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Andrew P. Napolitano| Special to the USA TODAY Network

Biden calls Putin 'a murderous dictator' and 'thug'

President Joe Biden called Russian President Vladimir Putin "a murderous dictator" and "pure thug" as he addressed a St. Patrick's Day luncheon at the Capitol Thursday, and thanked Ireland for standing with the world against Putin's aggression. (March 17)

AP

Since the Russian invasion of Ukraine, the Biden administration has undertaken a vast scheme against Russian economic actors, which it characterizes as "sanctions." The scheme consists in seizing assets, freezing assets, and prohibiting lawful and constitutionally protected commercial transactions.

All of this is aimed at dissuading Russian President Vladimir Putin from his determination to use extreme state violence to neutralize the government of Ukraine and install a government more favorable to the Kremlin. Yet, the targets of these sanctions are neither Putin nor the Russian state. Rather, his friends and political supporters, as well as Russian banks and commercial entities, and even American banks and commercial entities, have been targeted and hundreds of millions of consumers and investors have been harmed.

By prohibiting the use of assets and international money transfers, the sanctions have severely harmed folks in Russia who have nothing to do with Putin's war by radically reducing their purchasing power and eliminating many everyday choices from their spending options. All of this was done by presidential edict.

Can the president constitutionally prevent Americans and foreign persons from the lawful use of their own assets and from engaging freely in lawful commercial transactions? In a word: No.

Here is the backstory.

The Constitution was written to establish the federal government and to limit it. The same document that delegates to Congress the power to keep interstate and foreign commerce regular also prohibits the states in the Contracts Clause from interfering in private contracts. But there was originally no comparable prohibition restraining the federal government.

In 1791, James Madison, the author of the Constitution, argued as a member of the House of Representatives against legislation establishing the First National Bank of the United States because he feared federal control of commerce. Of course, it became law, caused recessions and was sunset 20 years later.

Yet in 1816, shortly before the end of his second term in the White House, Madison caved to corporatism and signed into law the Second National Bank of the United States. After its constitutionality was upheld by the Supreme Court in 1824, the feds insinuated themselves into all sorts of economic activity, none of it enhancing personal liberty, all of it favoring their patrons.

While still a congressman, and fearing federal insinuation into commerce, Madison authored the Bill of Rights the first 10 amendments to the Constitution. He crafted the Fifth Amendment to protect life, liberty and property from the government.

By requiring due process a trial at which the federal government must prove fault prior to interfering with any person's life, liberty or property, Madison arguably crafted more restraints on the feds than the original Constitution imposed upon the states.

Similarly, by requiring a search warrant issued by a neutral judge based on sworn testimony of probable cause of crime before the feds could seize any person or tangible thing, Madison again added strength and vitality to his understanding of the Constitution's protections of the primacy of the individual with respect to property and privacy.

Both the Fourth and the Fifth Amendments protect all "people" and every "person," not just Americans. This is critical to an understanding of why the sanctions imposed by the Biden administration upon those as to whom there has been no due process or against whom there have been no search warrants issued are profoundly unconstitutional.

For generations, the government argued that the rights to privacy and due process protected Americans only. In the post-World War II era, the feds have lost those arguments.

Thus, when the feds seize a yacht from a person whom they believe may have financed Putin's political rise to power, or even his personal lifestyle, they are doing so in direct violation of the Due Process Clause of the Fifth Amendment. Similarly, when they freeze foreign assets in American banks, they engage in a seizure, and seizures can only constitutionally be done with a search warrant.

As well, when the feds interfere whether by presidential edict or congressional legislation with contract rights by prohibiting compliance with lawful contracts, that, too, implicates due process and can only be done constitutionally after a jury verdict in the government's favor from a trial at which the feds have proven fault.

As if to anticipate these constitutional roadblocks to its interference with free commercial choices by investors, workers and consumers, Congress enacted the International Emergency Economic Powers Act of 1977 and the Magnitsky Act of 2016. These constitutional aberrations purport to give the president the power to declare persons and entities to be violators of human rights and, by that mere executive declaration, to punish them without trial.

These laws turn the Fourth and Fifth Amendments on their heads by punishing first and engaging in a perverse variant of due process later.

How perverse? If the feds seize assets or interfere with contracts involving foreign ownership or interests, and the victims want justice, the persons or entities whose assets have been seized or whose contractual rights have been diminished must consent to the jurisdiction of American courts and prove that they are NOT human rights violators.

These statutes are a federal version of "Alice in Wonderland," whereby the punished person or entity must prove innocence. Such a burden defies all American concepts of property ownership, fairness and due process. It is antithetical to our history, repugnant to our values and mocks the Constitution that all in government have sworn to uphold. All persons are presumed innocent. The government must always prove fault.

The restrictions that the Constitution imposes upon the federal government have no emergency exceptions, nor are they theoretical or fanciful. They were crafted by men who knew and had tasted the torments of unbridled government power. They wrote the restrictions to assure that the new federal government could not do to Americans what the British had done to them.

They failed.

AndrewP.Napolitano, a former New Jersey Superior Court Judge,haspublished nine books on the U.S. Constitution.

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Sanctions on Russia violate the U.S. Constitution | Napolitano - New Jersey Herald

The state Supreme Court said in a Tuesday order the Montana Attorney General erred in halting a ballot initiative from going out for signature-gathering.

The proposed ballot initiative aims to add new environmental protections to stretches of the Gallatin and Madison rivers.

The courts unanimous opinion, written by Chief Justice Mike McGrath, also indicated that the attorney general lacks the authority to reject a proposed ballot initiative on the basis that it amounts to a government taking of private property. And in a nonbinding, concurring opinion, McGrath went further, writing that the authority to determine the constitutionality of ballot proposals rests solely with the courts not with the AG.

The court directed Secretary of State Christi Jacobsen to approve a final signature petition form to allow the environmental groups proposing the initiative to start collecting signatures to place it on the ballot. The groups have until June 17 to collect the 30,180 signatures needed to put the proposal to a statewide vote in the 2022 general election. They also need signatures from 5% of the voters in at least 34 of the states 100 House districts.

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Ballot Initiative 24 would apply Montanas Outstanding Resource Water designation to 35 miles of the Gallatin River, from the Yellowstone National Park boundary to the Spanish Creek confluence, and to about 55 miles of the Madison River, from Hebgen Lake to Ennis Lake. It would also amend the designation to prohibit temporary pollution sources. The law authorizing the designation currently applies only to year-round sources of pollution.

Knudsen had rejected the proposal in late January, following his offices legal sufficiency review. He wrote in a legal memo that the ballot initiative would amount to a private property taking under the Fifth Amendment of the U.S. Constitution and Article II, Section 29 of the Montana Constitution, without providing compensation to potentially affected property owners.

Cottonwood Environmental Law Center, one of the groups backing the measure, filed a petition with the state Supreme Court challenging the AG offices finding last month. Cottonwood executive director John Mayer said the proposal is aimed at combating water quality degradation in the two rivers.

Last year, Republican lawmakers passed a law revising the AGs role in determining the legal sufficiency of a proposed ballot initiative. Previously, the AGs office could only block a proposal if it didnt comply with constitutional and statutory language for submitting ballot issues to voters.

House Bill 651 now requires Knudsen to determine the substantive legality of the proposed issue if approved by the voters, giving his office broader authority to reject proposals.

The seven justices unanimously ruled that Knudsens legal finding misapprehends and misapplies the law that applies to constitutional takings and contradicts the statutory scheme creating the attorney generals review process.

While the federal and state constitutions include provisions prohibiting the government from taking private property without some degree of just compensation, the justices wrote that the environmental groups proposal doesnt match up with how previous court decisions have defined takings.

There are two ways a governments action can rise to the level of a constitutional taking, they wrote either through a permanent physical invasion of property or by an action that eliminates all economically beneficial uses of the property.

Knudsen had argued that in order for I-24 to be constitutional, it would have to compensate the property owners who would be affected by the Outstanding Water Resource designation.

But the Attorney General provided no authority for this proposition, and as a matter of takings law, it is incorrect, the justices wrote. They added that nothing in the proposed initiative prevents affected property owners from suing the state to recover damages.

The justices opinion goes further, writing that Knudsens determination shows the impropriety of using an opinion about regulatory takings to determine if a ballot issue is insufficient.

In addition to the new legal sufficiency changes added by the Legislature last year, Republican lawmakers also gave the AG the power to add a warning label to signature petitions for proposed ballot initiatives that could hurt business or private property interests. Knudsen did just that, in addition to blocking the proposal based on his belief that its unconstitutional.

It would not make sense for the law to call for an advisory statement (which would be appended to a valid petition) to be warranted for a reason that would also render the petition invalid, the justices wrote.

Two other conservation groups, Gallatin Wildlife Association and Montana Rivers, are also backing I-24 and both signed onto the petition as plaintiffs.

"We are extremely gratified that the Montana Supreme Court overruled the Attorney General, Gallatin Wildlife Association President Clint Nagel said in a press release Wednesday. This is a win for all citizens of the last best place.

Mayer, with Cottonwood, said despite whats amounted to a six-week delay to start gathering signatures for the petition, he expects to get enough residents to sign on by the June deadline.

Everyone in Montana wants clean water, Mayer said. Not that many people want rich out-of-staters building vacation houses and destroying our water.

But theres a growing list of business groups and local officials, especially those in and around Big Sky, who are pushing back against the proposed initiative.

On Wednesday, the Montana Chamber of Commerce issued a statement in opposition to I-24, referring to previous attempts by conservation groups to add the Outstanding Resource Waters designation to part of the Gallatin.

The designation is the highest water designation that is typically reserved for extremely sensitive areas like national parks, and the (Department of Environmental Quality) and the courts have repeatedly declined to make such designations in this area, the group wrote, adding that it would hurt job creation and halt workforce housing progress.

In a statement, AG spokesman Kyler Nerison argued that the ruling was consistent with Knudsens finding that the ballot initiative would bypass the normal review process established in state law.

Instead of coming to this obvious conclusion, the Supreme Court justices engaged in legal gymnastics to align with radical environmentalists and maneuver toward an outcome that even two liberal Democrat governors rejected, Nerison wrote.

Questionable legal authority

But in a separate, concurring opinion, McGrath went even further in questioning Knudsens legal authority under the new law. He wrote that only the courts have the power to reject a proposed ballot initiative for running afoul of the constitution.

McGrath wrote that the attorney general lacks such power, and the Legislature equally lacks the power to confer it upon him.

That portion of the courts opinion was co-signed only by Justice Dirk Sandefur, and isnt binding as a legal precedent.

Citing a 1986 state Supreme Court opinion regarding a proposed constitutional initiative, he noted that the court has taken a careful approach to those issues in the past: We should hesitate to 'interfere with the constitutional right of the people of Montana to make and amend our laws through the initiative process.'

Anthony Johnstone, a constitutional law professor at the University of Montana, said that while the courts have at times tossed out initiative proposals that are clearly unconstitutional, the right of Montanans to directly engage in the legislative process is an area where theyve historically treaded lightly.

No one can go into the Legislature to challenge a law as unconstitutional before it gets passed,Johnstone said.

He added that the constitutionality of I-24 can still be challenged if it makes it onto the ballot and is passed by the voters.

Because theres a final bite at the apple if it actually becomes law, thats usually been a reason not to scrutinize the initiative as closely before its in effect, Johnstone said. Partially because you dont actually know how its going to work until its in effect.

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MT SupCo reverses AG decision, says river protection initiative can go out for signatures - Independent Record

Washington An alleged member of the Patriot Boys militia group charged with multiple crimes stemming from the January 6 Capitol attack said he would plead guilty to one felonycount of assaulting officers with a pole on Monday after prosecutors said they made an unintentional procedural error since initially charging him.

Lucas Denney of Texas was accused of multiple felonies via criminal complaint, a charging document does not require the consensus of a Grand Jury, in December of 2021. Court documents alleged he grabbed a large tube outside the Capitol building and swung it at officers before he made his way to a large police line inside the west tunnel of the Capitol.

Denney was arrested and detained and has remained in jail since December.

Under the Speedy Trial Act, a formal indictment must be brought by a grand jury against any defendant within 40 days of criminal complaint. But in Denneys case, prosecutors failed to do so, instead indicting him on a single count of assaulting or impeding officers on March 7, 2021, months after his initial arrest in December.

LEAH MILLIS / REUTERS

His defense team filed an emergency motion to release him from jail because of the law violation.

Each day Mr. Denney remains in custodial detention is an additional day that his liberty rights are denied without due process in violation of his rights under the Fifth Amendment, Denneys defense attorneys wrote, Mr. Denney should not be made to sit in a jail cell even a single day longer while the Government tries to explain away its failure to comply with the law.

In a rare move, prosecutors agreed that they made a mistake in not bringing the indictment quick enough and said Denney should be released and the charges dropped, but asked the judge to do so in a manner that allowed them to present Denneys case to a Grand Jury again. This would leave the possibility of another indictment looming.

The charges alleged were serious and their error was unintentional, the government said, so they should be given another shot to potentially indict Denney.

The charges against Denney are of the utmost seriousness. Those charges arise within the context of the attack on the U.S. Capitol, on January 6, 2021, a criminal offense unparalleled in American history, Mondays filing said.

There is no evidence of bad faith, a pattern of neglect, or something more than an isolated incident that resulted from a number of unfortunate factors, prosecutors added.

But during a court hearing Monday that was initially scheduled as an arraignment where Denney would be given the opportunity to enter a plea on the single count charged in the indictment, his defense attorney William Shipley alleged the government brought the indictment in bad faith after he said they were sent scrambling to get an indictment on the books following their procedural error.

And in yet another unusual move, the attorney indicated his client was ready to admit guilt and plead guilty to the single count on the indictment without entering into an agreement with the government, a move that would effectively prevent prosecutors from bringing any more charges against their client due to double jeopardy rules.

Most of the more than 220 guilty pleas entered in the January 6 investigation have involved cooperation or other legal agreements with the government to avoid going to trial.

Mr. Denney is here, prepared to admit his conduct and plead guilty to the only pending charge, Shipley told Judge Randolph Moss. The defense told the judge they viewed the evidence against their client and said he was ready to admit guilt to one count.

The judge agreed with the defense that Denney had been mistreated, even telling prosecutors, Theres no excuse to treat a person like that. But he stopped short of allowing the defendant to plead guilty on Monday, explaining he needed more time to examine the case law. This was a novel predicament prosecutors got themselves into, the judge reasoned, and he needed more time to rule accurately.

Defense attorney Shipley objected to the proposed delay, telling the judge he feared the government would use the schedule as a way to return a more extensive indictment against his client.

Prosecutor Jennifer Rozzoni told the judge, however, that after discussing the case with a supervisor, the government would not oppose Denneys surprise decision to enter a guilty plea to assaulting an officer with a pole on January 6.

The U.S. Attorneys Office declined to comment for this story.

We appreciated the government conceding its error and acknowledging Mr. Denneys right to plead guilty and will rely on Judge Mosss judgment at sentencing, Shipley told CBS News.

Denneys arraignment, where he will likely plead guilty to the lesser count, is now set for Thursday.

See more here:
January 6 defendant says he will plead guilty to assaulting officers - Sand Hills Express

On Tuesday, attorneys are scheduled to argue over whether former Michigan Governor Rick Snyder may invoke his Fifth Amendment right and not testify at a civil trial concerning the Flint water crisis.

Two engineering firms Veolia North America (VNA) and Lockwood, Andrews & Newnam (LAN) consulted on Flints water system during the water crisis and are being sued on behalf of four plaintiffs who were children during the crisis.

The children were exposed to lead and other contaminants in their drinking water. Theyre seeking financial damages from the engineering firms. The firms deny theyre liable.

Snyder is on a long list of potential witnesses the defense may call.

He has already been disposed in the case, but since the deposition, Snyder, along with eight others, was indicted on criminal charges related to the Flint water crisis.

Snyders attorney has informed the federal judge hearing the case that the former governor plans to invoke his Fifth Amendment privilege if he is forced to appear as a witness.

The Fifth Amendment to the U.S. Constitution guarantees no person can be compelled to be a witness against him or herself.

Four other potential witnesses facing criminal charges, including two former Flint emergency managers, have also indicated they plan to plead the Fifth if they are called to testify.

In a motion filed with the court last week, attorneys for VNA say the five cant invoke their Fifth Amendment protection since they have already testified under oath in pre-trial depositions:

"None of the five witnesses invoked the Fifth Amendment privilege during his depositioneven though the Michigan Solicitor General was actively and publicly re-investigating the water crisis and had pledged to seek additional indictments against the people responsible for the crisis."

"These witnesses have testified at length in depositions; some have answered reporters questions; two even have testified before Congress. But they have yet to testify in open court. They should do so here."

Lawyers for Snyder and the others say they are concerned attorneys for the engineering firms plan to ask their clients questions beyond what was asked during pre-trial depositions.

In a filing with the federal court on Friday, Snyders attorney laid out what he believes is the real intent of calling the former governor to testify in the civil case.

VNA doesnt care what Governor Snyder says about his alleged 'misconduct and failures,' vis-a-vis the Flint Water Crisis, attorney Brian Lennon writes in his motion, Rather, VNA hopes to force Governor Snyder to repeatedly invoke the Fifth Amendment in front of the jury and thereby shift blame away from itself.

U.S. District Judge Judith Levy has scheduled a hearing on the issue for Tuesday.

In addition to Snyder, former emergency managers Darnell Earley and Gerald Ambrose, former aide to Snyder, Rich Baird, and former City of Flint employee Howard Croft have all indicated they want the court to quash their subpoenas to testify. Snyder and Croft are facing misdemeanor charges related to the water crisis. Ambrose, Early and Baird are facing more serious felony charges.

The civil trial is the first of potentially many related to the Flint water crisis.

Its being referred to as a "bellwether" trial, since it may serve as a guide for how other civil litigation related to the crisis may proceed. It is expected to last four months.

It is unrelated to the $626 million settlement of claims against the State of Michigan, city of Flint, Rowe Professional Services and McLaren Flint Hospital. More than 50,000 people have applied to be part of that settlement. They have until May to complete the application process to receive a share of the settlement.

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Judge to hear arguments over Fifth Amendment claims in Flint water crisis civil trial - Michigan Radio

Item 1.01 Entry into a Material Definitive Agreement.

On March 15, 2022, Advanced Emissions Solutions, Inc. (the "Company"), aDelaware corporation, entered into the Fifth Amendment to Tax Asset ProtectionPlan (the "Fifth Amendment") between the Company and Computershare TrustCompany, N.A. (the "Rights Agent") that amends the Tax Asset Protection Plandated May 5, 2017, as amended (the "TAPP") between the Company and the RightsAgent.

The Fifth Amendment amends the definition of "Final Expiration Date" under theTAPP to extend the duration of the TAPP and makes associated changes inconnection therewith. Pursuant to the Fifth Amendment, the Final Expiration Dateshall be the close of business on the earlier of (i) December 31, 2023 or (ii)December 31, 2022 if stockholder approval has not been obtained prior to suchdate.

The foregoing description of the Fifth Amendment is qualified in its entirety byreference to the full text of the Fifth Amendment, attached hereto as Exhibit4.6 and incorporated herein by reference.

Item 3.03 Material Modification to Rights of Security Holders.

See the description set out under "Item 1.01 - Entry into a Material DefinitiveAgreement," which is incorporated by reference into this Item 3.03.

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