Saturday, December 10, 2016

Condonation as no defense to impeachment or other sanction; evidence relevant prior to oath

Politics. To wait and see is not to condone.












 Behavior of elected officials: Mis-demeanors, ,ethics, overt acts, treason even in omissions, an aggregate possible. When must the bell be rung, and so avoid condoning the acts.*


Re:  Matters of elections and the behavior of elected officials, whether before, during, and after, actually taking office.  Constitution, Article II section 4.

I.    Summary: Behavior of elected officials shall remain relevant prior to oath-taking and through one year of elected office. There shall be no presumption that the behavior was known and condoned, therefore irrelevant to impeachment or other sanction later.
II.  Notice required.
III. Proposed Law.
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I.  Summary.  Actions of an official before, during the period before taking office, and after, shall remain relevant for purposes of impeachment or other sanction, beginning with the declaration of candidacy, through election and oath of office, and for a period of one year after taking the oath of such office.

That is, there shall be no defense of condonation as to any presumed permission for acts or omissions of the official until one year has passed from the oath-taking. See condone.

The voters or others may seek to hold the official accountable in future, as for example, impeachment or other sanction for matters giving the appearance of impropriety even in the aggregate, that could be included in "misdemeanor" behavior for example, see mis-demeanor a matter less than Crime, FN These could include, as matters may develop:
a) using public office for private gain,
b) self-dealing,
c) conflicts of interest,
d) patterns of intimidation and shaming with the effect of undermining constitutional rights of assoiation and speech;
e) failure to expose and explore cyber-theft or other factors suggesting influence on the official's decision-making, and by identified foreign powers, such disregard of cyber-inasions clearly giving aid to that enemy. Treason? Notify, notify.

Such seekers shall not be deemed to have in effect 'slept on their rights' by not taking action sooner, before the oath.  Noone shall be estopped from raising those issues later just because some information was out there prior to an oath of office. No approval to be established merely because an oath proceeded as scheduled. Public policy supports prudence in such actions. Similarly, the official shall not be deemed to have relied on the inaction for the given period, for purposes of enabling continuance of it. 
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II. Notice of concerns in a format similar to "please be advised that" must be given with formality to the elected official within 6 months of the oath-taking, so that specific behaviors are of record as dicey, and relevant in the future.

Presidential power:  see https://www.law.cornell.edu/anncon/html/art2frag1_user.html#art2_sec1cl1
Statutory construction and Clarification/ Extrapolation.
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III.  Proposed Law

A.  There shall be no defense of condonation based on prior dissemination of information suggesting or establishing that an official had engaged in acts constituting probable impeachable offenses whether before taking office, or while in it. This provision recognizes a continuum of accountability.
  • Where an official has acted or omitted to act in ways giving rise to impeachment or other sanction against him, those behaviors shall not be considered as excused, or conditionally forgiven, or even approved, merely because of the later timing of actions for impeachment or other sanction. waived , for that official for use at the time impeachment or other sanction is sought. 
B.  Constitution;  

Specifically, this exclusion of a condonation defense is applicable to issues whether raised in legal o equitable proceedings, of  
a) Treason
b) Bribery, 
c) other high Crimes and 
d) Misdemeanors, see FN 1, definition, discussion.


C.  Delays as serving public policy.

1. The delays permitted by exclusion of a condonation defense in impeachment and other corrective actions, whether legal or equitable, serve the public interest, as well as the interest of the members of Congress who may be involved:   See Roles and Duties of a Member of Congress: Brief Overview, at https://fas.org/sgp/crs/misc/RL33686.pdf.:  To fail to allow delays fosters instead the political and electoral activities over and above constituent service and education, and such is against public policy:
"The duties carried out by a Member of Congress are understood to include representation, legislation, and constituent service and education, as well as political and electoral activities [emphasis supplied]." 
2. Accordingly, a decision to postpone any action, and to, in effect, wait and see if the behavior self-corrects, or fades away with proofs of such, shall not be deemed to be laches, a sleeping on one's rights. See https://www.lexisnexis.com/legalnewsroom/estate-elder/b/estate-elder-blog/archive/2012/01/26/doctrine-of-laches-means-you-are-quot-out-of-time-quot.aspx  

Knowledge of acts of an individual seeking or in office, and failure of authorities or individuals to bring legal or other corrective on any ground at the time, shall not bar any future action or provide a defense. Delay can be a welcome strategy to counter voter amygdala imbalance caused by precipitous conclusions and opinions spewed to them without facts.  Wait for the facts. 
  • Failure to warn?  Such delay may, however, constitute an actionable failure to warn, as that idea may morph from torts and products to elections, where pivotal information is purposefully kept from the voting public until it is indeed too late for them to change their votes -- the partisan politician has already been bought, no return. See failure to warn, and issues, at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2551&context=facpub
  • Further policy considerations:  
    • Unlike applicability of condonation in other areas of human life, such as the family arena of marriage and divorce in some states, see http://legal-dictionary.thefreedictionary.com/condonation, the approval of delay before taking action serves public policy in the political realm. 
    • Delay of legal action in politics allows time for issues to ripen, and for voter education and debate. It encourages exposure and vetting of issues without haste
3.  Notice of concerns required.  Acts and omissions of public officials: evidence is actionable from date of candidacy to six months after oath, as patterns may be set earlier.
  • Ambush is not an option.  Anyone or any group with concerns must notify the official in writing or other preserved means, dated. 
    • The identity of individuals need not be disclosed in the notice, lest retributions or tweets issue from the official.  This area to be fleshed out.
      • The objective is to give notice with sufficient particularity as to discourage the behavior. Issues of exploitation of voters, the weaponizing of partisan interests, and neglect of the nation's interest in favor of personal gain, may be adequate grounds for mis-demeanors, for example. 
        • Or not. Notify, notify.  Notice of disagreement with the course of action.
        • Official acts are not condoned just because action is not taken at the time. 
        • What is undue delay? Waiting after 6 months from taking the oath. Lookbacks:  to date of candidacy, to see pattern.
Accordingly, the slate is not wiped clean with the oath of office.  Acts and patterns that may be found actionable may predate the oath, and to the time of declaration of candidacy for the office. See mis-demeanor at FN 1. Misdemeanors in aggregate. Consider: misdemeanor impeachment offense, a classification less than "crime". An aggregate of such mis-demeanors constitute by weight an example of "high" misdemeanors, if such is required.
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FN 1.  Misdemeanor Statutory construction. Start with these ideas;

Article II Section 4.  The Committee points out that impeachment concepts of high crimes are one thing, in the list of prohibited behaviors. Misdemeanors are another. 

A.  The wording:  See "Treason, Bribery, high Crimes and Misdemeanors."  
  • The high applies to the next word, the Crimes.  There is no high in front of Misdemeanors. Only Crimes gets a descriptive high. 
  • Accordingly, no high misdemeanors need be proven. 
  • Whether the "high" applies to both crimes and misdemeanors is a stretch too often assumed.  If 'high' is indeed to be taken as attached (a discretionary, subjective reach), the use of the diminutive controlling word misdemeanor in the first place instead of 'crime', suggests that the mis simply means very.  Very wrong, see below. A matter intended to be lesser than a crime at all.
B.  Now: What is a misdemeanor. See http://www.etymonline.com/index.php?term=misdemeanor.  An "indictable" offense, from 15th C. "wrong" or Middle English "demenure"  Misdemeanor:  Mis-demean-or, or our. Demeanor. This term has changed in meaning since its inclusion in the Constitution in the 18th century.  Add the Mis- to Demeanor, and the result still results.

1.  'Mis'.  This means bad, or wrong, see http://www.etymonline.com/index.php?term=mis-.  The derivations are from multiple languages, and include ideas of fail to hit, as fail to hit a mark; divergent, astray. "Unfavorable" came in the 14th-16th Centuries. See site.  The "mis" is not a criminal matter, thus a milder set of actions are the subject of approbrium than those statutorily prescribed, is that so?

2. Demean.   In English, the evolution of meaning came from ideas of how to conduct, manage oneself,  A verb.
  • In the late 15th Century, demean was used in Middle English to mean "handle, manage, conduct." 
  • In the early 14th Century, demean meant to behave in a particular way.
  • In the 11th Century, in Old French demener, the term meant "to guide, conduct, to live, dwell"
    • The root was 'de' for completely, and to 'mener' to lead or direct; 
      • Both derived from the Latin minari, to project, jut, threaten (as a herder of animals would in getting the job done) and with its ideas of menace, a forcing;  or the Late Latin, to drive, as to drive as a herd of animals. Drive those sheep.
3.  De-mean-our or or.  Add suffixes such as demeanour, demeanor.  And you have a noun.
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*  Znamensky Monastery, Moscow, near Romanov estate, near Old English Court

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