“TREASON” -- A TIMELY ISSUE IN THE 2016 U.S. PRESIDENTIAL ELECTION

Treason is a word loosely bandied about, but it should not be. It should be used circumspectly; and, when properly applied to a person, legal action should be taken against that person. This nation should not suffer a traitor in its midst -- not in the streets, nor in the Oval Office.

The public uses the word, ‘treason,’ as a descriptor of individuals it loathes, whether the word is properly applied to a person or not. The public uses the word, informally, as an appellation of disgrace. The public uses the word against a person to damn a person because it finds that person’s words, or conduct, or character to be shameful. Some have said Hillary Clinton has committed treason and a plausible case can be made for doing so whether the grounds were properly stated by those making the claim. Apparently not to be outdone, Clinton has said Donald Trump has committed treason, although the ground for Clinton's claim against Trump is not only legally invalid, but patently ludicrous. But, then, Hillary Clinton never let sound logic, consistency, or truth stand in the way of her absurd and baseless assertions if she felt she could score political points with those assertions.Politicians, pundits, the mainstream news media, talk radio show hosts, news analysts, all use the word ‘treason.’ They use the word loosely, cavalierly. They use it as a rhetorical device. They use it as hyperbole, for oratorical flourish. They use it for effect, to get a visceral reaction in their audience. But are they serious? Not always, certainly not invariably.But, Americans should take the word, ‘treason,’ seriously. One should be careful about calling another person a “traitor”—that is to say, a person who commits treason. It is not something to be trifled with. If the word, ‘treason,’ fits a person, then use it. Otherwise, don’t. To use it in an off-hand, matter-of-fact, lighthearted way, reduces the import and significance of it. It is not a matter of frivolity.The word, ‘treason,’ appears in our Constitution. It appears in federal criminal Statute. The founders of our Republic do not trifle with words. Our Constitution isn’t comedy. Our criminal codes aren’t slapstick skits. Nothing in the Constitution or in our criminal statutes is to be taken lightly. If treason merits death, as the federal crime of treason provides for, one should reflect upon applying treason carefully before calling a person as a “traitor”—condemning a person for the crime of treason. Yet, the mainstream media has no wish to enlighten the American public. It plays with the word, ‘treason.’ It turns the word into something frivolous. It turns the word into something frivolous. But the word was never meant to be so taken. Did Hillary Clinton commit treason? If so we will draw that conclusion from the law as applied to the facts. It is that basic; that clear; that simple. So, let us investigate this word, ‘treason.’

WHAT DOES THE WORD, ‘TREASON,’ MEAN IN LAW AND WHAT IS THE BASIS FOR OR WHAT ARE THE BASES, IF MORE THAN ONE, UPON WHICH A CHARGE OF TREASON EXISTS?

The word, ‘treason,’ is a legal term of art. Treason is an act against the Sovereign. A person who commits treason against the United States is committing a serious crime—the most serious crime imaginable—a crime against our Country as a Sovereign Nation. In recent times, it seems there were plenty of instances when federal prosecutors could have brought a charge of treason against an individual. Yet, when was the last time Government prosecutors brought a charge of treason against anyone? The Government hasn’t done so recently, notwithstanding that crimes committed against American citizens by one group of reprehensible individuals in this Country, Islamic radicals, would demonstrably satisfy the conditions for federal prosecutors to bring a charge of treason against those Islamic radicals or, at least, would provide  for a good test case.Is it difficult to make a charge of treason stick? Or, are there other reasons Government attorneys have been reluctant to bring a charge of treason against those citizens who commit acts that support a charge of treason? We must dig deeply to find answers to these questions. The Arbalest Quarrel will do so.Foremost, what does it mean for a federal prosecutor to charge a person with the crime of treason? It means that the person, so charged, has committed acts that fit the specific elements of the crime of treason. In the U.S. Constitution and in federal law “treason” is narrowly defined.Under the United States Code and under the U.S. Constitution, a person’s actions are treasonable if and only if at least one of two conditions is satisfied. The first condition is levying war against the sovereign United States. The second condition is adhering to the Nation’s enemies, giving them aid or comfort. On the surface the two conditions seem straightforward. But, they aren’t. We must ask: What does it mean to levy war against the U.S.? This goes to acts that amount to carrying out war against the United States? But, what act, overt or covert, amounts to levying war against the Nation? We pointedly will consider whether Hillary Clinton, as Secretary of State, designed and carried out foreign policy that amounted not to the safeguarding of our Nation, but to levying war against it.What does it mean to give aid and comfort to the Nation’s enemies? To answer that question, we must ask: What does the phrase ‘aid and comfort’ mean? How far does it go? To what does the phrase extend? And, what does the word, ‘enemy’ mean’ in the legal sense? Does the word, ‘enemy,’ refer only to a Nation State or group of Nation States? Or, does the word extend to a group of actors that comprise no nation? Does the word, ‘enemy,’ refer to a Nation, a group of Nations, or groups of actors with whom the United States is actually at war? Or does the word, ‘enemy,’ as used in the legal sense, extend to any Nation, or group of Nations, or to any group of actors with whom our Nation is simply not allied and with whom the Nation operates on a confrontational basis other than through war.Once we answer these questions, we may then ask this: If Hillary Clinton’s conduct as Secretary of State did not rise to the level of actually overtly levying war against this Nation, did her actions have the effect of harming this Nation to the extent, at least, of covertly levying war against the United States, or, otherwise, did her actions amount to adhering to our Nation’s enemies, giving them aid and comfort?Tangentially, we ask: If a person isn’t a citizen of the United States but lives within the United States and commits an act that includes elements of the crime of treason, can that person be lawfully charged with treason? Similarly, if a citizen, living outside the United States, commits an act that includes elements of the crime of treason, can that person be lawfully charged with treason if that person has not otherwise renounced his or her citizenship? Also, what are the implications of the requirement that at least two witnesses must testify to the act?We should consider, too, why the founders of our Nation, who, in 1787, drafted the Constitution, consciously saw need to draft the treason clause so narrowly. Even so, if our Nation’s leaders devise and implement policy damaging to the well-being of our Nation, should we not hold them accountable for their action, charging them with treason? And, if our Nation’s leaders serve a secret master—a master, not clearly identified but who, on the basis of harmful policies, is other than the American People and other than the Constitution upon which they take their oath—must they not answer to the American People for treason? If our Nation’s leaders—with the power, under the Constitution, to destroy a Nation through misuse of that power—do misuse that power, should not the American People hold them to account for deleterious decision-making by charging them with treason? If so, when might such harmful decision-making rise to the level of treason? Further, must acts of treason be actual? Can a person, including our Nation’s leaders, commit constructive treason? If our Nation’s leaders operate treacherously, duplicitously, heinously, hypocritically, deviously, should they not suffer to answer for the crime of treason? When, if ever, can we say, or ought to say, that a Nation’s leaders’ dereliction of duty or misuse of power and authority entails adhering to our Nation’s enemies, aiding and abetting this Nation’s enemies? We will ascertain how far even a narrow reading of the Constitutional and Statutory crime of treason extends.If there is a legal basis to charge Hillary Rodham Clinton with the crime of treason, or with other crimes against this sovereign Nation, including crimes of sedition, espionage, conspiracy to commit treason, and, yes, terrorism, the Arbalest Quarrel will adduce those. In dealing with the misconduct of Hillary Clinton, the impact of our findings may also extend to that of the U.S. Department of Justice.By failing to indict Hillary Clinton on several criminal counts—by failing to indict a person who should have been indicted on charges amounting to extremely serious criminal wrongdoing against this Nation, against this Nation’s Constitution, and against this Nation’s citizenry—thus paving the way for the very real possibility of planting a likely criminal in the highest Office in the Land—did Justice Department Officials commit treason too?[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

ONE MAN, JAMES B. COMEY, DIRECTOR OF THE F.B.I., COULD HAVE PREVENTED THE VERY POSSIBILITY OF SEATING A LIKELY CRIMINAL IN THE WHITE HOUSE; HE FAILED THE AMERICAN PEOPLE

The F.B.I. director, James B. Comey, is Hillary Clinton's best enabler and as that enabler, who would suffer her evil, he forsakes and abandons not only his own good character, but the well-being of a nation.

PART ONE OF TWO PARTS

“. . . you never exactly lie, but often you don’t exactly not lie, either. You tell people only what you want them to know, and not a word more or less, and let them make of it what they will.” ~Taylor Caldwell, Captains And The Kings, Part Two, Chapter 5, page 497, Doubleday & Company, Inc. (1972)

FIRST HYPOTHESIS: A MAN OF GOOD CHARACTER AND REPUTATION, BUT ONE WHO WIELDS LITTLE TO NO POWER AND WHO FALLS PREY TO CORRUPTING INFLUENCES OR WHO OTHERWISE FINDS HIMSELF COMPROMISED, BRINGS DISHONOR TO HIMSELF, TRULY; BUT SUCH A MAN HARMS ONLY HIMSELF. HE HAS LITTLE CAPACITY FOR HARMING HIS HOUSE—AN ENTIRE NATION.

SECOND HYPOTHESIS: A MAN OF GOOD CHARACTER AND REPUTATION BUT ONE WHO HAPPENS TO WIELD CONSIDERABLE POWER, AS WELL, HAS TREMENDOUS POWER TO PERSUADE. AND, IF THAT MAN SHOULD HAPPEN TO FALL PREY TO CORRUPTING INFLUENCES OR, IF THAT MAN SHOULD OTHERWISE FIND HIMSELF COMPROMISED, DISHONOR BEFALLS NOT ONLY HIMSELF BUT HIS HOUSE AND CAN, MOST ASSUREDLY, WITH HIS WORDS —HIS HALF-TRUTHS, HIS EVASIONS, HIS LIES—CONTRIBUTE TO THE DOWNFALL OF HIS HOUSE—AN ENTIRE NATION.

On Wednesday, September 28, 2016, the House Judiciary Committee held a second oversight Hearing on FBI operations.The Committee called on the F.B.I. Director, James B. Comey, once again, to appear and to testify on behalf of the Bureau. House Democrats tried, however unsuccessfully and certainly inappropriately, to steer the Hearing toward irrelevant policy matters, several of which were clearly outside the purview of the Bureau and outside the true purpose of the Hearing. But House Republicans were, fortunately, not persuaded to follow suit and kept the Hearing on target. They focused their attention on the critical matter at hand: the conduct of the F.B.I. in undertaking its criminal investigation of Hillary Clinton and her underlings.House Republicans grilled Comey on the F.B.I.’s mishandling of its investigation into Hillary Clinton’s own mishandling of classified federal Government information during her tenure as Secretary of State in the Obama Administration. Comey was, as always, perspicacious, articulate, respectful toward Congress, candid, and ostensibly sincere, rarely showing irritation. He was also cautious, attentive, intransigent, keenly observant, and adamant. He wouldn’t budge on his decision not to recommend, to the Attorney General, Loretta Lynch, indictment of Hillary Clinton on multiple federal felony charges. In Comey’s estimation, as he declared to the House Judiciary Committee, neither Hillary Clinton nor her underlings merit indictment under federal statute.Comey’s protestations are both weak and at times patently ludicrous, in light of, one, the weight of evidence screaming for indictment of Clinton—evidence Comey had himself reported in his July 5, 2016 statement to the American People; and in light, two, of the mass of inconsistencies House Republicans brought to the Director’s attention, concerning the conduct of Clinton’s cronies during the course of the F.B.I.’s criminal investigation and, too, the odd manner in which the F.B.I. conducted several of its interviews—a matter which House Republicans also brought to the F.B.I. Director’s attention.During the course of the Hearing, one inescapable and very disturbing inference, as voiced by one Republican member of the panel, could not but be drawn. It was this: the decision to let Clinton and her underlings off the hook—whosoever it was who made it—must have been decided well before the F.B.I. criminal investigation into violations of federal law had concluded—in fact, perhaps, before the criminal investigation even began. The unstated presumption, implied by the inference, is that the entire criminal investigation was an elaborate and extremely expensive but ultimately vacuous performance, predicated on necessity, no doubt and, so, definitely no hoax, for serious misconduct by the Secretary of State, Hillary Clinton, and by her underlings, did exist, and serious crimes had been, on balance, committed—but such probability of crimes the F.B.I. found were never meant to be prosecuted. Someone or some powerful vested interests here or abroad made certain that would not happen.The painful realization is that the F.B.I. has allowed Hillary Clinton and her toadies to avoid criminal prosecution for serious crimes against the Country, against this Country’s Constitution, and against this Country’s citizenry. Americans may one day—assuming this Country, as an independent Sovereign Nation still exists—bring the U.S. Department of Justice itself to account for shirking its most sacred duties to God, Country, People, and Law.

WHAT COMEY’S DECISION HAS WROUGHT FOR THE AMERICAN PEOPLE

Through the failure of the F.B.I. Director, James B. Comey, to recommend indictment of both Hillary Clinton and her cronies on felony charges and through the failure of the Attorney General, Loretta Lynch, to charge Hillary Clinton and her cronies with multiple felony counts, the Justice Department has laid the groundwork for placing the most despicable—and, let us say, to use one of Clinton’s own words, deplorable—person ever to hold public office in the highest Office of the Land—a selfish person, an amoral person, a person loathsomely consumed by the naked lust for power, rabidly consumed by the lurid desire for personal aggrandizement, and ravenously consumed by the noxious need to accumulate vast sums of money, ignominiously, through the sale of high public Office; a person who has clearly broken our Nation’s laws, has broken many of them, and has broken them many times over, and has urged and encouraged others to do so as well; a person who cares not one whit for the honor of our Country; or for our Constitution; or for our Country’s laws; or for our sacred rights and liberties—those sacred rights and liberties hard fought for by the founders of our Nation; or for our Countrymen, many of whom have sacrificed their life that we may remain a free People and a free, sovereign Nation.If Clinton wins the election both she and her cronies will have carte blanche to complete what Clinton, as Secretary of State, had begun: destruction of this Country’s laws, its Sovereignty, its economy, its culture, its heritage, its security, the rights and liberties of its citizenry—indeed, everything upon which this once mighty Nation once stood for and represented.At the September 28, 2016, Congressional Hearing, House Republicans once again asked the F.B.I. Director, lamely, to reopen its investigation into Hillary Clinton’s misconduct and those of her underlings. Comey again refused to do so; nor would he be willing to look into his Bureau’s own mishandling of the investigation.Congress is, as well, apparently unwilling to allow the Independent Counsel Reauthorization Act of 2014 out of Committee. Doing so would circumvent a recalcitrant Justice Department, reluctant to enforce our Nation’s laws.The Independent Counsel Reauthorization Act of 2014 requires the appointment of outside, independent counsel to investigate serious crimes of high public officials when the Department of Justice is unable or unwilling to uphold the laws of this Nation. Congress and the Courts take over the duty of seeing that justice is served when the Executive Branch is unable or unwilling to police itself through the U.S. Department of Justice. The failure of Congress to allow open debate and a full House vote on the Independent Counsel Reauthorization Act of 2014, means that many members of Congress, as with the Executive Branch of the federal Government, are not too keen on embracing integrity in Government. Integrity does not, apparently, rank very high in importance in the conduct of our Nation’s business.The Arbalest Quarrel has previously discussed the need for appointment of independent counsel to reinvestigate Hillary Clinton’s misconduct during her tenure as Secretary of State and has written to the sponsors of the bill, Representatives Michael Turner and Rick Allen, urging them to act. The Arbalest Quarrel Article is titled, "The Foundation of Justice undone by the Foundation, Clinton." To date we have heard not a word about action on the bill. The silence is deafening.Apparently, Congress has neither the will nor the fortitude to compel integrity in the federal Government. Is this not an act of betrayal against the Country and the American People?Clearly, there is blame aplenty to go around, but what does it take to shame the Government to act at the behest of the People to prevent the calamity of a likely criminal, Hillary Rodham Clinton, seated in the White House?_____________________________________

IS HILLARY CLINTON, LIKE THE BIG BANKS, TOO BIG TO PROSECUTE, EVEN IF—ESPECIALLY IF—HER MISCONDUCT RISES TO THE LEVEL OF TREASON?

PART TWO OF TWO PARTS

“He said to himself—though not without a dim inner protest: We are our own destiny. If we are victims at all, or conquerors, we have done it in our minds, and our will, or with our faulty judgments or our illusions. If we permit others to exploit us, in private life or in government, we chose it. Or we made the fatal error of acquiescence, and for that we should be condemned. The world forgives everything but weakness and submission. It forgives everyone but a victim. For there is always battle, even if you die in it. In any event death comes to all men. How you died was your own choice, fighting or submitting.” ~Taylor Caldwell, Captains And The Kings, Part One, Chapter 17, page 178, Doubleday & Company, Inc. (1972)

APART FROM SUBSTANTIVE AND SUBSTANTIAL EVIDENCE OF FELONY CRIMES INVOLVING, ONE, THE MISHANDLING OF CLASSIFIED INFORMATION, TWO, CORRUPTION AND BRIBERY IN HIGH PUBLIC OFFICE, AND, THREE, INTENTIONALLY LYING TO OFFICIALS OF GOVERNMENT UNDERTAKING A LEGITIMATE INVESTIGATION INTO CRIMINAL ACTIVITY, DID HILLARY RODHAM CLINTON, AS SECRETARY OF STATE, ENGAGE IN ANY CONDUCT THAT RISES TO THE LEVEL OF OUTRIGHT TREASON? IF NOT, DOES THE TOTALITY OF CLINTON’S MISCONDUCT AS SECRETARY OF STATE SUPPORT A CHARGE OF TREASON?

To answer these questions we should first take a look at the history of “treason.” We need to place the crime of “treason” in historical context. We can trace the notion of ‘treason’ to English law. An Eminent English Jurist of the Eighteenth Century, Sir William Blackstone “wrote that treason ‘imports a betraying, treachery, or breach of faith.’ Blackstone further noted that treason against the sovereign—termed ‘high treason’—amounts to the ‘highest civil crime.’” “State Treason: The History and Validity of Treason Against Individual States," J. Taylor McConkie, Brigham Young University, B.A.; Georgetown University Law Center, J.D. Trial Attorney, United States Department of Justice, Civil Division, 101 Ky. L.J. 281, 283 (2012/2013).Although U.S. law takes its cue from English law, the betrayal against the Sovereign that Blackstone talks about is betrayal against the Monarch, the King of England. Of course, the U.S. does not have a Monarch although one might argue that, in effect, we do have a Monarch. But, even as the U.S. President has, in evident ways in recent years, assumed ever more power unto himself, still, under our Constitution and our system of laws, it is the American people in whom sovereignty ultimately resides. The People of the United States as a singular body are essentially the Country. An act of betrayal against Country is, then, an act of betrayal against the People of the United States in whom ultimate power exists under our system of laws and under our Constitution.

CAN A CHARGE OF TREASON BE LEVELLED AGAINST THE HIGHEST OFFICIAL IN THE LAND?

Where power to make laws, enforce laws, and interpret laws rests in a Monarch—that power is absolute. A subject of the Sovereign can betray the Sovereign and thereby commit treason. But, the Sovereign cannot betray himself if he is the Supreme Law of the Land.In the United States, though, the U.S. President, as a citizen of the United States, is not a law unto himself—certainly not if our Constitution has any force and efficacy.Yet some U.S. Presidents have, in their deeds, if not in their words, ascribed such power to themselves. If betrayal, treachery, or breach of faith to Country is, in essence, as William Blackstone said, the sine qua non of “treason,” what specific conduct of an actor rises to the level of betrayal, treachery, or breach of faith to Country?

THE LAWS OF TREASON IN AMERICA

The crime of treason appears in two significant places. First and foremost, the crime of treason appears in the United States Constitution. Article III, Section 3, Clauses 1 and 2 set forth:“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.""The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”Of note, the President of the United States, and other high-ranking officers are not exempt from a charge of treason levelled against them as it relates to their betrayal of the American People while in Office. The U.S. Constitution makes specific provision for this betrayal. Article II, Section 4 of the U.S. Constitution sets forth, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”The crime of treason is also codified in federal Statute. You will find the crime of treason in the United States Code: Title 18, “Crimes and Criminal Procedure:” “Part I, “Crimes;” “Chapter 115, “Treason, Sedition, and Subversive Activities.” 18 U.S.C. § 2381, titled, clearly, plainly, and succinctly, “Treason,” sets forth: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

TAKE NOTE OF TWO IMPORTANT POINTS IN THE ABOVE ACCOUNT OF TREASON AS CODIFIED IN OUR CONSTITUTION AND IN OUR STATUTES

One, the founders of our Republic felt that the crime of treason was so horrific that they made specific provision for it in the U.S. Constitution, specifically warning the highest public officials in the Land, that they, no less than any ordinary citizen, are not above the law and that they may be charged with the crime of treason if their actions ever betray their duties to Country, to the citizens of the Nation, and to the Constitution whom they are sworn to serve.Two, concomitant with and consistent with the Constitutional provision, the federal statute clarifies the Constitutional prohibition and is, to our knowledge, the only federal Statute that specifically, directly, and unequivocally, within a few words of mentioning the crime, calls for the possibility of death for those individuals who are convicted of it. Thus, Congress made abundantly clear the particular heinousness of the crime of treason.

ENDNOTE

We continue our exposition of the crime of treason in forthcoming articles. Our purpose is to ascertain whether a reasonable legal basis exists under our law and under our Constitution to indict Hillary Rodham Clinton on the charge of treason.With less than six weeks remaining before the U.S. Presidential election every American citizen has a critical choice to make. It is absolutely incumbent on all Americans—who care deeply for the continuation of our Country as an independent Sovereign Nation, beholding to no other Nation, subordinated to no other Nation, who truly believes in the rule of law and who holds to our inviolate rights and liberties as codified in our sacred Bill of Rights—to make certain that a likely criminal, Hillary Rodham Clinton, sets not one foot into the White House.There is only one way to prevent a travesty and calamity from ensuing. The stakes could not be higher. Regardless of your past or present Party affiliation, you must cast your vote for Donald Trump.How Donald Trump comports himself as U.S. President is, as we must concede, of concern. This is predicated on specific statements he has made. Yet, the Nation can survive Trump’s excesses. But, the Republic will be well lost if Hillary Clinton—a person who cares little for any American and even less for our Constitution, and especially for our Bill of Rights; and for the continuation of our Country as an independent, sovereign Nation; for our traditions, our culture, and our unique history; for our jurisprudence, and, not least of all, for our system of laws, given clear, ample, and irrefutable evidence of Clinton having broken many of them—actually becomes the 45^th U.S. President.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

HILLARY’S ‘SMOKING GUN’ CANNOT BE UNDONE

“Let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” ~ Thomas PaineLost in the moment of the Dallas shooting tragedy is the serious matter of Hillary Rodham Clinton’s mishandling of official Government information. Many are those who would excuse this conduct. Most citizens likely would not. No American should.As awful as the gunning down of police officers by a lunatic is to contemplate, our Country, a Sovereign Nation, grounded upon a system of laws and a Bill of Rights, can survive this tragedy and others like it. Police departments around the Country can cope with lunatics, criminals, and terrorists if politicians in Washington D.C. would not second-guess police officers’ actions and if they would restrain themselves from running roughshod over them, and let due process take its course.But, can this Nation cope with a renegade ex-Secretary of State occupying the White House? It is more than doubtful. If Hillary Rodham Clinton becomes the 45^th President of the United States, she will have the willingness and power to undermine the Constitution, more than any U.S. President in recent times, beginning with the Second Amendment. The scorn she holds for our Second Amendment is evident. The American People know exactly where she stands on gun possession and gun ownership in this Country.The damage she might do is not only limited by her determination and desires but by the powers she would wield as U.S. President. Those powers she would wield as President would be second to none. She would control the vast intelligence apparatuses, the military, and the federal police forces. She would mold public education and even exert control over mass media.Should Congress fail to yield to her devious determination, ex-Secretary of State Hillary Clinton, as United States President Hillary Clinton, would make law through executive fiat. Hillary Clinton has proved, time and again, she does not respect “the rule of law”—the bedrock of our Nation. Yet, we are a Nation grounded on the rule of law, as our founders intended. Our Nation is not grounded on rule by mere mortal men (or women).Mrs. Clinton’s behavior as Secretary of State makes up “Exhibit A” of her willingness to break the law. We see this through her obvious incompetency, through her disrespect for our Nation’s laws, and through the harm she would inflict on this Country—harm she would inflict on our Country with abandon and alacrity. Mrs. Clinton’s behavior as Secretary of State should serve as a warning to the American People. For, as she has operated as Secretary of State—as someone who perceives herself well above the law—so she will most certainly operate as President of the United States. Hillary Clinton’s actions as Secretary of State presage her actions as U.S. President.The mainstream media says F.B.I. Director, James B. Comey, determined—after investigating Hillary Clinton’s use of several private email servers to conduct official Government business—that Clinton committed no crime. The mainstream media says this because Comey told the American public, in his July 5, 2016 statement, that he will recommend, to the Attorney General, that no criminal charges be filed against Hillary Rodham Clinton.The mainstream media has it wrong. The mainstream media is misleading the public. The F.B.I. Director’s recommendation to the Attorney General not to indict Hillary Clinton on criminal charges does not, ipso facto, mean Hillary committed no crime. The F.B.I. Director, James B. Comey said no such thing, nor did he intimate any such thing. The F.B.I. Director said, in his July 5, 2016 statement to the American People, though tacitly, that Hillary Clinton did commit a crime; that she had, in fact, committed a crime continuously over several years. Further, the F.B.I. Director said, though tacitly, that Hillary Clinton’s conduct amounted to a felony—that she committed a felony repeatedly.The F.B.I. Director’s recitation of a long list of Hillary Clinton’s criminal misdeeds make these points abundantly clear. Cataloging Hillary Clinton’s misdeeds in a public statement for the American People is the primary purpose for the F.B.I. Director’s unprecedented public statement to the American People. Comey intended that such evidence of Clinton’s criminal misdeeds be made manifestly clear to the American People. The tacit question posed to the American People as implied through Comey’s recitation of Clinton’s criminal misdeeds is this: Is Hillary Rodham Clinton a person whom American citizens truly wish to represent both them and their Country?James Comey, F.B.I. Director, the top police official in the Land, intended for the American People to understand, full well, Clinton’s culpability for her actions. Contrary to some commentators’ remarks, Comey’s statement to the American People is not a political stunt. It isn’t grandstanding. The F.B.I. Director delivered his statement in deadly earnest.Comey sets out, clearly, cogently, comprehensively, categorically, and convincingly a litany of damning evidence against Hillary Rodham Clinton. Listening to Comey’s lengthy delineation of Hillary Clinton’s wrongful conduct as Secretary of State, one expects him to conclude with something like this:“I will make the following recommendation to the Attorney General: In the F.B.I.’s estimation, after conducting an extensive investigation of Hillary Rodham Clinton’s actions, in which she used several private email servers, exclusively and continuously over a period of years, to conduct official Government business, in her capacity as Secretary of State, a Cabinet level position, under the U.S. President, Barack Obama, the F.B.I. concludes that Hillary Rodham Clinton did in fact violate—either with actual knowledge of the wrongful, criminal nature of her actions and conduct in the handling of classified information, or through gross negligence in the handling of classified information—Section 793 of the United States Code, captioned, ‘Gathering, transmitting, or losing defense information,’ that falls under Chapter 37 of the United States Code, captioned, ‘Espionage and Censorship,’ of Title 18 of the United States Code, captioned, ‘Crimes and Criminal Procedure.’ As Director of the F.B.I., I, James B. Comey, do therefore recommend to the Attorney General that Hillary Rodham Clinton be indicted and prosecuted forthwith for the aforesaid federal crime, having forsaken her duty to the United States Constitution and to the American People.”But Comey made no such recommendation to the Attorney General. This much we know. This he made clear. To the contrary, after reciting a lengthy list of criminal misconduct by Hillary Clinton, Comey asserted, singularly incongruously, that he would recommend to the Attorney General that no criminal charges be brought against Hillary Rodham Clinton.The F.B.I. Director made this assessment of Hillary Clinton’s actions: She was “extremely careless” in her handling of classified Government documents. Still, notwithstanding his failure to recommend indictment of Hillary Clinton on criminal charges, the Director never said—nor did he imply—that Hillary Clinton had not committed a crime. The tacit conclusion to be drawn from the F.B.I. Director’s statement was that Hillary Clinton did commit a crime.Failure to recommend indictment is not equivalent to and is not indicative of an absence of criminal conduct; and, failure to recommend indictment does not entail lack of evidence of criminal conduct. In this instance, upon the cataloging of a laundry list of criminal misconduct on the part of Hillary Clinton, James Comey makes Hillary Clinton’s criminal conduct patently clear. So, then, why didn’t the F.B.I. Director recommend bringing criminal charges against Clinton? He said he wouldn’t recommend indictment because, as he asserted, he didn’t believe that, among other things, Clinton’s criminal actions were prosecutable. That is an odd declaration to make and one that Rudy Giuliani, former New York City Mayor and a former United States Attorney, took immediate exception with. Giuliani said he was “shocked” by James Comey’s conclusion that Clinton’s actions were not prosecutable.More shocking still was Comey’s testimony before Congress. For, two days later, on July 7, 2016, in sworn testimony before the United States House Committee on Oversight and Government Reform, James Comey seemingly retracted his tacit conclusion that, in his estimation, Hillary Clinton did break the law. For he asserted, clearly, categorically and unequivocally—in contradistinction to his earlier statement to the American public—that, in his estimation, Hillary Clinton didn’t break the law.There is an obvious disconnect between James Comey’s statement to the American public on July 5, 2016 and his testimony before Congress just two days later. Second, there exists an obvious disconnect between Comey’s litany of evidence supporting indictment of Hillary Clinton and the flimsy arguments he makes against it. Third, concerning whether Hillary Clinton lied to the F.B.I., there’s also a clear disconnect between Comey’s testimony in response to questions posed by U.S. Congressman, Jason Chaffetz, Republican-Utah, and Chairman of the Committee conducting the Hearing, and questions posed to James Comey by U.S. Congressman, Trey Gowdy, Republican-South Carolina, at the same Hearing.U.S. Congressman Trey Gowdy chairs the Select Committee on Benghazi. His worked helped bring Clinton’s criminal handling of classified Government information to light.But that isn’t all. Since Clinton had lied to the F.B.I., she has also violated another federal law: 18 U.S.C. § 1001, which sets forth in pertinent part,“Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . imprisoned not more than 8 years . . . or both.” So, there exists a basis to indict Clinton under federal Statute, apart from the matter of her mishandling of classified Government information. She lied outright to the F.B.I.Clinton carries within her an air of supreme imperiousness and a feeling of imperviousness to personal harm. Indictment on criminal charges for lying to the F.B.I. would certainly preclude Clinton from continuing her campaign. So why isn’t Hillary Clinton charged with lying to the F.B.I.?Recall, Martha Stewart—wealthy businesswoman and television personality—was sent to prison was sent to prison in 2004 precisely because she lied to the F.B.I. on a matter involving insider trading—a matter significantly less critical to our Nation’s well-being than the matter at hand. The Attorney General’s Office could forgive Martha Stewart for the crime of insider trading. But the Attorney General’s Office clearly would not forgive Stewart for lying to the F.B.I. Why, then, is our Justice Department so willing—so readily willing—to forgive Hillary Clinton for lying to the F.B.I.?Less known, but just as serious, is the matter of the F.B.I.’s criminal investigation into the nefarious goings-on of the “Clinton Foundation.” Mr. Chaffetz specifically asked the F.B.I. Director whether the investigation into Clinton’s use of a private email server to conduct Government business was tied into the F.B.I.’s investigation into the “Clinton Foundation.” Most curiously, James Comey refused to discuss that issue at all, simply responding essentially with a terse, no comment.Given inconsistencies and, in some instances, curt utterances and evident reticence of the F.B.I. Director, James Come, during his testimony before Congress on July 7, 2016, and, too, given the odd dissembling in messaging and peculiar dislocation of meaning in the statement he delivered to the American People on July 5, 2016, we conclude that hidden, nefarious forces are at work protecting Hillary Clinton—are protecting the Executive Branch of Government that President Barack Obama, at the moment, presides over. This amounts to a tremendous miscarriage of justice.There is one supreme maxim that dictates the actions of the Executive Branch of Government: The President of the United States “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” This is mandated by Article 2, Section 3 of the U.S. Constitution. By extension, as is certainly clear, this means that the entirety of the work force under the U.S. President—from the highest Cabinet Official to the lowliest office worker—is expected to faithfully execute the Laws of our Nation. President Barack Obama has chosen in many critical instances, not to do so; neither did Hillary Clinton who was appointed by him and who worked under him as Secretary of State; neither would Hillary Clinton, in her capacity as U.S. President Hillary Clinton. What can be done to remedy this dire state of affairs?The Attorney General, Loretta Lynch could, of course, have indicted Hillary Clinton on criminal charges, regardless of James Comey’s recommendation to not bring criminal charges against the ex-Secretary of State. The Attorney General isn’t bound to accept the recommendation of the F.B.I. Director because a recommendation is just that—a suggested course of action. A recommendation is not a command. The Attorney General’s Office conducts its own review of the F.B.I.’s files.But, Loretta Lynch won’t indict Hillary Clinton. That won’t happen because the Attorney General and the U.S. President, Barack Obama don’t want that to happen. Obviously, the two of them—the Attorney General and the U.S. President—never wanted that to happen. Indeed, they never intended for that to happen. So the President, Barack Obama, carries on as if the entire matter of Hillary Clinton’s criminal conduct never happened. He takes to the road, campaigning on behalf of and together with Hillary Clinton (“Birds of a feather flock together”). The Attorney General, for her part, is happy to have this matter behind her as well. And both Hillary Clinton and her campaign officials breathe a collective sigh of relief.Indictment of Hillary Clinton on criminal charges would likely occur only if the Director of the F.B.I., James Comey had recommended indictment. Loretta Lynch has remarked she would adhere to the Director of the F.B.I.’s recommendation. But she said this only after her clandestine meeting with Hillary Clinton’s husband, Bill, on July 2, 2016, came to light.The Attorney General realized the singular impropriety of that meeting, even as she tried to argue the innocuousness of it. It was only after that meeting came to light that Loretta Lynch said she would accept whatever recommendation the Director of the F.B.I. makes. What is left unsaid, because of this imbroglio, is that the Attorney General knew, as did the President of the United States, Barack Obama, that the Director would make “the right decision”—the only acceptable decision for Obama’s plans to have Hillary Clinton succeed him—that the F.B.I. Director would recommend to the Attorney General that no criminal charges be filed against Hillary Rodham Clinton.The American People face a sad—horrific—and inescapable truth. Wealthy, powerful, secretive, seditious elements within the United States and wealthy, powerful, secretive, insidious interests outside the United States, have, together, orchestrated a charade of justice. The U.S. Department of Justice and its salient enforcement arm, the F.B.I. has been compromised.Can Congress set things right? Specifically, can Congress appoint independent counsel? Can Congress appoint a special prosecutor or team of special prosecutors, to review the accumulated evidence in the F.B.I.’s files and, after duly investigating those files, make its own recommendation to Congress? If that special prosecutor deems an indictment of Hillary Rodham Clinton appropriate, and recommends indictment, can Congress then compel the Attorney General to indict Clinton? Much is at stake for the future of this Country and for our sacred Constitution. The thought of a likely criminal occupying the highest Office in the Land should give every American pause. A likely criminal occupying that Office is not only farcical, it is appalling.In the next article we look at the intricacies of the special prosecutor appointment process to ascertain if this is feasible—if anything can be done to override a serious travesty of justice.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

JUSTICE THOMAS SPEAKS OUT IN THE VOISINE CASE

UNITED STATES vs. VOISINE

PART 1

This is the first of a three part series article.Anyone who keeps abreast of the U. S. Supreme Court knows that Justice Clarence Thomas broke a ten-year silence when he posed questions to counsel during oral argument on February 29, 2016 in the case United States vs. Voisine, No. 14-10154 (S. Ct. Dec. 17, 2015). The other seven Justices retained an austere demeanor. But they must surely have been surprised at Justice Thomas’ uncharacteristic lack of reticence. The Press, for its part, was noticeably, and understandably, thunderstruck.One may speculate why Justice Thomas chose to take part in the questioning of counsel in this case, at this time. Not improbably, Justice Thomas did so, in part, out of deep respect for the memory of Justice Antonin Scalia. Justice Scalia would have had much to say in Voisine as the case touches on two landmark Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). “Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment.” In the subsequent McDonald case, the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” Together, the two cases strengthen the Second Amendment more so than any previous holding of the high Court. The two cases constrain local, State and federal governments from whittling away at Americans’ fundamental right of the people to keep and bear arms in their individual capacity.Justice Scalia wrote the Majority Opinion in Heller, joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kennedy. Justice Samuel Alito wrote the Opinion for the Majority in McDonald, joined by Chief Justice Roberts, and Justices Scalia, Thomas and Kennedy. Not surprisingly, the liberal wing of the Court, comprising Justices Ginsburg, Sotomayor, Kagan, and Breyer dissented, and they did so strenuously.Now, contrary to common belief, the U.S. Supreme Court, does not have to accept and, indeed, does not accept every case that happens to come before it. No one can appeal an adverse decision to the U.S. Supreme Court as a matter of right. Indeed, the Supreme Court grants A Petitioner’s writ of certiorari in only a few cases in any given term. And, in the Court’s information sheet, presented to those who seek to have their case heard, the Court says clearly, even bluntly, that “review on writ of certiorari is not a matter of right but of judicial discretion.”Generally, the high Court will agree to hear a case where there is disagreement and conflict among the various federal Circuit Courts of Appeal. This often takes years to develop. Even so, many cases that the high Court does agree to hear often involve arcane legal issues, very narrow in scope, that are difficult for the non-lawyer to grasp, and, so, quite understandably, difficult for anyone but a lawyer to appreciate. The Voisine case may, at first glance, appear to be just such a case. It isn’t.To be sure there is a complex, arcane issue here, but there is also a straight-forward Second Amendment issue as well. The Second Amendment issue would have been given no consideration at all but for Justice Thomas’ interjection. Be thankful that Justice Thomas spoke up during oral argument in the Voisine case. This is not theatrics as presented by the mainstream media. Justice Thomas' questions and remarks were precise, well-honed, to the point and surely took the U.S. Government off guard.In the Opinion to be handed down in the coming months it is unlikely that the Court will not give the Second Amendment issue at least some consideration and will do so precisely because of, one, Justice Thomas’ questions to counsel for Respondent, U.S. Government, two, counsel's responses to the Court, and, three, Justice Thomas' comments. If no other Justice mentions the Second Amendment in the Majority's Opinion, or in a concurring or dissenting Opinion, Justice Thomas most certainly will.Now, a salient issue in Voisine does involve the meaning to be given a word phrase in one particular section of a lengthy federal Statute. Nonetheless, as we heretofore explained, the Voisine case is the first Supreme Court case to be heard by the high Court that does impact the Second Amendment. In fact, Petitioners did timely and properly raise a Second Amendment claim in their Briefs to the United States Court of Appeals for the First Circuit. And that claim was preserved; and that issue was ripe for review by the U.S. Supreme Court when it granted Petitioners’ Writ of Certiorari. Moreover, while the Second Amendment issue was set forth with particularity as a salient issue in Petitioners’ Brief, the Second Amendment claim was not set forth as an issue in the Government’s own Brief in Opposition to the Brief of Petitioners. And the Government, in its Brief in Opposition to the Brief of Petitioners, addressed Petitioners’ Second Amendment claim only perfunctorily, giving little thought to it, seemingly in deference to and happily therefor to the United States Court of Appeals for the First Circuit's treatment of it, for the First Circuit dismissed Petitioners' Second Amendment claim outright.In fact during oral argument before the Supreme Court, the Second Amendment was only mentioned twice and that occurred toward the end of oral argument when Justice Thomas brought the issue up. Justice Thomas did so, in part, as we said earlier, because Justice Scalia certainly would have done so had he lived. And, Justice Scalia would have done so for a very good reason, quite apart from and notwithstanding the otherwise cursory treatment of the Second Amendment issue by the United States Court of Appeals for the First Circuit Court. For Voisine is the first case to come before the Supreme Court that implicates the Second Amendment, however obliquely or tangentially, or seemingly cursorily since the high Court decided the McDonald case in 2010, over one-half decade ago.Although the other Justices took great pains to avoid entertaining the Second Amendment issue in Voisine – preferring to address, alone, the meaning attached to a few words in one federal Statute – Justice Thomas would not let the matter rest, much to the satisfaction of Petitioners, who clearly sought to have their Second Amendment issue heard, and much to the chagrin of Respondent, the United States Government, that sought to keep the Second Amendment issue moot.Moreover, by querying Government’s counsel on Petitioners’ Second Amendment claim, Justice Thomas may have been initiating a not so subtle payback to other Justices for a snubbing that both he and Justice Scalia suffered at the hands of those other Justices. For, both Justices Scalia and Thomas were more than a trifle perturbed that the majority of the Justices of the Supreme Court denied certiorari in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). The Seventh Circuit in Friedman clearly manifested its contempt for the high Court’s holdings in Heller and McDonald. Justices Scalia and Thomas clearly wanted, and had expected, the high Court to grant certiorari in Friedman and, by failing to do so, Justices Scalia and Thomas expressed their righteous indignation by drafting a dissenting Opinion in Friedman.Very rarely do Justices explain their reason for refusing to grant a writ of certiorari in a case. Even more rarely will one find a dissenting opinion written by a Justice, expressing disfavor for the failure of the majority of Justices to grant the writ in a case.Surely, had the Supreme Court granted Petitioner’s writ of certiorari in Friedman, Justices Scalia and Thomas would have taken the Seventh Circuit to task for patently ignoring the Heller and McDonald holdings. The Arbalest Quarrel discusses the Friedman case at length in the article, titled, “A Court Of Law That Rejects U.S. Supreme Court Precedent Undermines The Rule Of Law And Undercuts The U.S. Constitution,” posted on December 14, 2015. For our discussion of Friedman and its importance to the Heller and McDonald cases, readers are encouraged to read our article.In spirit Justice Scalia was certainly in attendance during oral argument in Voisine. Since the Supreme Court would not entertain the Friedman case which was a direct and audacious attack by a United States Circuit Court of Appeals on the clear and cogent holdings in Heller and McDonald, Justice Thomas, on behalf of Justice Scalia, clearly intended to raise and, so, did raise Petitioner’s Second Amendment issue in Voisine – a case that the U.S. Supreme Court did decide to entertain.From the get-go it had been clear that no other Justice would weigh in on the Second Amendment implications of Voisine, and take the Government to task. Justice Thomas made certain that Justice Scalia’s disdain for a federal Government that cares not one whit for the sanctity of the Second Amendment would dare not go unchallenged.Americans who understand and can appreciate the importance of our Bill of Rights as the foundation of a free Republic and who can, in particular, understand and appreciate the importance of the Second Amendment as a critical check on the accumulation of power by the Federal Government, and by improvident State governments as well, will do well to ponder the Nation's incredible loss. Justice Scalia, together with Justice Thomas, made adamantly clear that the right of the people to keep and bear arms is an individual right unconnected to a person’s participation in a militia. The Heller decision rankles several Justices on the Supreme Court and many Globalists, both in this Country and outside it, as well, who are working quietly but incessantly and inexorably in the shadows, intent on undercutting America’s Bill of Rights, generally, and undermining America’s Second Amendment, particularly.We know, without doubt, that President Obama – or her royal Majesty, Queen Hillary Rodham Clinton – seek to nominate to the highest Court of the Land, a person who would chomp at the bit to reverse Heller and McDonald on the ground that, for them, the cases are discordant. They are discordant to these judges and to powerful, ruthless individuals because they happen to strengthen rather than weaken America’s Bill of Rights.In Part 2 of this Article, we will deal in depth, with the legal issues in Voisine and you will come to understand, one, why the high Court, apart from Justice Thomas, does not wish to deal with the impact that a negative decision in Voisine would have on the Second Amendment and, two, how it is that a specific question posed by Justice Thomas to counsel for the U.S. Government elicited from counsel a most remarkable, illuminating, and, in fact, frightening comment. You will come to see why a negative holding in Voisine does have negative implications for our Second Amendment.So it is that the mainstream media would much rather keep the dire implications of Voisine in the shadows. We, on the other hand, intend to bring those implications out, for all to see, into the light of day. In so doing, we trust we will help keep the memory of Justice Scalia alive, and in keeping Justice Scalia’s memory alive, preserve, as well, the holdings in Heller and McDonald that bespeak Justice Scalia’s devotion to the import of the Second Amendment. Ever mindful, then, are we of those who are hell-bent in destroying it.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

OBAMA: JUMPING THE GUN!

Obama's Executive Action Not Only Unlawfully Expands Federal Law, But Operates To Convert Private Sellers Of Guns Into Gun Dealers

President Barack Obama claims that his executive action, using the mechanism of executive orders to expand gun background checks, falls within his lawful authority. But does it? For all his pontificating at the CNN Town Hall Meeting, televised on Thursday, primetime, that one remark, stated and reiterated during the Town Hall Meeting, is deserving of close consideration and dissection because, if Obama is wrong, then we can dispense with any further discussion of the purported merits of his antigun agenda.We begin with one incontrovertible fact. The very use of executive orders is fraught with peril because the President is essentially making law, not executing law. Article I, Section 1 of the U.S. Constitution makes clear that all legislative functions rest with Congress. The making of law does not rest with the President. The President’s duty is not to make law but to execute the laws that Congress makes.In accordance with Article II, Section 3 of the U.S. Constitution the President, “shall take Care that the Laws be faithfully executed.” This means that the Chief Executive has no authority to tell Congress what Congress must do. But that is precisely what the Chief Executive, Obama, does when he issues an executive decree. He is in fact saying to Congress: “you haven’t done what I want you to do, so I will take action myself.” Well, Congress doesn’t work for the President of the United States. Congress works for the American People. If Congress doesn’t legislate in the manner that the President wishes, or if Congress fails to legislate at all in an area that the President wants, that failure to legislate is not lawful grounds for the President to do so. But, that is precisely what the President is doing here.One of the four key features of the antigun executive orders President Barack Obama plans to issue in the coming days or weeks pertains to expansive gun background checks. President Obama has set forth his intentions in his “Fact Sheet” what he intends to do. Just a few of the significant ways in which Obama is taking aim at Congress and at the Second Amendment involves gun sales. Through his executive orders he intends to:“Clarify that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks. Background checks have been shown to keep guns out of the wrong hands, but too many gun sales—particularly online and at gun shows—occur without basic background checks. Today, the Administration took action to ensure that anyone who is ‘engaged in the business’ of selling firearms is licensed and conducts background checks on their customers. Consistent with court rulings on this issue, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified the following principles: A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted. For example, a person can be engaged in the business of dealing in firearms even if the person only conducts firearm transactions at gun shows or through the Internet. Those engaged in the business of dealing in firearms who utilize the Internet or other technologies must obtain a license, just as a dealer whose business is run out of a traditional brick-and-mortar store.Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is ‘engaged in the business.’ For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.There are criminal penalties for failing to comply with these requirements. A person who willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution and can be sentenced up to five years in prison and fined up to $250,000. Dealers are also subject to penalties for failing to conduct background checks before completing a sale.”Is Obama saying that anyone who sells a firearm is ipso facto a ‘dealer of firearms’ and, therefore, according to Obama, 'in the business of selling firearms?' It would seem so. For, Obama has not clarified what it means to be in the business of selling firearms but, rather, has muddied the waters. Both in the above Fact Sheet and at the Town Hall meeting, Obama fails to clarify what it means to be a “gun dealer” and what it means for a person to be “in the business of selling firearms.” And, this is clearly intentional. Obama sees anyone, who sells or transfers a gun, is a “gun dealer” – that is to say, “a person who is in the business of selling firearms.” But, are these expressions truly nebulous? Not at all!Contrary to what Obama would have the American public believe, the phrases, ‘dealer in firearms,’ and, ‘in the business of selling firearms,’ are not subject to myriad definitions, dependent upon the personal whim of the President. They are legal terms of art, specifically defined in law by Congress. They are not subject to tweaking by the President.Under 18 U.S.C. § 921(a)(11), “The term ‘dealer’ means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term ‘licensed dealer’ means any dealer who is licensed under the provisions of this chapter [18 USCS §§ 921 et seq].”Case law further clarifies the meaning of ‘dealer in firearms’ and ‘in the business of selling firearms.’ In the annotated notes of the U.S. Code, there are several cases that clarify the meaning of these important expressions. See, e.g. United States vs. Fifty two Firearms, 362 F. Supp. 2d (MD Fla. 2005). A “person is ‘engaged in the business of selling firearms’ at wholesale or retail’ under 18 USCS § 921(a)(21)(C)  if that person devotes time, attention, and labor to dealing in firearms as regular course of trade or business with principal objective of livelihood and profit through repetitive purchase and resale of firearms, but such person does not include person who makes occasional sales, exchanges, or purchases of firearms for enhancement of personal collection or for hobby, or who sells all or part of that person's personal collection of firearms.” And, in United States vs. Masters (CA4 SC 1980), the fourth Circuit Court of Appeals, said, “For defendant to be ‘dealer’ within meaning of 18 USCS § 921, there must be willingness on defendant's part to deal, profit motive and greater degree of activity than occasional sales by hobbyist; defendant's primary business need not be dealing in firearms nor need he necessarily make profit from such dealings; showing that defendant had guns on hand or was ready and able to procure them and sell them to such persons as might accept them is sufficient to establish defendant as ‘dealer’.”Obama wishes to make anyone who sells a firearm into a “dealer of firearms.” In so doing, he would make it a crime for a person, even the occasional "hobbyist," to lawfully sell or, for that matter, even to give away a firearm to another person, if the transferee does not have an "FFL." And, in so doing, Obama wishes to do away with the very possibility of a "private sale" or, for that matter, even a "private transfer" of a firearm that does not amount to a sale or trade in and of firearms. He cannot lawfully do this because that amounts to an impermissible expansion of federal law.Now, Obama claims that his executive actions, directed to firearms, fall within existing federal law and that he is only proposing regulations to effectuate existing federal law and not creating new law. But, that is absolutely false because, in his executive actions, he is expanding the very concept of what it means to be a person who is “in the business of selling firearms.” When Obama attempts to transform anyone who sells or transfers a firearm into a person who is "in the business of selling firearms," he is attempting to make the transferee of a firearm, who is merely a “hobbyist,” into a criminal who is impermissibly selling or transferring a firearm, absent a federal license, in violation of 18 USCS Section 1922(a)(1) and 18 USCS Section 924(a). In effect Obama is attempting, unlawfully, to turn the occasional hobbyist into a "criminal arms dealer,” namely, someone who is, in fact, in the business of selling firearms, but is doing so, as a criminal, selling to other criminals, in clear contravention to federal law.For the federal government to prove that a person was operating unlawfully as a dealer in firearms – essentially, a criminal arms dealer – “the federal government must prove the status of the defendant as a ‘dealer in firearms.' In order to satisfy this burden the Government need not prove that the defendant's primary business was dealing in firearms or that he necessarily made a profit from such dealing; ‘it must (however) show a willingness (on the defendant's part) to deal, a profit motive, and a greater degree of activity than occasional sales by a hobbyist.’ United States v. Huffman, (4th Cir. 1975) 518 F.2d 80, 81, cert. denied, 423 U.S. 864, 96 S. Ct. 123, 46 L. Ed. 2d 92; United States v. Tarr, (1st Cir. 1978) 589 F.2d 55, 59."Thus, under federal statute and federal case law, in order for the government to prove that the person, who is selling a firearm to another person is doing so unlawfully, it is not enough for the government to prove that the seller of the firearm(s) is attempting to make a profit from the sale of a firearm or firearms. The government must also prove that the seller is not making an occasional sale of a firearm “as a hobbyist.” In other words, the federal government must prove, under existing law, that the person who is making a sale of a firearm or firearms is not a “criminal arms dealer” – a criminal who is selling firearms to make a profit.Obama is unlawfully expanding the notion of a “criminal arms dealer” to a law-abiding citizen, who is really only a “hobbyist,” under existing federal law. Such an attempt by Obama amounts to an impermissible expansion of federal law, not a theoretical permissible executive action, that amounts merely to regulation within existing federal law. When Obama expands federal law, he is entering into the purview of Congress, in contravention to the U.S. Constitution and in contravention of the Separation of Powers Doctrine because he is legislating – that is to say – he is making new law. He is not merely effectuating the intentions of Congress through the promulgation of rules within the framework of existing law.Obama begs the very question at issue by asserting that anyone who transfers firearms to another is, ipso facto, a “gun dealer” and “in the business of selling firearms” under federal law and is doing so illegally if that person does not have a federal firearm's license (FFL). Why does Obama want even private sellers of firearms -- "hobbyists" -- to obtain a federal firearm's license? He wants private sellers of firearms to obtain a federal firearm's license because, licensed dealers in firearms are required to perform a criminal background check under existing federal law, pursuant to the “Brady Handgun Violence Prevention Act of 1993,” 107 Stat. 1536; 103 P.L. 159; 1993 Enacted H.R. 1025; 103 Enacted H.R. 1025, as codified in 18 U.S.C. § 922. A person who is not “in the business of selling firearm,” is under no such legal mandate to conduct an national instant criminal background check. In fact, a “hobbyist” cannot even access that system precisely because that person doesn’t have an FFL!So, what is Obama doing? Just this: he is placing the “hobbyist” in an impossible position if that “hobbyist” wishes to sell, trade, gift to, or otherwise, in some manner, transfer his firearm to another person. Obama is saying to that person: “we are assuming that you are a gun dealer and, if you are a gun dealer, you must undertake a criminal background check on the transferee. But, in order to be able to have access to FBI NICS files, you must first obtain an FFL. If you do not have an FFL, you better get one, if you can. If you can’t obtain an FFL, do not attempt, under any circumstances to transfer a firearm to another because my Administration will assume that you are an unlawful arms dealer, and I will see to it that the Justice Department prosecutes you to the fullest extent of the law.”Do you understand what more Obama is attempting to do through his unlawful executive actions? He is using his Office to enact new gun laws. In effect he is precluding, under threat of federal criminal indictment, the transfer of any firearm by one private law-abiding gun owner to another private law-abiding gun owner. Obama is not attempting to close a so-called “gun loophole.” He is in effect precluding every individual from transferring firearms, regardless of venue. This amounts to the unlawful regulation of commerce by the Executive Branch to stifle legitimate trade in firearms between two law-abiding individuals who happen to be “hobbyists.” Moreover, Obama’s unlawful executive actions negatively impact the absolute and exclusive interest that a person has in his or her own private property.If Obama admits to this but argues that his executive directives are necessary to prevent a private person, who is not a gun dealer, from transferring a gun in interstate commerce, his executive directive is redundant because, under, 18 USCS § 922(a)(1)(A), “it shall be unlawful for any person except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.” Thus, if I, for example, as a "hobbyist," who is not, then, in the business of selling firearms, wish to sell a gun over the internet, and I am not a licensed dealer in firearms, I cannot lawfully do so in any event. I may, however, transfer a firearm to another through the mediation of a licensed dealer who will then be required to perform a necessary background check on the transferee. Thus, further regulation of firearms' sales on or over the internet aren't necessary. Such sales are already regulated!What about sales of guns at gun shows? Well, gun shows, too, do not present a problem. Most sellers of firearms at gun shows are licensed dealers in firearms and, so, must, under present federal law, perform a criminal background check on anyone whom the dealer is transferring the gun to. Now, if I am not a licensed dealer in firearms, and I, as a law-abiding American and gun owner, wish, as a private person -- a hobbyist, not a licensed dealer in firearms -- to sell a firearm to another person, at a gun show, I can make a transfer of a firearm to another, without performing a background check, but, that does not mean that I am permitted to sell a firearm to a person who is not permitted to possess a firearm. Under 18 USCS 922(d), it is unlawful for anyone – whether a licensed dealer in firearms or a private individual – to sell to individuals who are not permitted to own or possess a firearm. These include convicted felons, fugitives from justice, an individual who has been adjudicated a mental defective or who has been committed to a mental institution or who is an illegal alien. So, then, if I, as a private individual and law-abiding American citizen and gun owner and, as defined in law, a “hobbyist,” not a “licensed dealer in firearms,” offered a firearm for sale or trade, to a person, whom I did not know, and that person was a convicted felon who cannot lawfully own or possess a firearm, I have committed a crime in taking part in that sale, and I can and ought to be prosecuted. So, I, as a law-abiding citizen, have to be damn careful whom it is that I am transferring that firearm to.Now, will criminals sell firearms to other criminals? Of course they will. And they will do so in venues other than at gun shows which are likely to be carefully monitored by the State police. Obama’s executive orders, though, clearly are not directed to precluding firearms’ transactions among criminals. They are directed to further restricting gun transactions among law-abiding Americans. Obama’s goal, is -- as is the penultimate goal of all antigun groups -- just this: restricting the number and kinds of guns that a law-abiding citizen may own; and restricting the extent to which an individual may exercise control over his or her own property. What these executive actions of Obama won’t do – and, in fact are not designed to do – is curb criminal sales of firearms. They are specifically designed to curb what has, prior to Obama’s executive actions, amounted to the lawful transfer of firearms between and among law-abiding Americans, who do not fall, under the federal legal definition of ‘dealer in firearms,’  and 'in the business of selling firearms.'Obama intends to extend the scope of federal law beyond that which Congress has authorized. He cannot do so legally. Moreover, there is no need for further federal law. There are no loopholes. So, there is nothing that requires closing.Obama fails to appreciate and respect the fact that our federal statutes and federal case law are sufficiently broad to encapsulate all firearms’ transfers in every conceivable venue. Criminal transfers of firearms would be effective if existing federal law was enforced. They are not. But, that is not the fault of Congress. It is the fault of the Chief Executive. Obama, who fails to enforce federal law.Obama also fails to appreciate the sanctity of the Separation of Powers Doctrine upon which a Free Republic is able to survive and thrive. The very structure of the federal government as set forth in the Constitution establishes that no one Branch may subsume the duties of the other two within it.Obama’s executive actions are demonstrative of his disrespect for Congress, for the Constitution, and for the Separation of Powers Doctrine. Nothing he can assert or suggest, predicated on his personal notion of morality, and personal distaste for firearms ownership and firearms possession among law-abiding Americans can condone and justify his actions. But, then, Obama is not interested in the rule of law. He has a personal agenda: the very dismantling of the Bill of Rights, using, as singular pretext, his stated concern to curb firearms’ violence.Congress has, in the “Brady Handgun Violence Prevention Act of 1993,” 107 Stat. 1536; 103 P.L. 159; 1993 Enacted H.R. 1025; 103 Enacted H.R. 1025, as codified in 18 U.S.C. § 922, as cited supra, made it unlawful for a licensed importer, manufacturer, or dealer, to sell, deliver, or transfer a handgun to a person who is not licensed under 18 U.S.C. § 923 absent the appropriate background information on the individual as set forth in Statute. 18 U.S.C. § 923(a) says, in pertinent part, "No person shall engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, until he has filed an application with and received a license to do so from the Attorney General. The application shall be in such form and contain only that information necessary to determine eligibility for licensing as the Attorney General shall by regulation prescribe and shall include a photograph and fingerprints of the applicant. Each applicant shall pay a fee for obtaining such a license, a separate fee being required for each place in which the applicant is to do business." Other federal law, cited supra, precludes anyone, whether a licensed dealer in firearms or not, to lawfully transfer a firearm to a person who is not permitted under federal law to own and possess firearm.Obama’s executive actions are unnecessary if he believes there are loopholes in the law – for there aren’t any. And, they are otherwise inscrutable. Obama is unlawfully attempting to preclude firearms’ transfers among law-abiding Americans and gun owners who are not licensed dealers in firearms and who would not wish to obtain a federal firearm's license and, more to the point, could not obtain a federal firearm’s license had they wish to do so precisely because they are not in the business of selling firearms.Obama's executive directives are a scarcely disguised attempt to hide his an intent to control the distribution of one's private property.Again, what President Obama is doing, surreptitiously, insidiously, and unlawfully, through his executive directives, is destroying the very concept of a “private sale” of a firearm, and he does this by unlawfully transforming, through Presidential edit, every individual, who wishes to sell a firearm, into a person who is in the business of selling firearms and who must therefore obtain a federal license to sell firearms. Federal firearms’ licenses are expensive. Even to attempt to obtain one is a time-consuming process, administered through the BATF. It is difficult to acquire – impossible, really, for a person who simply owns one or two or a few firearms and who wishes to transfer them to another law-abiding American and who cannot legitimately make the case that he or she is anything other than a "hobbyist." Obama's executive directives are not necessary because they are not directed to curbing transfer of firearms among criminals.  These executive directives are directed to revising what it means to be a person who is in the business of selling firearms and who is a licensed dealer in firearms. Obama's executive directives are inconsistent with current federal law; they impermissibly expand federal law; and, lastly, they are inconsistent with current BATF regulations, promulgated on what federal law actually says about who is a dealer in firearms and not on what the President would like the definition of ‘dealer in firearms’ to mean. Obama cannot lawfully prevent private sales of firearms; he cannot require a private seller, who is not in the business of selling firearms, to obtain a federal license – which is impossible for a private individual to obtain anyway; and he cannot require a private seller of a firearms to perform a federal background check. But, Obama doesn’t care. He doesn’t care about limitations on executive authority. He doesn’t care that he is placing law-abiding gun owners, who are not gun dealers, and who may wish to transfer a firearm to another law-abiding American, in a precarious, impossible position. He doesn’t care about any of this. He intends to press ahead with the antigun agenda: destruction of the fundamental right of the American people to keep and bear arms.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.