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Mandeville, LA – Exclusive Transcript – Article V, if you don’t know, is the article of the Constitution that deals with how you amend the Constitution.  Speaking of the Constitution, Dr. Kevin Gutzman, author of James Madison and the Making of America is on the Dude Maker Hotline.  Check out today’s transcript for the rest…

 

Begin Mike Church Show Transcript

Mike:  Article V, if you don’t know, is the article of the Constitution that deals with how you amend the Constitution.  Speaking of the Constitution, Dr. Kevin Gutzman, author of James Madison and the Making of America is on the Dude Maker Hotline.  Kevin, good morning, how are you?

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Kevin Gutzman:  Good morning, Mike, very well.  How are you?

Mike:  I’m well.  Happy belated Bastille Day.

Gutzman:  Yes, one of my favorite holidays.

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Mike:  Why is Bastille Day one of your favorite holidays?

Gutzman:  It’s really not.  I was being facetious.

james-madison-gutzman-ad-signMike:  James Madison, as you well know, in 1800 or 1799, somewhere around there, left for us a wonderful little guidebook on why there should not be any general government interference in the affairs — I believe he called it the municipal authority, right?

Gutzman:  Right.

Mike:  The municipal authority would be a courtroom in Florida deciding whether or not manslaughter or second-degree murder was committed, right?

Gutzman:  Yeah, I think so, sure.

Mike:  So then what business is this of Eric Holder’s?

Gutzman:  Well, I think we’ve come to have a very unfortunate situation in which any time there’s an interracial trial, the federal government is capable of essentially subjecting people to double jeopardy in case they don’t like the outcome of the first trial.  We saw that in the trial of the policemen who were involved in the Rodney King episode.  Now apparently we’re going to see it here.  It seems to me that if somebody has been tried for something in a court and found not guilty, that should be the end of it.  That’s what the prohibition of being held twice in jeopardy for the same event amounts to.  Lawyers will tell you they’re not really being tried for the same thing because civil rights violation in the same episode is not the same as murder is in that episode.  This is all essentially legal mumbo jumbo really.  If Zimmerman were tried again, he’d be being tried for the same offense, it seems to me.

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On the other hand, I don’t want to be understood as saying I think Zimmerman was not guilty.  I don’t think there’s really any way to know.  It seems to me that it’s impossible to prove that he was guilty beyond a reasonable doubt, but that doesn’t mean we will ever know who was responsible for what happened, he or Martin.  It was obvious to me before the trial started that there was no way to prove he was guilty beyond a reasonable doubt, which is why the local prosecutor decided not to have a trial in the first place.  Of course, at that point the governor intervened and we end up with this political trial as a result of political mobilization more than as a result of legal calculation.  The whole thing has been lamentable from the beginning and will continue to be lamentable.  As I said, I don’t know whether Zimmerman was at fault or if Martin was at fault, and neither does anyone else, nor will we.

I think one interesting question, some people have been saying the family could sue Zimmerman for wrongful death.  I also think that Zimmerman could sue the family.  After all, Martin broke his nose and beat up his head.  He could sue them, too.  There’s no reason to think that this is over.  I’m sure that if you were Zimmerman, you’d wish it were over….

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Mike:  I would certainly wish that all this was over.  I would be able to go back out into public again.

Gutzman:  That’s the other really entertaining part.  Understand I’m using that in a morbid sense.  Obviously the usual suspects are threatening Zimmerman’s life now.  Of course, we know that the Justice Department isn’t going to do anything about that.

Mike:  When you talk about you want all things to be considered equal and fair, justice is supposed to be blind, everyone is supposed to have access to our system of laws and what have you, if the law has failed to convict someone, then the law has failed to convict them.  If someone now is threatening to go above the law or around the law and say the law didn’t do it — some of the athletes were tweeting out: He ain’t gonna last a year in the hood, some of the thinly-veiled hopes that Mr. Zimmerman would suffer violence.  He’s an innocent.  As you say, we’ll never know who started the altercation.  What we do know is that a jury could not convict him.  You would think of all people that would long for the protection of the laws and access to the laws, it would be some of the same rabblerousing minorities that are now inveighing so mightily against Zimmerman.  The roles are now reversed, aren’t they?

Gutzman:  One somewhat ironic element of this whole thing is it wasn’t too long ago that Zimmerman would have been classified as legally black.  As I understand it, either his father or grandfather was a black man.  He’s been called Hispanic in the media.  Apparently he has a highly varied ancestry.  He could be Hispanic, he could be white, he could be black, whatever you want to call him.  For the people who were interested in making this into a racial issue, it was very convenient to make him into a “white” person, then to inveigh against the powers that be when there wasn’t a conviction.

The thing is, essentially there’s only one living witness to what happened between him and Martin.  If he had an account of it and Martin wasn’t there to testify, or even if Martin had been there to testify, how could a jury arrive at a conclusion that he was guilty beyond a reasonable doubt?  That’s why I say the local professional prosecutor decided not to prosecute.  He realized there’ s no way we’ll be able to get a conviction, therefore we shouldn’t prosecute this. At that point we have political mobilization on racial lines.  The president said: If I had a son, he’d look like Trayvon.  The usual suspects make a racial issue of it because it’s really good for fundraising for them to have everybody be in a tizzy over supposed mistreatment of black people in the legal system.  Again, I’m not saying that I think Zimmerman wasn’t the one responsible.  I really do not know.

That’s another thing, people think you can have a five-week trial and if they pay five minutes’ attention to it by watching the evening news one night or reading what a couple of athletes say on Twitter, then they have enough information to know what the outcome of the trial should have been, which really is a legal question having to do with the burden of proof and availability of witnesses and so on.  It’s somewhat ridiculous that we end up with people being upset at the system when, again, what’s built into the system is that you can’t convict somebody of a crime without persuading a jury beyond a reasonable doubt.  Given which witnesses are available, it was pretty easy to see you weren’t going to be able to do that.  I do think this issue of double jeopardy is an issue and something ought to be done about it.  It’s very convenient to particular interest groups in our political system that nothing be done about it.  I consider it highly likely that we’ll have a second Zimmerman trial.

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Mike:  Yep, and headline news will have wall-to-wall coverage.  Reporters’ careers will be made or unmade as a result.  Of course, our professional athletes will have their say-so on the Twitter feed.  I want to just switch gears here.  I didn’t prep you for this, but this is a pretty softball, easy question for you.  Senate Majority Leader Harry Reid was on Sunday talk shows yesterday.  This issue has been out there for a little while now about the Senate changing their rules so that the filibuster cannot be applied like it is currently being applied.  There are some people that are very upset, [mocking] “You can’t change the Senate rules.  This is an outrage.”  The fact of the matter is — and you know more about this than I — that the Senate and the House can both make their own rules as they see fit.  Isn’t the Senate, by and large, operating under rules that were at least partially written by Jefferson himself?

Gutzman:  Well, Jefferson, as vice president, wrote a manual of parliamentary practice and procedure that, at least when I was interning on Capitol Hill in the ‘80s, was still given to every new member of Congress in each congress.  That was the basis of procedure in Congress.  As to the filibuster, originally both houses of Congress had unlimited debate, that is you could just talk as long as you wanted.  It wasn’t until the beginning of the 20th century that the Senate adopted a rule that closed off debate that allowed that to be done in case two-thirds of the members present voted to do it.  Of course, one thing that did was it left the possibility that a large minority could prevent a vote on a measure.  We had basically a two-year-long debate in the U.S. Senate over what became the Civil Rights Act of 1964.  When finally the Civil Rights Act of 1964 passed, it seemed obvious to people that two-thirds is too high a requirement because essentially it amounts to a Southern veto.  They reduced the cutoff threshold to 60 percent of members voting.  That’s where we stand now.

If either house of Congress wanted to say we don’t have this at all and when any kind of majority votes to have a vote, we’ll go to a vote.  There’s no reason why they couldn’t do that.  Like you say, it’s up to them to decide what their own rules are.  It’s not a constitutional requirement that there be unlimited debate in either house.  This is just a tradition from the first full congress and that ended in the House of Representatives in the early 19th century.  Since then it’s been a tradition in the Senate.  If they want to move to a situation in which they’re constantly cutting off debate and voting by majority vote to have a vote, there’s no reason why they couldn’t do that.  It wouldn’t be any offense to the Constitution at all.

Mike:  Finally, there is some chicanery that’s going on, as you well know, with the intelligence services and the intelligence agencies.  Some members of the House of Representin’ claim that they weren’t briefed on the FISA court’s blanket warrant they were granted to have access to all 110 million Verizon Wireless customers’ phone records and metadata.  Some members of Congress, [mocking] “I wasn’t briefed on this.  Nobody told me about any of this.  I didn’t go to that meeting so I didn’t know about it.”  Regardless of whether they knew about it or not, Article I, Section 1 says that all legislative powers granted are granted in a Congress of the United States.  If someone is stepping outside of the wishes of Congress, for whatever reason or purpose, doesn’t the Congress have — I would say duty but we’re not going to find many members of Congress that actually take their duty seriously — an oversight in this?  Can’t they impeach anyone that is doing some of the things that are now having been alleged at the NSA, CIA, and National Counterintelligence Services?  I can’t even keep up with all the acronyms.  Congress can impeach these people, can’t they?

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Gutzman:  Yes, they can.  Congress can impeach any functionary of the executive or judicial branch.  I would argue that they had a responsibility to do that when the president over the speaker of the house’s warning launched an unconstitutional war in Libya.  The speaker sent the president a letter saying: If you launch a war in Libya without securing congressional approval, that will be unconstitutional and there will be important consequences.  The president did it and there were no consequences.  Of course, one of the main powers of Congress is the power to declare war.  The Congress has been allowing presidents to just carte blanche in this area for a long time now.  It wasn’t until the Clinton administration that we actually had a war that was launched against the vote of one house of Congress.  The House of Representatives said there should not be a war.  President Clinton went ahead and launched one anyway.

Apparently this has become a new precedent.  Effectively the decision-making authority has been transferred to the executive branch because the Congress has not done what it has the capacity to do, and that is to impeach the president or whichever of his underlings decide to target in case the president makes unilateral decisions to go to war.  Yes, it could impeach the president, the vice president, any of the generals, the secretary of defense.  When it comes to these other questions, it could go after the head of the National Security Agency, the director of national intelligence, whichever one of these people it wants.  It seems to me that yes, it’s their responsibility to do that.

Of course, the impeachment provision did not envision that there would be political parties in Congress.  It was not envisioned that there would always be some significant portion of the Senate that would defend the president no matter what he did.  It’s highly likely that if the House impeached one of these fellows, the Senate would not convict him.  I think it would still serve the important function of highlighting the fact that the fellow had violated the Constitution.  It’s not the House’s responsibility to decide whether the Senate would convict somebody before they impeach them.  It’s their responsibility to impeach people who have committed treason, bribery, or other high crimes and misdemeanors.

This language “high crimes and misdemeanors” has been obfuscated by defense counsel in Senate trials ever since the beginning of the republic.  A high crime or misdemeanor, in the law of the time that the Constitution was written, in English precedence and some colonial precedence, referred to abuse of power, abuse of office.  Again, the president launching a war without getting congressional approval was committing a high crime.  Similarly, when that fellow went into the Senate and was asked by Senator Wyden if they’re keeping track of millions of Americans’ communications data, he looked the senators right in the eye and said no.

Mike:  James Clapper.

Gutzman:  There should have been articles of impeachment filed on him that day.  He lied under oath in the Senate.  If he’s not going to be prosecuted by the Justice Department, he should at least be impeached by the House of Representatives and removed from that office.  It would be an interesting question to see what the partisan division in the Senate would be on the impeachment of that guy for lying under oath to the Senate.  One would think at least Senator Wyden among the Democrats would vote to remove him.  It would still, whatever the outcome, serve an important civic function and an important constitutional function to say to these people in the executive branch: You can’t just do whatever you want.  There is an allocation of powers among the branches.  You have got, for example, if you’re under oath in the Senate, to provide senators valid information.  You can’t just lie to them, look down, scratch your head and say whatever you want.  That guy is a liar under oath and there’s no way the Senate can perform its investigatory or oversight functions if people in high office in the executive branch are going to go lie under oath.  It’s insupportable.  He really needs to be impeached today.

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Mike:  It’s probably not going to happen, but it’s just another one of these examples of something — your email box today is going to be filled up with mighty protestations from various “conservative groups,” various Tea Party groups jumping up and down, screaming and hollering with their hair on fire about the abuses of conservative groups from the IRS.  I’m not pooh-poohing any of that because it did happen.  But again, Congress’s ability — and the Congress is controlled by the Tea Party’s favorite party last I checked — Congress has the ultimate check on this.  As you say, they may not win the case, but they can most certainly bring the impeachment up.  That woman that went in there, Lois Lerner, the one that went in there and claimed the Fifth Amendment, fine, invoke your right all you want; we’re going to impeach you.  [mocking] “I’m just going to go ahead and resign.”  Fine, we’re going to make sure you never hold office — they just shuffled her around and moved her into another bureau — of any importance in this government.  They won’t do it.  They won’t cross the line.  They won’t put it to a vote.

For more on Ben Franklin, pick up your copy of The Spirit of 76 right here!
For more on Ben Franklin, pick up your copy of The Spirit of 76 right here!

I think the reason they won’t do it for Clapper, and one of the reasons there’s not a consensus to do it against some of these IRS goons is because the dirty little secret is that Republicans are pretty much Democrats.  They don’t want to set an example of when Republicans control the House they do such and such, so when Democrats get in power they’re going to impeach such and such.  They don’t want to start an impeachment war, which to me is just ridiculous.  So party takes precedent again above policy and above executing what is supposed to be the vital functions of a general government.  Professor, we have to wrap it up here.  I appreciate you being on the program today.  Happy belated Bastille Day.

Gutzman:  I was happy to be here.  I do think Bastille Day is a highly lamentable occasion.  What happened on that day is basically an unused old fort in the middle of Paris was seized by a mob which proceeded to kill all the jailers and rend their bodies and parade one poor fellow’s head through Paris on a pike.  This was an augury of mass killing that would be associated with the French Revolution, mass killing of priests, bishops, monks, nuns, nobles, members of various political factions.  The French Revolution as completely unlike the American Revolution in that it just became an orgy of death.  That’s symbolized by the guillotine, which used to be a popular spectator sport in Paris having people having their heads cut off with a big razor blade.  I don’t think there’s really anything to celebrate about the 14th of July.  It’s lamentable that in France they do celebrate this.

Mike:  They most certainly do.  Professor, thank you very much.  That’s Professor Dr. Kevin Gutzman.

End Mike Church Show Transcript

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