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Attorney responses to the 29th Installment (http://tinyurl.com/ysrc6l),
posted to a misc.legal.moderated last month (http://tinyurl.com/2x2qyw),
reveal distortion of civic discourse wherever a State Bar imposes its
bureaucratized moralism. First, the merits.
Installment 29s argument showed that disbarring Bill Clinton conflicted
with the Supremacy Clause, because to prove its case, the State Bar
adverted to acts in Clintons performance of Presidential duties. Posters
bypassed this argument, as they argued that federal law never preempts the
State Bar, authorized to regulate the practice of law. ["It disciplined an
Arkansas lawyer for his conduct. That's what the Arkansas Bar does." -
Seth.] Posters contended applying the preemption defense, like the double
jeopardy defense, depends on similarity of governing clauses, not identity
of regulated transactions. If state law does not control Presidential
conduct _qua_ Presidential conduct, posters believed regulating Bill
Clinton during his performance of Presidential duties does not affect the
office of the Presidency.
The case law on Presidential immunity refutes posters contentions that
the Supremacy Clause only prohibits states from transparent regulation of
Presidential conduct. Preemption has specific and general forms, the
specific form of preemptionconstituting a qualified immunity--requiring
that the preempted rule contradict a federal statute; the general
form--constituting an absolute immunity--that it merely regulate a field
the federal government indicated its intent to occupy. Judges,
prosecutors, and especially Presidents, enjoy absolute immunity for acts
taken in the course of their duties, a President's broad absolute immunity
from civil suit undisputed. (_Nixon v. Fitzgerald_ (1982) 457 U.S. 731,
756 [In view of the special nature of the President's constitutional
office and functions, we think it appropriate to recognize absolute
Presidential immunity from damages liability for acts within the "outer
perimeter" of his official responsibility.].) Since a disbarment
proceeding is civil on the one hand, but not for damages on the other,
Presidential immunity is first impression. But Presidents with arguments
less tenable have challenged jurisdiction wherever possible, when facing
constraint by Congress or courts. (See for example, _United States v.
Nixon_ (1974) 418 U.S. 683.) If preemption/immunity failed, a still
stronger case would remain for invoking federal removal jurisdiction. (28
U.S.C. 1442, subd. (a)(3).)
The posters arguments help show why Clinton did not argue preemption or
immunity. Many attorneys, if not the public, assume the Bar benign.
Attorney Mike Jacobs explained:
"That's a pretty extreme interpretation of what disbarment is about. Being
admitted to the Bar, meaning one is permitted to act as attorney
representative for someone else's legal interests, is a privilege, not a
right. It carries a heavy responsibility to both the client and the system
of justice to act at all times in accord with ethical standards, because
if clients can't trust their lawyers, the whole system can fall apart.
It's not like 'the man' (the establishment) is 'out to get' the attorney
who is disbarred, in most cases, even if abuses may occur from time to
time because even the judges of the highest State court are human."
Even a President proves reluctant to challenge the jurisdiction of the
State Bar. The electorate presumed his guilt, as attorneys still do,
reflexive bureaucratic procedure plus moralistic veneer impressing more
than trial. The insertion of the State Bar into U.S. Constitutional
controversy deflects clarification, by litigation or commentary.
State Bar involvement in punishing Presidential conduct conflicts with the
Supremacy Clause. Minimally, all federal officers have general immunity
for acts related to their duties, and the President's immunity is
broadest. The rationale for the President's absolute immunity to civil
litigation is that Presidential civil liability illegitimately places
conflicting demands on Presidential conduct. (See _Nixon v. Fitzgerald,
supra,_ 457 U.S. at p. 751.) In analyzing Bill Clinton's State Bar case,
lawyers disparaged functionally-necessary federal constraints on state
action. The opinion of a President's home-State Bar supplies one of the
worst bases of influence on a Presidential decision.
Stephen Diamond
http://kanBARoo.blogspot.com
http://disputedissues.blogspot.com
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Yes and we can all see why.
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Stephen,
If you are unhappy with the way Mr. Cossell moderates MLM why don't you
send your objections to him? Posting your objections here may make you feel
good but will not affect MLM.
Dave M.
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Happily, MLM doesn't permit fanatics from using it as an outlet for
crackpot partisan theories.
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On Mar 29, 4:29=A0pm, "David L. Martel" <marte...@earthlink.net> wrote:
Stephen,
=A0 =A0If you are unhappy with the way Mr. Cossell moderates MLM why don't=
you
send your objections to him? Posting your objections here may make you fee=
l
good but will not affect MLM.
Dave M.
My point wasn't to object, but to justify my failure to post a
response in the original forum. Now Mr. Cassell has posted an
"explanation," which indeed makes me glad to have been misunderstood.
His position will be of interest to many other posters.
srd
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Stephen,
My point wasn't to object, but to justify my failure to post a
response in the original forum.
But why post here rather than in alt.aliens? Indeed any forum other than
MLM seems an odd choice.
Now Mr. Cassell has posted an
"explanation," which indeed makes me glad to have been misunderstood.
His position will be of interest to many other posters.
I doubt many will try to find this un-named thread in an un-named post
from the unspecified past. I certainly won't. For those who do wish to look
for these posts, The moderator posts under the name Bernie Cossell not Mr.
Cassell.
Good luck,
Dave M.
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On Mar 30, 9:29=A0am, "David L. Martel" <marte...@earthlink.net> wrote:
Stephen,
=A0 =A0I doubt many will try to find this un-named thread in an un-named p=
ost
from the unspecified past. I certainly won't. For those who do wish to loo=
k
for these posts, The moderator posts under the name Bernie Cossell not Mr.=
Cassell.
What might this be about? Cassel's quote is in the present thread,
just three posts about yours. He speaks as a representative of MLM.
This thread is:
http://groups.google.com/group/misc.legal/browse_thread/thread/92b6f39441a87=
f8e/3d77dab0b16450d5#3d77dab0b16450d5
Stephen Diamond
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Stephen,
You seem, I think, to regard the post by Paul Cassel, " Happily, MLM
doesn't permit fanatics from using it as an outlet for crackpot partisan
theories. " as some sort of ruling by Bernie Cossell, the moderator of MLM.
Please show us the connection between Mr. Cossell and Mr. Cassel. Or show
us that the above quote did come from Mr. Cossell and was being quoted by
Mr. Cassel.
Good luck,
Dave M.
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On Apr 4, 10:17=A0am, "David L. Martel" <marte...@earthlink.net> wrote:
Stephen,
=A0 =A0You seem, I think, to regard the post by Paul Cassel, " Happily, ML=
M
doesn't permit fanatics from using it as an outlet for crackpot partisan
theories. " as some sort of ruling by Bernie Cossell, the moderator of MLM=
..
=A0 =A0Please show us the connection between Mr. Cossell and Mr. Cassel. O=
r show
us that the above quote did come from Mr. Cossell and was being quoted by
Mr. Cassel.
Good luck,
Dave M.
Unless Cassel cares, I am indifferent to the identity of the
moderator. No posting has challenged the conclusion that moderation of
the forum is biased and moderators fail to perform their self-imposed
faux-fiduciary duty to return rejected posts. Cassel's comments
elsewhere support the conclusion, even if Cassel were a mere frequent
poster with politics different from the moderator, whoever that
presently is. Knowledgeable posters have accepted the conclusion that
the forum is politically biased, contrary to its claims of a fiduciary
level of performance.
Stephen Diamond
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