Sen. Stevens - Guilty:
A jury has found Alaska Senator Ted Stevens guilty on seven felony counts of making false statements about gifts he received. The deliberations took five hours. Despite the verdict, Senator Stevens insisted he is innocent, decried alleged prosecutorial misconduct, and announced that he will appeal the verdict. In the meantime, he is still running for reelection to his Senate seat. In my view, Stevens should have withdrawn from the race months ago, but it's not too late. When even the RedState guys are endorsing your Democratic opponent, it's time to throw in the towel.
Related Posts (on one page):
- Can Sen. Stevens Vote for Himself?
- Sen. Stevens - Guilty:
I think you meant "it's now too late," since the ballot registration deadline was something like 5 - 6 weeks ago and now Stevens is stuck on it.
It must be too late now - it's almost 8:15...
But Stevens should stay on the ballot and say he will resign after the election. This gives Sarah Palin an appointment should he win. So the ballot becomes Democrat vs Republican-to-be-named-later.
This would be similar (though not identical) to the Carnahan versus Ashcroft race back in 2000 when Carnahan died before the election, but it was known that his wife would be appointed to fill his seat if the "dead guy won."
Of course, the state GOP could follow the Torricelli/Lautenburg approach, ignore state law, and appoint a replacement to the ticket. The New Jersey state supreme court embarrassed itself by ignoring state law and allowing Lautenberg to run.
But I think the GOP would do best to follow the law and let the chips fall where they will. I propose that Governor Palin name Stevens' primary opponent to fill the seat if it becomes vacant.
That was sort of the strategy with Foley two years ago, but the optics just don't work. Even assuming you can communicate to voters that their choice is actually what you've stated, there is a certain revulsion in pulling the lever for a convicted felon, even symbolically. I don't think this strategy would succeed in holding the seat for the GOP. Also, if I'm not mistaken, the governor of Alaska is no longer vested with the power to appoint U.S. Senators. Instead, a special election would be held, and although the odds would certainly be better for the Republicans with a candidate other than Stevens on the ballot, I have to believe that the disgust with the state's Republican congressional delegation might spill over into a hypothetical special election. Although, maybe that would be counterbalanced by fear of a (by then elected) President Obama and expanded Democratic congressional majorities...
However, it appears to be a moot point. Stevens is quite narcissistic, and is continuing to maintain his innocence. I cannot believe that his GOP colleagues will be able to convince him to publicly commit to resigning his seat after the election, because he really has nothing to gain either way. He will defiantly remain on the ballot, and will go down to defeat. The GOP's last chance to save this seat was the ballot deadline six weeks ago, had they but known it.
I did not realize that Alaska's law had changed. Still, best for Stevens to resign now and to announce that he will not serve if elected...allow the voters to have a choice for two candidates through a special election.
I don't remember that testimony and would be surprised if the Judge let it in. How could the witness (presumably his friend, Allen) know what was in Stevens' mind?
If I were to guess, and without knowing the transcript, I would think the appeal could be based on prosecutorial misconduct (a loser, but it came up during the trial) and probably some argument about the jury instructions (a tried and true appeal point).
If I were Stevens' attorneys, I would immediately hire a private investigator to interview the jurors, and Allen etc, to see if he or she finds anything useful (I am sure they are doing this already; his lawyers are very good). Maybe they could make same jury misconduct argument to save him from serving some jail time.
And how is this a defense? If Stevens knew he was getting something for nothing, he was required to disclose it regardless of whether he would have been willing to pay.
Hard to judge the thrust of your remarks, unless it's just partisan hackery. However, the obvious response is that he wasn't charged with corruption or bribery because his false statements on the Senate disclosure forms both obstructed the investigation into the corrupt dealings by obscuring the amounts involved and other information, and that the non-disclosure was just an easier case to make. Are you really prepared to make the argument either that U.S. Senators should not be required to disclose gifts and contributions, or that it should not be a federal crime to lie on the disclosure forms created for that purpose? Put a different way, if this was Ted Kennedy, Chuck Schumer, or Barack Obama, would the false statements on the disclosure forms suddenly become a "real crime"?
And how is this a defense? If Stevens knew he was getting something for nothing, he was required to disclose it regardless of whether he would have been willing to pay.
I think this is why Christopher Cook's comment above is rather convincing. He might have gotten some jurors who would understand that a befuddled old man can forget to
take his pillspay his bills unless he is reminded. Especially if he has other important things to remember.Put a different way, if this was Ted Kennedy, Chuck Schumer, or Barack Obama, would the false statements on the disclosure forms suddenly become a "real crime"?
Heavens no, and you know the answer. In that case, it would be a "distraction from what the people of this country really care about."
Each house of Congress has authority to make rules for the conduct of its own members, and penalize with fines or removal, but no power to impose criminal penalties.
The statute seems to be about a species of fraud, tending to obstruct justice. It can be argued there is authority for that under U.S. Const. I:8:17, if the offense is committed on the territory of a federal enclave, such as DC, but if the form was signed outside such a territory, the court would lack territorial jurisdiction. So an essential element of proof would be that it had been committed on federal territory. See more on this here and here .
Yeah, look at Lewis Libby. I can't imagine Stevens won't get an insta-pardon.
I think you'd better start imagining. I think it would do more harm than good at this point. Possibly, possibly on Bush's way out the door, but certainly not before the election. I am very certain the McCain campaign and the RNC are doing everything they can to keep the President far from the headlines during this last week of the campaign.
Justice for Stevens raises hope for justice elsewhere.
Of course, but I hold that is without merit, and presume most of the members of this forum agree -- at least as a matter of history and logic. The legal realists (or Orwellians) will of course argue that history and logic don't matter.
My recollection is that mens rea can be inferred in general intent crimes.
Glancing at Art. 8 for about, oh, 30 seconds, suggests that the Necessary and Proper Clause is the obvious hook in this case.
I have a much bigger problem with false statements charges when it's a clear case of a perjury trap (the "exculpatory no" doctrine having been wiped out by Scalia and the other Republican justices).
But a learned Senator filling out a form, which additionally contains notice of the false statements penalty? Hard to feel sorry for someone then.
Fortunately, the lead plaintiff was caught stealing from the company. "The litigation gods have smiled upon you," said our attorney.
By the same logic, if I apply for a bank loan with fraudulent documents, no criminal charges should be filed against me.
It can be inferred from evidence beyond a reasonable doubt, and I wasn't on the jury to get all the evidence, but it seems to have been that taped phone call that was critical, and I would like to examine it carefully to make sure Stevens was aware there was intentional fraud involved and not just laziness or negligence.
My standard of reasonable doubt is fairly high. If I am on a jury the prosecutor is going to have to prove every point, and not neglect anything needed for a complete case. In particular, he is going to have to prove the authority for the charge, with an unbroken chain of derivation back to the applicable constitution. From observing many trials I fear that most prosecutors (and defense counsels) don't even know how to do that.
No judge will allow you to argue the constitutionality of the law to the jury. The court decides the constitutionality of the law, not the jury.
So Jon, in that same vein, I propose to you that we stipulate that you disagree with Wickard v. Filburn and all the unholy progeny thereof. We can even stipulate that you believe the jury ought to be entitled to rule, de novo, on settled legal principles. Those positions are reasonable. What they are not, however, is relevant.
I should have completed my last sentence a bit more: What they are not, however, is relevant to the instant case in which no challenge has been made to Congressional authority to pass the law, nor has the defendant attempted to instruct the jury otherwise.
Incidentally, Stevens voted for the ethics reform -- shouldn't he be estopped from asserting that it is unconstitutional?
Study it more closely. U.S. Const. I:8:18 states:
From an analysis of the historical usage of the phrase "carrying into Execution" one finds that it included only making an effort defined by the explicit powers, not whatever might be convenient to obtain a desired outcome.
In particular, the Framers regarded such powers as to regulate, to prohibit with criminal penalties, to tax, to spend, and to promote, to be distinct, each from the other, such that that none of them could be derived from any of the others under I:8:18.
The documentary evidence for this can be found in The Virginia Report, J.W. Randolph, ed. (1850).
In reference to necesssary and proper, John Marshall wrote the following:
Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administration of justice. But Courts may exist, and may decide the causes brought before them, though such crimes escape punishment.
McCulloch v. Maryland. Please see what Oren wrote above- while you may have an idiosyncratic view, the ability of Congress to use N&P to legislate in many ways about specific Const. provisions (not including the commerce clause) has been good law since at least 1819.
I've read through it, but there are multiple arguments, and it seems to me that they tend to support my contention, not yours.
Feel free to quote any specific passages though.
Depends on where the event occurs, and thus the offense committed. If on federal territory, then federal statutes could apply, and in particular, 42 USC § 408 and 18 USC 1001 . However, if on state (nonfederal) territory, then only state statutes would apply. (Protectorates and dependencies are covered under U.S. Const. IV:3:2.)
I realize that the federal government is trying to assert general police powers, but I don't have to acquiesce in that usurpation.
And in doing so they are violating the due process rights of the defendant. A longstanding usurpation doesn't extinguish a fundamental right. The bench rules on motions. The result is an opinion so far as the jury is concerned, whose job is to decide the general verdict, a necessary ingredient of which are all the points of law, which in a constitutional republic are mattters of fact as well as law. This is set forth in some detail in Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573 , never overturned.
And I was hypothesizing being on the jury, not being defense counsel.
Jon, nobody is asking you to acquiesce (mostly because nobody needs your acquiescence for anything). In fact, as I said earlier, I (and perhaps others), am willing to stipulate to your desired views on the commerce clause, provided we also agree that, like it or not, modern jurisprudence determines what laws are upheld and who goes to jail (to steal from DE).
I, for one, would like to discuss the law as it is, on its own terms even if that means discussing bogus doctrines invented by evil judges intent on usurping proper authority.
They are relevant to me, and to the not inconsiderable and growing number of persons who agree with me. We may currently be a minority, but that can, and with enough effort, will, change. In politics and law nothing is ever finally settled.
Keep in mind I was discussing what I would do as a juror, and what I teach others to do if they ever become jurors. Eventually, so many may follow my views that it will become impossible to convict anyone of a crime unless the courts return to constitutional fidelity.
I hold McCulloch v. Maryland was wrongly decided, and even more srongly opined. So did Madison and Jefferson, whose position I regard as authoritative, and Marshall's as not.
In what sense "good"? Good as policy, or as conformant to the Constitution as originally understood? Sorry, but if it is not authorized by the Constitution I don't care whether or not it is good policy. If it is good enough, perhaps it can be the basis for amending the Constitution, but until that is done, it is not law as far as I am concerned, and if that puts me in the minority, so be it. Right is right, not whatever a majority might acquiesce in, especially if they do so foolishly.
It sounded to me like you were blaming defense counsel for not knowing how to argue the Constitution to the jury.
Believe me, as an actual criminal defense attorney, I'd love to be able to do so. However, I'm forced to live in the real world in order to defend my clients. They don't have the luxury of my arguing the law as I wish it was.
You have a, uh, very idiosyncratic view of things. Here's a hint- you can't mix old cases and old opinions of founders and cherrypick the things you want while ignoring the rest. If something's been good law since 1819 (and before, given Congress's ability to punish interference with the post), then it probably is. And you say Jefferson, others say Hamilton. You say Madison, others say Jay. And so on. But you don't add much value to a discussion if, as pointed out, you simply point out that in your universe of individual Constitutional interpretation that is not followed by any court and hasn't been since before 1819 were followed, then it wouldn't be an issue.
That, and four dollars, will get you a coffee at Starbucks.
This is a great opportunity for Sarah Palin. If Stevens wins reelection but is expelled or resigns from the Senate, she should run for his seat in the subsequent special election. This would give her the requisite experience on national issues for a presidential run in 2012.
Well she can't very well do that while serving as vice president, now can she?
They did. In fact, blaming his wife was the core of the strategy. Dana Milbrink chastized the defense and Stevens for throwing his wife under the bus in order to save his skin.
In the end, of course, he didn't even accomplish that. But let's stay tuned for the appeals.
Nick
Not according to strict construction. Of course they "can" do anything they want, as a matter of power. Just not as a matter of right.
...
And I do recognize that my position is inconsistent with currently established practice, which I call regime -- what is actually enforced -- and refuse to dignify with the name of law. But I am trying to make regime conform to law, not just acquience in inconsistencies between the two. When something is wrong, we have a duty to speak out and not become complicit by our silence.
Fine, and I do make that distinction, except that I don't accept that what "is" is "the law". Philosophers need to call things as they see them. Or, in the words of Gorbachev about glasnost, "First we have to stop the lying."
Madison actually agreed with the decision, at least to the extent that he considered the Bank constitutional. Madison did criticize Marshall's "undue latitude" of construction expressed as dicta.
You may have to conform to a violation of the rights of your client during a trial before a judge determined to violate them, but that doesn't mean you have to accept such violations on appeal, or at least in the arena of public opinion. If judges are elected in your jurisdiction, run for judge and make constitutional compliance on these points issues in your campaign. Talk to civic groups and legislators. Propose legislation to reform the situation, or even run for a state legislature or for Congress. If nothing else, write law review articles, or become a law professor and teach your students that the Constitution and regime are in conflict, and that while they may bave to operate covertly under the present regime, they need to keep working toward reconciling it with the Constitution as originally understood.
Well she can't very well do that while serving as vice president, now can she?
You are right, becuase as VP she would be "in charge of the Senate." ;)
But it's always good to have a Plan B.
I am in essential agreement with such legal scholars as Randy Barnett, Lawrence Solum, Gary Lawson, Kurt Lash, and Michael Stokes Paulsen, to name a few allies listed here. I may be a tad more emphatic and confrontational than they are, but our positions are very similar.
In which case your duty as a citizen would be to call a press conference and denounce the trial as corrupt, then follow up by making it an issue in the next several elections.
And if the judge enjoins you to shut up, defy the order and go to jail, and add that to the grounds for protest.
Sometimes, as Thoreau wrote, the only place for an honorable man is in jail.
Fine, we'll call it the blaw. Can we please talk about the blaw as it applies to the instant case?
Not quite. It is one thing to charter a bank, and another to make it an instrumentality of the Union government that would make it tax exempt. Madison was somewhat unclear, but the correct decision would have been not that the National Bank was totally exempt from state taxes, but that any tax would have to be the same as on in-state banks, and that any operations done by the bank under contract to the government that implemented official powers might be exempt, but not their commercial operations in competition with comparable operations of other banks.
"Blaw" might be mistaken as a typo. I prefer the term "anti-law". That highlights its invalidity.
1. This was a show trial.
2. Stevens was not convicted of a real crime.
3. The prosecution failed to prove up all the elements.
4. Stevens didn't break a real law - it was a fake one.
5. Stevens was denied due process.
6. Stevens had ineffective assistance of counsel.
7. Jurors in D.C. always convict Blonde people, and Republicans.
8. McCulloch v. Maryland was wrongly decided.
Great job everybody!
Jacked.
Have you tried this? Does anyone show up for these press conferences?
Do you seriously envision this happening?
You certainly live a stressful life -- hounded for your personal acquiescence to their usurpation one minute, thrown in jail the next. I'm surprised you have time to spend law blogs at all.
Here's my essential problem with your analysis. You cherrypick your sources. You quote things out of context. You chose S.Ct. cases that agree with you and cite them approvingly, and dismiss every Supreme Court case that disagrees with you as magically invalid. You are not advocating law or strict construction, but an individualistic lawlessness. I do not doubt your intelligence, but I doubt your application of your theories.
On a more personal level, Lawrence Solum would most certainly not agree with you. I've got a pretty strong suspcion that some of the other individuals on that list wouldn't either, but I *know* Solum wouldn't. It's not very cool of you to drag other people who have real reputations in the legal community to buttress your own ideas, unless you are quoting something in particular.
I disagree. If he's too old to go to jail he's too old to be a senator. He's dirty. Hell, he's been dirty for decades. Part of the reason you punish people is as a deterrent, and I don't want senators to get the idea their age will shield them from jail. He should spend the rest of his natural days in federal prison, right alongside Don Young and William Jefferson.
By the way, I don't believe Bush will intervene on his behalf. There isn't any reason to. If the Republican leadership had its way, Stevens would have been out years ago.
I have never been empaneled on a jury, so haven't had the opportunity. But friends have, and had jurors call press conferences, and some press did show up. A good example was Sarah Bain (not Palin), foreperson of the Davidian jury. We have a speech by her here.
Sure. If enough jurors started denouncing trials I'm sure that would happen next. Should plan for all eventualities.
Other than an occasional veiled death threat from a federal agent, not that stressful yet. I figure that I need to step up the pace.
Please be more specific. My quotes are not out of context, but are linked back to the complete original source that I put online (and for which I am recognized as the editor), which you can read in context. Of course I consider some cases correctly decided, or opined, and some not. On my site you will find scholarly arguments for my positions, complete with cites where possible (not all these matters can be cited to short passages somewhere -- sometimes one has to read long treatises).
What makes you think so? I spent an entire day with him at Randy Barnett's home in Boston when Randy lived there in 2005 and Larry was visiting, time spent expounding on many of these issues. There was no disagreement with my positions, other than that Randy had trouble accepting that a person becomes bound to the laws of a country by entering and remaining its territory (the Lockean theory). My point, although I didn't make it as clear on that occasion as I would later, was that to be laws rules need to conform to superior constitutions of nature and society, so that one does not accept any rules when he enters into a territory, but only "constitutional" ones. Randy has gotten close to that position in later writings but I don't know if he has carried the analysis to the point I have yet.
Since then, I have corresponded with Larry, and he has sent me things he is writing for my comments. Now, admittedly, he tends to keep his views somewhat subdued, and he might have disagreed with some position of mine and was too polite to say so, but I haven't spared him from my views and he has at least seemed not to disagree with them. So he at least considers my thinking stimulating, and I find nothing in his writings that really conflicts with my positions, although I sometimes have a different take on some of the more subtle philosophical issues, like "semantic originalism".
I am not just dropping names. I correspond and talk to these guys.
and to the not inconsiderable and growing number of persons who agree with me.
Merely because the internet has created the opportunity for you to meet people who agree with your stance does not mean, in and of itself, that your stance is becoming more popular. Post hoc ergo propter hoc is a bad way to go through life.
On a more personal level, Lawrence Solum would most certainly not agree with you. I've got a pretty strong suspcion that some of the other individuals on that list wouldn't either, but I *know* Solum wouldn't. It's not very cool of you to drag other people who have real reputations in the legal community to buttress your own ideas, unless you are quoting something in particular.
None of that actually points out any problem with his analysis, it's just a bunch of unsupported judgments of yours.
Are you familiar with the word "tendentious"?
Even if he's making the mistake implied by the first sentence (and you've offered no reason to think he is), your second sentence is a non sequitur -- there's no fallacy about cause here.
Each house of Congress has authority to make rules for the conduct of its own members, and penalize with fines or removal, but no power to impose criminal penalties.
There are no such words in the Constitution. As a matter of strict or any other construction, there are no exceptions in the application of law to members of Congress other than the "privileged from arrest" clause.
I love how much Latin I learn on these threads. So post hoc ergo proper hoc means "fat, drunk and stupid." Cool.
Then you have delusions of grandeur. You aren't important enough for judges to care about shutting you up.
This is simply speculation on your part. You're assuming that Madison would agree with you and then citing Madison as authority for your position.
Read my words more carefully. I was citing two provisions of the Constitution as possible sources for authority. The one above was U.S. Const. I:5:2:
I found no authority in that clause, so turned to another, U.S. Const. I:8:17, and discussed how it would only provide authority if Stevens had signed the reports on federal territory, and cited two sources for that analysis.
Of course members of Congress are subject to the same laws as others, but my analysis finds that constitutional jurisdiction over anyone is limited in ways that might not make the statute in question applicable to Stevens.
Interesting how you take a statement about "enough jurors" and the utility of them planning for injunction, and apply it to me. I could be one such juror but this is about a movement and its members, not me.
Nonsense. I said nothing about Madison agreeing, or disagreeing, with me. I said his position was unclear. If he did the analysis I did, of distinguishing between the taxable and tax-exempt activities of an organization like the National Bank, we don't have a record of it. I was arguing for the analysis he and others should have done, and may or may not have done.
From your post here: "I hold McCulloch v. Maryland was wrongly decided, and even more srongly opined. So did Madison and Jefferson, whose position I regard as authoritative, and Marshall's as not."
An injunction against what? A non-existent gag order?
Can you point to any instance where a judge has enjoined jurors from speaking about their experiences after the trial is completed? I searched and couldn't find any.
I'm not going to drag this on, but to clarify a few points:
1. I don't know the details of your email correspondence with Lawrence Solum. I do know he is a pleasant person, and in a such a manner is unlikely to cast aspersions on the ideas of others. I do know that his work (he has an excellent blog at Legal Theory blog) in constitutional jurisprudence stands in stark contrast to what you have previously written, and I think that it is 'name-dropping' to invoke him as a general support for your arguments (ad verecundiam).
2. I believe you do cherrypick your cases. For the purposes of your jury argument, you use an 1839 case and claim that it has never been overturned. Whether it was an implicit or an explicit overruling, however, it is still not used in modern jurisprudence for the purposes that you wish to advance it for (actually, Prof. Solum once did a nice bit on implicit overruling). The you completely discount one of the seminal commerce clause cases (the other, of course, being GvN) stating incorrectly that Jefferson and Madison were against it. It boggles the mind.
3. I just don't have a high amount of trust for your work at this point. This is not to mean that I don't take your research seriously, but your results are too convenient. All law that agrees with you is great caselaw, while the law you don't like is 'anti-law' based on anecdote and supposition. Hey- it's human. I think the Court has taken wrong turns before; I think the Slaughterhouse/Cruikshank duo sent us down the wrong path, and don't get me started on Hans. But you know what? If someone wants to know about 1983 suits, I don't just endlessly repeat that Hans was 'anti-law'.
Read more carefully. I said I was in general agreement with Madison and Jefferson that the case was wrongly decided and opined, but my reasons for so holding are somewhat different from theirs, and there is no evidence they agreed with my analysis.
From Answers.com:
The discussion was about a a juror thrown off a jury for arguing the law with other jurors, and I was hypothesizing that juror denouncing the trial while it was still ongoing. No, I am not aware of a gag order in such a situation, but I have overheard a conversation between a prosecutor and a judge in which they contemplated a gag order in such a situation. If they can speculate about doing it, one has to expect they might do it, and I like to warn people of that possibility so they are ready for it in a fastbreaking scenario.
Most of my sense he and others agree with me comes from private oral conversation more than email exchanges. Most seem to downplay their positions in public. Larry seems to like to dwell in the more abtract realm of theory, but when we discuss methods of constitutional construction and the historical evidence, we seem to be on the same page. Another I could mention is Roger Pilon and others at Cato, Mises, Heritage, and similar libertarian or conservative organizations. Of course, the strongest agreement comes when I get together with other legal historians.
Needless to say I don't accept "implicit overturning", but the point of citing Stettinius is for the evidence it provides of original understanding of the concept of "jury trial". What is important about it is dictum, of course (and so it is for Marbury), but I regard it as persuasive, and so do many others once they read and think about it. It is about history and logic, not precedent.
Do you mean Gibbons v. Ogden? Madison and Jefferson certainly disagreed with Marshall on that case as well. There is a good discussion of that here.
Speaking of getting together, I am looking for someone to split the cost of a room at the Mayflower for the Federalist Society National Convention Nov. 20-22. $219/night is a lot of money just for a place to sleep and shower. I promise not to snore.
Legal historians generally don't publish there. I have published a couple of articles for a law review, but it may not have been covered on those sources. I've put another on SSRN. But most of my work is editing classic works and commenting on them, and I do all that online. I am interested in getting the work out quickly to as many people as possible. I don't care about my stuff being citable in court (although my LR article has been cited in court).
Why. exactly? Do you think that thew jurors were wrong, when convicting him of seven felonies? Do you really want a convicted felon in power?
I find this absurd.