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TOPIC:  SUPPORT KPFT! Mark Small is an attorney for Revote2017.org. He will discuss the SCOTUS denial of their Writ of Mandamus, and what their next steps will be.

GUEST:

Mark Small (Appeals Attorneys) is practicing law in Indianapolis, Indiana. Attorney for Revote2017.org

(This is 2nd try to do this show, so the topics look the same as last week, March 20th.)

Welcome to Thinkwing Radio with Mike Honig (@ThinkwingRadio), a listener call-in show  airing live every Monday night from 9-10 PM (CT) on KPFT-FM 90.1 (Houston). My engineer is Bob Gartner.

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For the purposes of this show, I operate on two mottoes:

• You’re entitled to your own opinion, but not your own facts;
  

  Houston Mayor Annise Parker [L] with Mike, just before the show. (Dec. 7, 2015)

• An educated electorate is a prerequisite for a democracy.

SIGN-OFF QUOTE[s]:

“You teach yourselves the law. I train your minds. You come in here with a skull full of mush, and if you survive, you’ll leave thinking like a lawyer.”
                   – Professor Charles W. Kingsfield Jr., (Character in “The Paper Chase”, 1973)

GUEST: Attorney Mark Small

• SCOTUS docket # 16-907 (Writ of Mandamus before SCOTUS) WAS DISTRIBUTED FOR CONFERENCE to the Justices on March 17, 2017 and DENIED
• Explain briefly
  • What is a Writ of Mandamus?
  • What the original goal was for submitting the writ?
  • What remedy were you requesting?
    • If the court had accepted the premises you argued, what remedies would have been within the scope of the court (if any) aside from the most extreme one of a complete new voting cycle?
  • The Writ got as far as distribution to all 8 Justices.
    • Does that in itself indicate some success?
    • Do you have any ideas as to why it was ultimately denied an oral hearing?
  • You are writing a new Writ of Mandamus.
    • What can you tell us about how this Writ will differ from the first one?
    • Are you seeking the same remedies or different ones?
    • Aside from the remedies you seek, what remedies would be within the scope of the court for this Writ if they decide it has merit, but without calling for a full election cycle?
  • Assuming that you won what you are demanding in this Writ, have you given any thought to how the process would be conducted?
    • The US may have had as many as 10 interim “presidents” (actually presiding heads, loosely titled “presidents”, of Congress) before George Washington become the first President in 1789 under the terms of the new US Constitution.
    • Have you given any thought to what our government would look like in the interim?
• From Daily Kos: “MAJOR BREAKING NEWS UPDATE: SCOTUS docket # 16-907 WILL BE DISTRIBUTED FOR CONFERENCE to the Justices on March 17, 2017!”
  • BACKGROUND: Petition Before SCOTUS Seeks To Nullify Election, by FisherShannon [dailykos.com/] Feb 12, 2017 9:58am CST
    • SEE: http://revote2017.org/
  • While the world is paying attention to theatrical battles over President Trump’s executive orders and cabinet nominees, a largely unnoticed and potentially landmark case sits before the Justices of the Supreme Court of the United States. A petition for a writ of mandamus seeking to nullify the results of the 2016 U.S. Presidential election sits on the SCOTUS docket.
  • A petition for a writ of mandamus is a filing imploring a Court to take mandatory action in the nature of public duty. The writ – filed Jan 18, 2017 by Diane Blumstein, Donna Soodalter-Toman, and Nancy Goodman – has been assigned docket number 16-907.
  • The main argument for the writ is that, per Article IV § 4 of the U.S. Constitution, it is the job of the federal government to keep U.S. territory safe from foreign invasion. The Constitution stipulates, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.” The petition cites evidence of such an invasion, namely the Russian hacking, and asks that the entire 2016 election be nullified, all the way back to the primaries, on the grounds that cyber-territory in the U.S. was invaded with the intention of altering the results of our Presidential election. The petitioners seek an entirely new election.
  • A response [was] due from SCOTUS on February 21 with an answer as to whether the Court will hear oral arguments in this case. The fact that this petition for a writ of mandamus is being considered is quite remarkable. SCOTUS estimates that just 0.01% of cases filed with the court are granted plenary review with oral arguments, so the odds are stacked against this case being heard, but the writ is on the docket and they hold out hope that the odds are in their favor.
  • Writ of Mandamus – Wikipedia
  • Mandamus (Latin for “We command”) is a judicial remedy in the form of an order from a superior court,^[1] to any government subordinate court, corporation, or public authority—to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing)—and which is in the nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.
  • Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it.
• Russian Interference Could Give Courts Legal Authority To Install Clinton, By Alex Mohajer, Political Writer and Commentator (Huffington Post) 12/10/2016 06:28 am ET | Updated 6 days ago (12/13/2016)
  • …at least one federal court decision suggests there may be some federal case law on the question of whether it is possible to invalidate the outcome of an election after the fact when there is fraud, and replace a candidate benefitted by fraud with his opponent. The case, Marks v. Stinson, is the first and only known case in which a federal judge reversed an election outcome.
  • [In] a case originally brought before a federal district judge in Pennsylvania in 1993, which was subsequently appealed to the United States Court of Appeals for the Third Circuit in 1994. The Third Circuit partially upheld the federal judge’s decision to intervene and invalidate a 1993 state senate election due to fraud. Interestingly, the federal district judge ordered the winner be removed from office and the subsequent vacancy be filled by his opponent.
  • In February 1994, after Stinson had already taken office, the federal judge ordered he “be removed from his State Senate office and that [his opponent, Bruce Marks] be certified the winner within 72 hours.”
  • Two of the elected officials who testified in the Pennsylvania case said under oath that they were aware of the fraud, had intentionally failed to enforce laws, and hurried to certify Stinson the winner in order to bury the story. To some, the narrative draws parallels to the Washington Post’s revelation that Republican Mitch McConnell was aware of the CIA’s conclusion that Russians had intervened and opted to do nothing.
  • The case deliberates interesting rationale that could theoretically be applied in part if, after Donald Trump assumes office, it is shown that Russian hacking (or any fraud, for that matter) robbed Hillary Clinton of the presidency. The case offers clues that imply courts may intervene.
  • There is also, of course, no constitutional Electoral College process or system in Pennsylvania, so the situations are not exactly analogous. But the reasoning behind the federal court’s decision may hold muster. It is not clear how the case would impact a presidential election.
  • | Updated 6 days ago [MARKS v. STINSON | 19 F.3d 873 (1994) | Leagle.com]
  • BREAKING: Russian Interference In The Election Just Handed Hillary The White House (DETAILS), December 10, 2016 New Century Times
    • His opponent in the race, Republican Bruce Marks was then made the winner. The judge who made the ruling, Judge Clarence Newcomer, said:

      “Substantial evidence was presented establishing massive absentee ballot fraud, deception, intimidation, harassment and forgery.”

      According to the New York Times: “Judge Newcomer ordered that Mr. Stinson, a 49-year-old former assistant deputy mayor of Philadelphia, be removed from his State Senate office and that Mr. Marks, a 36-year-old lawyer and former aide to United States Senator Arlen Specter, be certified the winner within 72 hours.”

• ======================================================
•  SOURCES WHICH MAY BE RELEVANT TO OTHER DISCUSSION:
• The worst passwords of 2016 are as lazy as ever: Please, stop using “123456.”, By Charlie Osborne for Zero Day (ZDNet) | January 13, 2017 — 14:00 GMT (06:00 PST)
• How Wisdom Teeth Are Fueling the Opioid Epidemic, By Melissa Pandika 1/22/2017, [Ozy.com] via MSN
  1. … In 2015, opioids killed a record 33,000 people, according to the Centers for Disease Control and Prevention. About half of those deaths involved a prescription opioid. Now, a new study drills down to one source of these drugs: wisdom-tooth extractions.
  2. More than half of the opioid painkillers prescribed to patients after wisdom tooth removal surgery in a recent Drug and Alcohol Dependence study went unused.
  3. 100 million opioid pills, prescribed for wisdom-tooth extractions, go unused.
  4. Which means they’re available for misuse and abuse by patients, their loved ones or others. But the study also found that offering information about a pharmacy-based drug-disposal program, plus a financial incentive, made patients more likely to properly dispose of their unused medication, or at least plan to do so.Trial Balloon for a Coup? Analyzing the news of the past 24 hours, by Yonatan Zunger
• Group will sue Trump over business’ foreign profits, By Cyra Master 2 hrs ago (The Hill) 1/22/2017 via MSN
  1. The Title of Nobility Clause [Also known as the Emoluments Clause] is a provision in Article I, Section 9, Clause 8 of the United States Constitution, that prohibits the federal government from granting titles of nobility, and restricts members of the government from receiving gifts, emoluments, offices or titles from foreign states without the consent of the United States Congress. Also known as the Emoluments Clause, it was designed to shield the republican character of the United States against so–called “corrupting foreign influences”. This shield is reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the Republican Guarantee Clause in Article IV, Section^[2] ~ Title of Nobility Clause – Wikipedia https://en.wikipedia.org/wiki/Title_of_Nobility_Clause
  2. Citizens for Responsibility and Ethics in Washington (CREW) announced Sunday night it is bringing a suit “to stop President Trump from violating the Constitution (the Constitution’s foreign emoluments clause ) by illegally receiving payments from foreign governments.”
  3. At issue is Trump’s refusal to divest from his business or place his assets into a blind trust, which would separate him entirely from his business empire. He has said his adult sons will run his business while he is in office, that they will not conduct any foreign deals and will subject any domestic deals to an ethics review.
  1. Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
  2. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
  3. Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
  4. Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
  5. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.^[3]
• The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President, as well as responding to Presidential disabilities. It supersedes the ambiguous wording of Article II, Section 1, Clause 6 of the Constitution, which does not expressly state whether the Vice President becomes the President or Acting President if the President dies, resigns, is removed from office or is otherwise unable to discharge the powers of the presidency.^[1] The Twenty-fifth Amendment was adopted on February 10, 1967.^[2]
• John Ibanez, Yesterday at 2:31pm 1/29/2017
• The election must be overturned.
• John Ibanez’s post (which I have pasted below) persuaded me. His last two paragraphs locked it up. Essentially, this whole administration is tainted. They have all “bitten of the poisoned apple”, as they sometimes say in law. Therefore this administration must be pulled up by the roots of the Republic is to survive as we have known it.The solution may lie in a minor precedent called “Marks v. Stinson” ([MARKS v. STINSON | 19 F.3d 873 (1994) | Leagle.com]). The ruling states, in part: “Substantial evidence was presented establishing massive absentee ballot fraud, deception, intimidation, harassment and forgery.”
  According to the New York Times: “Judge Newcomer ordered that Mr. Stinson, a 49-year-old former assistant deputy mayor of Philadelphia, be removed from his State Senate office and that Mr. Marks, a 36-year-old lawyer and former aide to United States Senator Arlen Specter, be certified the winner within 72 hours.”I am now convinced that as farfetched as this may sound, it is in fact the only real solution to our nation’s current dilemma.
• Up until now, I’ve been arguing that the only to remotely realistic choices we have is Pres. Trump or Pres. Pence. I know longer believe that is even Constitutionally acceptable.
• I don’t like to engage in hyperbole, but I believe we are approaching a real existential, Constitutional crisis.

• LINKS:
• Differences between Liberals, Conservatives, Libertarians and neo-Conservatives
  • Left–right politics, From Wikipedia, the free encyclopedia
    • History of the terms: The terms “left” and “right” appeared during the French Revolution of 1789 when members of the National Assembly divided into supporters of the king to the president’s right and supporters of the revolution to his left. One deputy, the Baron de Gauville, explained, “We began to recognize each other: those who were loyal to religion and the king took up positions to the right of the chair so as to avoid the shouts, oaths, and indecencies that enjoyed free rein in the opposing camp.” However the Right opposed the seating arrangement because they believed that deputies should support private or general interests but should not form factions or political parties. The contemporary press occasionally used the terms “left” and “right” to refer to the opposing sides.^[9]
  • Greens and Libertarians: The yin and yang of our political future, by Dan Sullivan (originally appearing in Green Revolution, Volume 49, No. 2, summer, 1992)
    • … Libertarians tend to be logical and analytical. They are confident that their principles will create an ideal society, even though they have no consensus of what that society would be like. Greens, on the other hand, tend to be more intuitive and imaginative. They have clear images of what kind of society they want, but are fuzzy about the principles on which that society would be based.
    • Ironically, Libertarians tend to be more utopian and uncompromising about their political positions, and are often unable to focus on politically winnable proposals to make the system more consistent with their overall goals. Greens on the other hand, embrace immediate proposals with ease, but are often unable to show how those proposals fit in to their ultimate goals.
    • The most difficult differences to reconcile, however, stem from baggage that members of each party have brought with them from their former political affiliations. Most Libertarians are overly hostile to government and cling to the fiction that virtually all private fortunes are legitimately earned. Most Greens are overly hostile to free enterprise and cling to the fiction that harmony and balance can be achieved through increased government intervention.
    • Amongst published researchers, there is agreement that the Left includes anarchists, communists, socialists, progressives, anti-capitalists, anti-imperialists, anti-racists, democratic socialists, greens, left-libertarians, social democrats, and social liberals.^[5][6][7]
    • Researchers have also said that the Right includes capitalists, conservatives, monarchists, nationalists, neoconservatives, neoliberals, reactionaries, imperialists, right-libertarians, social authoritarians, religious fundamentalists, and traditionalists.^[8]
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