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The president of the United States is relentlessly threatening the right of citizens to exercise their right to vote. He is also saying that he might not leave office if he loses the election, and that the election is "rigged" unless he wins. He also spends most of his days watching television, raging, fulminating, lying, demanding loyalty of those around him, demeaning his political opponentsand trading in conspiracy theories, while creating chaos instead of a plan to addressa pandemic that could take300,000 American lives by the end of the year.

Is such a person fit for this office?Anyoffice?

As has been the caseevery single dayfrom the beginning of this horrific tweet-fest mockery of a presidency: It's 25th Amendment time.

No, of course it won't happen not with the loyalist, anti-democratic ideologues the president has methodically surrounded himself with in his cabinet, likely to this very purpose. But by any objective (i.e., non-cultist) view it should happen before the upcoming election is furtherthrown into chaos to frighten off voters.

It won't happen. But wewould fail our duty to this country if we did not pause to note this fearful moment in time, did not look again at the purpose of this critical amendment, and did not call out the Trump administration's cabinet members who failed to take this step to protect an election and save this democratic republic.

In "The Twenty-Fifth Amendment: Its Complete History and Earliest Applications," by John D. Feerick, the author notes that the framers of the Constitution did not spend much time at the Constitutional Convention in 1787 onthe subject of presidential succession:

They seem to have thought they handled the matter adequately by providing for the office of Vice President and by inserting in the Constitution the following clause on presidential succession:

"In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Office shall act accordingly, until the Disability be removed, or a President shall be elected."

Thisvague language in the Constitution was unworkable in practice and hampered decisions in terms of both presidential inability and vice presidential vacancies. Feerick notes: "For the first 52 years of the existence of the presidency, our nation was remarkably fortunate. No President died in office, although three vacancies did occur in the vice presidency."

As to what constituted "incapacity" of a president, no one could really say. Andin an American tradition, this became a can that would be kicked down the road time and again after each crisis.

Questions on this score arose numerous times. There wasJames Madison, who in the summer of 1813 was "indisposed by illness" for weeks; James Garfield, who survived, incapacitated, for an excruciating 80 days after being shot; Chester Arthur, who was diagnosed with Bright's disease and suffered from "spasmodic nausea, mental depression, and indolence" and who, as a result, developed a very casual approach to his presidency, often not beginning work until noon or one o'clock (which sounds like someone we know); Grover Cleveland, who in the summer of 1893 took a cruise on a yacht and secretly underwent an operation to remove a cancerous growth on the roof of his mouth, which entailed removing a large portion of his upper jaw; William McKinley, who survived an assassin's bullet for about a week; Woodrow Wilson, who fell ill while on a speaking tour in late September 1919 and then, after returning to the capital, suffered a stroke that paralyzed the left side of his body; Franklin D. Roosevelt, who entered his fourth term in 1945 gravely ill and not able to function to his previous level, dying soon after; and Dwight Eisenhower, who had a heart attackin 1955, and then a strokein 1957.

Presidents will, due to ego or a sense of duty, often do anything to hide their incapacities from the public, and even their own cabinet members. Cleveland essentially disappeared for an entiresummer, undergoing two procedures and being fitted with an artificial jaw. (When a letter was published in thePhiladelphia Pressdetailing the operations, it was called a "hoax.") According to Feerick, the first operation took place "while Cleveland was unconscious and strapped to a chair propped up against the yacht's mast." Wilson's condition was hidden from the public, from Congressand from members of his cabinet. Feerick points out thatfrom that time "until the inauguration of Warren G. Harding on March 4, 1921, the country was without the services of an able President." Before running for his fourth term, FDR is said to have made his own new deal with his physician to simply not tell him any bad news.

The need for more clarity as to presidential succession was ultimately prompted by the assassination of John F. Kennedy and the need for a protocol for naming a new vice president once the current vice president had assumed the White Hous. Feerick writes: "Despite vacancies totaling more than thirty-seven years, no serious effort was made to devise a means for filling a vice presidential vacancy until after the assassination of President Kennedy."

The 25th Amendment, written and adopted in 1965 to address this issue, was ratified by the necessary 37 states in February 1967. But the question about what constitutes "inability" remained it was purposely not defined, allowing for interpretation of how a president could become unable to carry out his duties, including due to mental illness.

Sections 1 and 2 deal with succession of the vice president; sections 3 and 4, with the question of inability to carry out the duties of the office.

Section 3 allows for a president who is cognizant of his own impairment to personally inform Congress in writing that he is unable to carry out his duties. Perhaps one might stretch the interpretation of his writing to Congress. Mightthat include writingto the worldendless missives in ALL CAPS rife with misspellings, bad punctuationand excessive use of exclamation points, all of which pointto a level of derangementfar beyond the grammatical?

Seriously, we have a person in the office of the presidency who ismentally and temperamentally unfit for serving the office, as attested to by a petition that wassigned by 350 psychiatrists and mental health experts, and delivered to members of Congress in December 2019.

Yale Medical School professor Dr. Bandy Lee, one of the three authors of the petition (and a frequent interview subject at Salon), described Trump'scontinued embrace of conspiracy theories as actually a public health issue because of his ability to draw members of the public into a "shared psychosis at the national level."

Speaking of mental health experts, Mary Trump, who is the president's niece and a clinical psychologist, and who recently published the bestseller "Too Much and Never Enough: How My Family Created the World's Most Dangerous Man," has said in recent interviews that the best thing anyone could do for Donald Trumpwould be to remove him from office.

And it's not just mental health experts who are worried. National security experts are as well. Just hours before Joe Biden gave his acceptance speech at the Democratic Convention, 73 senior national security officials, nearly all of them Republican, attested to the unfitness of the current occupant of the White House.

In the infamous "Anonymous"2017 op-edpublished inThe New York Times, a senior Trump official wrote: "From the White House to executive branch departments and agencies, senior officials will privately admit their daily disbelief at the commander in chief's comments and actions. Most are working to insulate their operations from his whims."

But in the spinning wheel of the Trump administration, many of those officials are gone now,and it is not enough(norwas it ever) to try to shield the country from his worst impulses, which have both deepened and darkened. White supremacists and QAnon followers are just fine folks to him and he openly appeals to them. He and members of his campaign staff worked, sometimes gleefully, with Russian agents to win the last election. It didn't take a three-year bipartisan investigation to tell us that; any moderately intelligent child would have come to this conclusion from the moment candidate Trump said during a press conference, "Russia, if you're listening " (No, he wasn't joking.) He has continued to make such appeals to foreign leaders to interfere in our election.

Finding himself behind in the polls, Trump'sauthoritarian impulses are running hot, and he repeatedly broadcasts his threats to bring down our democracy. He speaks privately with Russian President Vladimir Putin, who no doubt is providing guidance to an eager disciple on the dismal arts of demagoguery and authoritarian rule.

Trump not only threatens mail-in voting, he is now threatening in-person voting, saying he will be sending thugs of one sort or another to oversee matters.

There's not time enough before the election for another impeachment, and, really, what would be the point?

Like Alexandria Ocasio-Cortez, I was a bartender in New York City (in my few years trying to be an actor), and I still know when the time has come for a last call. Section 4 of the amendment provides for the vice president and a majority of principal officers of the executive departments to make a formal declaration to Congress of a president's inability to serve. It gets complicated from that point. Essentially the president can counter, and the vice president and amajority of the cabinet must then re-counter. And then two-thirds of both houses of Congress have to agree.

So, to you, Vice President Pence, secretaries Pompeo, Mnuchin, Esper, Barr, Bernhardt, Perdue, Ross, Scalia, Azar, Carson, Chao, Brouillette, DeVos andWilke:

Last call for the 25th Amendment. Do your duty. Give up on this election for the sake of having future elections in the country you profess to love, before all is lost.

We well understand that you won't. But that's not to say that it should not be done. Because it should. We cannot wait for the election, because the president himself has put the electionin peril. Thiswould give Congress one last chance to do its duty, too though at an evenhigher standard thanimpeachment, which only requires a majority in the House.

When Benjamin Franklin was asked by Elizabeth Willing Powel of Philadelphia a "lady remarkable for her understanding and wit," according to a contemporary what kind of government he had helped to found, he told her: "A republic,ifyou can keep it." Now the question must be asked again: Can we?

Read the rest here:
Last call for the 25th Amendment? Trump's Cabinet won't depose him but they should - Salon

BRADFORD, Pa. Sean Hvizdzak is working with federal officials to come to a resolution on a fraud complaint by the Securities and Exchange Commission, while his brother Shane appears to be pleading the Fifth Amendment in some aspects regarding accounting matters in the case.

Shane Hvizdzak, 32, of Bradford, and Sean Hvizdzak, 34, of St. Marys, were both named in an SEC complaint in June for allegedly defrauding investors in a cryptocurrency hedge fund scheme. Both have asked for more time to respond in the case, as Friday had been set as the deadline for responses to the complaint.

The brothers allegedly took money from investors, said it was being invested in digital assets and fabricated statements saying the investments were earning huge returns, the SEC alleged.

However, the SEC said the brothers took in the neighborhood of $26 million from investors, put it in their personal accounts and then moved it outside the United States. Some of the funds were put in untraceable digital accounts, the SEC alleged.

The SEC complaint which is a civil case, not a criminal case indicated that the brothers had investors from Pennsylvania, California and Florida.

Sean Hvizdzaks attorney, David Berardinelli of Pittsburgh, asked for an extension to Oct. 5. In his motion, the attorney said Sean Hvizdzak and the SEC have engaged in preliminary discussions about a possible non-litigated, amicable resolution to this action as to him. Due to the complexity of the issues, the discussions will not be completed this week, the attorney explained. The SEC was in agreement with the motion, he noted.

The motion was granted Wednesday by Judge Susan Paradise Baxter.

Contacted by The Era Wednesday, Berardinelli declined further comment.

As for Shane Hvizdzak, Hvizdzak Capital Management LLC, High Street Capital LLC and High Street Capital Partners LLC all represented by The Grail Law Firm of Pittsburgh attorney Efrem Grail is asking to move deadlines as well.

Grails motion noted that the court ordered a preliminary accounting on or before July 1, and for Hvizdzak to provide a final sworn accounting and asset repatriation by July 26.

He asked for the deadline on accounting and repatriation to be moved to Sept. 14, explaining in order to provide the information, Hvizdzak would need access to his business records, which are on a cellphone and laptop that have been seized by the SEC.

In the SECs response, the agencys attorney, Matthew Scarlato, stated Grail informed him that when able, they intended to invoke the Fifth Amendment in response to the preliminary accounting.

The Fifth Amendment is the right against self incrimination.

The response also noted that Grail was in discussions with the Department of Justice to establish parameters by which they could repatriate additional investor assets and provide at least some aspects of the sworn accounting despite Shanes intention to assert the Fifth Amendment.

Scarlato noted this would accomplish the critical goal of securing additional existing investor assets while this case is pending. He noted, too, that the SEC would not agree to an additional extension of time for Hvizdzak to comply with court orders, or to assert his Fifth Amendment rights.

This motion had not been ruled upon by Wednesday afternoon, according to the online docket.

Excerpt from:
Brothers ask for more time in SEC case - Olean Times Herald

The Northern District of Illinois recently denied a brokers motion for a temporary restraining order and a preliminary injunction against the Financial Industry Regulatory Authority (FINRA) seeking to stop a scheduled remote arbitration hearing.

A copy of the opinion in Legaspy v. Fin. Indus. Regulatory Auth., Inc. is available at: Link to Opinion.

In February 2019, the plaintiffs former clients filed a statement of claim against the plaintiff and his firm seeking damages of $2.765 million, loan interest, dividends, and lost appreciation related to alleged losses in their brokerage account. The parties signed a FINRA uniform submission agreement stating that in the event a hearing is necessary, such hearing shall be held at a time and place as may be designated by the Director of FINRA and that the arbitration will be conducted in accordance with the FINRA Code of Arbitration Procedure.

The arbitration hearing was originally scheduled to begin Aug. 17, 2020 in Boca Raton, Florida, but due to the COVID-19 pandemic, FINRA notified the parties that the in-person hearing was canceled and would either be rescheduled or held via ZOOM or telephone conference by joint agreement or panel order. Two days later the panel ordered the hearing to be conducted via FINRAs virtual hearing services on its original date of Aug. 17, 2020. The plaintiff noted his objection at a pre-trial hearing and in a letter in late July.

The plaintiff claimed that FINRA breached its Code of Arbitration Procedure and the uniform submission agreement, denied him due process, and sought injunctive relief to stop the remote hearing. In support, the plaintiff argued that remote proceedings would be cumbersome and procedurally irregular because the claimants are from Argentina and would require an interpreter, and there are dozens of witnesses and hundreds of documents that would have to be shared remotely. The plaintiff also argued that by the time the hearing is over, he would have spent so much on attorneys fees that he will have exhausted his insurance coverage and, if he loses the arbitration, FINRA will deduct any award against his net capital, immediately making his firm undercapitalized under FINRA rules, essentially forcing him out of business before he could file a motion to vacate any award against him.

The Court held that the plaintiff was not likely to succeed on his claim that FINRA breached the uniform submission agreement because FINRA is not a party to the agreement. Instead, the agreement is between the plaintiff and the claimants. Even if FINRA were a party to the agreement, the Court noted that the plaintiff still would not be likely to succeed on his breach of contract claim because, under the Federal Arbitration Act (FAA), the Court does not oversee arbitrators procedural rules. Instead, under the FAA, procedural questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide. Thus, whether FINRA can or should conduct a hearing remotely is a question of procedure that FINRA, not the Court, must decide.

The Court also rejected the plaintiffs due process argument, noting that FINRA is a private corporation, not a state actor, and thus cannot be sued for violating the Fifth Amendment.

The plaintiff also failed to demonstrate that he would be irreparably harmed absent injunctive relief because the harms of losing the arbitration would occur no matter when the arbitration starts and how it is conducted. Moreover, the Court saw no reason why the claimants would fare any better than the plaintiff in a remote hearing considering they have the burden of proof in the arbitration. The Court believed that, if anything, the logistical challenges of a remote hearing would be more likely to harm the claimants than the plaintiff.

Finally, the Court noted that, even if the plaintiff could prove that he met the threshold requirements for a temporary restraining order, the equities were not in his favor because the claimants argue they suffered losses in excess of $2.6 million and delaying the hearing delays their chance to be made whole. The Court also believed that waiting until the eleventh hour to seek injunctive relief weighed against the plaintiff, noting that claimants and FINRA arbitrators had invested substantial resources to prepare, and enjoining the hearing would upend their preparation.

Accordingly, the Court denied the plaintiffs motion for temporary restraining order and preliminary injunction.

More here:
ND Illinois Denies Broker's Attempt to Block Zoom Arbitration Hearing - Lexology

By U.S. Sen. Mike CrapoR-Idaho

Requiring Americans to prove their property should not have been taken by the government, rather than the government proving guilt, undermines our system of justice. Commonsense restraints must be instituted to protect against civil asset forfeiture abuses. I am again backing legislation to address problems with civil asset forfeiture.

According to a March 2017 U.S. Department of Justice (DOJ) Inspector General report, the Department seized more than $28 billion over the past ten years via asset forfeiture. Despite the staggering sum collected during that period, the report found that the DOJ does not collect data to measure how often seizures and forfeitures advance or relate to criminal investigations.

I joined in reintroducing S. 4074 the Fifth Amendment Integrity Restoration (FAIR) Act, led by Senator Rand Paul (R-Kentucky).

This legislation would better protect property owners from wrongful property seizures and decrease potential monetary incentives for agencies to seize assets. I have co-sponsored this legislation in multiple congresses because it would put the burden of proof where it should be on the government, not innocent Americans. The government would have to prove the assets were used to facilitate criminal activity. Importantly, to address unjust incentives, the legislation would require proceeds from the disposition of seized property to be deposited in the General Fund of the U.S. Treasury, instead of going to the agencies seizing property.

Reintroduction of this legislation builds on ongoing efforts to end forfeiture abuses. This includes urging the DOJ to reform its asset forfeiture practices. For example, in a 2017 letter to the DOJ, fellow senators and I requested the retraction of the Departments expansion of its use of civil asset forfeiture writing, Civil forfeiture does not reflect the fundamental principle of innocent until proven guilty that is vital to our nations criminal justice system.

Law enforcement can confiscate property from individuals without ever giving them a day in court, and it does so with increasing regularity. . . . In 2014 alone, the federal government took more cash and property from Americans than burglars did. I also joined fellow senators in urging our colleagues in the Senate to deny the use of federal funding for expanding DOJs civil asset forfeiture program.

Additionally, the U.S. Supreme Court applied constitutional restrictions to state civil asset forfeiture actions in a 2019 decision determining the Eighth Amendment, our Constitutions protection against excessive fines, applies to the states. The Court found that excessive fines undermine other liberties. This is a step in the right direction as it pertains to protecting property rights, but civil asset forfeitures may still be subject to abuse.

The Fifth Amendment to our Constitution clearly states that no person shall be deprived of life liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

As civil forfeiture and other reforms are discussed in the overall context of rebuilding the lost confidence in many institutions designed for the purposes of keeping communities safe, I continue to maintain that the vast majority of law enforcement officers are hard-working Americans who put their lives on the line every day to keep our communities safe.

Unfortunately, we have seen several instances of horrific and inexcusable conduct by some very bad actors under the guise of law enforcement. Reforms are needed. I will continue to work with my colleagues in Congress and the Administration to end civil forfeiture abuses and continue to support legislation to improve and reform policing practices, accountability and transparency.

Read the rest here:
Fifth Amendment Integrity Restoration - The Highland County Press

Jaime McMillan just overcame a six-week battle with COVID-19, but hes worried health restrictions are now more of a menace to individual liberties and commerce than the virus is to public health.

The only instrument we have to protect individuals liberties is the Constitution. And you cant protect the health and safety of people by doing a shortcut around the Constitution, and this is coming from someone whos survived COVID-19, McMillan said in a phone interview.

The Fifth Amendment, he said, protects people from being deprived of property without due process of the law or without just compensation.

Health restrictions in place by the state, the citys mask ordinances and even guidance from local public health agencies, McMillan says, are now skirting with legal jeopardy as essentially governmental takings from private businesses without compensation and eventually are likely to be challenged in court.

McMillan, a former constitutional law professor, said governmental takings arent confined to eminent domain. The law also protects people and businesses from regulatory takings stemming from enforcement of laws.

I think that the federal government can defend itself because you know, whatever you think about the relief packages, weve printed something like $5 trillion for relief, he said, but when you look at the health restrictions on restaurants from the state, when you look at the mask ordinance by the city, no ones considered compensation.

While McMillan, 53, who battled COVID-19 for six weeks in March and April, said the discussions might seem academic, the problem is festering and getting more serious with each business, like The Palace Restaurant, which has announced it will close its doors.

Theres a click economy and a brick economy, and were in danger of losing our brick economy, he said.

The problems with COVID-19 health restrictions are particularly severe in small towns dependent on small businesses, said McMillan, a Durango investment adviser and former candidate for City Council.

The problem in a rural community like Durango, is theres a big difference in the ability of small businesses to withstand this versus a national chain. Walmart can withstand a diminution of sales that a small business cant. And it seems our governments in the name of public health dont recognize that disparity.

The chance of any lawsuit emerging from a Durango small business or even a Colorado small businesses might be remote, but McMillan believes some small businesses across the nation are likely to challenge COVID-19 health restrictions as takings under the Fifth Amendment.

I think peoples patience will run out at some point. Is anybody going to file a lawsuit? Well, most people dont have the legal knowledge, the time or the budget, but there will be a lawsuit somewhere.

parmijo@durangoherald.com

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Durango man battled COVID-19. Now hes fighting health restrictions - The Journal