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