Category Archives: Fifth Amendment

Lurks v. Designer Draperies and Floors, Inc.

Dallas Court of Appeals, No. 05-21-00908-CV (July 27, 2022)

While Lurks was attending to a disabled car in the right lane of the I-20 frontage road, Heitzman struck that car from behind, seriously injuring Lurks. Heitzman failed a field sobriety test at the scene, was arrested, and then tested well above the legal limit for blood alcohol. Lurks sued Designer Draperies and Floors (DDF), arguing that when Heitzman became intoxicated and decided to drive anyway, he was acting as a vice principal of DDF. In other words, Lurks urge[d] that DDF step[ped] into the shoes of Heitzmann and is, therefore, directly liable for Lurkss injuries.

The trial court, however, granted summary judgment to DDF, and the Court of Appeals affirmed. There was some evidenceand potential inferences from Heitzmans invocation of his Fifth Amendment rights in his depositionthat Heitzman consum[ed] alcoholic beverages at DDFs workplace, that he was drinking with employees of DDF, and, perhaps, that someone encouraged him to drive. But none of this was sufficient even to raise a fact question that Heitzmans conduct was referable to DDFs business, which the Court ruled was essential to a vice principal theory of liability against DDF.

Along the way, the Court assumed, without deciding, that a jury would be allowed to draw negative inferences regarding Heitzmanns assertion of his Fifth Amendment privilege. Because of the Courts determination that Lurks had failed to adduce any evidence that Heitzmans alleged misconduct was referable to DDFs business, indulging this assumption didnt matter. But it wades into murky waters. Heitzman was not a party to the lawsuit, even though his actions were a focus of the case. The question whether a witnesss invoking the Fifth will give rise to a negative inference against someone else is difficult, to say the least. The answer may differ depending on whether the issue arises in Texas or federal court, and whether the witness can be said to have been acting for the other party such that his or her invocation of privilege can be attributed to that party as his words would have been under Tex. R. Evid. 801(e)(2)(D). Compare, e.g., P.C. as next friend of C.C. v. E.C., 594 S.W.3d 459, 461-65 (Tex. App.Fort Worth 2019, no pet.), with Wil-Roye Inv. Co. II v. Washington Mut. Bank, FA, 142 S.W.3d 393, 403-07 (Tex. App.El Paso 2004, no pet.).

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Vice Principals, the Fifth Amendment, and Negative Inferences - JD Supra

Item 1.01. Entry into a Material Definitive Agreement.

On August 29, 2022, Perma-Fix Environmental Services, Inc. (the "Company")entered into an amendment to its Loan Agreement (as defined below) with PNCBank, National Association ("PNC" or "lender") as discussed under Item 2.03below, which is incorporated herein by reference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under anOff Balance Sheet Arrangement of a Registrant.

The Company and PNC entered into a Fifth Amendment ("Fifth Amendment") to itsSecond Amended and Restated Revolving Credit, Term Loan and Security Agreement,as amended ("Loan Agreement") on August 29, 2022, to set forth certain revisionsto the Loan Agreement. The new revisions to the Loan Agreement are included inthe revised Loan Agreement attached hereto as Exhibit 4.2 and referenced in theFifth Amendment as Annex A ("Revised Loan Agreement"). The new revisions in theRevised Loan Agreement include, among other revisions, (i) removal of andreplacing the reference to the London InterBank Offer Rate "("LIBOR") basedinterest rate benchmark provisions with the Secured Overnight Finance Rate("SOFR"). If the Company selects the SOFR benchmark provisions, payment ofinterest due on the revolving credit will be "Term SOFR Rate" (as defined inExhibit 4.2 hereto and referenced as Annex A in the Fifth Amendment) plus 3.00%plus an SOFR Adjustment applicable for an interest period selected by theCompany and payment of interest due on the term loan and capital line will beTerm SOFR Rate plus 3.50% plus an SOFR Adjustment for an interest periodselected by the Company. Pursuant to the Revised Loan Agreement, SOFR Adjustmentrates of 0.10% and 0.15% will be applicable for a one-month interest period andthree-month period, respectively; and (ii) adding certain additionalanti-terrorism provisions to the covenants contained in the Loan Agreement.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits.

Edgar Online, source Glimpses

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PERMA FIX ENVIRONMENTAL SERVICES INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an...

Forum columnist Jack Zaleski recently wrote an article berating Republicans for their reaction to the FBI raid against Trump . This letter is not about Trump; rather its about a disgusting comment Zaleski made, completely devoid of any historical awareness.

For context, Trump invoked the Fifth Amendment to the US constitution during New Yorks tax case against him. This means he is refusing to testify in court or speak with law enforcement.

In response, Zaleski said,Resorting to the 5th is just short of admitting guilt. The text says no person shall be compelled in any criminal case to be a witness against himself... No criminal case. The implication is obvious: The 45th president knows hes guilty of a crime.Anyone with a shred of civics education should call that out for what it is: a crock of bulls***.

The criminal justice system in the U.S. is not perfect. Criminals are rarely caught red-handed. It is the job of law enforcement to gather evidence, find a suspect, then it is the job of a prosecutor to prove that suspect is guilty.

There was a time when suspects were required to testify for their own defense. If they did not testify, they had no defense. But because prosecutors make careers out of convicting thousands of suspects, this exchange is always weighted against the defendant. The defendant, even if they are purely innocent, may misspeak. They may make an assumption that turns out to be false and the prosecution will accuse them of lying. They may be a victim of misidentification and their testimony would only entrench this mishap.

If the prosecution has a solid case against the defendant, they must be able to make that case without relying on the testimony of the suspect.

According to the U.S. Supreme Court, the purpose of the Fifth Amendment is to protect innocent people who otherwise might be ensnared by ambiguous circumstances. (Grunewald v US, 1957)

In 1966, the court expanded Fifth Amendment protections to apply in police interrogation rooms. Too often police will lock people in windowless rooms for hours on end until they say something incriminating. But according to the case Miranda v. Arizona, all people have a constitutional right to not be interrogated by the police.

According to the Innocence Project, of all the convictions that are proven to be false with DNA evidence, 29% made a false confession. Police can and frequently do use psychological techniques to induce people to make incriminating statements, even if theyre false. A suspect sitting alone in that room doesnt stand a chance against the resources of the state, but with one exception: they have the Fifth Amendment to protect them.

In Ullmann v US (1954), the Supreme Court said, "Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege."

That is exactly what Zaleski did in his letter. I am not defending Trump. Trump made similar statements when Hillary Clinton invoked her Fifth Amendment rights. Trump was just as wrong as Zaleski. But Zaleski should know better. Hes not a politician trying to woo a crowd.

Invoking ones Fifth Amendment right to stay silent is not an admission of guilt. It is not evidence of any crime. It cannot be used in court to suggest you did anything wrong.

Every defense lawyer will tell you to take full advantage of your constitutional rights, especially if you are innocent.

William Smith lives in Fargo.

This is letter does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

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Letter: Invoking the Fifth Amendment is not an admission of guilt - INFORUM

GRAND RAPIDS, MI Multiple potential witnesses in the Gov. Grethen Whitmer kidnap trial invoked Fifth Amendment protections against self-incrimination.

Stephen Robeson, described as a double agent for helping the FBI, then sharing information with defendants, and Brandon Caserta, acquitted in an earlier trial, were among those who refused to testify.

The jury trial in U.S. District Court in Grand Rapids ended Tuesday, Aug. 23, with Barry Croft Jr., 46, of Bear, Delaware, and Adam Fox, 38, of Wyoming, Michigan, convicted of conspiracy to kidnap and conspiracy to use a weapons of mass destruction.

An earlier trial ended in a mistrial for Croft and Fox when jurors, who acquitted Caserta and Daniel Harris, could not reach a unanimous decision.

The various people who refused to testify in the trial that featured nearly two weeks of testimony was one of several themes that took hold.

Here are five takeaways of the latest trial:

Taking the Fifth

Several witnesses, including those who acted as informants, invoked the Fifth Amendment.

Robeson, a Wisconsin man who provided information to the FBI in the 2020 investigation, was referenced repeatedly at both trials but did not testify.

By my signature below, I hereby assert, invoke, or otherwise claim my rights under the 5th Amendment to the United States Constitution to not be compelled to offer testimony that may be incriminating, he said, in a filing by his attorney, Lawrence Phelan.

Adam Fox, front row on left, and Barry Croft Jr., back row, third from left, are on trial in U.S. District Court in Grand Rapids for allegedly conspiring to kidnap Gov. Gretchen Whitmer. (Illustration by Forrest Miller)

As an informant, he allegedly set up meetings and field-training exercises and encouraged others involvement in the kidnapping plot. He also told a defendant about an upcoming arrest and urged another to get rid of evidence, the government said.

Caserta, who was acquitted at the first trial, invoked his Fifth Amendment protections.

But outside of the Gerald R. Ford Federal Building and U.S. Courthouse, he told FOX 17: I think its ridiculous that the governments still going to try to continue to push this narrative that these people are actually terrorists, and that actually wanted to do violence.

He said the men were a group of dudes who shoot guns and talk crap.

The FBI

Defense attorneys accused the FBI of orchestrating a domestic-terrorism plot - with undercover agents and a dozen informants - to boost careers. Christopher Gibbons, representing Fox, said the FBI worked to turn the defendants big talk into some type of actionable plan.

He noted that an FBI special agent told an informant to get Fox focused on the plan.

Crofts attorney, Josh Blanchard, said his client had no previous connection to Fox or the Wolverine Watchmen, a Michigan militia allegedly tied to the kidnap plot, until the FBI and informants put them in touch. He said Croft became a target for his online criticism of the FBI an anti-immigration fugitives death in Texas.

Assistant U.S. Attorney Nils Kessler called the claims nonsense.

This whole thing was (Crofts) and Adams idea, Kessler told jurors.

Hapless defendants

If they werent facing such serious charges, Croft and Fox might have had their feelings hurt at trial. Their own attorneys portrayed them as pot-smoking losers incapable of plotting Whitmers kidnapping never mind getting others to buy into the idea. A Delaware State Police trooper, assigned to a terrorism task force, said Croft was known as bonehead by investigators.

When asked if he referred to Croft as a moron in a text, he said: It could be Mr. Croft or it could be anyone in the group.

Hes frankly high on marijuana all the time, Blanchard said.

Gibbons called Fox hapless and told jurors that Fox was so enamored by an informants military-combat background that he drew the ire of his girlfriend.

Public officials a target

Top law-enforcement officials said the verdicts were important to protecting public officials and the public.

No governor, no public official should have to contend with what Gov. Whitmer contended with here. All of our elected officials, everyone, deserves to live in safety, not in fear.

James Tarasca, special agent in charge of the FBIs Detroit field office, said: These defendants believed their anti-government views justified violence. Todays verdict sends a clear message that they were wrong in their assessment.

State Attorney General Dana Nessel, whose office is handling state cases related to the alleged kidnapping plot, issued a statement, too: Those who threaten the lives of public officials must be held accountable. No one should have to forfeit their safety or that of their loved ones in exchange for pursuing public service.

In their own words, actions

With two undercover FBI agents and a dozen informants, investigators had real-time information about the defendants. The FBI got past op-sec, or operation security, using, for instance, hidden recorders in key fobs. Adam Fox required attendees of a meeting in the basement of a Grand Rapids-area business Vac Shack, where the unwitting owner let him live as a favor - leave their cellphones upstairs.

The FBI had audio, video, encrypted text messages and social-media posts even a sign up sheet at one event that were shown to jurors. The defense acknowledged that Croft and Fox had strong anti-government views but said it was just talk, protected by the First Amendment. The two had no way of carrying out what has been called a fantastical plot.

The words of the defendants were apparently damning to jurors. They had talked about kidnapping Whitmer at her Elk Rapids summer home and putting her on trial for treason. There was video of training sessions. Jurors saw a smiling Fox light up a Taser.

Assistant U.S. Attorney Christopher OConnor said: Theres no doubt what they wanted to do and who they wanted to kidnap.

Related:

Judge in Whitmer kidnapping plot trial explains why juror wasnt dismissed after attorney complaint

Guilty verdict in Whitmer kidnap case highlights anti-government threats to public officials

Men found guilty of leading plot to kidnap Gov. Whitmer

Did FBI save lives or is it to blame? Jury deliberates Gov. Whitmer kidnap case

Defendants in Gov. Whitmer kidnap trial called pot-smoking morons

FBI pushed hapless client into Gov. Whitmer kidnap plot, attorney says

Prosecutor rests in Gov. Whitmer kidnap case after undercover FBI agent recalls secret trip to her house

Lawyers object to limit on cross examination in Gov. Whitmer kidnap case

Kidnapping Gov. Whitmer was all they talked about, former co-defendant testifies

Man in Gov. Whitmer kidnap case wanted to hang her on TV, witness says

Alleged leader of Gov. Whitmer kidnap case excited driving past her home, recording shows

FBI says defendants in Gov. Whitmer kidnap case posed threat; defense raises concern about juror

Suspect in secret recording played at trial suggested killing Gov. Whitmers security detail

Defendant in Gov. Whitmer kidnap case wanted to build an army, jury told

Defendants in alleged plot to kidnap Gov. Whitmer were big talkers, had no plan, attorneys tell jurors

Retrial of 2 suspects in alleged plot to kidnap Gov. Whitmer ready to begin

Defense attorney says Gov. Whitmer was never in any real danger

More:
Taking the Fifth, FBI attacked: 5 takeaways of Gov. Whitmer kidnap trial - MLive.com

The investigation into potential mishandling of classified documents has dominated the headlines since the home of Donald Trump was raided earlier this month. On Friday the affidavit justifying the FBI search was made public, outlining the extent of Trumps legal woes, but it is far from the only investigation into the former President.

The Trump Organization is the subject of two probes in New Year investigating business affairs dating back decades.

Earlier this month former Trump Organization chief financial officer Allen Weisselberg pleaded guilty to 15 criminal tax fraud charges. Weisselberg admitted to being involved in a series of schemes that allowed top Trump executives to avoid paying taxes. Manhattan DA Alvin Bragg said Trumps eponymous firm is directly implicated in a wide range of criminal activity.

Simultaneously, New York Attorney General Letitia James is conducting a separate civil investigation into claims that Trumps business misrepresented the value of its properties to evade taxes and secure additional loans. Trump was recently questioned by state officials and reportedly invoked the Fifth Amendment 440 times in a single day.

Over the years Trump has gained a reputation for wriggling out of financial investigations, but he is attempting to see off these latest threats while fighting numerous other lawsuits. Even if he is to avoid any personal convictions for his companys business practices, Trump could be forced to foot the bill for some fairly hefty fines.

Yahoo! Finance consulted with a number of legal experts to gauge how severe the punishment could be for Trump, if prosecuted in New York.

Miriam Baer, a former Manhattan federal prosecutor, said that the financial penalties for the Trump Organization could be tough. She predicts that a conviction would lead to a very severe fine at the very least.

During Trumps first impeachment trial Norm Eisen served as special counsel, and he can offer insight into the likely legal path for Trump in these New York Investigation.

Im anticipating very, very serious penalties, said Eisen, floating the possibility of corporate death penalty if the Trump Organization is convicted of the more serious financial crimes. This could see his flagship business wound up, something that has happened to his business concerns in New York before.

The New York Attorney Generals office won a $2 million judgement against a Trump-controlled foundation and was involved in a $25 million decision against Trump University. Both of those organisations folded in the aftermath of those decisions.

Most crucially, while it is the Trump Organization that is under investigation, the former President will likely feel the consequences of any ruling that is handed down against it. Dan Alexander, a senior editor at Forbes and author of a book on Trumps businesses, explains that Trumps personal wealth will take the hit of any financial punishment.

If there are penalties placed on the Trump Organization, this wont be coming out of some other shareholders pocket or something like that, says Alexander. If they get fined $5 million or $20 million or $100 million, that will be directly subtracted from his personal net worth.

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How much money could Donald Trump have to pay in fines if his businesses are penalized? - AS USA

Hey there!

Alyssa Burr here, MLives resident statewide legislature reporter covering the Michigan Senate, to bring you your weekly recap of Michigan political news.

In this epic pic below with my fellow politics crew, you can find me to the far right repping my soon to be graduate school alma mater the one and only Syracuse University (go orange!).

MLive's politics reporters on the Michigan Capitol steps. Left to right: Ben Orner, Jordyn Hermani, Simon Schuster and Alyssa Burr.Daniel Shular | MLive.com

The MIGOP nominating convention kicked off Saturday, Aug. 27 in Lansing, but infighting within the Michigan GOP party shows no sign of letting up.

The convention includes delegates from every county who will solidify the GOPs November ticket, including lieutenant governor, attorney general and secretary of state. Its a critical opportunity for party unity, considering Democrats control the governorship, AG and SOS. But on Saturday, the Michigan Republican convention started in chaos Saturday as Mark Forton, the formerly recognized chair of the Macomb County GOP, brought a local fight to a statewide stage.

As MLive political reporter, Ben Orner reported: Minutes after the convention commenced, Forton supporters led a challenge of Macomb Countys 199 delegates. Dueling Republicans factions held county conventions in Macomb this month after Forton was voted out as county chair in April but refused to hand over the reins.

Related: Convention chaos: Snubbed Michigan county GOP chair leads swap of Macomb delegates

The Michigan GOP and co-chair Ron Weiser recognized the opposing slate of Macomb delegates for Saturdays convention, who were led by Eric Castiglia. But a vote by delegates from the other 82 counties rejected that list Saturday and swapped in Fortons, which he said is a rebuke of Weiser and win for the GOP grassroots. In a process that lasted more than two hours, county delegates on the Lansing Center floor stood and raised their credentials high in support of Fortons slate of delegates. Needing more than two-thirds of the vote, Fortons challenge was successful, as overwhelmingly more people stood to support Fortons slate than the MIGOPs preferred slate.

Shane Hernandez gets GOP Lt. Gov pick

As MLive political reporter Jordyn Hermani reported from Saturdays convention: Shane Hernandez will remain Republican gubernatorial candidate Tudor Dixons choice for lieutenant governor despite threats to his ticket.

Despite a push by former gubernatorial candidate Ralph Rebandt to whip up support for his name to replace Hernandez, those attempts fizzled out and Hernandez handily won the nomination on Saturday.

Republican Attorney General candidate Matt DePerno, in a speech nominating Hernandez to for the lieutenant governor position, said the former lawmaker understands the grassroots fights that we are in and would work to court blue collar union workers and minorities to vote Republican.

Debate debacle

With Republicans seeking to take control of the states top government offices and Democrats fighting to keep it, more conflict this week as incumbent Gov. Gretchen Whitmer and Republican challenger Tudor Dixon have yet to work out scheduling for two statewide televised debates.

As someone who has watched the governors race from almost the beginning, my colleague Simon Schuster reports that there actually may be more at stake for the incumbent governor and the political newcomer than the debate itself.

Early Wednesday, Whitmers campaign announced they accepted invitations for debates on Oct. 13 and Oct. 25.

On the other hand, Dixons campaign said they accepted the same two invitations while proposing a number of different dates. Sept. 20, 22, 27 or 28 for a debate hosted by WOOD-TV in Grand Rapids; Oct. 17 or 24 for a second debate hosted by WXYZ-TV in metro Detroit.

Simon spoke with Oakland University political science professor Dave Dulio about why this may be about more than dates on a calendar. Dulio said campaigns going into elections with the upper hand may be less open to the vulnerabilities a debate can introduce.

You see this in campaigns across the country, where those campaigns who perceive themselves as having an advantage, lets say, are less likely to want to debate, Dulio said. Im not saying thats the case with the Whitmer campaign. My hunch is that theyre pretty confident, but you know, oftentimes its the incumbent who wants to shy away from putting themselves out there.

Dixons campaign argues that no-reason absentee voting (a voting method which saw record numbers in the August primary) is enough cause to move the first debate up. For the general election, local clerks are supposed to have absentee ballots in hand to send to voters Sept. 29.

Related: Michigan voters can now request absentee ballots for November general election

The debate hosts and Dixons campaign remain mum to publicly announce next steps, but political science research shows that incumbent candidates have an innate advantage against newcomer opponents.

Men found guilty of leading plot to kidnap Gov. Whitmer

In other news, a chapter in the plot to kidnap Gov. Whitmer came to a close earlier this week after a jury found two men guilty for their role in the scheme.

Barry Croft Jr., 46, of Bear, Delaware, and Adam Fox, 38, of Wyoming, Michigan, face up to life in prison.

They were retried on charges of conspiracy to kidnap and conspiracy to use a weapon of mass destruction after a jury in April failed to reach verdicts in their cases.

Tuesdays verdict followed nearly two weeks of testimony in U.S. District Court in Grand Rapids.

Grand Rapids Press reporter John Agar has followed the case from almost the beginning. Following the guilty verdict, he reported these five takeaways which played a role in the trial: the Fifth Amendment, FBI involvement, Hapless defendants, the protection of public officials and real-time investigative action.

Michigan abortion, voting proposals should make ballot, signature checkers say

Abortion rights activists continue to make headway as a constitutional amendment to secure abortion rights in Michigan has more than enough signatures to make the ballot, the state Bureau of Elections said Thursday.

Staff have completed signature checks of Reproductive Freedom for All, which needed 425,059 valid signatures each to make the ballot, and found RFFA submitted a record 752,288 signatures.

Bureau staff conducted a facial review of petition sheets to find errors that may dismiss entire papers. Then they took a random sample of possibly valid signatures. Each line is examined to make sure, for example, the signee is registered to vote in that papers jurisdiction and their signature matches state records.

Reproductive Freedom for All had 596,379 valid signatures, bureau staff estimated.

Another constitutional amendment to increase voting access, Promote the Vote 2022, passed the Bureau of Elections signature checks this week. PTV submitted 664,029 signatures and had 507,780 validated a figure well above what was necessary, reported fellow political team member Ben Orner.

RFFA would give Michiganders a constitutional right to an abortion, superseding a 1931 ban on the procedure currently paused in court after the fall of Roe v. Wade. PTV would mandate nine days of early, in-person voting, prohibit harassment while voting and allow people to permanently vote absentee, among other measures.

The elections bureau recommends the Board of State Canvassers approve the amendments for the Nov. 8 ballot. This means these two hot button issues could wind up being left up to the voters if the proposals go through at the boards next meeting on Wednesday, Aug. 31.

What Michigan borrowers need to know about a student loan forgiveness plan

While a student debt plan announced by President Joe Biden Wednesday has some rejoicing, others are wary of potential economic fallout they believe could happen as a result.

The Biden administration plans to forgive $10,000 per borrower and $20,000 per Pell Grant recipient who are making less than $125,000 individually or $250,000 for households. A pause on student loan repayments will also be extended one final time through Dec. 31. And the income-driven repayment plan is being overhauled to reduce costs for borrowers.

In Michigan, there are 1.4 million student loan borrowers holding $51.3 billion in debt, federal data shows. About 700,000 of those with federal student loans will see their debt cut in half or erased completely, according to the governors office.

Keep an eye out, though, as the plan will likely be challenged in court.

About 59% of Americans are worried student loan forgiveness will worsen inflation, a recent CNBC Momentive Poll found. Deputy director of the National Economic Council Bharat Ramamurti disputed these concerns saying the restart of payments will bring billions of dollars a month to the federal government.

The Wharton School of the University of Pennsylvania estimated this week a $10,000 forgiveness plan with a $125,000 income limit will cost the federal government about $300 billion.

Read more in Michigan politics:

Michigan using $63M in federal dollars to aid homeless and at-risk renters

Auto crash survivors cant have lifetime benefits cut retroactively, Michigan Court of Appeals rules

$350 tax credit possible for safe gun storage, training under bipartisan bill package

House bill to ban card-only parking in Michigan may address bigger issue of socio-economic inequalities

Mental health, teacher retention focus of Whitmer roundtable with Novi school community

See more here:
A high stake debate and tension at the GOP convention: Your guide to Michigan politics - MLive.com

The recent set of watershed Supreme Court opinions pulsates with the language of democratic accountability. Dobbs v. Jackson, overruling Roe v. Wade, makes its refrain the promise to return the abortion question to the people and their elected representatives. Concurring in West Virginia v. EPA, which restricts regulators ability to decarbonize the electricity grid, Justice Neil Gorsuch explained that the point of the decision was to keep power in the hands of the peoples representatives rather than a ruling class of largely unaccountable ministers. In New York State Rifle and Pistol Association v. Bruen, which struck down New York States 117-year-old limitation on carrying weapons, Justice Clarence Thomas presented the Courts severe, originalist approach to the Second Amendment as a vindication of a judgment by the people against wishy-washy federal judges who had let the restriction stand. Indeed, while these opinions have little in common besides their conservative outcomesDobbs eliminated a personal right, Bruen expanded a right, and West Virginia curtailed agency interpretations of statutes such as the Clean Air Actthey all claim to protect the rightful power of the people.

David Litt: A court without precedent

Liberal critics, in turn, have appealed to democracy in attacking the Court as radical and illegitimate. Majorities tend to support abortion rights, climate action, and gun control, they point out, so whatever mythic people the justices have in mind, they are going against those people as they actually exist today. Calls to add justices to the Court, deny it jurisdiction over certain cases, or even impeach some conservative justices all come in the name of greater democratic control. Some progressives hope to get back to a more democratic Constitution, whether it is in the spirit of the reformist Warren Court of the 1950s and 60s (the Court that gave us Brown v. Board of Education and the one-person-one-vote principle); the New Deal vision of a second bill of rights, including rights to good work and economic security; or even an abolition constitution rooted in radical traditions of freedom and equality.

But the Constitution is too fundamentally antidemocratic a document to serve democratic purposes reliably. If we want to make it genuinely and lastingly democratic, we will first have to consider changing it in the most basic way: by amending Article V, which governs amendments and so serves as the gatekeeper for living generations to say what theywebelieve American fundamental law should be. This would be a way of empowering ourselves to become founders, over and over, and not just inheritors.

The feeling that the Court is dangerously abusing its power is a new experience for many of todays liberals (not so for conservatives, who denounced the Court for decades before finally taking it over), but it is just the latest episode of a long-standing dynamic that we might call the Iron Law of Judicial Oligarchy. Because the Constitution establishes fundamental law and is itself hard to amend, judicial interpretation is always a key lever of power in American politics. Because power attracts agendas, various constituencies are always crowding around the Court. Before the Civil War, the justices upheld the prerogatives of slaveholders and the interests of the white oligarchies in the slave states, forming a key part of Southern Democrats grip on national power. Thats why, in his first inaugural address, Abraham Lincoln warned that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, then the people will have ceased to be their own rulers. From the 1880s through the 1930s, the Court protected capitalist interests from populists, unions, and other radicals, striking down labor regulations, an income tax, and other forward-thinking policies. Progressives rallied against it. In 1912, Teddy Roosevelt promised to put the fear of God into judges who had struck down labor legislation. In 1924, the great reformist senator Robert La Follette of Wisconsin proposed a constitutional amendment authorizing Congress to override Supreme Court decisions that invalidated federal lawsa proposal whose insurrectionary spirit future Justice Felix Frankfurter praised in The New Republic, lamenting of the pro-business jurisprudence of his time, we have never had a more irresponsible Supreme Court.

What has been unusual in the past 70 yearsthat is, all of living memoryis that the Court has been mostly seen as, on balance, a liberal institution, partly on the strength of now long-past desegregation and voting-rights cases, partly because of high-profile LGBTQ-rights cases in more recent decades. That progressive reputation has been largely misplaced for a while. The Court has been expanding protection for big money in politics since 1976, with dramatic developments since Citizens United in 2010. It cut the legs from under the Affordable Care Acts Medicaid expansion in 2012 and from Voting Rights Act enforcement in 2013. It announced a personal right to bear arms outside militia service in 2008. But the term that ended in June 2022 sounded a trumpet blast that no one could ignore. The Court is now seen for what it is: a node of conservative power in American government that will persist for years, regardless of elections and popular opinion.

The flip side of the Iron Law of Judicial Oligarchy is a recurrent populist counterblast to the Courts power, which denies the Courts legitimacy in the name of democracy. Who are these old, politically connected lawyers to tell us what our fundamental law is? Who do they think they are (as Justice John Roberts asked in dissent in Obergefell v. Hodges, the 2015 case establishing a right to same-sex marriage)? Progressives asked the same question when the Court was striking down labor laws a century ago. Todays liberals belong to a party, and often to movements, in which elite lawyers have long been overrepresented, and going to court has tended to be the first response to any new political conflict. They are rediscovering that the Court is an oligarchic institution and trying to remember how to be its populist critics. This is a change in worldview, even in identity, for people who have spent their lives regarding the Court as the bulwark of constitutional legitimacy, even against decades of growing counterexamples.

Adam Serwer: Republicans cowardly excuses for not protecting marriage equality

The Constitution produces judicial oligarchy (and inspires populist backlash) through several of its features: federal judges life tenure, their nomination by the president (twice in this century elected by someone who won the Electoral College but lost the national popular votesomething that would have happened again in 2020 with a switch of fewer than 50,000 votes), and their confirmation by the Senate (whose Republican majority during Donald Trumps presidency represented significantly less than half of the countrys population).

But the root of judicial oligarchy is that the Constitution is almost impossible to change. Article V requires that amendments be ratified by three-quarters of the states, either through the state legislatures or in special conventions. (The convention route has happened only once, when the Twenty-First Amendment repealed Prohibition in 1933.) The upshot is that it takes only 13 states to block a proposed amendment. And to send an amendment to the states in the first place, the proposed language must be approved by a two-thirds vote of both houses of Congress.

There is an alternative route, in which two-thirds of state legislatures call on Congress to establish a special convention, which then proposes language to the states; this has never happened. With these hurdles in place, its no wonder that no meaningful amendment has been ratified in 50 years, nor that the fundamental changes in constitutional law for the past centuryupholding the New Deal, pressing desegregation and voting rights, embracing and then rejecting abortion rights, protecting money in politics, establishing a personal right to bear armshave all come through judicial interpretation of the Constitution, not democratic decisions to update the Constitution itself.

It may be hard to see the judicial monopoly on constitutional change (and, by the same token, on constitutional stasis) as the problem with the Constitution, because we are so accustomed to it. How else could a constitution work? But there is an answer right on the face of our Constitution, which opens with the words We the People. That we is the subject of the first sentence of the Constitution, and it goes on to ordain and establish everything that follows. On its own terms, it is law because we made it law.

Nikolas Bowie and Daphna Renan: The Supreme Court is not supposed to have this much power

But that we isnt us. When that language was ratified in 1789, its we was all male, nearly all white, and mostly restricted to property holders. Every one of its members lived in an 18th-century agrarian republic and died a very long time ago. Even the Fourteenth Amendment, the basis of many modern constitutional rights, was ratified in 1868 by male citizens of a patriarchal country that had just abolished formal slavery. Almost all of those men have been dead for a century or more.

As striking as the demographic differences are between who counted as the people in 1789 or 1868 versus today, the most fundamental problem is the tyranny of the past over the present. If todays Americans could freely decide that the Second Amendments right of the People to keep and bear arms should remain our fundamental law today, it wouldnt really matter that the language was, in a sense, proposed to us by members of a very different, long-ago society. The real scandal of the Constitution is that it gives the living people no real choice in the matter. Past generations dictate our fundamental law.

Indeed, even if those past political processes had been much more inclusive, they would still belong to the past. If we take seriously the democratic principle of ratification that the phrase We the People suggests, then nothing can make another generations fundamental law count as ours except our consenting to it. In American constitutional law, silencethe fact that we have not amended the Constitutioncounts as consent. But because amending the Constitution is nearly impossible, our silence is compelled, then laundered into consent.

Plenty of efforts have been made to square this circle, but none has really worked. The justices of the Supreme Court interpret an old and rather brief Constitution, and they do so under constant pressure from talented lawyers to find new meanings in phrases such as equal protection of the laws, words like liberty, or the general pattern of authority that the Constitution creates among the states and the national government. No wonder so many of the justices opinions seem to come down to what W. E. B. Du Bois in Black Reconstruction impatiently called incantation and abracadabra.

At the moment, the most notorious abracadabra is originalism. The method of the Courts recent gun-rights decisions, and deeply influential in its rejection of Roe (although Justice Samuel Alito presented his analysis in Dobbs as more traditionalist than strictly originalist), it purports to anchor constitutional interpretation to the public meaning the words had when they were ratified. Originalism strikes its critics as ancestor worshipworse, the selective worship of some Americans white, property-holding, male ancestors. But as the late Justice Antonin Scalia often explained, the basic theory of originalism is that the Constitution changes only when the people mobilize to change it. The alternative, he warned, was that it would change whenever five justices changed their minds, which would put ultimate political power in the hands of the Court. Originalism makes what sense it does because it is a way of defining the justices power as compatible with democracyat least notionally.

Due to its premise that legitimate constitutional change comes only from the people, originalism would be a pretty solid way to interpret a constitution that living majorities had meaningful power to change. Were the amendment process a lower hurdle, it really would make sense to say that if we havent made new fundamental law, that must show that we are content with the old law. But our Constitution is not that kind.

Because constitutional text is effectively closed to change, anti-originalist justices have felt justified in finding new constitutional meanings in the old language. After all, the world changes; who else but judges will change the Constitution accordingly? The passage of time brings new insights, former Justice Anthony Kennedy replied to Justice Scalia in Obergefell, and only expansive interpretation can bring those insights into the old text. Freedom and equality have very different meanings in our lives today than in 1868, when the Fourteenth Amendment was adopted. Why should the Constitution be stuck when the rest of us are moving on, using old words in new ways?

Each side can clearly see Du Boiss abracadabra in the other. Each is partly right about the others democracy problem. Living constitutionalism is sincerely motivated, but its originalist critics are not wrong: It does amount to saying that, on key issues, the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court, as Justice Scalia pungently put it. By the same token, with a frozen constitutional text, originalism can handcuff a diverse and changing country to old and unwelcome principlesa colonial-era right to bear arms, or, as Justice Thomas has proposed, a constitutional ban on most federal environmental law (ecology having been far from the Founders minds).

But even saying that originalism keeps us trapped in the past takes it too much on its own terms: What it does, rather, is carry us into the future in the way preferred by a handful of right-wing jurists. Its appeals to a certain kind of constitutional democracy do not make it any less a version of judicial oligarchy. Originalism is not conservative in the sense of preserving legal principle. Rather, it is radical: a recipe for uprooting key features of modern law, including (at least) labor and safety regulations as well as environmental law. And originalists have no special mind-meld with the founding generation or with constitutional principle. Like anyone else playing the judicial-review game, they decide questions of fundamental law through the votes of nine politically connected judges.

Ryan D. Doerfler and Samuel Moyn: Reform the Court but dont pack it

The real irony in originalisms march to the heights of judicial power is that, under the banner of loyalty to law, history, and the prerogatives of democracy, originalists (and the rest of the conservative legal movement) pursued a strategy that showed just the opposite conviction: In an oligarchy, power belongs to those who choose and train the oligarchs. Over more than four decades, the Federalist Society has recruited, trained, and placed a right-wing legal elite in the countrys top institutions. It has done so because conservatives in the 1970sthe last decade when it was really possible to regard courts as vehicles of broad progressive reformsaw the legal profession as suffused with broadly liberal politics and jurisprudence. Legal liberals regarded their hegemony as the natural and proper state of the law. They recruited, trained, and placed their own legal elite, and thus provided the model for right-wing institution-building. The difference was that many liberals had grown complacent enough to forget that they were engaged in an ideological battle for control of oligarchic institutions. The conservative insurrectionaries did not forget.

Both originalism and living constitutionalism are versions of judicial oligarchy, fought out in battles for control of the courts. They cannot be anything else in a country with a frozen Constitution and partisan courts. The judicial opinions that the public reads are a kind of bookkeeping, documenting the balance of power. The Dobbs opinion had been written for years, in originalist dissents from abortion cases, in Federalist Society talks and journals. Justice Alitos 79 pages, plus appendices, is how the Supreme Court writes 63. That is six votes out of some 330 million Americans. But then again, Obergefell had only five.

So do we need to line up with our preferred oligarchs and fight like hell for control of judicial seats? Quite understandably, this has been the progressive attitude. It has the virtue of pragmatism. But it has the vice of accepting that we live under a basically undemocratic Constitution.

A more directly democratic approach would bring that pregnant phrase We the People back to life in the 21st century. This would mean amending Article V so that living generations could amend the Constitution and make a fundamental law that is actually our law.

The concrete results could be dramatic. Based on public-opinion polling, they might well include reinstating a baseline national abortion right, allowing for gun regulation that promotes public safety, and reauthorizing Congress and state legislatures to limit the campaign spending of corporations and wealthy individuals. Constitutional amendment could reform or eliminate the Electoral College, empowering national majorities to choose the president. It would be an opportunity to take on gerrymandering for House seats and the Senates two-seat-per-state structureboth major vehicles for minority rule.

There would be a more basic benefit too. A constitution makes democratic sense as a fundamental law, a limit on what legislatures and executives and even majorities of citizens can do with government power, if and only if those who live with it can consent to it when they wish, and change it otherwise. This was very clear to some of our Constitutions Framers, such as James Wilson (also an early Supreme Court justice), who insisted that the people would be able to change the Constitution whenever and however they please. This is a right of which no positive institution can ever deprive them. Although James Madison wrote that the Constitution he did so much to design was marked by the total of exclusion of the people in their collective capacity from any share in governmentthat is, our system boxes out direct democracyhe also held that the power to alter or abolish its established government always resided with the majority. (He justified the Constitutions arcane amendment process by denying that the United States was a nation; he considered it a hybrid of a nation and a confederationa position that far fewer citizens would find plausible today than in 1787.) To boil it down: Constitutional commitments have authority, as the Constitutions first words indicate, because they are the peoples commitments.

Its fine and good for judges to enforce these commitments and inevitably disagree about their meaning, as long as the people can give the final word. Originalisms basic problem is that living generations have no real way of consenting to the old Constitution. Living constitutionalisms basic problem is that living generations have no decisive way of stating what fundamental law they would prefer. Enhancing the democratic power to change or reaffirm the Constitution would solve both problemsand dissolve the need for both originalism and living constitutionalism as we know them.

How should we go about changing the Constitution, if we could? There is a lot of value in giving constitutional change a separate track from ordinary politics, so it does not become just another partisan football. Constitutional principles should come from the people in a different sense than laws, presidential elections, or midterms do. One way would be to hold a constitutional convention every generation, staffed by a blend of specially elected delegates, senior public officials, and, perhaps, citizens selected jury-style to represent everyday experience. The convention might proceed in two stages: state, local, or regional versions channeling their results and some of their personnel into a national convention. The convention would propose any constitutional changes its members endorsed, which would then go to a special national referendum. Offered, say, a proposal to reinstate Roe, authorize campaign-finance regulation, or rebalance the Senate, the people would speak via this process as a we.

Constitutional conventions have about the same odor in liberal circles as citizen sheriffs and the posse comitatuscranky tricorne-hat stuff interesting only to the populist right. This impression gets a boost from the ongoing conservative effort to call a convention through state legislatures, with the goal of amending the Constitution to require a balanced budget, term limits for federal regulators, and perhaps some other right-wing goals. But nothing about constitutional revision is intrinsically conservativequite the contraryand if it seems cranky, that is only because liberals became too comfortable with the idea that the Constitution was basically democratic enough and that the courts were politically congenial. Those conceits are hard to sustain now.

The most basic reason for constitutional change is not partisan at all, despite the fact that the right benefits from a frozen, anti-majoritarian Constitution and liberals are currently angry at the Supreme Court. Re-creating a constitutional politics for living citizens would make democratic self-rule a reality for everyone. The highest civic compliment we could pay one another would be to prefer the results of deliberation and voting today to an old Constitution interpreted by a few judges.

Could it really happen? After all, we start out in the world of Article Vs high barrier to change.

The first thing to see is that it will never happen if we dont think it will. Mass movements for constitutional change did succeed in the past, before all constitutional politics went to the courts. Mobilized citizens stripped the power to appoint senators from their state legislatures (and forced those same legislatures to ratify the change), authorized a federal income tax, granted women the vote, and, for better or worse, adopted and then repealed Prohibition.

Second, as noted, important constitutional Framers argued that the right to reform the Constitution belonged inalienably to the people. There is something to be said for an open, fully democratic effort to put a change to Article V directly onto a national ballot, to stand or fall with the choice of the living majority. Constitutional rules are important, and backroom or minoritarian coups are always illegitimate, but if a constitution is about letting a people set their own fundamental law, then the people should be able to act democratically in order to make a more democratic constitution.

What about the dangers of majority rule? Generations of Americans have learned that constitutional barriers protect us from the tyranny of the majority. Would a more democratic Constitution dissolve those barriers?

There is no reason to expect that it would. A periodic convention to reassess the Constitution is a far cry from rolling referenda on whatever question arouses a moments passion. The First Amendment, the Fifth Amendment, the equal-protection clause, and so forth would be re-ratified in almost any imaginable constitutional processperhaps with some clarification that, for instance, freedom of speech does not mean unlimited money in politics. In any case, if majorities really wanted to reject these principles root and branch, courts would not save them from themselves for long.

Any government can hurt people. Power is always dangerous. Recent Supreme Court decisions are a reminder that channeling power through old texts and the decisions of robed lawyers does not mean it ceases being power. Democracy is the gamble that, all things considered, we are our own best rulers, and can trust one another further than we can trust any version of minority rulejudicial, geographic, class, or otherwise. To come closer to that principle, we need a Constitution that empowers us, the people (no need for capitalization), to set our own fundamental law.

Read this article:
We Can Be Framers Too - The Atlantic

Cary Heinz served for thirty-four years as a public school educator until June of 2021, and now writes about history, politics and sports.

The Nixons celebrate with the Fords after Rep. Gerald Ford's appointment to replace Spiro Agnew as Vice President, 1973

Throughout much of our nations history, vice-presidents have been neither seen or heard. In fact, very often there hasnt even been a vice president at all. On December 19, 1974, Nelson Rockefeller was sworn in as the forty-first vice president of the United States. Since that moment, we have had a vice-president. What is surprising, is that for over thirty-eight years of our countrys existence, we did not have a vice president, which represents about twenty percent of our countrys history. Before, the passage of the Twenty-Fifth Amendment in 1967, there was not a constitutional mechanism for a replacement. In the 19th century, the office was vacant an astonishing twenty-six percent of the time.

Eight presidents have died in office, four by assassins bullets. Each time this happened, the vice president ascended to the White House, leaving the vice-presidency unoccupied. What is often overlooked is that seven vice presidents have also passed, leaving the office without a replacement for the remainder of that term. Curiously, these seven died within a period of just over one hundred years. George Clinton died April 20, 1812, and on October 30, 1912 James Sherman died, just six days before the election. Six times in history, we have had no VP for three and a half years, almost seventy five percent of the presidential term.

The Constitution of the United States, warts and all, is a remarkable and enduring document. It has withstood the test of time, and is malleable enough to accommodate airplanes and automobiles, cameras and computers, and telegraphs, text messages, and trains. The vice-presidency almost seemed like an afterthought when the Founding Fathers met in Philadelphia in the tepid summer of 1787. The first time that it was discussed was after September 4, in the last two weeks of the convention. The deliberations were centered more around the mechanics of presidential elections than succession. Several prominent members of the delegation, ironically including future vice-president Elbridge Gerry, said they were against having any vice-president. Initially, the runner-up became the vice-president. The system worked out fine, until the development of political parties, which did not exist in 1787.

A number of adjustments would follow, the first being the Twelfth Amendment. This cleaned up a controversy after the 1800 election when Aaron Burr, who was intended to be Thomas Jeffersons vice president, entertained accepting the presidency himself if offered.

Three times has the next person in line after the vice presidency changed. The Presidential Succession Act of 1792 placed the President Pro Tempore of the Senate behind the VP if necessary. Surely you remember that office from your high school civics final exam (its currently held by Senator Patrick Leahy of Vermont). One would be a rather serious scholar of American History to know the names of Willie Person Mangum, Lafayette Sabine Foster, John Hay, and/or John McCormack, all of whom were a heartbeat from the presidency.

John Tyler became the first accidental president in April of 1841 when William Henry Harrison became the first president to die in office. There was some controversy if Tyler truly became president, or was acting, but Tyler insisted he was the chief executive and defiantly returned any letter unopened if it addressed him as anything other than "President of the United States." Tyler set a precedent that the others would follow. On February 28, 1844, a constitutional challenge nearly occurred. Tyler was aboard the USS Princeton (but fortunately below deck, courting the woman, thirty-three years his junior) when a naval gun exploded on deck, killing six. Had Tyler perished, Senator Mangum would have become the eleventh president of the United States.

Andrew Johnson became president in 1865 after the assassination of Abraham Lincoln. If Booth co-conspirator George Atzerodt hadnt drank away his courage at the hotel bar where he and Johnson stayed and carried out his assignment to murder Johnson, Lafayette Sabine Foster would have been our eighteenth president. Johnson, the first president to be impeached, was able to keep his job by just one vote in his 1868 senate trial. Had one vote switched, Benjamin Wade would have become acting president.

Eighteen years later, Congress rewrote the earlier law and passed the Presidential Succession Act of 1886. This made the Secretary of State third in line, because when President James Garfield died in 1881, and Vice President Thomas Hendricks died in 1885, there was neither a president pro tempore or speaker of the house. One problem is that Congress was rarely actually in session back then. In 1885, it was technically there just seventy-six days. President Chester Arthur, Garfields successor (1881-1885) was diagnosed with Brights disease early in his presidency, which would take his life just twenty months after he left office. These men were not immortal, particularly with 19th century medicine.

Theodore Roosevelt became the youngest chief executive in September of 1901 when William McKinley succumbed to a gunshot wound inflicted eight days earlier. A bit less than a year later, Roosevelt was involved in a carriage/trolley collision in Pittsfield, Massachusetts. In that mishap, William Big Bill Craig became the first Secret Service member killed in the line of duty. The hyperactive president ignored his injuries, and a few weeks later his leg became infected while campaigning in Indiana, requiring surgery. Newspapers called the medical intervention a brush with death. Had TR died of the pre-penicillin infection, Secretary of State John Hay would have become the twenty-seventh president. Hay was not only better known than Mangum, Foster, and Wade, but also more qualified, serving as one of Lincolns private secretaries as well as other positions before the State Department.

The Presidential Succession Act of 1947 altered succession again, making the Speaker of the House next in line, as it remains to this day (and continues to under the terms of the Twenty-Fifth Amendment). President Harry S. Truman, who succeeded Franklin Roosevelt following his death, thought someone elected, not appointed, should be next in the list of succession if necessary.

When John F. Kennedy was assassinated on November 22, 1963, Vice President Lyndon Johnsons car followed behind. Kennedys body was rushed to Dallass Parkland Hospital, and when Johnson arrived, the heart attack survivor (1955) was seen with his hand on his heart (any chest pains may have been from the force of Secret Service agent Ralph Youngbloods pushing LBJ to the floor of his car after hearing shots). Had Johnson had another heart attack and died (he wouldnt survive another in January of 1973, at just sixty-four), seventy-one-year-old Speaker John Mc Cormack would have become the thirty-sixth or thirty-seventh president, depending on whether Johnson succumbed before or after being sworn in himself.

If anything, the Twenty-Fifth Amendment was long overdue. History makes one wonder what took so long, considering the frequency with which the country lacked a second in command. The slow death of James Garfield in 1881 over eighty days (from being shot and incompetent doctoring), Woodrow Wilsons incapacitation for the last eighteen months of his presidency (stroke), Dwight Eisenhowers multiple issues (heart attack, intestinal surgery, minor stroke), complicated the matter, compounded by the fact that fifteen presidents and vice presidents had died between 1812 and 1963. For a combined thirty-eight years, we did not have a vice president.

Fortunately, that amendment came in handy just six years later when Vice President Spiro Agnew resigned. President Nixon was able to nominate a successor, Congressman Gerald Ford of Michigan, with congressional approval. Eight months later when Nixon resigned, Ford became the thirty-eighth president of the United States, and the only person to hold that office without being elected by the American people. He then appointed former New York Governor Nelson Rockefeller as his VP.

Jimmy Carter and his Vice President Walter Mondale changed the nature of the office, giving Mondale far more responsibility and inclusion into decision making. Richard Cheney was undeniably one of the most influential vice presidents. Mike Pence has certainly been in the news after the Trump presidency, for better or worse, and isnt hiding his own ambitions to occupy the Oval Office. Kamala Harris, finally, became both the first woman and person of color to serve as vice president.

One of the vice presidential duties the Constitution does stipulate is breaking a tie vote in the Senate (Article I, Section 3, Clause 4). This has happened 291 times in history through May 12, 2022. With the current 50-50 split in the Senate, Vice President Kamala Harris has been performing this duty frequently, twenty-three times already. When Georgias Democratic candidates, Jon Ossoff and Raphael Warnock, won their runoff elections, the Senate was tied for the fourth time in history, something that previously occurred in 2000, 1954, and 1881.

Excerpt from:
For 38 Years of American History, There Has Been No Vice President - History News Network

Imagine being a mother forced to identify your 14-year-old child using the ring he wore because his body was mutilated beyond recognition. Imagine that his murderers beat him bloody, gouged out his eye, shot him in the head, and tied a 75-pound cotton gin fan to his neck before throwing him in Tallahatchie River.

I cant imagine that, nor what it was like to be Black in Money, Miss., in 1955. Im white. Had I been alive then, working the counter of a country store as Carolyn Bryant, a white woman, then 21, had done, any accusation I might have made, however false or exaggerated, could have easily sent depraved assailants into a murderous rage upon a child.

Emmett Till, a Chicago native, had been visiting relatives in the Mississippi Delta when a trip to the store to buy two cents worth of bubble gum led to Bryants accusations that he made ugly remarks and whistled after her when he left. Days after the encounter, her husband, Roy Bryant, and his half-brother J.W. Milam drove a pickup truck to the house where Emmett was staying 50 feet off a gravel road. They parked under cedar and persimmon trees and proceeded to pound on the door, flashlight and .45 Colt gun in hand. It was 2 a.m. Emmetts great-uncle Moses (Preacher) Wright, then 64, tried to persuade them against abducting the child, but the assailants were on a mission.

The lynching that followed was not the first blood-soaked racist stain upon our country. But Emmetts story helped ignite a burgeoning civil rights movement when his mother insisted on an open-casket funeral.

Let the world see what has happened. Mamie Till-Mobleys words rang powerful. Fifty thousand mourners attended the boys funeral, and Jet magazine published a photo of Emmetts pulverized remains.

She rose to the occasion like no other person could have done at that time, reflects Deborah Watts, Emmetts cousin and co-founder of the Emmett Till Legacy Foundation. [She] tried to turn her pain into power to change the trajectory of racism in America.

FILE - Mamie Till Mobley weeps at her son's funeral on Sept. 6, 1955, in Chicago. The mother of Emmett Till insisted that her son's body be displayed in an open casket forcing the nation to see the brutality directed at Blacks in the South at the time. (Chicago Sun-Times/Chicago Sun-Times via AP)

Watts used to spend time with Mamie Till-Mobley, cutting one of her wonderful cakes or eating her sweet potato pie. Theyd talk about things, because there were witnesses to the kidnapping that would come to the family home, and Emmetts mother often tried to clarify what really happened to her son.

There had been a poor excuse of a trial. In September 1955, Roy Bryant and J.W. Milam were acquitted by a white male jury who deliberated a mere 67 minutes. The defense attorney had counseled the jury that their white ancestors would turn over in their graves, if they found the men guilty. Im sure every last Anglo-Saxon one of you has the courage to free these men.

How brazen and confident in ones sense of supreme whiteness! A few months later, Look magazine, published an interview with the killers, in which they disclosed the horrific details around their abduction and murder of Emmett.

The Fifth Amendment double jeopardy clause was the only thing that stood between them and another trial for his death, explains Paula Johnson, professor of law, and co-director of the Cold Case Justice Initiative at Syracuse University. That means that no one has been held legally responsible for the death of Emmett Till which was such a notorious, and open and unabashed crime in this nations history that to the extent that people who were involved and never had to answer for it are still alive, then there really is no reason why they should not be held to answer, she states.

There is no statute of limitations on murder. Now, accountability is within reach, and must be fiercely pursued with no less vigor and commitment than has been directed toward fugitive Nazis, however old and feeble, or unobtrusive they might present.

On June 21, Deborah and her daughter, Teri Watts, foundation members, and a documentarian unearthed a 1955 warrant charging kidnapping, and commanding the taking (arrest) of J.W. Milam, Roy Bryant and Mrs. Roy (Carolyn) Bryant.

What this warrant indicates for us is that those two most certainly did not act alone, Johnson tells us. The fact that her name is on the warrant means that there was probable cause to believe that Carolyn Bryant had some role in the death of Emmett Till.

Bryant and Milam died years back of cancer. But Carolyn Bryant Donham, now 88, is alive, and was seen publicly last week for the first time in 20 years, in Kentucky.

Why wasnt she arrested?

The warrant reads that police couldnt find her in the county. Furthermore, a sheriff said he did not bother to serve the warrant because Carolyn Bryant had two young children at home.

A 14-year-old Black youths life had been taken because of some alleged insult to a white woman and she isnt held accountable for that because she has children? Johnson calls out the racist absurdity. Well Mamie Till-Mobley had a child as well, and we see what happened to him. Deborah Watts take: Someone who was an accomplice in a kidnapping or a murderwould that be acceptable to you? It shouldnt have been acceptable in 55, and it is definitely not acceptable in 2022.

The family has fiercely and relentlessly persevered over the decades. Mamie Till-Mobley spent a lifetime channeling hope and passion into purpose, until her death in 2003.

Attempts to bring justice have been pursued in the past, with disappointing outcomes. In 2004, the Justice Department reopened an investigation. But in 2007, a grand jury in Leflore County, Miss., refused to issue a new indictment against Carolyn Bryant Donham, 73 at the time.

In 2017, the DOJ reopened the investigation again, but closed it. There have been discrepancies about what she said or didnt say. Historian and Duke scholar Timothy Tyson quoted her as admitting that her earlier accusations of lewd behavior were not true. Later, Carolyn Bryant Donham recanted that.

We need to know the truth. If she was an accessory, we need to know what role she played. Did her account, or any assistance she may have provided, lead to a conspiratorial demand, as Johnson puts it? Is Carolyn Bryant Donham culpable in the kidnapping and murder of Emmett Till?

It would be unpopular among many to roust an old woman whos reportedly legally blind and receiving hospice care at home. The passage of time will create other challenges, plus there are jurisdiction hurdles. The DA office in Mississippi would need to request cooperation from his counterparts to serve the warrant for extradition purposes, Johnson explains. Meanwhile, on July 17, in a flagrant dereliction of duty, Mississippi Attorney General Lynn Fitch declared no intention to prosecute Carolyn Bryant Donham. This, despite the recent find of her unpublished memoir, in which she wrote that men had dragged Emmett to her kitchen in the night for identification.

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Those charged with the duty to execute the warrant must be held to full account as well. Failure to step up, as dictated by law and the tenets of a civil and humane society, renders them entirely complicit as so often has been the case at the state and federal levels of law enforcement institutions, with regard to justice around racially motivated murders of Black people.

Not unlike prosecuting elderly Nazis for crimes committed decades ago, its critical to bring cases to trial when heinous and hateful crimes have been executed, most especially barbaric acts spawned from racism, fueled by perverse codes of honor that had a way of compelling certain white menfolk toward depravity.

While sometimes difficult to overcome prosecutors decisions, Johnson explains that abuse of discretion claims can be brought. The DOJ will have to look at this for federal jurisdiction, based on possible civil rights violations committed by Donham as part of a conspiracy to deprive Emmett of his civil rights. Doable, given that the arrest warrant provides a basis to subpoena Donham and obtain further information based on the existence of probable cause.

We saw such involvement at the federal level on Aug. 4, when U.S. Attorney General Merrick Garland announced federal charges against four police officers for violation of civil rights related to the killing of Breonna Taylor; in this case, based on falsifying information used to obtain the search warrant that led to her tragic death.

Carolyn Bryant Donhams role must be fully investigated. She must be held to full account for any culpability around the kidnapping and murder of Emmett Louis Till. If she has nothing to hide, let her step out of the shadows to set the record straight.

We are traumatized people trying to seek out justice, Deborah Watts wants us to know. Now we just need the law enforcement and the authorities, the DA in Mississippi, to be willing and to have the courage to move this forward and hold her accountable for her roleIts painful that its taken this long. Were not asking for something that shouldnt be done. And no, were not forgetting. And no, were not moving on.

Hetherman is a freelance journalist.

See more here:
Emmett Till is gone. The quest for justice lives on. - New York Daily News

The Ethical Society of Police said it was not part of discussions to create the Civilian Oversight Bill.

ST. LOUIS St. Louis Mayor Tishaura Jones accused the Ethical Society of Police of lying on its Facebook page after the membership group issued a statement accusing her administration of excluding them from discussions about a controversial civilian oversight bill.

Jones signed Board Bill 47Wednesday, which she said will hold officers more accountable by creating a Civilian Oversight Board that the police union says has the power to discipline officers, review personnel records and all categories of complaints levied against officers.

The Ethical Society of Police is a membership organization for primarily Black Officers.

The statement signed by its board that drew Jones ire read: Today, the City of St. Louis Board Bill 47 was signed. Though ESOP along with the other two labor unions opposed the bill, we understand the need for a civilian oversight board. We were never brought to the table to provide insight for the bill, which was written too broadly. We've had discussions with the other two labor unions and are in agreement that there needs to be fair representation in amending the bill. ESOP is concerned that, if it is not implemented carefully, good officers could be targeted by persons with a hidden agenda against law enforcement.

Jones replied to the Facebook post with, That's not true and is a bold-faced LIE. We've been talking about this bill for nearly a year. Ald. Clark Hubbard had three hearings and you didn't show up and testify. I had quarterly meetings with your leadership and no one said a word. Again, if you're a good officer, you have nothing to worry about. I thought ESOP stood for holding bad actors accountable? I think you should give the law a chance to work before suggesting amendments. Be blessed.

The Ethical Society of Police then responded to her post with, It is not our intent to publicly debate the extent to which input from our organization and others was sought during the crafting of this legislation. Our only intent is to ensure this legislation doesnt have an unintended negative impact on the Department and the community. Waiting until damage has been done is neither wise nor an attribute of an effective leader.

We strongly object to the Mayor's unprofessional response and attempt to degrade our organizational values or marginalize our commitment to the fair and equitable treatment of the community we serve. ESOP has been and will always be about accountability, and we welcome an oversight board. We are calling for the thoughtful implementation of this bill and input from organizations that represent constituents. This should be welcome, not controversial.

Jones responded back with: Ethical Society of Police, you dont want to publicly debate this but you made a public statement on a public platform and didnt attend any of the public hearings to publicly express your thoughts and insight about the bill when it was being debatedin public. Might I add that your former president, who is now the Deputy Public Safety Director, was at the table for almost every discussion of this bill. I frequently heard her push back and change several provisions with every day officers in mind. Heather (Taylor) brings her entire lived experience as an officer and as former president of ESOP to the table with her every single day. Are you also saying that shes wrong? Again, if youre a good officer, you dont have anything to worry about.

On Friday morning, the Ethical Society of Police responded.

"We did not want to get into the weeds with the Mayor of the City of St. Louis on social media. However, the continued allegations that we are lying must be corrected.

"The leadership of the Ethical Society of Police was unaware of Board Bill 47 until June 2022. We were not informed of any public hearings or invited to provide input. The bill was not brought up with the Mayor because we were not aware of the bill any of the times we met. She did not bring it up.

"On June 27, 2022, at the 18th Ward Community Meeting, the ESOP President expressed to the citizens that ESOP was in support of a Civilian Oversight Board (COB), but we could not support the bill as it was written because the language was unclear. Alderwoman Clark-Hubbard was present at this meeting.

"There was no further outreach or invitation for input until Alderwoman Clark-Hubbard sent an email to the ESOP President on July 12, three days before voting. We felt it was too late to hold a meeting and dissect this lengthy and broad bill. We informed her after the ESOP general membership meeting that we could not support the bill and it 'should be shelved until it is amended to be fair to those officers and civilians of the SLMPD.'

"During the week of voting, we made two official statements detailing our specific concerns with the bill and encouraging the public to vote against the bill in its current form. We have made it clear that we support the Civilian Oversight Board and officers should be accountable for use-of-force incidents.

"While the Mayor is speaking disrespectfully by saying we Bold Face Lie, we are the same officers who are voters and residents and who endorsed her for Mayor. We do not understand this unprofessional approach to question the integrity of an organization that advocates for officers instead of addressing real concerns in the bill, such as how a teenager could be allowed to sit on the COB. Let's discuss our concerns and how the bill can be implemented to mitigate those concerns.

"The St. Louis Police Officers Association is one of the labor associations ESOP referenced in their statement. The unions attorney Brian Millikan said the issue with the citys ordinance is not about whether an officer is a good one or not its about protecting their rights as citizens.

What were concerned with is the ordinance has to comply with state law and it needs to comply with basic due process requirements afforded under the law, Millikan said. For us, this is more about complying with state law and giving city employees due process.

The police union is preparing to file a lawsuit against the city because of the bill, Millikan said.

The state statute authorizes cities to create civilian review boards, and I stress review thats what the statute allows, Millikan said. It allows them to investigate, review and make recommendations to the agency on what the review board believes should be appropriate discipline.

This goes way beyond that.

The state statute also identifies categories of complaints civilian review boards can review, but the citys new bill gives the civilian oversight board the power to review complaints carte blanche, Millikan said.

It also violates numerous provisions of the Police Officer Bill of Rights and allows investigators to compel officers to immediately answer questions about any use of force or internal investigation on a citizen complaint, Millikan said.

One of the key provisions of the citys bill that violates the Missouri Police Officers Bill of Rights requires officers to give statements immediately following an incident, Millikan said.

Police officers have 24 hours to obtain counsel prior to being interrogated, Millikan said.

And the citys bill also allows statements officers give to Internal Affairs investigators to be used against them in criminal investigations which violates one of the most established laws known as the Garrity rule. Its based on a case called Garrity v. New Jersey in which the court decided statements officers are forced to give as a condition of their employment cannot be used against them in a criminal investigation.

The citys ordinance calls for a comingling of information between the criminal and internal investigations, he said. Officers are citizens of this country and have constitutional rights against self-incrimination just like anyone else.

In an internal investigation, they dont have the right to remain silent. The Supreme Court has said officers are immune in those situations from having those statements used against them otherwise it violates their fifth amendment privilege to remain silent.

Millikan said the police union is also concerned about the dissemination of a police officers personnel records, as the citys ordinance calls for public reports from the Civilian Oversight Board.

"Accountability is the first step of building trust," said Jones in a news conference regarding the bill signing Wednesday. Jones said good law enforcement officers should continue to serve the community and bad officers would be held accountable.

"We've never worked so hard on a bill we pray we never have to use," said Alderwoman Shameem Clark Hubbard.

Dan Isom said it was a step to strengthen trust between the public and police.

"The division of civilian oversight builds on our current accountability system giving our oversight process actual teeth with more investigative and subpoena power, the division will take the role of Internal Affairs in conducting investigations into use of force and allegations of officer misconduct," Isom said.

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'A bold-faced LIE': St. Louis mayor blasts Black police officer groups criticism of oversight bill - KSDK.com