Its been awhile. Things were so unsettled and I had to attend to my own world. But now finally the Congress is marching quickly towards impeachment. Let me say this impeachment will not stop with Donald Trump. It will not stop with the President, but will also include Vice President Mike Pence, Attorney General Barr, Secretary of State, National Security Advisor and former CIA Chief Michael Pompeo, Chief of Staff and Director Office of Management and Budget "Mick" Mulvaney, Secretary of Treasury Steven Mnuchin, and Secretary of Commerce Wilbur Ross. The other cabinet and ex officio figures like Rudy Giuliani who are either openly involved or not discovered yet will also face consequences. What is being revealed in this rapid-fire whistleblowing is the exposure of wholesale corruption of the nation's assets for the sole benefit of those holding the reins of power.
If you react by saying, this is so outrageous, so unprecedented than you are correct until I propose this is BIG HISTORY in play whereby definition BIG HISTORY is all about unprecedented events. The corruption by the Trump Regime that we are now being exposed is merely on the surface. There is a much deeper and more foreboding series of corruption that is intertwined in a grander domestic and international conspiracy poised to overthrow the Western democracies and their foundation of the "rule of law". This is a global cabal that parallels the Hitler-Mussolini-Japan Military of the 1930s now comprised of Putin's Oligarchy, Saudi's monarchy, China's unitary totalitarian state with domestic Right Wing political in the US and Great Britain. But within a month or so we could see Trump, Morrison and a minor player in Israel, Netanyahu is removed. Unprecedented you say.
Back to the US. The Trump Regime must face wholesale impeachment, followed by an unbridled prosecution for their crimes IF, IF, the Western democracies and their foundational "rule of law" are to prevail in the 21st Century, they must crush this cabal and bring consequences to those who are participating. Western democracy prevailed defeating Nazism, Fascism, and Communism of the 20th Century where the Anglo-American coalition spread its system worldwide. This decade now America must repulse the forces that have embedded themselves into our nation.
Slowly and begrudgingly I am seeing Republicans emerge from their partisan nests of protection as the last eleven days of whistleblowing revelation emerge and Trump the self-spokesman for his regime digs a starker contrast to the "rule of law". More whistleblowers will come forward in a wave of new political attacks because they are professionals caught either being a witness to crimes against the state or were made unwitting culprits. This is what is known as BIG HISTORY where unprecedented and unimaginable circumstances and events emerge. American history as seen BIG HISTORY three times previously, 1776, the Civil War, and the Depression/WWII. Each of these BIG HISTORY events defined the succeeding two or three generations.
Generations that were captured affected practically everyone in the world affected and I suspect when this concludes years from now that most of you will have to participate as well. Some of my wife's heirlooms are quilts sewed and needled following the Civil War expressing the wounding and deaths of family members who warred on both sides some against each other in battle. That was 155 years ago! We also own a post-Revolutionary buffet that has hand paintings symbolizing the new republic symbolizing the hope and future. I possess a Life Magazine hardbound book of World War II which also has news clippings of my uncle's battles in the Aleutians. Now, I have a plaque from the State of Colorado signifying my position as a Presidential Elector in 2016, one which I was part of political skirmish attempting to block Trump. Will that become a family heirloom of my participation in BIG HISTORY? Coincidentally, our plaintiff team quietly prevailed in the Federal Appeals Court gaining the judgment that Electors do possess the freedom to vote their conscious where it will be taken up in the Supreme Court next year. Another footnote for history.
Back to Trump and his domestic cronies. In its simple form, this global scandal is first and foremost worldwide seeking to influence and even dominate the elections of this nation. Trump and cronies are using the assets of the US, the assets of the American taxpayer, citizens, and our nation's companies, to promote their singular political aim, ultimately is to enrich themselves while dismantling the country, inside/out. They are using sophisticated psychological warfare in what seems to be a temporary successful attempt to hold their political coalition together. But as Republican officials begin to splinter how long will that last? Their new defense is that yes, Trump's efforts to influence the election from foreign states is atrocious but do not lead to impeachment, WHAT?
There are two questions: When it finally conclude? Soon I hope. Before Thanksgiving, possibly. When Nixon was finally staked as a President it took four days for the Congress to go from hearing the tape that he led the coverup to when he resigned. I am guessing that there is a similar piece of evidence out there that will pull the political plug on him and his regime. Enough that it will take Pence, Barr, Pompeo, Mnuchin, Mulvaney, and Ross with him into Federal and State Courts. It will also usher in the succession of the Speaker of the House. It will be a woman, unprecedented-yes. And she will have clean up a mess of gargantuan proportion. She will also have to lead in fighting the mobster-monarchy-unitary regimes that attempted to break us apart.
That is BIG HISTORY and we are living in it. Next up will be my perspective and research as how we got here.
Robert Nemanich, Presidential Elector 2016, challenging the unconstitutional "customs" of the present Electoral College, as the very concept of the institution as a viable political process electing the president.
Sunday, October 6, 2019
Sunday, April 21, 2019
The Mueller Report Volume II, 11 instances of Obstruction, 67 factual findings.
Each of you is going to deal with the [currently redacted] Mueller Report in your own way. Akin to dealing with the death of a loved one, the Mueller Report reveals an exceptional window into the current soul of America's political leadership. It is very dark. It touches upon darkness only displayed in characters within movies, like Darth Vader or Emperor Palpatine, and approaching how real-life personalities like Richard Heydrich or Adolf Eichmann emerged. This is not political hyperbole or literary exaggeration for effect; categorially this government document asserts with evidence that Donald Trump is morally and ethically unfit for office. Thrust into my own seminal lifetime political decision now going back two years ago to December 2016, his unfitness is what we were projecting to be the case, now it is firmly established by evidence.
The report can be summarized like an Amazon review: Trump was found to be not chargeable lawfully [now] but exceptionally awful. The Special Counsel did not have enough of the legal basis to press charges because of constitutional and legal reasons. Therefore, Trump has NOT been exonerated of wrongdoing where now, the power shifts to the Congress, through Article I where even though there is the cliche of co-equal branches of government, only the Congress, meaning through the people, possesses the power to remove officeholders from office.
Essential to remove is the criteria of breaching the trust with the people, therefore our democracy and being deemed to being unfit to hold office. This now leads the process and the nation away from the legalistic matters contained by the Justice Department to a political one--namely impeachment proceedings. Constitutionally speaking, if you hold that impeachment must be based on only legal, criminal matters, you are making an inaccurate assessment as it is both superficial and a flawed understanding of what impeachment actually is. At its fundamental level, impeachment represents the charge of being removed because of the political breach of trust with, we the people. Why as the process unfolds removal by conviction or resignation is the only objective.
Congress can impeach any office holder for anything but it only becomes reality when a breach of trust has been established, [see Johnson or Clinton], as impeaching doesn't mean a conviction. It is the political institution of an indictment to remove the office holder from office, period. Impeachment then leads to a Senate trial where the Senate is both judge and jury. Our history has recorded three presidents who were impeached; Andrew Johnson, the successor of Abraham Lincoln, Richard Nixon, and Bill Clinton, none were actually convicted or removed from office, though one resigned in disgrace fulfilling the objective. This American chapter called Trump is now inevitably headed to impeachment proceedings.
Essential to remove is the criteria of breaching the trust with the people, therefore our democracy and being deemed to being unfit to hold office. This now leads the process and the nation away from the legalistic matters contained by the Justice Department to a political one--namely impeachment proceedings. Constitutionally speaking, if you hold that impeachment must be based on only legal, criminal matters, you are making an inaccurate assessment as it is both superficial and a flawed understanding of what impeachment actually is. At its fundamental level, impeachment represents the charge of being removed because of the political breach of trust with, we the people. Why as the process unfolds removal by conviction or resignation is the only objective.
Congress can impeach any office holder for anything but it only becomes reality when a breach of trust has been established, [see Johnson or Clinton], as impeaching doesn't mean a conviction. It is the political institution of an indictment to remove the office holder from office, period. Impeachment then leads to a Senate trial where the Senate is both judge and jury. Our history has recorded three presidents who were impeached; Andrew Johnson, the successor of Abraham Lincoln, Richard Nixon, and Bill Clinton, none were actually convicted or removed from office, though one resigned in disgrace fulfilling the objective. This American chapter called Trump is now inevitably headed to impeachment proceedings.
 |
| Prof of Corp & Sec Law GMU Scalia Law, n. |
The report has two Volumes. I and II., I will post today about Volume II since that is what is leading the nation to impeachment. Volume I appears to be leading us to a long period of building international conflicts and continued counterintelligence investigations and prosecutions. Illustrated here is a tweet from a DC elite that I found revealing, very important as he represents a loss of an establishment Republican and quite influential, but it is not going to be the determining factor. As impeachment is a political institution and therefore invoking all levels of political calculations the most important one is going to be the public's view. The week prior to the report the consensus poll numbers were ranging around 40% down from the President's high this year from a high of 43% following AG Barr's now debunked four-page summary in March to Friday's number of 37%, Reuters/Ipsos. On Friday, Senator Mitt Romney, R-UT, was quoted:
"Romney said that he was happy that "the business of government can move on" but added that he was "sickened at the extent and pervasiveness of dishonesty and misdirection by individuals in the highest office of the land, including the President...Reading the report is a sobering revelation of how far we have strayed from the aspirations and principles of the founders."As it appears that the Democratic House of Representatives is heading toward impeachment hearings with public testimony underscoring and broadcasting the findings watch as to how the poll numbers go. Falling to plus/minus 30% represents a loss of the public trust. If they fall below 33% and keep cratering inch by inch the political reality in the Senate will align with what happened with Nixon. If the poll numbers hold or grow as they did with Clinton, the Senate will most likely not convict, again representing the public trust. That is the conventional wisdom, but of course the last four years nothing seems to have followed the conventional political wisdom expressed throughout cable news outlets. Here is a bullet point summary of what Volume II found.
- Eleven (11) established findings alleging Obstruction of Justice committed by Trump
- Thirty (30) instances when his written testimony stated he "did not recall"
- Five (5) occasions when Trump directed subordinates to lie to the Special Counsel
- 67 subchapters of factual findings regarding Obstruction of Justice
- Let Flynn Go: Trump told the FBI to The President stated, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go." Comey testified under oath that he took the President’s statement “as a direction” because of the President’s position and the circumstances of the one-on-one meeting." Vol II page 40
- Sessions must unrecuse: According to Sessions, the President asked him to reverse his recusal so that Sessions could direct the Department of Justice to investigate and prosecute Hillary Clinton, and the “gist” of the conversation was that the President wanted Sessions to unrecuse from “all of it,” including the Special Counsel’s Russia investigation." Vol II pg 51
- The firing of FBI Director James Comey: "Obstructive act. The act of firing Comey removed the individual overseeing the FBI’s Russia investigation. The President knew that Comey was personally involved in the investigation based on Comey’s briefing of the Gang of Eight, Comey’s March 20, 2017, public testimony about the investigation, and the President’s one-on-one conversations with Comey." Substantial evidence indicates that the catalyst for the President’s decision to fire Comey was Comey’s unwillingness to publicly state that the President was not personally under investigation, despite the President’s repeated requests that Comey make such an announcement." Vol II pg 74-75
- Trump order Administration Officials to fire the Special Council: "...the President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest. McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre and instead prepared to resign. McGahn ultimately did not quit and the President did not follow up with McGahn on his request to have the Special Counsel removed." Vol II pg 84
- Trump ordered members of his Administration to impose limits on the Special Counsel's investigation: "Two days after the President directed McGahn to have the Special Counsel removed, the President made another attempt to affect the course of the Russia investigation. On June 19, 2017, the President met one-on-one with Corey Lewandowski in the Oval Office and dictated a message to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only. One month later, the President met again with Lewandowski and followed up on the request to have Sessions limit the scope of the Russia investigation. Lewandowski told the President the message would be delivered soon. Hours later, the President publicly criticized Sessions in an unplanned press interview, raising questions about Sessions’s job security." Two days after the President directed McGahn to have the Special Counsel removed, the President made another attempt to affect the course of the Russia investigation. On June 19, 2017, the President met one-on-one with Corey Lewandowski in the Oval Office and dictated a message to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only. One month later, the President met again with Lewandowski and followed up on the request to have Sessions limit the scope of the Russia investigation. Lewandowski told the President the message would be delivered soon. Hours later, the President publicly criticized Sessions in an unplanned press interview, raising questions about Sessions’s job security. Vol II pg 90
- Trump instructed his family and members of his Administration not to acknowledge the secret meeting(s) between his campaign officials and members of the Russian government: "Communications advisors Hope Hicks and Josh Raffel recalled discussing with Jared Kushner and Ivanka Trump that the emails were damaging and would inevitably be leaked...The President said he did not want to know about it and they should not go to the press. Hicks warned the President that the emails were “really bad” and the story would be “massive” when it broke, but the President was insistent that he did not want to talk about it and said he did not want details...Obstructive act.On at least three occasions between June 29, 2017, and July 9, 2017, the President directed Hicks and others not to publicly disclose information about the June9, 2016 meeting between senior campaign officials and a Russian attorney. On June 29, Hicks warned the President that the emails setting up the June 9 meeting were “really bad” and the story would be “massive” when it broke, but the President told her and Kushner to “leave it alone.”
- The President’s Further Efforts to Have the Attorney General Take Over the Investigation: From summer 2017 through 2018, the President attempted to have Attorney General Sessions reverse his recusal, take control of the Special Counsel’s investigation, and order an investigation of Hillary Clinton. That was the second time that the President asked Sessions to reverse his recusal from campaign-related investigations. Vol II pg 107
- Additional Efforts to Have Sessions Unrecuse or Direct Investigations Covered by his Recusal: Later in 2017, the President continued to urge Sessions to reverse his recusal from campaign-related investigation. According to contemporaneous notes taken by Porter, who was at the meeting, the President mentioned Clinton’s emails and said, “Don’t have to tell us, just take [a] look.” Sessions did not offer any assurances or promises to the President that the Department of Justice would comply with that request.ns and considered replacing Sessions with an Attorney General who would not be recused.
On December 6, 2017, five days after Flynn pleaded guilty to lying about his contacts with the Russian government, the President asked to speak with Sessions in the Oval Office at the end of a cabinet meeting. During that Oval Office meeting, which Porter attended, the President again suggested that Sessions could “unrecuse,” which Porter linked to taking back supervision of the Russia investigation and directing an investigation of Hillary Clinton. Vol II pg 111
Porter looking onto Trump - The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel: In late January 2018, the media reported that in June 2017 the President had ordered McGahn to have the Special Counsel fired based on purported conflicts of interest but McGahn had refused, saying he would quit instead. After the story broke, the President, through his personal counsel and two aides, sought to have McGahn deny that he had been directed to remove the Special Counsel. Each time he was approached, McGahn responded that he would not refute the press accounts because they were accurate in reporting on the President’s effort to have the Special Counsel removed. The President later personally met with McGahn in the Oval Office with only the Chief of Staff present and tried to get McGahn to say that the President never ordered him to fire the Special Counsel. McGahn refused and insisted his memory of the President’s direction to remove the Special Counsel was accurate. In that same meeting, the President challenged McGahn for taking notes of his discussions with the President and asked why he had told Special Counsel investigators that he had been directed to have the Special Counsel removed. Vol II pg 113
- The President’s Conduct Towards Flynn, Manafort,■■■■■■■■■: In addition to the interactions with McGahn described above, the President has taken other actions directed at possible witnesses in the Special Counsel’s investigation, including Flynn, Manafort, ■■■■■■■■■ and as described in the next section, Cohen. When Flynn withdrew from a joint defense agreement with the President, the President’s personal counsel stated that Flynn’s actions would be viewed as reflecting “hostility” towards the President. During Manafort’s prosecution and while the jury was deliberating, the President repeatedly stated that Manafort was being treated unfairly and made it known that Manafort could receive a pardon.■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ Vol II pg 120
- The President’s Conduct Involving Michael Cohen: The President’s conduct involving Michael Cohen spans the full period of our investigation. During the campaign, Cohen pursued the Trump Tower Moscow project on behalf of the Trump Organization. Cohen briefed candidate Trump on the project numerous times... While working on the congressional statement, Cohen had extensive discussions with the President’s personal counsel, who, according to Cohen, said that Cohen should not contradict the President and should keep the statement short and “tight.”After the FBI searched Cohen’s home and office in April 2018, the President publicly asserted that Cohen would not “flip” and privately passed messages of support to him. Cohen also discussed pardons with the President’s personal counsel and believed that if he stayed on message, he would get a pardon or the President would do “something else” to make the investigation end. But after Cohen began cooperating with the government in July 2018, the President publicly criticized him, called him a “rat,” and suggested his family members had committed crimes.
Front Two is what is partially revealed in Volume I that is next week. Oh and by the way don't take my word for this, read it for yourself.
Saturday, January 26, 2019
Its all about voting in the American democracy, NPV Compact in CO and then Appellate Court hearing over Elector's voter discretion
Below is my story of the week. If uninterested to the pretext background story scrolls down to the subtitles narratives in bold.
UPDATE: The Colorado Senate passed the measure by a party-line vote Tuesday 1/29/19, after the Senate Committee voted to pass, again on a party-line Colorado Politics article here: Next up is the House in the General Assembly scheduled in February.
This week through the intensifying winter weather our family was first burdened to fly into (Chicago) during a winter snowstorm. Snowstorms happen in Chicago and invariably followed by diving Arctic temperatures. Because of the constant winds and its relative humidity, 5 degrees in Chicago feels colder than 5 degrees in dry Colorado. Flying back on Monday we had to face the prospects of a genuine high plains blizzard the next day, capped off by a fast-moving snowstorm on Thursday's morning commute. The symbolism I am attempting to make is that democracy is often challenged by forces in our political climate attempting to manipulate political powers over this people's self-government like winter weather overriding the plans of modern life. Yet after these political squalls often obstruct the people's voice are eventually pushed aside by the sun's rays reaffirming the people's demand for democratic self-government over authoritarians who stoke fear for control. That is a parody of my experience last week---the challenge of the "we the people" demanding their voice for to choose their president while our demand as electors for free will discretion to determine who are our leaders in this self-government.
Over the Martin Luther King Jr holiday weekend, our family flew to Chicago to belatedly celebrate my wife's father's 90th birthday. We thought the Martin Luther King Jr holiday weekend was a good travel weekend. Over the last two years, I have often discussed with my father-in-law how his personal experiences living through the Great Depression, World War II, the Cold War the Cuban Missile Crisis, both Kennedy's Assassinations, and Watergate compared to this historical chapter of Trump's presidency. Those previous tumultuous events underscored his first fifty years, compared to now, in between world that period and the last forty years were fairly docile until now. World War II was the worst where practically everyone he knew felt that if the U.S. didn't prevail, the country and their own personal lives would be greatly threatened. He now feels the same as we have to succeed over the Trump's conspiracy.
As the big party was coming to its conclusion I got into a conversation with one of our family members about our case about the Electoral College, who also happened to be a lawyer and political activist about overturning Colorado's state law C.R.S. § 1-4-304(5) commanding that duly selected presidential electors vote for the winner of its popular vote absolutely. She disagreed with our lawsuit and our position---firmly. Of course, that is fine, each of us has a voice be it we agree with state laws or even constitutional amendments. But then I responded with a simple question. What is a vote in a free society? In my mind, a valid vote is only a vote if it is of the voter's free will where they have unfettered discretion. If a vote is commanded by the state or other official entity it is not a vote, but something else. She replied that not in this case and then walked away.
The conversation shook me deeply, especially in the quiet moments flying back from Chicago. Not that she disagreed but that she was willing to hold a position that votes in America for the president can be parsed where some votes are not of free will, while others are even though they are not constitutional electors---count absolutely. A true quandary and I get it. It's not the first time people whom I know disagreed with our stance seeking free will voter discretion in the Electoral College. But it was her unwillingness to delve deeper into the XII Amendment that upset me, she is a lawyer and lawyers debate their positions. Her position regarding the Electoral College offered a deeper reveal. The illusion, the desire, the belief, that our individual vote for president, regardless of which state one resides in, is actually constitutionally meaningless outside of completing the selection process of electors. Very few people know this or find it to be valid. It was then that I had great empathy for those who are so uninformed constitutionally regarding about America's voting rights in general and the purpose of the Electoral College. In part it is from the Appellate Court hearing when a judge brought up the short form and long form, meaning that electors on the short form don't mention electors.
The following is my narrative to what happened Wednesday and an edited report from our lawyer's narrative as to and what I learned about various opinions and matters of interpretation to the laws governing voting.
Wednesday, January 23, 2019, visiting Colorado State Senate and testimonies regarding SB19-042; National Popular Vote; Committee State Veterans & Military Affairs., Conference Room 357.
I arrived at the State Capitol at an appointed time to meet with Colorado Springs State Senator, Pete Lee. He has been my friend since 2006. He was still on the floor as an extended debate over a series of amendment calls regarding bill about transportation requirements for public school districts involving foster children moving in or out of districts. It was political sausage making as the Republicans, led by another Colorado Springs State Senator Owen Hill attempted to modify it for the purposes of providing transportation funding for private and charter schools. Pete was so gracious to make me a guest of his, bringing me down on the Senate Floor to observe. One relative comment by Pete was: "The majority rules, but the majority must give the minority its opportunity to voice dissent". In that experience, I watched four votes by Senators who voted their free will and discretion by standing.
1:30 PM was the scheduled time for the hearing I was asked to testify to the State Senate Committee held in its largest conference room where already I estimated over fifty people outside waiting in its vestibule. My fellow elector litigant was there as were other dignitaries, including Judd Chote, the Secretary of State's Director of Elections. Testimonies were divided into one proponent then one opponent alternating from then on. At the time it finally got started after 2:00 PM there were 72 persons signed up to testify.
The numbers forced the opening of the overflow room in the basement seen on closed-circuit TV. Comments were limited to three minutes each, strictly enforced. Since the Chair of the Committee was a sponsor of the bill, (State Senator John Foote-Dem from Boulder County), he was the first to testify. Senators Sonneberg and Marble, the minority Republicans on the committee questioned Foote after his three minutes. Their position was that the big cities would dominate the presidential vote as the fact that sometimes could see that the winner in Colorado but not win the National Popular Vote where Colorado electors would be instructed to vote against Colorado voters wishes.
Testimonies went back and forth, proponents were consistently favoring about one person, one vote, others brought up (Polly Baca), pictured here at the table testifying,
the inequity between electoral votes between Colorado and Wyoming, or New Jersey and Virginia. Opponents mostly spoke about their perceived fear that large population centers and big states would be more powerful leaving rural voters less important. This was countered by mathematics demonstrating that the top 50 cities only comprise 16% of the voting population. Add in the next 50 cities and it comprised just over 20% of the voting population. Others discussed battleground states getting the most attention in the present system leaving 40 states inconsequential. Opponents seemed undeterred saying that there is an involatile nature to the Electoral College but then were schooled by its evolving changes, First the XII Amendment then the winner take all movement in the 19th Century followed by the binding laws in the 1950s.
What really came about was the inordinate and yet consistent demand by the proponents to the bill regarding the concept of one-person, one-vote with equal measure where the popular vote was the only means to accomplish this. I was not able to testify until well after 5:00 o'clock where there were still 37 people in the room. By my count it was about 4:50 after roughly 66 people had testified, 33 to 33, that the opponents ran out of witnesses. That left 70 in favor and 33 opposed, ironically mirroring the opinion polls regarding the desire for the popular vote. Here is my written statement I was able to read to the committee.
When I left the room still seemingly half filled I was congratulated by four other citizens waiting their turn to testify. I was also followed by two people outside the hearing room, one being the State Director of the League of Women Voters, who thanked me and then wanted to discuss more. I thanked them but said I really have to get going in that I have a two-hour drive home, then, needing to get back in the car by 6:00 AM the next day for a Federal Appeals Court hearing.
Thursday, January 24, 2019, attendance as a plaintiff in Baca, Baca, and Nemanich vs Colorado Secretary of State, U.S. Court of Appeals, Tenth District.
Thursday the weather forecast was not favorable as predictions stated a fast-moving winter snowstorm was going to arrive right at prime commute time over the Monument Pass, then all the way to Denver. Fortunately, the snow didn't arrive until we were between I-225 and Denver University. The drive in from the superhighway suddenly accumulated into inches of snow as we traveled down Lincoln Avenue during the morning commute. We were able to make it into the courtroom by 8:35 AM, allowing us to listen to the two cases heard ahead of our case. The session was presided by three Appellate Court Judges; two women, Judge Briscoe, and Judge McHugh and an African-American male, Judge Holmes. All three were exceptionally capable and drilled through the respective arguments of every attorney representing their clients and getting to the kernel of the legal matter. Judge Holmes in the two previous cases was the most active probing the reasoning and merits. stripping at the arguments of the lawyers. Judge Briscoe seemed to sum things up while Judge McHugh was rather passive in those hearing. Things seemed to change when our case was heard.
Here is a link to the recording of the proceedings: https://www.ca10.uscourts.gov/
UPDATE: The Colorado Senate passed the measure by a party-line vote Tuesday 1/29/19, after the Senate Committee voted to pass, again on a party-line Colorado Politics article here: Next up is the House in the General Assembly scheduled in February.
This week through the intensifying winter weather our family was first burdened to fly into (Chicago) during a winter snowstorm. Snowstorms happen in Chicago and invariably followed by diving Arctic temperatures. Because of the constant winds and its relative humidity, 5 degrees in Chicago feels colder than 5 degrees in dry Colorado. Flying back on Monday we had to face the prospects of a genuine high plains blizzard the next day, capped off by a fast-moving snowstorm on Thursday's morning commute. The symbolism I am attempting to make is that democracy is often challenged by forces in our political climate attempting to manipulate political powers over this people's self-government like winter weather overriding the plans of modern life. Yet after these political squalls often obstruct the people's voice are eventually pushed aside by the sun's rays reaffirming the people's demand for democratic self-government over authoritarians who stoke fear for control. That is a parody of my experience last week---the challenge of the "we the people" demanding their voice for to choose their president while our demand as electors for free will discretion to determine who are our leaders in this self-government.
Over the Martin Luther King Jr holiday weekend, our family flew to Chicago to belatedly celebrate my wife's father's 90th birthday. We thought the Martin Luther King Jr holiday weekend was a good travel weekend. Over the last two years, I have often discussed with my father-in-law how his personal experiences living through the Great Depression, World War II, the Cold War the Cuban Missile Crisis, both Kennedy's Assassinations, and Watergate compared to this historical chapter of Trump's presidency. Those previous tumultuous events underscored his first fifty years, compared to now, in between world that period and the last forty years were fairly docile until now. World War II was the worst where practically everyone he knew felt that if the U.S. didn't prevail, the country and their own personal lives would be greatly threatened. He now feels the same as we have to succeed over the Trump's conspiracy.
As the big party was coming to its conclusion I got into a conversation with one of our family members about our case about the Electoral College, who also happened to be a lawyer and political activist about overturning Colorado's state law C.R.S. § 1-4-304(5) commanding that duly selected presidential electors vote for the winner of its popular vote absolutely. She disagreed with our lawsuit and our position---firmly. Of course, that is fine, each of us has a voice be it we agree with state laws or even constitutional amendments. But then I responded with a simple question. What is a vote in a free society? In my mind, a valid vote is only a vote if it is of the voter's free will where they have unfettered discretion. If a vote is commanded by the state or other official entity it is not a vote, but something else. She replied that not in this case and then walked away.
The conversation shook me deeply, especially in the quiet moments flying back from Chicago. Not that she disagreed but that she was willing to hold a position that votes in America for the president can be parsed where some votes are not of free will, while others are even though they are not constitutional electors---count absolutely. A true quandary and I get it. It's not the first time people whom I know disagreed with our stance seeking free will voter discretion in the Electoral College. But it was her unwillingness to delve deeper into the XII Amendment that upset me, she is a lawyer and lawyers debate their positions. Her position regarding the Electoral College offered a deeper reveal. The illusion, the desire, the belief, that our individual vote for president, regardless of which state one resides in, is actually constitutionally meaningless outside of completing the selection process of electors. Very few people know this or find it to be valid. It was then that I had great empathy for those who are so uninformed constitutionally regarding about America's voting rights in general and the purpose of the Electoral College. In part it is from the Appellate Court hearing when a judge brought up the short form and long form, meaning that electors on the short form don't mention electors.
The following is my narrative to what happened Wednesday and an edited report from our lawyer's narrative as to and what I learned about various opinions and matters of interpretation to the laws governing voting.
Wednesday, January 23, 2019, visiting Colorado State Senate and testimonies regarding SB19-042; National Popular Vote; Committee State Veterans & Military Affairs., Conference Room 357.
I arrived at the State Capitol at an appointed time to meet with Colorado Springs State Senator, Pete Lee. He has been my friend since 2006. He was still on the floor as an extended debate over a series of amendment calls regarding bill about transportation requirements for public school districts involving foster children moving in or out of districts. It was political sausage making as the Republicans, led by another Colorado Springs State Senator Owen Hill attempted to modify it for the purposes of providing transportation funding for private and charter schools. Pete was so gracious to make me a guest of his, bringing me down on the Senate Floor to observe. One relative comment by Pete was: "The majority rules, but the majority must give the minority its opportunity to voice dissent". In that experience, I watched four votes by Senators who voted their free will and discretion by standing.
1:30 PM was the scheduled time for the hearing I was asked to testify to the State Senate Committee held in its largest conference room where already I estimated over fifty people outside waiting in its vestibule. My fellow elector litigant was there as were other dignitaries, including Judd Chote, the Secretary of State's Director of Elections. Testimonies were divided into one proponent then one opponent alternating from then on. At the time it finally got started after 2:00 PM there were 72 persons signed up to testify.
Testimonies went back and forth, proponents were consistently favoring about one person, one vote, others brought up (Polly Baca), pictured here at the table testifying,
What really came about was the inordinate and yet consistent demand by the proponents to the bill regarding the concept of one-person, one-vote with equal measure where the popular vote was the only means to accomplish this. I was not able to testify until well after 5:00 o'clock where there were still 37 people in the room. By my count it was about 4:50 after roughly 66 people had testified, 33 to 33, that the opponents ran out of witnesses. That left 70 in favor and 33 opposed, ironically mirroring the opinion polls regarding the desire for the popular vote. Here is my written statement I was able to read to the committee.
Madam chair, senators, my name is Robert Nemanich, from Colorado Springs, an Unaffiliated voter and I was a Presidential Elector in 2016. That experience that gave me great insight into the present dysfunction of the Electoral College and the demand that the popular vote be the means to elect our president. There is a misunderstanding to Electoral College and its purpose. Misunderstood as its primary purpose described in the words by Hamilton in Federalist 68.
" a practicable obstacle opposed to cabal, intrigue, and corruption", and "chiefly from the desire in foreign powers to gain an improper ascendant in our councils...by raising a creature of their own to the chief magistracy of the Union."
We know the last five presidential elections two Electoral winners did not receive a majority of popular votes. Last April, in an extensive report published by the American Progress Institute found that the real possibility exists that the next five presidential elections could see the Electoral College winners not receiving the majority in the popular vote. That should give everyone pause.
Senator Sonneberg you inquired whether if the compact is installed, indeed Colorado electors will be asked to vote for the winner of the national popular vote, not who won in Colorado.
At its core, a functioning democracy requires: One Person, One Vote. All votes counted with equal measure. The majority of votes, wins---governs. Then and only then, it is recognized as the will of the people.
But it appears here that there is much debate about this basic concept.I am confident that each one of you voted in the last election offering your own consideration, a belief that your vote for president was important and would be counted, no different than all other Coloradoan voters. I hear this over and over again as persons engage with me about the Electoral College. They demand to have their vote actually be meaningful and count.
The reality I tell them is something else. Those votes in Colorado merely completed the winner take all Presidential Elector selection process. If the compact is activated then the electors selected must hold to democracy's national result, not a state partisan affiliation.
The Presidency is a national office, one that governs all of us. Only the measure of who wins the popular vote can attest truly to democracy in declaring our leader of this national government and head of state. The National Compact is the best solution within our present constitutional system to rebuilding of our democracy and save our nation from this existential dysfunction that is now present.
Thursday, January 24, 2019, attendance as a plaintiff in Baca, Baca, and Nemanich vs Colorado Secretary of State, U.S. Court of Appeals, Tenth District.
Thursday the weather forecast was not favorable as predictions stated a fast-moving winter snowstorm was going to arrive right at prime commute time over the Monument Pass, then all the way to Denver. Fortunately, the snow didn't arrive until we were between I-225 and Denver University. The drive in from the superhighway suddenly accumulated into inches of snow as we traveled down Lincoln Avenue during the morning commute. We were able to make it into the courtroom by 8:35 AM, allowing us to listen to the two cases heard ahead of our case. The session was presided by three Appellate Court Judges; two women, Judge Briscoe, and Judge McHugh and an African-American male, Judge Holmes. All three were exceptionally capable and drilled through the respective arguments of every attorney representing their clients and getting to the kernel of the legal matter. Judge Holmes in the two previous cases was the most active probing the reasoning and merits. stripping at the arguments of the lawyers. Judge Briscoe seemed to sum things up while Judge McHugh was rather passive in those hearing. Things seemed to change when our case was heard.
Here is a link to the recording of the proceedings: https://www.ca10.uscourts.gov/
[Jason Harrow, our solicitor from Equal Citizens, the nonprofit group that took on our legal fight led by Prof. Larry Lessig, Dean at Harvard Law School] stepped to the podium and introduced himself, and our contingency and was able to make a brief opening statement before the judges began asking him questions. Encouragingly, none of the questions were about the plaintiff's standing; where all three went right to the heart of the matter. During he back and forth, Harrow repeatedly reiterated the federal function of presidential electors; He made comparisons between presidential electors, legislative electors, and jurors; invoking the detailed process of the Twelfth Amendment; and trying to assuage some of the judges’ concerns about upsetting public expectations by noting that the state’s appointment power was indeed broad but did not extend to the power to control. The questions brought up by the judges were engaged, where they were well versed in the material, but none seemed to question our fundamental account of electors’ role, and only one judge—Judge Holmes—asked questions indicating a view that the appointment power was broad enough to cover this case.
Assistant Solicitor General Grant Sullivan then stepped to the podium for the State, and he quickly got interrupted by difficult, even hostile questions, from two judges: Judges Briscoe and McHugh. Their questions seemed to reveal that neither accepted many of the state’s fundamental premises: that citizens vote for president rather than electors; that electors exercise a “ministerial function”; and that the appointment power could extend this far. Judge McHugh in particular was well versed in the history of the Twelfth Amendment. Judge McHugh pointed out that there had been faithless electors prior to its passage, where the drafters of the amendment changed nothing about electors’ role. This point was made by the contribution by our wonderful amici for fleshing this out in detail! Judge McHugh also noted that the electoral college seemed designed to prevent the “unwashed masses” from making the final decision for President.
When the State Attorney General's Asst. Solicitor took the podium he was immediately peppered by the judges causing the AG Solicitor to mostly flounder in response to commanding the vote even after the electors were in session. He then punted and repeatedly back to the Article II's appointment power, but this seemed not to satisfy at least two of the judges, McHugh and Briscoe. Judge Holmes was silent during the state’s primary merits argument seemingly out of character from the first two cases.
With only a few minutes remaining, the State turned to its argument that our clients lack standing, but this apparently proved to be a tactical mistake; Grant Sullivan got hostile questions from all three judges on this issue, as they all viewed this as a case presenting an allegation of personal injury. It seemed odd that Judge Holmes seemingly recognized the personal nature of the right here but does not appear inclined to extend it to the merits of the case, we all hope that perhaps he will reconsider.
In Harrow's rebuttal, he emphasized the context of the Twelfth Amendment and the judicial role in resolving this question. Only Judge Holmes jumped in to repeatedly ask me why Colorado could not try to give effect to the popular vote, where our counsel explained the limitations of the state’s power. Judges Briscoe and McHugh asked our counsel no questions on rebuttal, which we took to be a good sign.
The team is cautiously optimistic that we have at least 2 of the 3 judges on our side—but now we wait. A decision could come at any time. Jason Wesoky. estimates it may take a few months; he says his cases usually take 4 months or more, but that he thought the court might move more quickly here. We'll be in touch the moment we get a decision.
All in all, this was quite educational as to finding the views regarding voting by the general public transposed over the views regarding voting in the Electoral College. It appears however in both regards is that the sun is beginning to shine through the political squalls attempting to obscure, suppress or even command votes and voters. I am struck by seeing all this pointing to a study by psychologists at the University of California Berkley, published back in 2006 wherein their report on how conservatives are cognitively and emotionally driven not to believe or ascribe to equality of voting. The two primary points are that cognitively they know less voting offers their conservative view possesses a greater weight in political power. Emotionally, they are fearful that if the masses vote in a full measure it will lead to chaos. I heard this reasoning over and over again at Colorado's State Senate hearing. In that hearing, Senator Marble (Rep) kept bemoaning that the rural vote was a minority that should be given greater weight (much like how they handicapped racehorses who are faster so betting is more equalized or if they allowed lesser seeded teams in the NCAA basketball championship play on their home court with their own fans), in her view city voters are more numerous and would lead to tyranny over the rural way of life. Many testified that if the popular vote was installed as the means of electing the president directly, it would be the tyranny of the majority over small states and the greater amount of land. Senator Sonneberg (Rep) voiced his rejection to the NPV through the national compact, that chaos could ensue with a direct popular vote much like Venezuela or France.
On the other hand, the only constitutional means currently to electing the president is through the electoral college connecting with liberals cognitive and emotional drives regarding voting. Emotionally liberals fear the tyranny of the state creating an authoritarian state where suppression of voters is followed by commanding the vote and therefore leading to one partisan government. Remember the Karl Rowe wish of a permanent conservative majority. Cognitively, liberals look at enfranchising the most amount of voters as to ensure democracy and equality, holding back authoritarian partisans who are in government, note Wayne Williams authoritarian and expansive use of commanding our Elector's vote. This is the push and pulls many in seeking the expression their worldly view in voting and who and how voter participation is exercised in America. My father does not ascribe to equality voting since many are uneducated and subject to great prejudice or superficial influences, that of course was reserved for those who voted against his world views. When my grandparents were approaching 90 he defended their right to vote as they voted the "right way".
My view is more liberal of course, but cognitively only a legitimate self-governing republic can happen and be just and effective if a vote is only a vote, if it is of a free will where the individual has full discretion. This week's U.S. Senate vote where six Republicans broke partisan ranks voting against Trump's shutdown over his border wall. Their discretion changed the standoff and forced movement to resolve the crisis where my son was directly affected not being paid for over a month, Their act of voting against their party expressed their conscience without the state punishing them.
Back in 2016 when I sought to legally be "faithless" I was attempting to use my free will discretion to be an obstacle of what I viewed as an electoral result involving a cabal, intrigue, and corruption, therefore protecting the nation over the results of the political party system. Some including my family members don't ascribe to electors having this right regardless of Trump and his extraordinary circumstances or what the founder's intent was for the Electoral College. They want their vote to possess supremacy, no different than all other elections nationwide and to be counted as the actual vote for president, as the choosers (AKA the constitutional term electors), not one step removed. I get that of course, but that is not the constitutional means. We shall see, whether a state has the constitutional right to command a vote of electors or do electors have free will discretion? And whether our quest to the U.S. Supreme Court over this matter is in part the impetus to propel the country to finally bring about the national popular vote as the official means to elect the president.
Back in 2016 when I sought to legally be "faithless" I was attempting to use my free will discretion to be an obstacle of what I viewed as an electoral result involving a cabal, intrigue, and corruption, therefore protecting the nation over the results of the political party system. Some including my family members don't ascribe to electors having this right regardless of Trump and his extraordinary circumstances or what the founder's intent was for the Electoral College. They want their vote to possess supremacy, no different than all other elections nationwide and to be counted as the actual vote for president, as the choosers (AKA the constitutional term electors), not one step removed. I get that of course, but that is not the constitutional means. We shall see, whether a state has the constitutional right to command a vote of electors or do electors have free will discretion? And whether our quest to the U.S. Supreme Court over this matter is in part the impetus to propel the country to finally bring about the national popular vote as the official means to elect the president.
Friday, January 4, 2019
2019 GOP Strategists: "How to finesse the Electoral College" electing president without winning popular vote
But once I begin to question friends and family, those whose eyes initially glazed over, their understanding of what is a representative democracy and what is their right to vote and how that relates to our case of seeking the right to vote our free will as presidential electors, suddenly, albeit begrudgingly, it becomes apparent to their right of free will to vote their conscience in any and all elections is connected to an Elector's right to vote their conscience. Some begin to get it, but then again they still want their vote for president to count. How can both be?
Then I read this on December 29th in the Washington Post, buried at the end of an article about Trump and attempting to "please his base with his shutdown over his wall."
"Trump’s 2016 victory was dependent on winning over white voters in the Midwest who did not attend college by using populist and nativist pitches, and some officials and allies continue to believe he can repeat the same success.
In a 2018 study of the nation’s changing demographics, Brookings Institution political scientist Ruy Teixeira concluded with his colleagues that increasing margins and maintaining turnout among this group provided Republicans the greatest opportunity to continue to win the White House.
If Republicans expanded Trump’s 2016 margin among non-college whites by a hypothetical 10 percent and other voting patterns are unchanged, the party could keep winning the electoral college through the next five presidential elections, the report concluded, overcoming the growing diversity in the general electorate and even losses in the popular vote.
'It’s the way to finesse the structure of the electoral college,” Teixeira said. “White non-college, in the center of the country.'"Using the term finesse is an understatement, to say the least. On its face value, this reporting insinuates, no---suggests that a political minority interest (the Republican Party) can and will circumvent the very nature of our democracy, as it has since 2000, but now is more openly looking at this electoral college strategy as a governing policy. Not that these interests have not already taken place since the 2000 election as two of three Republican presidential wins lost the popular vote---while winning the Electoral vote. But now it is their only strategy.
The Republican's only popular vote win in 2004 could have resulted in a Democratic victory in the electoral college, while like 2000, losing the popular vote if Kerry's campaign had switched 60,000 votes (1.1%) in Ohio. An even deeper examination of Ohio in 2004 suggests that Kerry should have won as over 90,000 (1.6%) undervotes for President than what was recorded for Senator. Coincidentally, this was most concentrated in high democratic voting precincts in urban areas in what was blamed on the antiquated punch card system (remember Florida 2000), that suspiciously didn't record over 90,000 presidential preferences. All that and still not including blatant voter suppression activities that also emerged in heavy minority precincts as being the deciding factor in 2004. Interestingly similar efforts were made in Wisconsin, Michigan, and Pennsylvania in 2016's election.
Digging deeper where I found the extensive and comprehensive study by Guy Tiexeira along with other contributors titled: America’s Electoral Future; Demographic Shifts and the Future of the Trump Coalition available on the American Progress website, published April 2018. And the study does not include the Mid-term elections data which belies the notion that voting patterns not changing as they did significantly, but the work underscores what and where Republicans (and now foreign interests) have been working with since at least 2000.
Essentially, the finessing of the electoral college can only happen to this degree where A) Electors must vote in a directed way, (binding them to state's popular vote) and B) the winner take all protocol outside of Maine and Nebraska's splitting with Congressional Districts. The defense to this political minority manipulation is to one; allow Electors like all representatives in our governing system to vote their conscience and free will where if it is identified implicit or explicit manipulation has occurred in the election they are duty bound to act. The second defense is that finessing or manipulation of voters at the polls is greatly reduced when the results are decentralized as in selecting Electors by popular vote totals by way Congressional Districts with two state at-large Electors in each state. It would mean that in most cases each state would have a split vote in the Electoral College. The final defense is instituting the National Popular Vote Interstate Compact where states choose electors based on pledges that they vote for the winner of the national popular vote.
Ironically led by Larry Lessig's Equal Citizen's projects which I am proud to be associated with in our lawsuit, as there is a corresponding lawsuit regarding equality vote, both appear headed to the Supreme Court. By challenging this unequal, “winner take all” system under both the First Amendment to our Constitution and the Equal Protection Clause of the Fourteenth Amendment. The winner takes all system allocating of electoral college votes is not in the Constitution. It was adopted initially by states as give themselves more power in the presidential election. Once when (practically) all states had adopted this, it no longer amplified any state's power of any particular state. All it did and has done nationally is to assure that the President does not get elected by all the people.
Complicated as these cases may seem what they are seeking is to protect and enhance the sanctity of each citizen's vote that is fundamental equal by measure to every other citizen, one person---one vote. Of course, this is stridently in opposition to Tiexeira's study which has found how a minority could beat the majority in this democracy. Regardless what is your partisan identity, a democracy is and only based on majority rules. When a minority rules it no longer is a functioning democracy (govern by the people), but is something else; be a plutocracy or oligarchy or some modern manifestation that a new name has to be conceived to describe. Simply look at Tiexeira's graphics:
Notice only once out of four future presidential elections that the Republicans win both the electoral college and the popular vote where three other scenarios the Republican's win the White House but lose the popular vote were in none of the scenarios do the Democrats win the presidency without winning the popular vote.
Not that I went into this detail with family and friends as to what my suit is all about using bullet points, but then most appreciated what we are doing. What a few stated that you are just a common citizen how can you do this? I took liberty from history and by no means, I am comparing myself to the bravery of Rosa Parks, but in reality what we tried to do and what Micheal Baca did as did the fellow Electors in Washington, Minnesota, and Maine was to choose to where they wanted to sit on the public bus despite what the law demanded them like how the law demanded Rosa to sit in the back of the bus. That is free will and by voting faithless, it too is free will.
Polly Baca and I had different circumstances whereas we sought openly to gain the right to strike the law we were ordered by the court that if we voted faithless as we intended, we would have faced state charges of contempt of court besides the Attorney General's threat of perjury and dereliction of official duties. Demanding to vote one's conscience is what is essential for a democracy to function. Take away one level of conscience voting and you can take away all levels. Displace one vote and there would be diminishment, displace a group of votes and the democracy begins to fall. Which again comes back to your vote. The only way a citizen's vote counts is if the electoral college is reformed where either it reflects the winner of the national popular vote. How that is reformed is to decentralize to it to reflect the congressional districts or lastly we eventually pass a constitutional amendment putting the popular vote as the mechanism of electing a president and vice president. The electoral college primary purpose was to be the obstacle for a president who was beholden to a foreign interest, and in 2016 that did not happen.
Make note that a study published in Psychology Today found that social conservatism is deeply predisposed to equality and seek to have unequal voting status, finding ways to restrict voting access. Inherently they know that their vote possesses greater weight. Further, they see equality and especially equality of minorities as leading to chaos. While social liberals seek equality and inherently believe that only through equality and equal access that major social disruption is held at bay since the voices are heard and addressed. Liberals fear authoritarianism which includes police and military.
We will find out soon if the 10th Federal Circuit Court of Appeals agrees with our arguments on Elector's freedom on January 24th and if so then it will most likely, go all the way to the US Supreme Court. Stay tuned. But in the meantime, smart amoral political strategists are scheming how they can finesse the Electoral College and manipulate or block your vote.
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