The House that CJ John Roberts Built
Hint: James Madison and Alexander Hamilton were far better architects
This is the House that Chief Justice John Roberts built.
When my two wonderful, well-loved Daughters were toddlers, each loved the story, This is the House that Jack Built, especially as punctuated regularly with a Daffy Duck lisped, “That’s My House, Mister” (with “s” pronounced ththth!).
Well, This is the House that Chief Justice John Roberts Built.
Today, the Federal Bureau of Investigation (FBI), as headed by Mr. Kash Patel, arrested the Honorable Hannah Dugan, Milwaukee Circuit Judge, under the pretext of “Obstruction of Justice.”
According to the Associated Press:
“Judge Dugan wholeheartedly regrets and protests her arrest. It was not made in the interest of public safety,” her attorney, Craig Mastantuono, said during the hearing. He declined to comment to an Associated Press reporter following her court appearance.
Court papers suggest Dugan was alerted to the presence of U.S. Immigration and Customs Enforcement agents in the courthouse by her clerk, who was informed by an attorney that they appeared to be in the hallway.
The FBI affidavit describes Dugan as “visibly angry” over the arrival of immigration agents in the courthouse and says that she pronounced the situation “absurd” before leaving the bench and retreating to her chambers. It says she and another judge later approached members of the arrest team inside the courthouse, displaying what witnesses described as a “confrontational, angry demeanor.”
After a back-and-forth with officers over the warrant for the man, Eduardo Flores-Ruiz, she demanded that the arrest team speak with the chief judge and led them away from the courtroom, the affidavit says.
After directing the arrest team to the chief judge’s office, investigators say Dugan returned to the courtroom was and was heard saying words to the effect of “wait, come with me” before ushering Flores-Ruiz and his lawyer through a jury door into a non-public area of the courthouse. The action was unusual, the affidavit says, because “only deputies, juries, court staff, and in-custody defendants being escorted by deputies used the back jury door. Defense attorneys and defendants who were not in custody never used the jury door.”
Attorney General Pam Bondi said that the man was facing domestic violence charges and that victims were sitting in the courtroom with state prosecutors when the judge helped him escape immigration arrest.
See: https://apnews.com/article/immigration-judge-arrested-7997186bbca5730e70a25f2347e631f6
And, from the Washington Post:
According to the Washington Post in the above-cited article:
“We believe Judge Dugan intentionally misdirected federal agents away from the subject … allowing the subject — an illegal alien — to evade arrest,” the FBI director wrote.
ICE’s use of local courthouses as a venue to locate and detain migrants has drawn criticism from judges in some jurisdictions, who say the practice makes it more difficult to ensure undocumented immigrants will show up for court proceedings in which they are victims, defendants or witnesses.
Immigration authorities say courthouses provide a unique setting where they can be certain their targets are scheduled to show up at a specific time and date and will have already undergone security screening.
These are the available facts.
The following is my subjective judgment.
Due Process of law and Constitutional judicial proceedings are the backbone of our law.
The American judiciary is established on principles as ancient as Thucydides’ summary of the Speech of Pericles in praise of Democracy; the Sixth Book of Polybius’ History of the Punic Wars which is one of the first treatises on separation of power among and between Legislature, Judiciary, and Executive; Edward Coke’s Treatise on the Common Law; The Bill of Rights of 1688; John Locke’s Second Treatise of Government; William Blackstone’s Common Law; John Adams commentary on the U.S. Constitution; and the Declaration of Independence and the Constitution as coupled with The Federalist. Also John Stuart Mills, On Liberty, and the late John Rawls (Harvard), Theory of Justice and his Liberalism.
We must ground ourselves in sound jurisprudential teachings in order to strengthen and focus properly our resistance.
And when the Executive attacks the Judiciary, this is a Stage Code Blue in our Republic.
In our Nation, the Executive has long tried to usurp plenary powers.
President Andrew Jackson defied the Supreme Court — They have entered their order. Now let them enforce it.
One of our very best Presidents, Franklin Delano Roosevelt, infamously interned Japanese residents and citizens. In one of about two times in his life, John Edgar Hoover, FBI Head, was on the right side of liberty and justice when he advised FDR against the tyrannical move.
The same Edgar Hoover, used Executive Power to try to destroy the Civil Rights Movement both by infiltrating the Movement in the 1950s with undercover agents and, in the 1960s, trying to induce Dr. Martin Luther King to commit suicide.
Indeed, Edgar Hoover’s reign at the FBI from 1919 to 1972 represents a dreadful period of Executive Tyranny.
LBJ privately met with Associate Justice Abe Fortas to sound out the Supreme Court on his Great Society Legislation.
Dick Nixon’s abuses are too long and well-known to bear repeating. The Chairman of the Atomic Energy Commission, then James R. Schlesinger, found Nixon to be so deranged that Schlesinger explicitly ordered that no nuclear order could be followed from any source, including the President of the United States, without the direct authorization of Commissioner James R. Schlesinger.
President George W. Bush and Vice President Dick Cheney pushed the doctrine of Unitary Executive — with arbitrary and unlawful Executive Power on Steroids — with the legal advice of John Yoo, who is now Professor of Law, Boalt Hall Law School, University of California, Berkeley.
Theories of a uniquely empowered executive go back at least as far as Arthur M. Schlesinger, Jr., Imperial Presidency (1973) as well as Richard Neustadt, Presidential Power: The Politics of Leadership from FDR to Carter (1980).
For a sample of the latter (by Mr. Neustadt), see:
https://www.uvm.edu/~dguber/POLS293/articles/neustadt.pdf
The proponents of an empowered, “Unitary” Executive rely on The Federalist, No. 70 (Alexander Hamilton — [The Executive Department Further Considered]), which is available here:
https://avalon.law.yale.edu/18th_century/fed70.asp
In part, the Unitary Executive Theory is fallaciously based upon the great thoughts of Mr. Alexander Hamilton here:
To the People of the State of New York:
THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.
There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.
There is a very great problem for those who interpret Mr. Hamilton’s unitary executive to mean plenary powers.
Namely, Mr. Hamilton’s theory does not mean that.
Mr. Hamilton merely is opposing an Executive Committee or, as in the case of Rome, the requirement of simultaneous service of two Consuls.
The problem Mr. Hamilton answered has its classical depiction at Hannibal’s Battle at Thrasymene Lake as immortally described by Polybius in his Histories.
Against the advice of Consul Fabius “Cuncator” (the Delayer), Co-Consul Gaius Flaminius attacked straight on Hannibal’s Numidian cavalry at Thrasymene Lake, which had just crossed the Alps (!!) with Hannibal.
As was typical of this able cavalry, the Numidians pretended panic, fled headlong in “retreat,” tempting beyond resistance the naive and joyful Co-Consul Gaius Flaminius, who threw caution to the winds, and attacked with the might of Roman infantry the Numidian horsemen.
Meanwhile, the hidden hordes of Hannibal surrounded and entrapped the gullible Roman army.
The slaughter was devastating and wrought horror back in distant Rome, whose only savior now was the Consul Fabius (later nicknamed “Maximus” — the Great).
Fabius Maximus from then on conducted some of Western History’s first guerilla warfare, frustrating Hannibal’s attempt throughout the Italian boot over a number of years, wearing and whittling down Hannibal’s troops.
Only the great Polybius could tell the story so very well, and you can enjoy coffee and cookies over this:
So, in light of such history, the frustrated Mr. Alexander Hamilton, in The Federalist No. 70, exclaimed:
A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is nattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security.
Can anyone blame Mr. Hamilton’s worry?
If anyone thinks Mr. Hamilton meant thereby any encroachment on liberty or due process, s/he should read all of The Federalist No. 70 (linked above), where Mr. Hamilton balances these remarks with:
Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.
Notice Mr. Hamilton’s emphasis on the steady administration of the laws . . . to the security of liberty . . .
The Colonists had just finished a revolution against the King, and the Anti-Federalists campaigned hard to prevent the erection of a new monarchy, and despite Mr. Hamilton’s centralizing tendencies, Mr. Hamilton was not about to sell the American public on a King.
Mr. Hamilton is simply talking about one Executive rather than a committee or a parliamentarian government.
The Federalist argues for a separation and balance of powers as Polybius had set out in Book 6 of his histories.
It is absurd to attribute to Mr. Hamilton, as John Yoo must, any intention that the President would have the power to gather crowds, intern them at Guantanamo, hold them without any due process, strip them of Habeas Corpus, and torture them.
This was the evil policy propounded by the shameful John Yoo, now Professor of Law at Boalt Hall.
It is absurd to attribute to Mr. Hamilton, who was the strongest advocate for centralized powers among the Constitutional Fathers, an intent that goons of Kash Patel would yank a sitting judge from her courtroom and place her under Federal arrest as she performs her judicial duties.
That is an absurd, obscene and perilous exercise of arbitrary powers.
And these are the fruits of Chief Justice John Roberts’ works.
It is a particular irony in American history that John Roberts, who was gifted by Mother Nature with a fine judicial mind, who had the potential, through his intellectual gifts and jurisprudential insight, to become a modern Justice Felix Frankfurter, instead drank the poison at the well of Executive Power.
Mr. Roberts’ judicial tongue became poisoned with the black toxins of the virulent Executive well, and Mr. Roberts penned the doctrine, even though he would deny it, of capricious and arbitrary powers of an evil-disposed Tyrant.
And the fruit of this toxin is Presidential tyranny in arrest among the Judiciary.
Mr. Roberts created this Frankenstein.
It is up to Mr. Roberts to fix it.
It is a bleak day in American history when goons under the power of Kash Patel arrest the Judiciary.
I was so appalled by news of the judge's arrest, I had a hard time understanding what had even happened.
No wonder our system is so confusing Armand. Even leaders are confused.
“One of our very best Presidents, Franklin Delano Roosevelt, infamously interned Japanese residents and citizens.
In one of about two times in his life, John Edgar Hoover, FBI Head, was on the right side of liberty and justice when he advised FDR against the tyrannical move.
The same Edgar Hoover, used Executive Power to try to destroy the Civil Rights Movement both by infiltrating the Movement in the 1950s with undercover agents and, in the 1960s, trying to induce Dr. Martin Luther King to commit suicide.”