Judgment Day – May 15, 2014

WHAT CONSTITUTES “IN THE PUBLIC INTEREST?”

by Montgomery Blair Sibley, ©2014, blogging at Amo Probos

(May 1, 2014) — On May 15, 2014, the U.S. Supreme Court will consider Doug Vogt’s Petition for Certiorari at their regularly scheduled conference.  The question that Doug’s Petition presents is seminal to the operation of our Federal System which envisions four branches of government: (i) Executive, (ii) Legislative, (iii) Judicial and (iv) the Federal Grand Jury.  Indeed, none other than Justice Scalia in U.S. v. Williams, 504 U.S. 36, 47 (1992) recognized:

Rooted in long centuries of Anglo-American history, the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It “is a constitutional fixture in its own right.” In fact the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. (Citations omitted).

As all should know, the Federal Grand Jury is made up of 23 citizens who sit for 18 months to hear evidence of criminal behavior and — if 12 agree — issue an indictment or presentment for prosecution by the U.S. Attorney. This bar to criminal prosecution is contained in the Fifth Amendment which states in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury“.

But the Constitution is silent on the issue of how the Grand Jury is to learn of crimes to investigate. The common law which preceded the formation of our Republic was clear on this issue.  As stated in 1895, by Justice Brewer in Frisbie v. United States, 157 U.S. 160, 163 (1895): “[I]n this country the common practice is for the Grand Jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment.”

However, as part of the gradual usurping of the power of the People, the federal government has — since 1946 — slowly quarantined the Grand Jury from investigating crimes by limiting access to the Grand Jury to only U.S. Attorneys. Indeed, as Supreme Court Justice William Douglas wrote in 1973, it is: “common knowledge that the Grand Jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive.” United States v. Dioniso, 410 U.S. 19, 23 (1973)(Douglas, J., dissenting).

Painfully aware of this seminal transformation of the balance of power in our federal system, I embarked several years ago on a process of documenting this usurpation which will come to completion on May 15, 2014, when the Supreme Court decides Doug Vogt’s case.

Besides through the U.S. Attorney, there are two other avenues to submit evidence of criminal behavior to the Grand Jury. First is” 18 U.S.C. §3332 which obligates the U.S. Attorney upon: “receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such attorney’s action or recommendation.”  Congress left no discretion in the U.S. Attorney to refuse to present such “information”.

Yet, in Sibley v. Obama et al, Case No: 12-cv-001 (D.C. Dist. Ct. 2012); summarily affirmed, Case No.: 12-5198 (D.C. Cir. 2012); cert. den., U.S. S. Ct. Case No.: 12-736 (2013) the district court held: “The Court will deny the mandamus request, in keeping with prior decisions that 18 U.S.C. §3332 cannot be enforced by private individuals.” Thus, while Congress under §3332(a), obligated the U.S. Attorney to “inform the grand jury of such alleged offense” when requested by a Citizen, the U.S. Attorney can now ignore that mandatory obligation to “inform” with impunity as there is no right to enforce §3332(a) by one who seeks to invokes it. 

Second,  Congress enacted Federal Rules Criminal Procedure, Rule 6(a) which states: “When the public interest so requires, the court must order that one or more grand juries be summoned.”  But what is exactly meant by the term “public interest”?  That legal-term-of-art has never been judicially defined.  Hence, Doug Vogt’s Petition which seeks such definition is a case of “First Impression” for the Supreme Court.

If the Supreme Court on May 15, 2014, refuses to define “public interest” it would then sanction the use of legal indeterminacy in legal-terms-of-art and thus permit the unregulated and un-reviewable exercise of brute federal Judicial and Executive power employed to assault the fundamentals of the rule of law to the end of creating a 21st Century federal Volksgebundenheit and Artgleichheit.  Stated simply, if “public interest” can mean anything at any time, then there is no rule of law, only the rule of whim and caprice exercised to advance institutional objectives rather than protect individual rights.

In Doug Vogt’s case, the question is whether the U.S. Attorney and the Judiciary — by (i) denying enforcement of 18 U.S.C. §3332’s plain import and and (ii) defining that the overwhelming forensic proof of the Forgery of Obama’s birth certificate does not rise to the level of “public interest” — can prevent a grand jury from investigating this most serious of federal crimes — Treason.

I maintain that such was not within the distribution of powers by the People in the Constitution and for the Executive and Judicial branches to so maintain is a breach of that fundamental compact upon which the present federation of states stands.

Accordingly, I maintain with conviction that May 15, 2014, is indeed Judgment Day for this Republic.