Franklin L. Ferguson, Jr., Civil Rights Attorney

Though I fail more times than not, I attempt to follow the philosophies which have been set forth by the Long Haired One. Chief among His tenets is the practice of empathy, the ability to understand, share and relate to the feelings of another person, based upon that person’s experience. He calls for me to love all those with whom I come into contact, in precisely the same manner that I love myself. Respect is due to everyone. Empathy is key.

“Sexism” is defined within the Merriam-Webster Dictionary as “prejudice or discrimination based on gender; especially discrimination against women.” Like all “isms” and irrational phobias, sexism is an example of non-empathy, leading to disparate and unacceptable results. How can a teenage girl look at countless images of women being sexualized and not associate such with socially acceptable, if not encouraged, conduct? How can she not, at the same time, notice that men’s bodies, at least their genitalia, are not displayed so casually? That men are not walking around in ballet leotards, exposing  their private parts may be fairly attributed to nothing other than sexism.

Like almost everything else in our society, at one point in time, heterosexual sex was colonized, or co-opted by men. Even consensual, sexual encounters between two members of the opposite sex are often characterized in aggressive, sexist, violent and bellicose terms. These depictions, including such terms for women as “conquests” and “trophies.” Pejorative phrases are also infused into popular vernacular, such as “did you hit that?,” “I was trying to smash” and “scoring.” This language clearly connotes the concept of a male inflicting an act upon a female body, as opposed to joining her in an expression of love, an action aimed to promulgate the species. If the most intimate, pure and beautiful function that two human bodies can collectively perform is trivialized, in base, aggressive and emotionless or sterile terms, how is it possible to avoid cognitive dissonance, the awareness of two, incongruous beliefs being attitudes held simultaneously? The likely result of such associations is the perpetuation of the idea that people’s feelings, emotions, even physical sovereignty are nothing more than disposable concepts, subject to the whims of others.

The depreciation of the value placed upon sexual activity is a societal shortcoming. A toilet bowl and fine china are each fashioned from porcelain, but most people would refrain from using a dinner plate for both consumption and elimination functions. This is true no matter how intensive the cleaning ritual employed between each activity. Similarly, the concept of the “one night stand” and the process involved in initiation of life should not be comfortable associates. For many reasons, sexual activity should have a more exalted place in our society, but, largely thanks to men, it does not.

Abortion places the emotional burden, physical trauma and feelings of responsibility for ending a life squarely into the laps of women. Men are not forced to live with the responsibility of intentionally ending the life of another, doing so within the sanctity of their own bodies. Abortion constitutes literal  war, waged upon the fetus, within the theatre of the uterus. Because men are not equally impacted by the institution, abortion exists as a virulent form of sexism.

Perhaps because men do not share equally in the costs of sex, they have been silent, yet very powerful proponents of abortion. Men are equally responsible, if not more liable than females, for the abortion institution, a practice that leaves too many women with life-long physical, mental, emotional and psychological scars, all flowing from a “medical procedure” that guarantees a particular fetus will neither cure cancer nor solve the issue of world hunger.

Just like war, or “Russian Roulette,” however, there is nothing “casual” about sex. Entering someone’s body, whether or not it is acknowledged as such, is a “big deal.” Sex is indeed a very “formal” concept, based upon the potential consequences alone. Everyone enjoys a social gathering or party, but only the host is truly implicated by any permanent consequences potentially flowing from the celebratory activities. Women host the “party” of heterosexual intercourse, have much more invested and should both demand and be afforded a far greater commitment to the party from their male counterparts. Logic dictates that the man be invested in having responsibility for the most serious of these consequences, the initiation of the creation process. This does not even account for the emotional and psychological impact of such an intimate exchange.

People tend to be much more willing to engage the mechanisms of war to achieve important social interests, unless the actions which involve violent strife are waged in their own territory. War is tolerable until Americans have to watch (see, Viet Nam War), experience first-hand the realities shared by soldiers and non-combatants, or witness collateral damage via second-hand, verbal recreations of graphic end-of-life scenarios. This one explanation for the euphemisms attached to sexual activity by men.

The true essence of this article is neither sex nor sexism. Its focus is upon the natural consequences of sex: conception and the right of the resultant fetus, at least from the perspective of the fetus, to experience as much life as is possible and a natural death. As a consequence, like slavery, all forms of sexism, including abortion, should be eliminated forthwith, sans delay, in their entirety. What follows are several of the reasons supporting this conclusion. This article asserts that the fetus would, if given the appropriate platform, literally scream, “take your war somewhere else. I’m livin’ here!” We ought to listen, if not empathize with the fetus’ position.

According to the Centers for Disease Control and Prevention (“CDC”), in 2018, out of a population of 327.2 million people, there were an estimated 1.4 million suicide attempts in the United States. Notwithstanding the very real spectra of depression, these numbers at the very least suggest that the vast majority of Americans, 99.6% to be exact, place a premium level of value upon their own lives, choosing to live and to actively do everything in their power to preserve their individual lives.

Putting these concepts together, it can be said with certainty that virtually everyone (99.6% of Americans) is “Pro Life,” at least in the first person voice. 99.6% of Americans would rather not be vacuum aspirated, 99.6% of Americans would choose not to have their bodies hacked into small pieces (with or without anesthetics) until they are dead. When it comes to ourselves, we overwhelmingly seek to survive.

Every human being began life’s journey as a fetus. The fetus is not responsible for the circumstances of his/her creation. Autonomy over one’s body is either a universal truth, without exception, or else it is a fallacy. We call human beings without the ability to make those choices “children.” If I would not want something for myself (death, whether or not painful, before I left the womb), I should certainly not choose that option for someone else. I am certain that, within 100 years, future generations will look upon our era of abortion tolerance in the same prism through which we now view slaveholders; without favor. As established above, men are equally to blame, if not moreso than women, for the existence and promulgation of abortion, an unfortunate societal phenomenon. In the context of the blossoming recognition of human rights, however, continuing to ignore the sovereignty of the fetus defies reason.

If you are reading this article, at some point in the continuum of your life, you existed as a fetus. That is a scientifically indisputable fact. It does not matter whether you believe you were a human being, a potential human being, a life, a group of cells, or any other manner of phrasing. But for your time as a fetus, you would not exist as a person, a human being, someone privileged to be alive today.

I am a lawyer. The most essential quality of my profession is that of relevant focus: we are trained to keep discussion focused upon one subject at a time. Apple seeds do not grow orange trees. An anti-rape discussion should not be de-railed over mention of the victim’s choice of apparel, but should center on the absence of affirmative consent. By way of another example, in too many police abuse cases, the public is frustrated by what it perceives as “injustice,” when what really is at play is the public’s application of the wrong set of rules to a scenarios involving peace officers. Law enforcement officials operate by a different set of rules, as defined by federal and state constitutions. These peace officers are, in many cases, literally licensed to take property, maim or even to kill, no matter how many times citizens engage in civil demonstrations.  But, I digress.

As the numbers suggest, 99.6 % of all Americans believe in the sanctity of life, at least for their individual  selves and the children they are most readily able to perceive. How, then, can we not believe in that sanctity of life for a fetus, the unseen, the most innocent of beings on the spectrum of human existence? How can such disrespect be characterized as anything other than gross hubris, or hypocrisy of the highest order? How can we ignore the “me, too” cry of the fetus?

Albeit of equal importance, this s not a discussion of the pregnant mother’s plight. This is also not an examination of the incredible racism which institutions like Planned Parenthood have exacted as an extension of its eugenic roots. These are worthy topics, but fodder for another day.

If, for example, a bank has hours of operation, we expect that anyone entering the bank during those hours will be served by the people working there. As long as a bank patron complies with the basic rules of comportment and dress, she will be served. If the bank closes at 5:00 p.m. and a patron runs to the entrance door and manages to step inside at 4:59 p.m., merely seconds before the security guard locks the front door at closing, said patron will be served by the bank professionals. It does not matter how the patron traveled to the bank, how much money the patron has within the bank, where the patron is with respect to the line of customers who are already waiting to be served, or even how long the line is. Those patrons making it inside the front door by the appointed time will  be served. They are each “conceived,” having gained  timely entry to the bank, within its hours of operation. The bank professionals will serve every patron within the bank, who has arrived before the doors were officially closed.

The patrons at the front of the lines within the bank, though they have seniority, have no more rights than the patron who enters seconds before the front doors are locked. It would be ludicrous to differentiate between the patron who enters the bank a 9:10 a.m., minutes after opening, and the patron who gains admission to the bank by the slimmest of margins. They are all patrons, with precisely equal privileges and immunities. No arbitrary “cut-off” can be made with respect to the line of customers. One is either a customer or not (i.e. a person arriving at 5:05 p.m., after the bank has closed for the day).

It is critical to note that this discussion about the bank patrons’ relative rights has nothing to do with the rights of the bank professional workers who must serve the patron. This is not to suggest that bank professionals have no rights, nor that those rights are not extremely important. The rights of bank professionals is simply not the topic of our present consideration. We do not concern ourselves with  the bank professionals’ convenience, or even the lack thereof, in the discussion about doing what is in the best interests of  the bank customer. We do not consider whether the bank professionals will be late getting home because of the influx of customers at the last minute. We don’t consider whether the bank professionals are in a bad mood, aren’t feeling well, have been overworked. We focus on the patron, as we should, because he issue of customer service is given priority over employee satisfaction. The well-being of the customer is valued by the bank. Relatively late-arriving patrons (those who enter the door at 4:59 p.m.) are a fact of life. The bank has to adapt, learn to serve these customers, if it wants to stay in business.

The same must be said about the fetus. Scientists disagree about the precise moment in time, but there is universal agreement concerning the fact that the fetus is able to feel pain at some point. There’s even general agreement that the fetus, once born, has inalienable rights. The fact that science is incapable of measuring the pain threshold of the fetus at the moment of conception, does not mean that said fetus is incapable of experiencing pain, at that very moment. The moon existed eons before humans  stepped foot upon it. The fact that we are incapable of understanding precisely what the fetus is trying to say, during the moments when said fetus recoils from the approaching forceps, the ministers of death, does not mute the voice of the fetus in the annals of human history. If we can save the whale, cows, pigs and other voiceless creatures, we can advocate on the fetus’ struggle to be recognized as a part of the human family, immune from wanton destruction sans due process.

Just to be 100% clear, as an American citizen I am responsible for the practice of abortion to the extent that I take no action to: (a) cease the institution and (b) make the world a more suitable place in which fetuses can mature. I have neither heaven nor hell to put anyone into and have more than enough to do in the context of removing the many planks from my own eyes. Said “planks” include having engaged in the very same pre-marital, pre-comitted relationship  “sexual gymnastics” being criticized within this article. I have contributed, in various ways, to the oppressive culture I now write to critique. Again, this is fodder for a different discussion. Paul was Saul, before he traveled the road to Damascus. A carpenter need not sacrifice his right thumb, after first smashing the digit on his left hand. I just do not believe that I should make a choice for another human being that I would not make for myself, since such renders me a hypocrite.

A vasectomy in a man is the equivalent of various forms of birth control for females. This is a different discussion, one that centers around whether we should promote sex outside the bounds of love. The question of who should be parents is also a different topic. Technology has advanced to the point where a fetus can be transplanted from one womb to another, even to an artificial womb. The odds for a successful procedure are not great, but were I still a fetus, I would certainly opt for the “transplant,” over the “blender” or “saline” realities. The fact that we can’t discern the fetus’ will, or his/her pain threshold does not negate its existence.

That two people make a poor decision about when to have sex, or even in the event of rape, the life that is created should not be made to pay the ultimate price-forfeiture of the only life s/he will ever be privileged to know. If I run to the bank and am able to get into the door (be “conceived” as a customer), just before it closes, I am entitled to be served. It is not “convenient” for the tellers, but I made it by the “deadline.” Conception is that “door.” A fetus should be allowed to choose whether s/he wants to live. The fetus is not a part of anyone else’s body, albeit dependent upon the mother, blessed to have the responsibility. The fact that my car is parked in my neighbor’s garage does not give the neighbor the right to destroy my car, no matter how it got there.

The “me, too” movement is a wonderful thing. There is no logical rationale for denying the fetus a similar platform. If the fetus does not want to live, let s/he tell us at the appropriate time, at the age of majority. Even then, we will most likely expend resources for counseling the living being, attempting to convince her/him to hold on to precious life . Until such emancipation, however, the guardian ad litem and even the state has an interest in promoting the sanctity of life.

The burden of carrying the conceived being to birth falls unevenly upon women. The issues surrounding of how that burden should be borne, via transplant of the fetus to a willing host, adoption, improved pregnancy provisions within employment, though infinitely important, have absolutely nothing to do with the fetus’ right to live. An over-crowded planet should result in pregnancy prevention not ending lives which have already begun. Again, different topic for a different day.

We conflate these issues at our own peril, recreating cognitive dissonance of a level not seen since the Slave Question. It was really never a “question” at all, just a matter of perspective.  It was not “convenient” for the slave-owner to “relinquish” his property. Emancipation resulted in tremendous economic hardship for hundreds of thousands of slave owners. A prolonged, armed conflict, pitting brother against brother was waged in an effort to resolve the conflict. We now recognize the fact that it is impossible to “free” what you do not own. One human cannot, under any circumstances, own another.

How much more monumental is the concept that a person should never destroy what he did not create. The parent does not “own” the child, at any point in the continuum of life, though integral to the creation process. Just like the chisel, the brush and the typewriter, relative to Michelangelo’s “David,” daVinci’s Mona Lisa and Toni Morrison’s “Bluest Eye,” the tool, no matter how integral the artistic masterpiece, can never be the Creator.

Fetus’ body, fetus’ choice. Peace and God bless.

Article originally published on iknow.media

 

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.[1]

The civil exchange of divergent or even opposing ideas is the lifeblood of America’s representative democracy. Unfortunately, the national dialogue concerning the Covid-19 pandemic has threatened more than our collective physical well-being. Instead of reasoned debate, we have too often witnessed attempts to silence dissent through irresponsible (at best) and malicious (at worst) personal attacks. Our representative democracy may be in critical condition.

On September 17, 2020, Coach Ken Leonard, the winningest high school football coach in Illinois’ history, participated in a WMAY Morning News Feed radio program. Such a broadcast is traditionally characterized as a “public forum,” airspace that is open to the public, where information is freely exchanged. As far as the First Amendment to the U.S. Constitution is concerned, the public forum is “holy ground,” the arena in which the right to freedom of expression is supposed to enjoy the most protection.

The subject of the interview was the decision of Illinois Governor J.B. Pritzker to cancel certain fall sports, including football, volleyball and soccer. Governor Pritzker preempted these sports through the exercise of his “police powers,” the ability to protect the welfare, safety and health of the state’s residents, particularly in the context of natural disasters. The Covid-19,or corona virus,  pandemic of 2020 invokes these police powers via Section 7 of the Illinois Emergency Management Agency Act.

During the radio broadcast, Coach Ken Leonard stated that his late father was a World War II soldier, a veteran of the 3^rd Army and a staunch Democrat. Coach Leonard’s father told all six of his children, “don’t ever let them take your guns and do not let them get you like sheep, where they just tell you what to do cause that’s just what the Germans and the Jewish people did at that time.”

What the elder, World War II veteran Leonard told his children, including Coach Ken Leonard, is a matter of empirical fact. Coach Leonard continued in the radio broadcast to say (1) that Governor Pritzker’s policies had the impact of telling parents that he knows how to “parent” their children better than the parents themselves; (2) that Governor Pritzker represented that he would keep the children safe; (3) that such decisions were properly made by parents themselves; (4) that the disruption of the educational structure, including participation in athletics was rendering irreparable and unnecessary harm to student-athletes’ mental health; (5) that Governor Pritzker’s decision to cancel Illinois High School Association (“IHSA”) high school football, volleyball and soccer in the fall of 2020, while neighboring states, including Indiana, Wisconsin and Kentucky, enjoy these same extra-curricular activities, had been made with neither adequate explanation to nor communication with the impacted groups; (6) that by withholding explanations, Governor Pritzker was not governing, but ruling, acting as would a king.

Coach Leonard’s objection to the autocratic nature of Governor Pritzker’s decision to cancel fall sports was met by a direct email response from Governor Pritzker’s press secretary Jordan Abudayyeh: “Throughout this pandemic the vitriolic minority who rejects science has compared public health guidance from medical experts to the atrocities that took place under a hateful dictator who oversaw the murder of millions of people. Those who make these incendiary comparisons either don’t understand history or are blatantly using these comparisons as a way to disguise their anti-Semitism. As a founder of the (Illinois) Holocaust Museum, Governor Pritzker has spent his life dedicated (to) fighting bigotry and hatred and as governor he has prioritized the health and safety of Illinoisans amid this pandemic and will continue to do so.”

Instead of providing the rationale for the decision to maintain the cancellation of fall sports, in response to Coach Leonard, Governor Pritzker’s press secretary resorted to name-calling and defamed Coach Leonard. Defamation in Illinois is defined as (a) a false statement about the victim; (b) an unprivileged  (i.e. unjustified ) publication of that statement to a third party; and (c) damage caused to the victim. Mr. Abudayyeh’s words were so harmful that they can be described as defamatory per se, a type of “clear-cut” defamation: the allegation of anti-Semitism against a coach at a Catholic high school constitutes a charge of behavior, racism, that is incompatible with the proper conduct of Coach Leonard’s profession.

It should be noted that, though Governor Pritzker’s press secretary did not specifically name Coach Leonard, the circumstances presented (also known as “colloquium”) allow for the logical conclusion that the statement was directed towards Coach Leonard and was defamatory as to him. The comments were made in specific response to Coach Leonard’s words.

This was a particularly inappropriate response, apparently aimed at silencing and not engaging Coach Leonard. No one wants to be labeled an anti-Semite. No one, however, should have to fear such castigation, as the price for voicing objection to the decision of the person wielding police powers.

Nothing within Coach Leonard’s statements was “vitriolic,” defined as “filled with bitter criticism or malice.” To label Coach Leonard’s comments as such was false.

No part of Coach Leonard’s statements could be interpreted as a “reject[ion of] science.” This deliberately false claim was apparently intended to discredit Coach Leonard and to paint him with broad and stereotypical brush.

Coach Leonard made no comparisons between “public health guidance from medical experts” and a “hateful dictator who oversaw the murder of millions of people.” Instead, Coach Leonard referenced the vulnerability of people who trusted governmental authority without question, as indicative of persons who have relinquished their right to self-defense through gun ownership.

Most significantly, Coach Leonard did absolutely nothing to deserve the suggestion that he made comparisons to hide his own “anti-Semitism.” Besides quoting his late father and voicing an opinion in favor of voicing dissent to government authority, there is historical support for Coach Leonard’s assertions. Similar arguments, for and against gun control, were made in the 1920s, relative to Germany’s Weimar Republic. There, the people opted for gun registration. Law-abiding persons complied with the law, but the “Communists and Nazis, committing acts of political violence” did not. Germany’s Weimar Republic’s well-intentioned gun registry became a tool for evil.[2]

Apparently, it is Governor Pritzker’s press secretary who is in need of the history lesson. Coach Leonard’s quote of his late father was an historical reference to decisions made by people in power before the world’s most notorious dictator assumed power. There was absolutely nothing anti-Semitic about what Coach Leonard said.

The use of the “bully pulpit” by Governor Pritzker’s press secretary had its intended “silencing impact.” On September 23, 2020, without communicating with Coach Leonard, Sacred Heart Griffin (“SHG”) issued a statement: “Sacred Heart-Griffin High School denounces any form of hate speech including anti-Semitism and in no way supports the comparison of COVID-19 restrictions to the Holocaust.” SHG has been Coach Leonard’s employer since 1984,  Tragically, SHG’s statement incorporated the over-reaching mischaracterization of Coach Leonard’s words. Coach Leonard had never mentioned the Holocaust, but had voiced opposition to blind acquiescence in the face of what he believed to be Governor Pritzker’s irrational exercise of his authority. Coach Leonard dissented and was demonized for the act.

SHG’s decision to ratify defamatory comments from Governor Pritzker’s office is disappointing. The defamatory comments themselves, however, are unconscionable. Governor Pritzker owes a reasoned response to Coach Leonard’s query: What conditions must be met, in terms of Covid-19 testing positivity rate, in order to resume the cancelled fall sports?

Governor Pritzker owes Coach Ken Leonard a public apology. It will be interesting to see whether such is rendered with the same speed as was the defamatory, “gas-lighting[3]” statement, an ostensible attempt to distract from the issue raised by Coach Leonard’s honest assessment-accountability. It will be equally interesting to gauge whether Governor Pritzker simply chooses to be “wrong and strong.” Integrity has neither a political party affiliation nor an expiration date. Peace and God bless.

[1] Othello, Act 3, scene 3, lines155–161, by William Shakespeare.

[2] How the Nazis Used Gun Control, by Stephen P. Halbrook,  December 2, 2013, The National Review.

[3] “Gas-lighting” is a form of psychological manipulation in which a person seeks to sow seeds of doubt in a targeted individual or in members of a targeted group, making them question their own memory, perception, and sanity.

Article originally published on iknow.media

Introduction “Call me Nixon.¹ ”

As an undergraduate, during my efforts to join the nation’s oldest Black collegiate fraternity, I was chosen by my peers to serve as the president of our group of pledges, also known as a “pledge line.” It was the spring of 1988. Since President William Jefferson Bill Clinton would not be impeached for another ten (10) years ² , at the time I was engaged in the college life Richard M. Nixon was the name most readily associated with presidential impeachment³ . Consequently, following a particularly egregious mistake of my own concoction, one of the fraternity members not-so-affectionately dubbed me “Nixon.” His was a joking reference (at least I hope), a not-so-subtle suggestion that my exhibitions of leadership warranted impeachment. My esteemed “big brother” was implying that I should be unceremoniously removed from office, my position of pledge line president, before the conclusion of my term!

Within the first one-hundred (100) days of his presidency, Donald J. Trump has presented a formidable challenge to the existence of the American form of government. American citizens shall either proceed as a nation respectful of the rule of law, rules chosen by the people, or else be resigned to exist as a people susceptible to worshipping the principles of “white male privilege” and/or “white male immunity from scrutiny”⁴ . Thankfully, the Framers of our republic foresaw Mr. Trump, or at least facsimiles thereof, and embedded safeguards within the Constitution to deal with him. We need only unpack them.

As with many legal terms of art, “impeachment” has been widely misunderstood and misused. There is more to the term than what initially meets the eye. “Sexual assault” serves as a vivid example of common colloquial misapplications of legal terminology. When actual physical, sexual contact is involved, whether in the criminal or civil context, the legally precise term is

¹ Ode to author Herman Melville, who published Moby Dick in 1851. As “Ishmael,” I will “in some dim, random way, explain myself I must, else all these [paragraphs] might be naught.’” ² The Clinton impeachment proceedings were initiated on December 20, 1998. ³ It may be noted that I am more than a little grateful that none of the t-shirts and sweaters bearing my fraternity nick-name features the “Clinton” nomenclature. It is also interesting to note that there have only been two (2) sitting U.S. Presidents who have been formally impeached. Contrary to popular belief, neither impeached president was named, “Richard M. Nixon.” Presidents Andrew Johnson and William Jefferson Clinton are the only presidents for whom the impeachment process went as far as a Senate trial; President Nixon resigned in 1974 before the House could vote on impeachment. Like President Johnson in 1868, President Clinton was acquitted by the Senate in 1999.

⁴ This article will not repeat the instances of white male privilege exhibited by Mr. Trump. From his May, 1989 calls for the execution of wrongfully accused juveniles in New York City, to his 2005 boasts concerning his own engagement in acts of sexual battery or his 2016 denigration of a disabled news reporter, Mr. Trump’s actions have been widely chronicled. My focus is also not upon the apparent double standard that is ostensibly being used to compare the behavior of President Barack H. Obama and President Trump. I write instead to articulate a recipe for removing the largest threat to our democracy since the Second World War.

“sexual battery.” An “assault,” sexual or otherwise, describes merely the reasonable apprehension of an offensive, or harmful, physical contact. Everything, in other words, leading to the harmful contact. “Battery” involves an intentional physical contact, of a harmful or offensive nature. Circumstances can indeed involve both an assault and a battery, but it is technically inappropriate to label physical violence as assault, since it blurs the legal distinction between apprehension and actual contact.

Similarly, “impeachment” is the process by which a legislative body formally levels charges against a high-ranking government official. The impeachment process does not necessarily include ultimate removal from office. Removal, however, is precisely the connotation that has been given to the word. In reality, the impeachment process is only a formal statement of charges, tantamount to a criminal indictment. Thus, impeachment is the first step in the process of towards removal of a government official. Once an individual is impeached, he or she must then face the possibility of conviction via legislative vote. Only when there has been a finding of liability, a conviction demonstrating guilt relative to the charges, does the process entail the removal of the individual from office.

A Brief History of U.S. Presidential Impeachments

The word “impeachment” is taken from its Latin root, impedicare, meaning to become caught or entrapped. In its most common context, the impeachment of a witness refers to the process of challenging the honesty or credibility of that person through a series of questions. Asking a witness to answer a question, to which the questioner knows the truthful answer, is a common method of impeaching a witness. The damning or “uncomfortable” facts, however, must first be in the possession of the interrogator.

The evolution of America’s impeachment process for governmental officials is an interesting one. Alexander Hamilton, in The Federalist No. 77, suggested that the budding nation would find “republican” safety from a presidential abuse of power (1) from the manner in which presidents are elected and (2) within the fact that the President is “at all times liable to impeachment.” Mr. Hamilton’s influence was felt in the ultimate appearance of impeachment within the four corners of the United States Constitution.

According to the United States’ Constitution, Article I, § 2, cl. 5 “The House of Representatives … shall have the sole Power of Impeachment.” The representatives have to start the process against President Trump, or levy the formal charges. In Article II, § 4, cl. 1, the Constitution enumerates, that the President, Vice President, and “all civil Officers of the United States,” including judges, can be impeached.5Accordingly, if reasonably suspected of engagement in criminal or otherwise illegal activities, President Trump is subject to impeachment.

Once the charges have been brought, they have to be proven before a formal tribunal. In the case of the President of the United States, that formal tribunal is the U.S. Senate. According to Article I, § 3, cl. 6, the “Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried,

⁵ Members of Congress can only be expelled by their own respective body. [Article I, § 5, cl. 2.] the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” In order for President Trump to be convicted on any charge, two thirds of the Senate must find the charge to be true.

According to the Office of the Clerk of the U.S. House of Representatives⁶ , the House presently consists of 237 Republicans, 193 Democrats and 5 vacancies. An article of impeachment, or a charge, requires a majority of Representatives to vote in favor of formal levying against the President. In political terms, presuming all Democrats supported such an article, President Trump, the Republican nominee during the 2016 Presidential Election, an article of impeachment would have to be supported by at least twenty-three (23) Republican Representatives.

The Constitution does not indicate precisely the manner in which how impeachment proceedings are to be initiated. Early in American history, Representatives would propose an impeachment article on the Floor of the House. The article of impeachment would then be assigned to a committee. Over at least the past fifty (50) years, Members of the House Judiciary Committee have initiated the proceeding and then made recommendations for the cumulative body’s consideration. When the House of Representatives votes in favor of an impeachment article, the Chairperson of the House Judiciary Committee nominates “managers,” to be approved by the entire the House. These managers bear the responsibility for presenting the case for prosecution in the Senate.⁷

During a period of time, legislation empowered the Attorney General to appoint a “special prosecutor,” or an independent counsel to recommend impeachment articles to Congress. Congress chose not to renew the statute authorizing such unchecked independent counsels.

The Senate is currently made up of fifty-two (52) Republicans, forty-six (46) Democrats and two (2) Independents. Accordingly, relative to any article of impeachment, presuming all Democrat Senators find a particular article of impeachment to be true, twenty (20) additional Senators, some combination of Republicans and Independents, would have to also cross the aisle.

At this point, it is easy to appreciate the brilliance of the “checks and balances” system. President Trump is accountable to the People, even while in office. What is necessary for the People to hold him liable, however, is consensus on “impeachable offenses.” To determine precisely what is an “impeachable offense,” it is helpful to look at past Presidential impeachments.

The Impeachment Trial of President Andrew Johnson

President Andrew Johnson became the first president to be the subject of articles of impeachment when, in February of 1868, the Republican-controlled House of Representatives charged the Democrat Johnson with eleven (11) articles of impeachment for “high crimes and misdemeanors.”⁸

⁶ http://clerk.house.gov/member_info/cong.aspx [3/30/17] ⁷ The Heritage Guide to the Constitution, by Stephen B. Presser, 2012. ⁸ It is important to note that there is no minimum threshold number of the articles of impeachment. One article suffices. In 1998, President Clinton was charged with two (2) articles On March 5, 1868, the U.S. Senate convened the trial of President Jonson, centered on issues surrounding Johnson’s post-Civil War Reconstruction policy. Of particular interest was his firing of Secretary of War Edwin Stanton.

President Johnson had ascended the Presidency upon the assassination of President Abraham Lincoln. President Johnson created many Congressional opponents because he resisted the implementation of many Civil War reconstruction policies, which had been authored by Congress. At that time, the War Department was the federal agency charged with executing reconstruction programs in the southern states.

The eleven (11) articles of impeachment against President Johnson included illegally firing the secretary of war and violating several Congressional reconstruction acts. The articles of impeachment also accused the president of engaging in libelous “inflammatory and scandalous harangues” against Congressional members whom he called “traitors.”

President Trump has fired Sally Q. Yates, acting Attorney General of the U.S. Department of Justice and Preet Bharara, the U.S. Attorney for the Southern District of New York. Since there are “bigger fish to fry,” in terms of President Trump’s apparent transgressions, I will not analyze these terminations for the purpose of service as potential impeachment articles.

President Donald Trump’s accusations that his predecessor President Barack Obama had Trump Tower wiretapped could be determined an act of libel. Libel, though not a criminal act, is a violation of civil law, resulting in liability for monetary damages. Proof of libel would require the plaintiff, i.e. President Obama, to demonstrate that President Trump knew his claims of wiretapping were false, or made the claims “with reckless disregard of whether it was false or not.” U.S. Supreme Court case New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Based upon his first 100 days, demonstrating recklessness on the part of President Trump does not appear to be a daunting challenge, at least to this Ishmael/writer. Though there are even bigger fish to fry, I would suggest that the actions consisting of grounds for President Obama’s libel allegation be tossed into the proverbial frying pan.

On February 24, 1868, the House passed all eleven (11) articles of impeachment against President Johnson, which moved the process to its next phase in the Senate.

The Senate trial lasted until May 26, 1868. President Johnson refused to attend any of the proceedings. Nothing in the Constitution required him to be present, absent a subpoena. Kansas Senator Edmund Ross, a Republican, was the “swing vote” necessary to convict President Johnson. On May 26, 1868, Senator Ross cast the deciding vote to acquit Johnson. // // of impeachment for obstruction of justice during an investigation into a sex scandal. In 1974, President Nixon was in the early stages of being presented with three (3) articles, due to his alleged involvement in a political burglary cover-up.

The Near Impeachment of President Richard Nixon

In 1972, there was a burglary, a break-in at the Democratic National Committee headquarters, located within the Watergate office complex in Washington, D.C.A Congressional investigation was undertaken to investigate the 1972 and the Nixon Administration’s attempted cover-up of its involvement.

There were proceedings and hearings at the House of Representatives Judiciary Committee and a bill of impeachment reported to the House against President Richard M. Nixon. Following a subpoena from the Judiciary Committee, in April 1974 edited transcripts of many Watergaterelated conversations from the Nixon White House tapes were made public by President Nixon. The Judiciary Committee persisted, demanding unedited audio tapes and additional conversations. President Nixon refused to comply, citing Executive Privilege, but on July 24, 1974 the U.S. Supreme Court ruled that President Nixon would have to produce the requested evidence

It is worthwhile to pause again here, to recognize the checks and balances at work. Congress, the Legislative Branch, the people’s direct representatives, is the body that makes the law. The Judicial Branch, consisting of the courts, interprets those laws, ensuring that they are consistent with the privileges and immunities of the U.S. Constitution. The Executive Branch, led by the President, has the responsibility to enforce the law. No Branch can act independent of the watchful eye of the other two. While President Nixon was being investigated by Congress, the Courts ensured the process was constitutionally sound.

On July 27, 1974, July 29, 1974 and July 30, 1974, the House Judiciary Committee approved three (3) potential articles of impeachment against President Nixon:(1) obstruction of justice, (2)abuse of power and (3) contempt of Congress. The House Judiciary Committee reported those articles to the House of Representatives. Two other articles of impeachment were debated but not approved. The articles were scheduled for a House of Representative vote. Before the House could vote on the impeachment resolutions, President Nixon made public one of the additional conversations, known as the “Smoking Gun Tape”, which made clear his complicity in the coverup. With his political support completely eroded, Nixon resigned from office on August 9, 1974. President Nixon resigned on August 9, 1974, before the full House of Representatives voted on the impeachment articles levied against him. It is widely believed that had Nixon not resigned, his impeachment by the House and removal from office by a trial before the United States Senate would have occurred.

The Impeachment of William Jefferson Clinton

In December of 1998, the House of Representatives approved, 228 to 206, the first article of impeachment, accusing Mr. Clinton of perjury for misleading a Federal grand jury on August 17, 1998 about the nature of his relationship with a White House intern, Monica S. Lewinsky. A second article of impeachment, charging President Clinton with obstruction of justice, passed on a narrower vote of 221 to 212. The Second article accused President Clinton of inducing others to lie in order to conceal his affair with Ms. Lewinsky.

Two more charges against Mr. Clinton were defeated. An article accusing the President of perjury in the Paula Jones sexual harassment lawsuit was rejected, 229 to 205, with 28 Republicans breaking ranks. The House of Representatives voted against, 285 to 148, an accusation of abuse of power stemming from Mr. Clinton’s legalistic answers to 81 questions from the House Judiciary Committee.⁹

Impeachment articles concern actions taken while in office. To date, no evidence suggests that President Trump has engaged in sexual harassment while serving as President. His 2005 boasts notwithstanding, there is “nothing to see here,” relative to any potential sexual harassment impeachment article.

President Trump’s Violation of the Foreign Emoluments Clause

Now that the impeachment process has been outlined, I believe that President Trump should be impeached for violation of the Foreign Emoluments Clause and Treason. The actual articles of impeachment, like those detailed above, would include obstruction of justice, contempt and “moral turpitude” language, but the charges would all include this central theme: President Trump has used the Office of the President of the United States for personal, financial gain, to the point of jeopardizing national security and to the benefit of a foreign adversary, Russia. Such actions also constitute treason, as defined in the immediately proceeding section.

President Trump has engaged in actions which might be ultimately interpreted as violations of Article I, § 9, cl. 8 of the United States Constitution, the Foreign Emoluments Clause, states “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

A federal officeholder who receives something of value from a foreign power can be imperceptibly induced to compromise what the Constitution insists be his or her exclusive loyalty: the best interest of the United States of America. And rather than guard against such corruption by punishing it after-the-fact, the Framers concluded that the proper solution was to write a strict rule into the Constitution itself, thereby ensuring that shifting political imperatives and incentives never undo this vital safeguard of freedom.¹⁰

The Framers of our nation’s governmental structure believed that private financial interests could influence even the most virtuous leaders. These Framers thought further that entanglements between American officials and foreign powers could pose an insidious threat to the Republic. In other words, the Framers were wary of conflicts of interest.

⁹ “Impeachment: the Overview — Clinton Impeached; He Faces a Senate trial, 2d in history; vows to do Job Till Term’s ‘Last Hour,’” New York Times, By Alison Mitchell, Dec. 20, 1998. ¹⁰ Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 18 (1994) (“Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government.”).

Though federal courts have not had many chances to interpret the Federal Emoluments provision, President Trump has, seemingly for not the first time, forced the issue. President Trump has engaged in the following behavior, each possibly11 implicating the foreign emoluments clause: (a) leases held by foreign-government-owned entities in New York’s Trump Tower; (b) room reservations and the use of venues and other services and goods by foreign governments and diplomats at Defendant’s Washington, D.C. hotel; (c) hotel stays, property leases, and other business transactions tied to foreign governments at other domestic and international establishments owned, operated, or licensed by Defendant; (d) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program “The Apprentice” and its spinoffs; and (e) property interests or other business dealings tied to foreign governments in numerous other countries.

As Erwin Chemerinsky, Dean, University of California, Irvine School of Law, noted: “The Constitution is explicit that the President cannot profit from a foreign government without congressional approval and there is no doubt that President Trump has been violating the Constitution since he took the oath of office.”¹²

Impeachment Based Upon Allegations of Treason

According to 18 U.S. Code § 2381, “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

I am aware of no evidence, direct or circumstantial, linking President Trump to an effort to aid an foreign sovereign enemy of the United States. Congress and the Federal Bureau of Investigations, however, are searching for precisely such a connection. Below is an outline of what is known to date.

Russia’s largest export consists of fossil fuels. Here are the comparative comprehensive percentages of Russian exports:

1. Mineral fuels including oil: US$134.7 billion (47.2% of total exports).
2. Iron, steel: $14.1 billion (4.9%)
3. Gems, precious metals: $8.9 billion (3.1%)
4.  Machinery including computers: $6.8 billion
5. Fertilizers: $6.6 billion (2.3%)
6.  Wood: $6.5 billion (2.3%)

¹¹ After 22 years of practice, I can state unequivocally that the law is truly in the eye of the beholder. The same issue, taken in front of two different judges, can be interpreted in two, distinct manners. That is why the Supreme Court has nine (9) seats, with the lion’s share of American history’s most critical decisions being 5-4 majority opinions. ¹²Citizens for Responsibility and Ethics in Washington v. Trump, CV-17-00458, United States District Court for the Southern District of New York.

7.  Aluminum: $6 billion (2.1%)
8. Cereals: $5.6 billion (2%)
9.  Electrical machinery, equipment: $4 billion (1.4%)
10. Copper: $3.3 billion (1.2%)¹³

Rex Tillerson is the Secretary of State, appointed by President Trump and confirmed on February 1, 2016. Mr. Tillerson was Chief Executive Officer of ExxonMobil, an oil conglomerate, from 2006 to 2016. In 1999, Rex Tillerson initially met Vladimir Putin, President of the Russian Federation, on the Sakhalin island in Russia’s Far East. There Exxon struck a deal with Russian state-owned oil giant Rosneft.¹⁴

Rex Tillerson has been awarded Russia’s “Order of Friendship,” one of the highest honors Russia gives to foreign citizens.¹⁵ ExxonMobil has invested billions of dollars on Russia’s vast, difficult to harvest oil resources through the partnership with Rosneft. Putin himself attended the 2011 signing ceremony for the deal with Rosneft, which is majority owned by Russia. In 2012, Igor Sechin, a close friend of Putin and the chairman of Rosneft, described the partnership as a “giant leap forward” and argued it’s “more ambitious than man’s first walk in space or sending a man to the moon.” Id. The two men have met a number of times since then, as Tillerson continued building a relationship with Putin through his business interests in Russia.¹⁶

The ExxonMobil deal was financially significant to Russia. Sechin, who was also then the deputy prime minister of Russia, stated that after the ExxonMobil agreement was signed, the valuation of Rosneft increased by $7 billion, over the course of merely five (5) days. Id. The partnership also gave Rosneft the chance to get a stake in ExxonMobil’s North American projects, including ones in West Texas and in the deep waters of the Gulf of Mexico. Id. Rosneft and Exxon were enthusiastic about the deal and expanded it in 2013.

The ExxonMobil deal with Rosneft was abruptly canceled in 2014. Under President Obama, the U.S. imposed sanctions on Russia. At stake were the Russian its annexation of Crimea and an invasion of Eastern Ukraine. Rex Tillerson sharply condemned the sanctions, saying they caused “broad collateral damage.¹⁷ ”

ExxonMobil suffered significant financial losses, as a result of the U.S. and European Union sanctions that targeted Russia for its intervention in Ukraine. Under Mr. Tillerson, ExxonMobil claimed it could have lost up to $1 billion due to the sanctions, according to regulatory filings. Id.

¹³ “Russia’s Top 10 Exports,” March 19, 2017, by Daniel Workman, http://www.worldstopexports.com/russias-top-10-exports/ ¹⁴ “A timeline of Rex Tillerson’s relationship with Russian President Vladimir Putin,” by Sonam Sheth, Business Insider, December 13, 2016 ¹⁵ “Behind the deep ties between Exxon’s Rex Tillerson and Russia,” December 11, 2016, by Matt Egan, Julia Horowitz and Chris Isidore @CNNMoneyInvest ¹⁶ Business Insider, Id. ¹⁷ Business Insider, Id.

Prior to the 2016 election, ExxonMobil new that it would gain financially, were sanctions lifted on Russia by the new administration. Id.

Former National Security Adviser Michael Flynn resigned from the White House, after reports surfaced that he misled senior White House officials — including Vice President Mike Pence — about his communications with Russia. If it is determined that Mr. Flynn broke the law by discussing Obama-era sanctions against Russia with the ambassador to Russia before Trump was sworn into office, Mr. Flynn could be charged with treason.

The Department of Justice, then led by acting Attorney General Sally Yates, who was later fired, had reportedly warned the White House about risks Flynn posed to the administration, citing possible vulnerability to blackmail by Russia in January of 2017. ¹⁸

A financial incentive is apparent relative to President Trump’s “friendly” demeanor towards Vladimir Putin’s Russia. Evidence of treason is difficult to ascertain. If and when it is uncovered, however, it is my hope that this article will be of assistance in understanding the historical and technical contexts of the impeachment process. At that point, “Trump” will replace “Nixon” and “Clinton” as nomenclatures most closely associated with impeachment.

¹⁸ “Flynn’s call to lock up Clinton resurfaces after resignation,” By Jennifer Calfas, http://thehill.com/blogs/blog-briefing-room/news/319397-flynns-call-to-lock-up-clintonresurfaces-after-resignation – 02/14/17

 

Article originally published on iknow.media

Introduction

Bill Cosby is a world-renown comedian and actor, a person regarded by many as a philanthropist, who is alleged to be a serial rapist. Bill Cosby has been described as a man who surreptitiously drugged dozens of his victims, for the purpose of satisfying his perverted sexual appetite, over the course of more than fifty (50) years. He has escaped criminal prosecution, save for the case involving one survivor, Andrea Constand. Ms. Constand’s allegations within the state of Pennsylvania culminated in a prosecution that ended in a June 17, 2017 mis-trial.

The subject of rape is not a funny one, no matter who promulgates the crime. Bill Cosby is properly associated with a legacy of brilliant comedy, based upon his countless and poignant insights to the childhood realities which are shared by millions of Americans, across racial, ethnic and regional divides. Perhaps Bill Cosby’s most well-known character portrayals, in the person of “Heathcliff Huxtable” from “The Cosby Show,” espoused unassailably positive values, earning the unmitigated trust of the nation, as indicated by the “America’s Dad” title bestowed upon the once-beloved actor and comedian. Bill Cosby is also properly associated with a legacy of sexual assault that includes rape.

Bill Cosby is an artist. His work in comedic acting consists of mimicking reality; art derives value to the extent that it reflects truth. American society can enjoy the art, which may itself be pure, while reviling the personal actions of the artist, which occur “in real life,” in private spaces. For a society to operate with any semblance of justice, it is necessary to condemn the sin, yet love the sinner; fairness dictates that the criminal justice system mete out punishment to the purveyors of criminal behavior without even a scintilla of bias.

As demonstrated further within this article, by his own admission, “America’s Dad” is a serial rapist. Under an apparent presumption that criminal statutes of limitation shield the vast majority of his crimes from prosecution, Bill Cosby has already “confessed” to having committed these jailable offenses. Because the federal criminal code contains, seldom-used, but viable criminal statutes under which his actions can be penalized, Bill Cosby should be held accountable. When it comes to appropriately reconciling Mr. Cosby’s criminal behavior, America seemingly must resort to the tried and true, “this is going to hurt me a lot more than it will hurt you,” philosophy.

The objective of this article is to illuminate the specific path along which United States Attorneys can judicially prosecute Bill Cosby on behalf of at least a half-dozen sexual assault victims. This missive also seeks to outline the reasons the Department of Justice should embark on such a course.

Mann-up to Prosecute a Major Entertainment Celebrity

The Mann Act is federal legislation that was codified in 1910. The Mann Act is also known as the White-Slave Traffic Act, 18 U.S.C. §§ 2421–2424. Named after James Robert Mann, a United States Congressman from Illinois, the series of laws that comprises the Mann Act was intended to eliminate both prostitution and that strain of human trafficking that was designed to proliferate the sale of sexual activity. The Mann Act is one example of “moral reform” legislation created during what is known historically as “the progressive era.” The Progressive Era was a period of widespread social activism and political reform across the United States, from the 1890s to the 1920. [John D. Buenker, John C. Burnham, and Robert M. Crunden, Progressivism (1986) pp 3–21.] It is doubtful that its drafters could have imagined that these laws would one day be integral to the prosecution of a comedian and actor of almost unparalleled celebrity, a person accused of sexually assaulting more than sixty (60) women.

Seemingly advised that his violent, clandestine attacks upon women were protected by the significant passage of time, that his crimes were too old to result in valid prosecution, Bill Cosby has projected a noteworthy arrogance in the face of his accusers. For example, while defending himself in a 2005 civil lawsuit for sexual battery, Bill Cosby was asked during his deposition about his possession of illicit recreational drugs. The depositions which were central to the December 30, 2015 Andrea Constand criminal charges ultimately filed against Bill Cosby were conducted on September 27 and September 28, 2005 in Constand v. Cosby, Civil Case No. 05-1099. In response, as delineated more specifically below, Bill Cosby unwittingly admitted to having independently violated two (2) of the federal criminal statutes which are found within the Mann Act. Bill Cosby acknowledged in this deposition testimony that he had engaged in actions which violate 18 U.S.C. §2421 (transportation of another person for illicit sexual purposes) and 18 U.S.C. §2422 (coercing or enticing travel of another for illicit sexual purposes). Upon conviction, each of these laws carries a penalty of up to ten (10) years imprisonment.

Like laws criminalizing murder and kidnapping, prosecution of Mann Act violations is not subject to any statutes of limitation:

“Aside from capital offenses, crimes which Congress associated with terrorism may be prosecuted at any time if they result in a death or serious injury or create a foreseeable risk of death or serious injury. Although the crimes were selected because they are often implicated in acts of terrorism, a terrorist defendant is not a prerequisite to an unlimited period for prosecution. A third category of crimes that may be prosecuted at any time consists of various designated federal child abduction and sex offenses.” [“Statute of Limitation in Federal Criminal Cases: An Overview,” by Charles Doyle, Congressional Research Service, November 14, 2017 (https://fas.org/sgp/crs/misc/RL31253.pdf).]

It is worth repeating: These two (2) criminal statutes, part of the Mann Act, have no expiration dates.  Each is currently enforceable. Via application of the Mann Act, the U.S. Department of Justice has both the ability and authority to criminally prosecute Bill Cosby for commission of these crimes. Today. All that is required is the political will to act on behalf of the alleged victims and their families.

Confronting Rape Culture in the United States

Dr. Jaishree Ellis, MD, is a Board Certified Obstetrician-Gynecologist, talented columnist and television News medical correspondent, who has very powerfully articulated the depravity of rape:

“The exploitation and victimization of a rape victim is mirrored by many of the indignities imposed upon scores of Africans during the slave trade. The depravity of the Atlantic Slave Trade, at least in part, was based upon the uber act of disrespect: traveling to a foreign land and stealing millions of souls, to be used by a culture to become a world power. People were hunted, captured and then used, as if they were disposable. During this process, their bodies were treated as Kleenex tissues, rapidly used to satisfy a panopoly of the hunters’ desires: free labor, lust, psychological (and literal) whipping boards. Each stolen soul, ripped from the Mother Continent, had a mother, father and countless loved ones who were forever injured. There has been no greater crime in human history.”

The late, great law school professor and human rights scholar, Derrick Bell, espoused the belief that historical gains in the status of American Blacks have occurred only when such progress has also directly benefited the interests of the White power elite. The same premise might be stated in the context of gender disparities. A nation that elects a Presidential candidate who believes, at least in private circles, that the rich, famous and/or powerful can grab women’s genitalia without consequence, cannot consistently be trusted to act in the best interests of women. [https://www.huffingtonpost.com/entry/donald-trump-wins_us_582296a9e4b0e80b02cdcc8a.] According to the National Crime Victimization Survey, women make up between 86 to 95% of rape victims. It is a fair question: would the history of rape’s legal jurisprudence look differently had the converse been true, if men were the overwhelming majority of persons subjected to rape?

“From the two-finger virginity test in India to America’s customary questioning of what a woman was wearing, how much she had had to drink, whether she knew her alleged rapist before the incident, and the list goes on, we are, all of us in this world, obsessed with proving that unless a woman is the perfect victim she has no proof and is therefore lying. We are profoundly invested in this narrative, fighting, at every turn, for the hero — an athlete with a bright future ahead, a pop culture icon upon whom we’ve projected our golden ideals of fatherhood and morality, a group of young men looking for fun on a bus one night — to emerge unscathed. Rather than confront challenges to this narrative, we would rather see the reputations and humanity of women who dare speak their truth be tarnished.” [What the Uber Scandal Says About Us,” by Chaya Babu, CNN, June 13, 2017, http://www.cnn.com/2017/06/13/opinions/uber-scandal-babu-opinion/index.html.]

Rape victims do not come in neat, homogenous packages. They tend to be overwhelmingly female and react to their victimization in ways which are at the same time understandable and incongruent with criminal prosecution. To say the least, rape victims are often unenthusiastic about reliving their very private horror in one of the most public settings imaginable. Perhaps “terrified” of this prospect is the more apt description.

The difficulties faced by the Andrea Constand jury during the summer of 2017 were born of these rape culture “norms.” Women are, de facto, expected to prove that they did not consent to the violence that is inextricably tied to sexual assaults and batteries. This is a particularly difficult standard to meet, especially given associated delays relative to the reporting and/or prosecution of rape. Such hurdles are further exacerbated by the factor of celebrity status associated with the defendant.

Statutes of Limitation as Public Policy

A criminal statute of limitation is a specific, pre-defined time-limit upon the ability to enforce, or prosecute, a particular criminal statute. The purpose of criminal statutes of limitation is to prevent or mitigate the hardship and apparent injustice to defendants, who would otherwise have to defend against stale claims. The reason that statutes of limitation exist is because over the course of time, witness memories tend to fade. Physical evidence is also more susceptible to being lost or otherwise compromised, the longer a case is active.

The more egregious our society considers a particular criminal act, however, the longer the criminal statute of limitations time period that is assigned. Similarly, the more heinous the alleged criminal act, the greater the amount of time the convicted criminal may be sentenced to serve. Accordingly, the assignment of statutes of limitations, as well as the lengths of criminal sentences for various crimes evidences the value we place upon deterring those particular crimes.

It is morally, ethically and even legally (the least stringent standard for the delineation of right vs. wrong) improper for one person to hunt and kill another human being. The same applies for any attempt by one person to own another person or to treat a human being as chattel, an item of personal or real property. Americans currently frown upon both murder and slavery. How can one know this to be true? We merely have to look at the assignment of relative criminal statutes of limitations and potential sentences. Murder and slavery are attached to (a) no criminal statutes of limitations period and (b) relatively severe punishments.

Until very recently, American society did not consider rape to be worthy of such distinction. Criminal statutes of limitation applied to rape have diminished the ability of rape victims to seek justice. In the instance of rape, women are impacted disproportionately, so the limitation of time placed upon the prosecution of this heinous and cowardly act is particularly hard on women.

The Modus Operandi of a Coward

A man possessed with extremely keen intellect and an apparent fascination with principles of human psychology, Bill Cosby has demonstrated understanding that America has a history of honoring, if not quasi-worshipping, the unexposed hypocrite. Thomas Jefferson, the 3^rd President of the United States of America, manipulated human flesh as a slave owner, while espousing the virtues of “freedom” for land-owning White males. Like Thomas Jefferson, Bill Cosby’s ability to speak publicly in brilliant, morally relevant tones, commanding respect and admiration, while acting horrifically in his private affairs, is nothing short of profound. To impose one’s will, over-riding that of another human being and forcibly manipulating that person’s body, the soul’s temple, is nothing short of evil. To do so in the calculating, underhanded and surreptitious manner that is clandestine drugging is reprehensible. With a focus upon the correct statutory scheme, the Mann Act, this behavior can also be punished.

Had Bill Cosby, under cover of darkness, crept up behind dozens of women, knocked them over the heads with a blunt object, and satisfied his depraved lust against their incapacitated bodies, several things would have happened. Once they regained consciousness, the victims would have been likely to immediately report the heinous act, armed with evidence of having been rendered unconscious through physical force. These survivors would have been free from at least a portion of the inhibitions which are attached to the unmerited stigma that American society too often associates with rape victims: that somehow the victim consented to the actions of her attacker, or that she is in some other way responsible for the actions of her assailant.

Instead, in a manner even more befitting a coward, Bill Cosby hid his actions behind the veils of surreptitious drugging, his comedic acting persona and his nearly unprecedented level of fame. Bill Cosby preyed upon women who looked to him as a mentor, an employment superior even a father figure. Much like the members of the religious clergy who have engaged in the most predatorial conduct, hurting minor children in unspeakable ways, the magnitude and scope of Bill Cosby’s betrayal cannot be overstated.

As of the date this article is published, more than sixty (60) women have publicly accused Bill Cosby of some variation of sexual battery and/or assault. The vast majority of these accusations include the claim that Bill Cosby surreptitiously rendered the women unconscious with drugs. Once drugged these women were physically incapable of providing consent to sexual contact or resisting Cosby’s acts of sexual battery.

These allegations collectively span a time frame that is greater than fifty (50) years. Each of these women have a network of people, parents, children, husbands and friends, who have been negatively impacted by these alleged actions. It is only the time that has passed with respect to the vast majority of these criminal acts, not any specter of his innocence, which shields Bill Cosby from accountability. These sex crimes have been deemed to have occurred too long ago to be the subject of prosecution via state criminal codes, which are subject to specific criminal statutes of limitation, as heretofore defined.

As detailed further below, a substantial portion of evidence with respect to Bill Cosby’s alleged sex crimes is found within his own words. Bill Cosby has admitted criminal culpability with respect to several crimes, as governed by the Mann Act. Because the Mann Act is somewhat arcane, its use has ostensibly escaped the purview of most legal experts. State prosecutors have been focused upon the “usual suspects,” in terms of penalizing conduct best described as sexual assault and rape: i.e. state penal codes. The focus of these state prosecutors has been, simply stated, upon the wrong statutes: state laws with statutes of limitations which expired prior to the vast majority of public allegations.

The pursuit of these state statutes has proven to be largely fruitless and extremely frustrating for the accusers. Only one criminal case, that stemming from the allegations of Ms. Andrea Constand, has been brought against Bill Cosby to date. On December 30, 2015, Bill Cosby was charged with violation of the Pennsylvania Penal Code for aggravated indecent sexual assault. [Pennsylvania Code, Title 18 “Crimes and Offenses,” Chapter 31 “Sexual Offenses,” Section 3121 “Rape.”] In essence, Bill Cosby was charged with drugging Ms. Constand, fondling her breasts and then digitally penetrating her vagina, all without her consent.

The central issue in the Pennsylvania case against Bill Cosby was whether the prosecution could prove, beyond a reasonable doubt, that Andrea Constand consented neither to the drugs which were introduced to her body nor the contact with her body to which she testified. Under any set of circumstances, this would be a difficult task. The passage of thirteen (13) years, since the alleged violations, rendered the prosecution’s burden even more daunting. Adding the Bill Cosby Defense Team’s charge that Bill Cosby is being prosecuted, after an inordinate amount of time, due to his race and/or based upon the victim’s desire to gain financial award, and the prospect of securing a conviction was even more challenging. After several days of sequestered days, this Pennsylvania state court criminal trial (“Constand I”) ended with a hung jury and mistrial on June 17, 2017. A second trial (“Constand II”)  has been scheduled for April 2, 2018.

Despite the Pennsylvania prosecutor’s immediate announcement, that the charges would be subject to a second trial, Bill Cosby’s legal defense team understandably claimed victory in June of 2017. All criminal defendants share the same goals: (1) to avoid the status of being a defendant, the result of formal charges being filed against them; (2) once formal charges have been levied, to maintain physical liberty for the duration of the prosecution; (3) to avoid a criminal conviction; and (4) in the event that there is a conviction, to receive the minimum sentence. To date, the Bill Cosby legal defense team can lodge three (3) of these four (4) factors in the “win” column.

The Constand I jury was not convinced, at least not beyond a reasonable doubt, that Ms. Constand’s version of the events was the most accurate description of what actually occurred. Bill Cosby’s attorneys were able to sow the seeds of reasonable doubt into the jurors’ minds. Was the contact between the two people consensual? Did Ms. Constand ingest the drugs voluntarily? The Constand I jury was unable to resolve these questions in a manner warranting a conviction.

Prosecutors seeking a conviction of Bill Cosby in the second Constand allegation-based, “traditional state statutes” criminal trial set for April of 2018 (“Constand II”)  must scale several obstacles. Misogyny, racial prejudice, bias against the poor are societal truths which are magnified in the courtroom. The inability to provide a perfect trial environment, however, does not necessitate the abolition of the jury trial.

First, it is neither possible nor necessary to ignore the fact that as a Black male, Bill Cosby’s race does in fact make it historically difficult for him to receive a fair trial. Consideration of race, albeit ostensibly illicit, is a prevalent component within our American judicial system. The reason that this is true is that human beings, with their inherent biases and attendant subjectivity when weighing evidence, are integral to that judicial system. Further, “[r]acism is an integral, permanent, and indestructible component of this society.” [Derrick Bell Faces at the Bottom of the Well: The Permanence of Racism.] Add to this the historical tendency, particularly in the American South, “to … excuse some of the most heinous crimes that ever stained the history of a country (i.e., lynchings), the South [shielded] itself behind the plausible screen of defending the honor of its women.” [Ida B. Wells-Barnett on lynchings in her pamphlet Southern Horrors.] Black men have historically been unfairly accused of rape. In a traditional rape case, Bill Cosby, self-admittedly a person who has surreptitiously drugged females for the purpose of sexual battery, needs only to raise the spector of reasonable doubt and to be able to “hide” amongst the ranks of factually innocent Black men,   crying “foul” against his accusers while doing so.

Secondly, the concept that women are less worthy of legal protection, as compared to males, remains conspicuously with criminal court jurisprudence. According to Lili Bernard, the consequences of being violated in the “holiest of places,” include depression, despondency, devastation and even suicidal ideation for rape victims.  The pain of such trauma will remain with its victims for the rest of their natural lives.

Lili Bernard is one of the Bill Cosby sexual assault and rape survivors. “War criminals, no matter how many decades have passed, cannot evade prosecution,” Lili Bernard told the California State Senate committee on SB 813, the legislation that ultimately eliminated the statute of limitations for rape prosecutions in California. “I am asking you to do the same thing for us, rape survivors, who survived the war upon our body.” [http://www.reuters.com/article/us-california-rape-cosby-idUSKCN11Y31P ] Greatly because of the efforts of Ms. Bernard and other survivors, California eliminated the statute of limitations on rape, starting January 1, 2017. [See, http://www.latimes.com/politics/la-pol-sac-bill-cosby-rape-law-change-20160412-story.html.]

As stated above, however, the law does in fact interfere with that reckoning, most notably via the application of statutes of limitation. Based upon the Mann Act, in addition to “traditional” Constand II rape prosecution, Bill Cosby can be made to stand trial for federal criminal charges, not just once, but, at the very least, relative to six (6) separate instances. This is because at least six (6) Cosby sexual assault survivors have raised allegations which directly implicate the Mann Act elements.

Snatching Conviction from the Jaws of Exoneration-How Bill Cosby has Convicted Himself

My grandfather often pointed out that some men are inclined to figuratively “dig their own graves” with their sexual member. Whether or not Constand II results in a conviction, Bill Cosby’s deeds have more than satisfied the requirements for federal prosecution. Should federal prosecutors care to act, Bill Cosby has literally spoken his way into a criminal conviction. The members of the U.S. Department of Justice need only approach the allegations against Bill Cosby from a fresh vantage point.

As my mother says frequently, respect is due everyone. Everyone. Based upon Bill Cosby’s own words, it would be most respectful for him to be tried relative to at least six (6) separate accusers. These six (6) women are the victims of Bill Cosby’s actions and are linked together by his own, arrogant, under-oath admissions.

Many of the people engaged in the American slavery Middle Passage were their respective communities’ most accomplished, influential and well-respected members. The Middle Passage involved the forced voyage of enslaved Africans across the Atlantic Ocean to the New World, from 1518 to the mid-19th century. Promulgators of this slave trade included people revered for their talent, intellect and even values, whether inclusive of Black Africans or persons of European descent. Much like Bill Cosby, these individuals exploited their wealth and power to attain personal, illegitimate goals. Thomas Jefferson, for example, was one of the most brilliant persons our nation has ever produced. That brilliance does nothing to hide the depravity of penning the words, “all men are created equal” while enjoying the legal fiction of owning human beings, including the mother of more than one of Mr. Jefferson’s own children.

As is the case with most criminal convictions, the perpetrator’s arrogance and/or ignorance often provides the quintessential evidence used to concoct his demise. Thinking himself immune from prosecution for decades-old acts, during the course of rendering sworn deposition testimony, Bill Cosby admitted to acts which constitute crimes. Bill Cosby literally admitted to “hunting” and “trapping” women. The government need only a suitable theory with which to prosecute this behavior.

Bill Cosby has provided federal prosecutors with the where, what, how and why of his actions. As stated above, the tools of Bill Cosby’s “flesh hunting” trade were the distractions of fame, money and power, aided by the incapacitating force of drugs, administered surreptitiously. An additional element of Bill Cosby’s camouflage is the shame and embarrassment which are associated with rape. No other criminal act places the onus upon the victim to differentiate the alleged behavior from legally appropriate behavior. In an effort to protect the male perpetrators, rape survivors are made to endure years of re-victimization. These are bed-rock, foundational principles within rape culture.

Bill Cosby has taken full advantage of this rape culture. He has acted in a manner consistent with the belief that no one would credit the testimony of any single one of his alleged victims over his own accounting. Bill Cosby has behaved as if he believed himself to be immune from prosecution, let alone conviction.

In a dastardly and spineless effort to keep his wife, Mrs. Camille Cosby, from discovering his repetitive acts of infidelity, Bill Cosby used his wealth to transport women across state lines. Luring women to various hotel venues, paying for their transportation across state lines and then drugging the women were all acts to which Bill Cosby has readily confessed, and in that confession, has supplied federal investigators with much of what they will need to prosecute him. Like notorious gangster Al Capone, who was alleged to have been responsible for multiple murders but was jailed on tax evasion charges, Bill Cosby can be sent to prison not for the greatest of his crimes, sexual assault and rape, but for the simple act of transporting women, across state lines, with the intention to violate their bodies. This is illegal, even for “America’s Dad.”

But for his deposition in the Andrea Constand case, Bill Cosby would have “fooled [society] again.” Not. So. fast.

Cosby’s Kryponite: the Mann Act (18 U.S.C. §2421 and 18 U.S.C. §2422)

It is quite possible that prosecutors wracked their brains to charge Bill Cosby with attempted murder for intentionally infusing controlled substances and alcohol to unsuspecting women. There is no doubt, however, that federal prosecutors are empowered to prosecute Bill Cosby for violation of 18 U.S.C. §2421, a federal statute. Its working title is “transportation of another for illicit sexual purposes”:

Whoever knowingly transports any individual in interstate or foreign commerce,…., with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.

In an attempt to understand this “legalese,” it is helpful to separately examine each phrase.

“Whoever knowingly transports any individual in interstate or foreign commerce,…”

To satisfy this aspect of the statute, a criminal defendant has to intentionally move another human being from one state to another. This could be done by driving the person, paying another person to drive the victim, or making arrangements for the victim to be transported by auto, train, floating vessel, via helicoptor or airplane. The critical aspect is moving the victim from one jurisdiction (state, nation) to another.

“…with intent that such individual engage in … any sexual activity for which any person can be charged with a criminal offense…”

The Defendant next has to intend that the victim be the subject of a sex crime (i.e. rape, sexual assault, sexual battery) in the place to which the Defendant has transported her. “or attempts to do so….” This is important. Whether or not the Defendant “completes” his plan to commit sexual assault in the “away” jurisdiction is irrelevant. It is the “thought that counts,” in this statutory scheme. The victim’s escaping the ultimate act (rape, sexual assault, sexual battery, etc.) does not save the Defendant from culpability.

“shall be fined under this title or imprisoned not more than 10 years, or both.”

A defendant found liable under 18 U.S.C. §2421 suffers a fine, goes to jail for 10 years or gets hit with both the fine and imprisonment.

Another federal statute also poses potential trouble for Bill Cosby. 18 U.S.C. §2422 is entitled “coercing or enticing travel for illicit sexual purposes.” Here are the details:

Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. §2422 closes the “loophole” of the Defendant who wants to argue, “I did not physically transport the victim. She went to the location voluntarily!” The Prosecutor would only need to demonstrate that the victim, even if she traveled on the strength of her own finances, was enticed to the interstate destination by the Defendant. Promises of acting roles, mentoring or other tangible benefits might readily serve as evidence of that enticement.

Now that we have identified the statutes, an examination of Bill Cosby’s confession is possible. Line by line, in his arrogance, Bill Cosby has satisfied the elements of 18 U.S.C. §2421 and 18 U.S.C. §2422. Because she had the courage and support necessary to act, Andrea Constand’s civil case provided the forum for the confession to take place.

First, Bill Cosby admits in his deposition that he secured seven (7) prescriptions for Quaaludes during the ‘70’s, from a Los Angeles doctor. Bill Cosby testified that he believed the prescribing physician understood that he was not using the prescribed sedatives to treat his own pain:

Q. You testified that he knew you were not going to take them. And I’d like to — explain your answer. How did he know that, or why do you say he knew that?

A. What was happening at that time was that that was — Quaaludes happen to be the drug that kids, young people were using to party with and there were times when I wanted to have them just in case.

Next, Bill Cosby testified that he never took the Quaaludes himself. Instead, Bill Cosby swore under oath that he used Quaaludes in his efforts to have sex with women:

Q. Why didn’t you ever take the Quaaludes?

A. Because I used them.

Q. For what?

A. The same as a person would say have a drink.

At another point, Mr. Cosby describes how he routed a payment to Therese Serignese, the woman who has claimed she had been sexually battered while drugged by Bill Cosby in Las Vegas. Bill Cosby admitted that his acting representatives, his agents at the William Morris Agency, sent Ms. Serignese $5,000.00 for travel to Las Vegas and he reimbursed them.

Q. And did that come from your personal account or from the business?

A. That’s from my personal account.

Q. So, was the purpose of that to disguise –

A. Yes.

Q. I have to finish my question. Was to disguise that you were paying the money to Theresa?

A. Yes.

Q. And the reason you were doing — who were you preventing from knowing that?

A. Mrs. Cosby.

This testimony demonstrates Bill Cosby’s intention to deceive his wife. This evidence is certainly available for the jury’s consideration with respect to the issue of deceiving women, drugging them, for the purpose of incapacitating and sexually battering them.

During his deposition in the Andrea Constand matter, Bill Cosby was asked to talk about his relationship with Beth Ferrier, one of the women who has accused him of drugging her. Ms. Ferrier has said that in the mid-1980s, after a brief consensual affair with the entertainer had ended, she met him before a performance in Denver, drank some coffee that he gave her, felt woozy and woke up in a car with her clothes a mess and her bra undone.

Q. What was your relationship with her?

A. We had sex and we had dinners and sex and rendezvous.

Q. What are rendezvous?

A. Rendezvous is when you call somebody and say, do you want to be at such and such and they say yes and you go there.

Q. Is there sexual contact associated with the rendezvous?

A. There was with Beth every time.

Q. Where did these rendezvous occur?

A. I don’t remember.

Q. Do you know the cities?

A. Denver for sure.

The Ferrier account satisfies the elements of both 18 U.S.C. §2421 and 18 U.S.C. §2422. The issue of whether Ms. Ferrier consented to being rendered to an incapacitated state in Denver, CO is one that a jury can address. Ms. Ferrier has alleged that she did not want her body to be rendered incapable of moving, in the manner of a trapped animal. Bill Cosby admitted to this “conquest” because he had been advised that it was too “stale” to be the subject of criminal prosecution.

The application of 18 U.S.C. §2421 and 18 U.S.C. §2422 towards Ms. Ferrier’s facts create the distinct prospect of a conviction. There are at least five (5) additional survivors, whom Bill Cosby transported across state lines for the purpose of sexually battering their bodies. Five additional survivors who were surreptitiously drugged by Bill Cosby. These accusers detail allegations with very similar patterns: Bill Cosby paid for these women to be transported, across state lines, in order to meet Bill Cosby, most often in places of public accommodation, including hotels, night clubs and restaurants. The women were surreptitiously drugged before being sexually battered and assaulted.

Because he believed the “game” of the legal allegations against him hinged completely upon whether his female accusers could demonstrate lack of consent after the passage of several years, a “he said, she said” contest, Bill Cosby became the overly confident “Hare.” The Tortoise of justice, can now reach the finish line. [“The Tortoise and the Hare” is one of Aesop’s Fables and is the story of a race between seemingly unmatched rivals.]

Via the Mann Act, the federal prosecution of Bill Cosby can begin. Given the admissions made by Bill Cosby, under oath, consistent with the elements of these two (2) criminal federal statutes, from the Mann Act, the prospect of one or more convictions is significantly enhanced. This article asserts that this prosecution ought to be conducted within a federal criminal court of law, an environment in which Bill Cosby’s status is on par with that occupied by each of his accusers. There is no need to rely upon a “one on one” recitation of facts which occurred many years ago. Instead, drivers, physicians, stage assistants, boyfriends, husbands and parents of the survivors can provide sound, powerful testimony with respect to the distinct acts which include victims’ being drugged and transported across state lines, all of the nefarious behavior that occurs before the sexual battery.

The Mann Act paves the way for a much more “level” playing field, an environment upon which Lady Justice can properly execute her duties relative to the allegations against Bill Cosby.

Who is laughing now?

Article originally published on iknow.media