise from language created pursuant to the “exclusive legislative Authority.” It’s just simply impossible to say that “admissible evidence of Law of the District” is “admissible evidence of Law of the United States.” These are two extremely different bodies of legislation. Article III, § 2, recognizes the latter, but not the former.

In short, what we learn here is that even though Congress has “exclusive legislative Authority” in a matter, when those matters come on for judicial trial and review, they must be pursued through the STATE’s judicial system, not the United States' judicial system. Said another way, should the U.S. Attorney’s Office ever prove “Consent” by the Oklahoma Legislature, all that means is that the matter is properly heard only in the State (county) court in Oklahoma County, Oklahoma, and that (a) the “admissible evidence of Law” to be used is that supplied by Congress, but that (b) it is to be applied by the Oklahoma County Grand Jury, and (c) to be prosecuted by the proper Oklahoma County prosecutorial authority.

How, then, does the Supreme Court have authority to hear appeals, or certiorari review, of “murder” cases? There are a great many other issues that arise in “murder” cases. There are matters of the search and seizure, matters of assistance of counsel, matters of due process, matters of jury trial, matters of grand jury indictment (or not, as in the case of OJ Simpson), matters of cruel and unusual punishment, among other issues that are fully within the authority of the Court to review.

In sum, all that is being said here is that Congress cannot, as a matter of “Law of the United States,” define and punish “murder,” generally. “Murder” is a matter for the State Governments. And, it is precisely because the legislative language applied in these cases is not, and cannot be, Law of the United States that no Article III judicial Power exists by which to try these “murder” charges. Yet, what has happened in this matter is the presumption of the exact opposite. It’s because Congress has zero authority to define and punish “murder,” generally, that the indictment is insufficient on its face, that the U.S. Grand Jury has zero authority over these charges by which to indict, that the U.S. Attorney’s Office has no authority to prosecute such charges, and that the United States court system cannot try such charges. Not even the U.S. District Court in Oklahoma County has the authority to try those “murder” charges.

Conclusion—Point 2.

We’ve seen that Congress has no authority to define and punish “murder” outside of the military context, the admiralty and maritime context, and the “exclusive legislative Authority” context. This is not a military matter, nor an admiralty or maritime matter. Thus, there is no basis to assert that the matters here come within the “Law of the United States.”

And, it’s not even an “exclusive legislative Authority” matter, because we’re not talking about United States Government property, but rather private property. However, should the U.S. Attorney’s Office ever prove that the Oklahoma Legislature ever “Consent[ed]” to a purchase by the United States Government of the property on which stood the building that was destroyed, we’re still right back into the State court system, because there is no Article III, § 2, subject matter jurisdiction for matters arising under “Law of the District of Columbia.”

In sum, the Oklahoma County Criminal District Court would have had the trial jury make its decision based either (1) on the Laws of “murder” as defined and punished by the Oklahoma Legislature (because we’re talking about private property, not U.S. Government property) or (2) on the “Laws of the District,” as produced by Congress (upon finding “Consent” by the Oklahoma Legislature). In neither circumstance were these “murder” charges ever cases that belonged in a United States District Court, in any State in our Union, not in Oklahoma, and even less so in Colorado.

Request for Relief

As Amicus Curiae, I am asking you, as President, to issue a temporary stay of execution of McVeigh, for a duration long enough that these matters may be presented in the proper judicial forum.

The expectation is that these are new issues in these cases. However, if these are not first-time issues in this case, these issues have yet to be “heard.” Without intervention from your Office, Mr. President, there is no reasonable expectation that the courts should make time to listen. Because the two points raised here go directly to the lack of subject matter jurisdiction over the cases, what follows is that there is zero authority to execute McVeigh, because the judgment and sentence are void. To terminate his life would become an act of deliberately taking the life of another. Politically expedient murder has been around for a long time, but that doesn’t make it a good idea, nor a policy by which your administration should become marred. Further, the country cannot afford it, and neither can Texas. It is not accidental that we have the time to review this matter. With the decades of time that the “death row” inmates spend on death row, what is the rush in McVeigh’s case? We can take the time on this side of the needle, or on that side, but the issues presented here are the ones on which these judicial matters turn. Finally, if there is any value in the commitment made by our Armed Forces personnel, we can never permit the courts to give away what the Armed Forces stand ready to risk their lives to preserve.

Respectfully submitted,
 
 

Harmon L. Taylor
Amicus Curiae

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Copyright 8 2001, by Legal Reality. All rights reserved.

 


 

 

Legal Reality (because it matters)
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  Oh, Really?!

Is that so?!

We've received some prompt and wonderful feedback to the advance release of the text of this letter. Some of it focuses on this one concept. This note now includes some of that feedback, and should more of the same come in, it also will be included. We do appreciate the two-way communications. There is still plenty to cover.

When thoughts as easy to verify as this are stated, and the statement raises an idea rather different from what one might first think, there are basically two perspectives available. Either the author/spokesperson is just lost in a fog somewhere, or there's a point to be made. All that will be mentioned here is that if this perspective doesn't yet make sense, consider again the case in point in this very discussion. Why would a trial judge of the experience of the U.S. District Court in Oklahoma be so bold as to transfer every single criminal case involving the two primary suspects across the State line? Lost in a fog, or making a point? In a different scenario, picture the trial judge getting up out of his chair, practically leaping over the bench into the front of the courtroom, and all but screaming in the face of the litigants, who were heard to complain about this or that "constitutional" issue (see "constitutional" in the Dissertations on Definitions page, accessible from the Home Page) as it was argued to apply in an "income tax" matter,  "The Constitution does not apply in this courtroom!!" Is that jurist lost in a fog, or making a point? [Quick jump to the point of focus.]
 

The Office of Sheriff: Judicial Officer or Executive Officer?

On this point, see the following:

http://www.hcso.org/history/office.htm

http://www.glprl.org/sc2/court/sheriff.html

http://www.sheriffs.org/History.html

See also: (This is the order in which these first 10 sites came up as search results on the search word "sheriff." You are encouraged to do this search and see the number of web pages posted by our Sheriffs. Have you said, "Thank you" to your Sheriff and his/her staff recently?)

http://ww2.co.jefferson.co.us/ext/dpt/officials/sheriff/index.htm

http://www.co.san-diego.ca.us/cnty/cntydepts/safety/sheriff/

http://www.vcsd.org/ (The prior link, http://www.ventura.org/sheriff/, has been updated to this one.)

http://www.hcso.hernando.fl.us/

http://www.smcsheriff.com/

http://www.shelbynet.net/~scsd/

http://www.centerville.net/sheriff/

http://www.mcso.org/

http://www.brightok.net/chickasaw/ardmore/county/sheriff.html

http://www.hcso.org/ (You may recognize this one as the home page for the first link above. That "History" page is found by clicking the "History" button on this home page. Apparently, the page "floats." Sometimes it shows up in the search, and sometimes, it just doesn't.)
 

The Current Perspective on the Functions and Duties.

An good example of the current perpsective
http://www.co.mo.md.us/judicial/sheriff/sheriff.html

Some additional understanding:

Sheriff Limits Federal Agents Entering County
http://www.uhuh.com/action/sheriff/sheriff.htm

Wyoming Sheriff Kicks Feds Out Of His County
http://www.freerepublic.com/forum/a387ed2016c56.htm
 

The Difference in the Office of Sheriff and other Law Enforcement Offices.

An excpert from

Gun Control: Implementation of the Brady Handgun Violence Prevention Act
(Chapter Report, 01/25/96, GAO/GGD-96-22).

http://www.ideasign.com/chiliast/pdocs/gaobrady.htm
 

Generally, the law enforcement community has strongly supported Brady, as evidenced by public endorsements from the International Association of Chiefs of Police and other organizations. Nonetheless, some sheriffs have filed federal lawsuits essentially contending, among ther things, that the phase I background check provision of Brady is beyond the scope of Congress' Commerce Clause powers and is nconsistent with the Tenth Amendment.  Eight of the nine court cases that had been initiated against the Brady Act through December 31, 995, resulted from separate filings by individual sheriffs--each having jurisdictional responsibility for one county or parish in his respective state--whereas the ninth and most recent case was filed by the Wyoming Sheriff's Association.  By December 1994, federal district courts had ruled in favor of the respective sheriff in five of the six cases decided.  All six cases were appealed to U.S.  circuit courts.  In September 1995, the U.S. Court of Appeals for the Ninth Circuit reversed two of the federal district courts' decisions, saying the federal government can require state and local law enforcement agencies to check records of prospective handgun buyers.  As of October 1995, the four remaining federal district court cases were still under appeal.


Chapter 3 addresses the litigation. (Scroll down, or search for "Chapter 3.")

Here are a few of the footnotes from Chapter 3.

\44 Generally, the sheriffs alleged, among other things, that the phase I background check provision of Brady is beyond the scope of Congress' Commerce Clause powers (U.S.  Const.  Art.  I Section 8. cl.  3) and is inconsistent with the Tenth Amendment to the U.S. Constitution.  The Commerce Clause gives Congress the exclusive authority to regulate interstate commerce.  The Tenth Amendment provides that powers not delegated to the federal government are reserved to the states and to the people.

\45 Although not a party to any of the litigation, the International Association of Chiefs of Police filed briefs in many of the cases supporting the Brady Act's provision.  Joining the Association in this support were various other law enforcement groups--the Major Cities Chiefs of Police, the National Association of Police Organizations, the Fraternal Order of Police, the Police Foundation, the Federal Law Enforcement Officers Association, the Police Executive Research Forum, the National Troopers Coalition, the National Organization of Black Law  Enforcement Executives, and the International Brotherhood of Police Organizations.

\46 The Wyoming Sheriff's Association has 23 member sheriffs, 1 for each of the state's 23 counties.

\47 Printz v.  United States, 854 F.  Supp.  1503 (D.  Mont.  1994). [Favored the Sheriff.]

\48 Koog v.  United States, 852 F.  Supp.  1376 (W.D.  Tex.  1994). [Favored the legislation.]


In this context, it would be remiss to pass up making this observation. We need carefully to note the issue raised. The question is one of "constitutionality." Please see the discussion of the term "constitutional." (In the Dissertations on Definitions page, accessible from the Home Page.) It is rather difficult to find an opinion of Congress that is "unconstitutional." So, are we really talking about a "Bill," or a "Resolution" marketed to look like a "Bill?"

From the Report:

In September 1995, the U.S. Court of Appeals for the Ninth Circuit upheld the constitutionality of Brady, saying the federal government can require state and local law enforcement agencies to check the records of prospective handgun buyers.\49 The court reasoned that Brady's provision that law enforcement agencies "make a reasonable effort to ascertain" the legality of a handgun purchase is a minimal burden that the federal government can impose on state and local law enforcement agencies.  The court accordingly reversed the judgments of the Arizona and Montana district courts, which had held Brady unconstitutional as a violation of the Tenth Amendment (see table 3.1).\50

Here's the Table included that identifies the suits discussed in this report.
                               
 

 Table 3.1
Overview of Court Cases Filed by
Sheriffs Challenging the
Constitutionality of Brady, as of
October 1995
State Jurisdiction of Sheriff Case Citation or File Number Date decided Decision for \a Appeals status
Arizona Graham County Mack v. United States, 856 F. Supp. 1372 (D. Ariz. 1994) 6-28-94 Sheriff District Court decision reversed by U.S. Court of Appeals for the Ninth Circuit (9-8-95).
Louisiana Iberia Parish Romero v. United States, 883 F. Supp. 1076 (W.E. La. 1994) 12-8-94 Sheriff  On appeal to the U.S. Court of Appeals for the Fifth Circuit; stayed pending the Koog and McGee decisions.
Mississippi Forrest County McGee v. United States, 863 F. Supp. 321 (S.D. Miss.1994) 6-3-94 Sheriff Consolidated with Koog and is on appeal to the U.S. Court of Appeals for the Fifth Circuit.
Montana Ravalli County Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994) 5-16-94 Sheriff District court decision reversed by the U.S. Court of Appeals for the Ninth circuit (9-8-95)
New Mexico Otero County Lee v. United States, (CIV. 94-1132 LH) (D. N.M. 1994) Pending    
North Carolina Alamance County Frye v. United States, (2:95CV00034) (M.D. N.C. 1995) Pending    
Texas Val Verde County Koog v. United States 852 F. Supp. 1376 (W.D. Tex. 1994) 5-31-94 U.S. Consolidated with McGee and is on appeal to the U.S. Court of Appeals for the Fifth Circuit.
Vermont Orange County Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994) 8-2-94 Sheriff On appeal to the U.S. Court of Appeals for the Second Circuit.
Wyoming Statewide Wyoming Sheriff's Association v. United States, Case No. 95 CV 066 (D. Wy. 1995) Pending   [recent case notes] [comments on the case (last two paragraphs)]

--------------------------------------------------------------------------------
\a This refers specifically to court rulings on the Tenth Amendment constitutional challenge issue regarding Brady's phase I background check provision.

Source:  Data obtained from ATF's Office of Chief Counsel and from documentation of the court decisions.
--------------------
\49 Mack v.  United States, 1995 U.S.  App.  LEXIS 25263 (Ninth Cir. Sept.  8, 1995).

\50 This ruling applies to the Brady states in the Ninth Circuit. These states are Alaska, Arizona, Montana, Nevada, and Washington.

Again, note the differences of the parties.

State-level agencies assumed responsibility for conducting
     background checks in Graham County, Arizona, and Orange County,
     Vermont.  Effective October 1, 1994, the Arizona Department of
     Public Safety assumed a centralized role in conducting
     background checks for all residents of that state.  In Vermont,
     when the Orange County sheriff refused to conduct background
     checks, the Vermont Department of Public Safety voluntarily
     assumed this responsibility in July 1994.
 


The Forgotten "Judicial" Role.      [top]

In light of all the foregoing information and discussion, it is here noted that the reassertion of the "Respect for the County," as discussed in the links in the additional understanding section, takes us, as a country, back in the direction intended always to have been the perspective. But, there's at least one critical function still not really mentioned very often, for it is not taught much any more, and it has everything to do with the Sheriff's relationship with the trial courts, in particular, and the judicial process, in general. The following links are also found in the OJ Simpson article (accessible through the Home Page). For example, search (use "Find," under the Edit menu) the OJ Simpson article page for the word "Blackstone." There's more to this discussion of the Sheriff's vital role in the judicial process for each and very trial, and the rest of what may help put this picture together is perhaps several articles away, but it's OK to begin to explore the topic now, given that the County of Denver has no Sheriff.

For a "quick view" of the point, search (use "Find" in the Edit menu) for the word "sheriff" in each of the four specific reference pages (the first one is a general reference), and read those sections first. See if there is a "judicial" role, a unique relationship with the courts, that develops. When all Sheriff's Departments have this component back in their Functions and Duties, and it's active, this country will be a different place, and you'll likely appreciate the improvement.

Fifth and Sixth Amendment materials, generally
http://press-pubs.uchicago.edu/founders/tocs/amendV-VI_criminal_process.html

William Blackstone Commentaries
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs14.html

John Adams
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs16.html

Debate in Massachusetts
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs22.html

United States v. Marchant
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs46.html
 
 

Epilog. For the Detectives among us (solve the riddle):
http://www.jokesoup.com/sheriff.htm