Category Archives: courts

The Fifth Amendment Debt 

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It is possible  Roger Stone, Michael Flynn, John Eastman, Alex Jones, Allen Weisselberg and two Trumps have no idea who John Lilburne was.  But they owe a large debt to this Englishman who died in 1657.

Trump aides, advisers, and defenders Stone, Flynn, Eastman, Jones and Weisselberg have “taken the Fifth” when summoned to testify on this or that issue involving our most recent former President.

Indeed, DJ Jr., the son of the aforesaid former president, reportedly has done it more than 500 times, as did Weisselberg, the former Trump organization chief financial officer, when summoned to talk about the elder Trump’s reputed manipulation of property values to get loans.

And so, for that matter, has the Big Guy himself. More than thirty years ago when he was carrying on with Marla Maples and his then-wife, Ivana, was divorcing him, DJT was asked about 100 questions about faithful marriage and reportedly pleaded the Fifth Amendment 97 times.  The questions came from his soon to be ex-wife’s lawyer who wanted him to explain his reported dalliances with other women.

But he must have had an epiphany sometime in the next twenty-or so years when he he told a crowd of followers during his campaign, “You see the mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”

How does John Lilburne enter this unsavory set of circumstances?

Isaac Amon’s article for The Journal of the Missouri Bar a while ago tell us that John Lilburne was an English pamphleteer who was arrested in 1637 for writing things the king and his Star Chamber Court did not like and he was badly punished for it.

The Star Chamber?

It was the court of inquisition in England that was above the common law and answered only to the King.  Those brought before it were ordered to take “the ex officio oath” that promised they would admit charges against them—-before knowing what the charges were.

John Lilburne was arrested in 1637 for printing and circulating unlicensed books. When he was taken before the Court of the Star Chamber and asked how he pleaded, Lilburne refused to respond until he knew the charges against him and argued that he was not bound to incriminate himself. He maintained the oath was “against the law of God and the law of the land.”  He also demanded the right to confront his accusers.

That defiance earned him a sentence in February of 1638 of a £500 fine, imprisonment at the Fleet Street Prison, and to be whipped and pilloried until he obeyed the court. In April he was taken from his cell, his hands were tied to the rear of an oxcart that pulled him through the streets, as he was flogged with a three-tailed whip before he was locked in a stooped position in the pillory.  Even then he spoke loudly against those who sought to silence him—until he was gagged. He was taken back to prison where, despite his situation, he was able to write a pamphlet describing the cruelty of his punishment and another encouraging a separation of the English government fronm the Church of England.

Eventually he was released but he continued to stand for his contention

Lilburne was called “Freeborn John” by his supporters for his contention that citizens have “freeborn rights” that include the right to hear charges against them, to face their accusers, and to refuse to say something that might incriminate themselves.

He was a soldier in the first English Civil War as a “Roundhead,” the Parliamentarians who fought against the Royalists to determine the type of government England would have and to seek religious feedom.  He left the army after rejecting the Presbyterian Solemn League and Covenant, an agreement in which the Scots agreed to help the Parliamentarians if England, Scotland, and Ireland would unite afterwards under a parliamentary-presbyterian system.

Lilburne maintained the covenant was, in effect, an agreement to preserve the religion of Scotland and was therefore a restriction on general freedom of religion. He had no problem with the Scots being Presbyterians but he wanted no part of an agreement that bound others to that faith.

In the end, the Civil Wars of England united England, Scotland and Ireland into the United Kingdom, ended the monopoly on worship and government control held by the Church of England, protected the reform movement in Scotland, and cleared the way for the Protestantism to become established in Ireland, leading to political control under the Anglican Church of Ireland, a situation that led to “The Troubles” or the Northern Ireland conflict, a thirty-year sectarian conflict between Protestant loyalists and Catholic nationalists from 1968-1998. That’s a discussion for another day, perhaps.

John Lilburne was imprisoned again in 1645 for criticizing members of Parliament for living well at a time when English soldiers were poorly treated. While in prison he penned An Agreement of the People for a Firm and Present Peace Upon Grounds of Common Right.

Lilburne’s political activism saw him in and out of prison and even banished from England for a time. In 1657, while visiting his wife (who was expecting their tenth child) on temporary release from prison, he died.

More than three centuries after his death, James Madison, who was influenced by Lilburne’s story, wrote as part of the Bill of Rights, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment and the other nine statements of OUR “freeborn rights” were adopted in 1791.

In 1966, United States Supreme Court Chief Justice Earl Warren specifically mentioned Lilburne in writing the majority opinion for Miranda v. Arizona that police must tell suspects that they have the freeborn right to remain silent in the face of accusations against them.

A few days ago we watched Michael Flynn refuse to answer questions from a Republican member of the January 6 Committee, saying only, “Take the Fifth, “Fifth,” and “The Fifth” in responding to three questions.

A man almost four centuries ago endured imprisonment, whipping, the pillory, and even banishment from his country to give him that right.

But here’s the deal: While it is easy to think those who “plead the Fifth” are therefore hiding their guilt, there is far more to the plea than that. This amendment stands between us and Lilburne’s Star Chamber Court. All of us—you, me, them—are not forced to say something that others might consider an admission of guilt before any charges are filed. This amendment keeps the government from considering you guilty unless you can prove yourself NOT guilty.  This amendment protects our sacred concept that a citizen, no matter how reprehensible we might consider their behavior, is innocent until proven guilty.

We doubt that Mr. Flynn or any of the others we mentioned at the beginning of this piece know about or care about what John Lilburne went through to protect them.

But all of us should care—-because we Americans all have freeborn rights.

(image credit: Library of Congress)

Who is This Guy?

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A strong Republican citizen asked me the other day, “What do you know about John Wood?”  And at the end of our discussion, he made an interesting suggestion about him.

John Wood is running for Roy Blunt’s Senate seat as an Independent.  It’s far too late for him to file as a Republican but he’s the kind of moderate Republican that former Senator John Danforth has been hoping would give GOP voters an alternative to the crowd of candidates that Danforth considers so closely tied to ex-President Trump that the GOP could lose that seat in November.

My friend thinks Wood would pull votes away from candidates of both parties but would hurt the Republican nominee the most, especially if it’s Eric Greitens.

Here’s a thumbnail description of John Wood.

(This entire discussion becomes academic if he cannot gather 10-thousand signatures of Missouri voters and present them to the Secretary of State by the close of business on August 1.  Barely meeting the minimum might say something about his candidacy.  Getting thousands more than necessary might say something, too.)

He’s a 52-year old lawyer and is the latest product of the “Danforth incubator.”  John Danforth used his election as Missouri Attorney General in 1968 to begin cultivating bright and young Republican assistants whose success in statewide office broke the Democratic hold on Missouri politics and produced the Republican control.   Before he was a lawyer, he worked for Danforth.  He clerked for U. S. Supreme Court Justice Clarence Thomas who had been an Assistant Attorney General under Danforth.  He also has worked at the United States Court of Appeals.

President George W. Bush appointed him the federal prosecutor for western Missouri in 2007. He served into 2009. After leaving that job he was chief of staff to Homeland Security Secretary Michael Chertoff.  When John Ashcroft was United States Attorney General, Wood was the deputy associate general counsel in that office. He also filled that job in the Bush Administration’s Office of Management and Budget.

For a time he was the Senior Vice President, Chief Legal Officer and General Counsel for the U. S. Chamber of Commerce.  He joined the January 6th Committee as a senior investigator at the invitation of Representative Liz Cheney.

He calls himself “a lifelong Republican” who has told the Post-Dispatch he is not interested in being part of “a race to the bottom” and an effort “to see who can be the most divisive and the most extreme.”

He thinks Greitens will win the Republican primary on August 2 but he thinks he can win in November behind “a coalition of common-sense voters,” most particularly Republicans who won’t back Greitens as well as moderate and conservative Democrats—and independents, of course.

We won’t delve into his positions on issues in this entry except to say they are distinctly mainline Republican.  He has said he would support Mitch McConnell remaining leader of the party in the Senate and that he wants to be part of a “governing coalition,” an indication that he might work better across the aisle than many other Republicans (or Democrats) in Washington.

He says he’s not a spoiler, that he’s running to win.

Simply put, he’s a wild card in a race that needs one. He’ll have Danforth money and muscle behind him.  But it doesn’t take much searching to realize that John Danforth doesn’t set the philosophical tone for the party that he once did.

All of that might be true, maintains my friend. However—-

Is he really running to gain statewide name recognition so that he can challenge Josh Hawley in 2024?  After all, Danforth says supporting Hawley four years ago was the biggest political mistake he’s ever made.

Stay tuned.

(Photo Credit: Twitter)

It’s Not Over   

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Regardless of your feeling about the U. S. Supreme Court’s abortion ruling last week, here’s something to remember:

It’s not the final word.

It’s not the final word any more than the 1973 ruling in Roe was the final word.  It just turns the tables on the argument.  Abortion opponents have spent the last fifty years chipping away at the ruling and looking for the right legal lever to overturn the whole thing.  Dozens, probably hundreds, of state laws (somebody might add up all of the ones in Missouri) have attacked the issue only to be thrown out at some level of the court system. This one finally worked.

The ruling obviously does not end here.  The anti-abortion element of American society is on the defensive for the first time in almost a half-century. We will be interested to see if a pro-choice population that has watched as pro-life elements have attacked Roe will be galvanized into activism.

It is not generally a good idea to poke a dozing Tiger with a stick.

Survey after survey has indicated a general approval of Choice by Americans.  The Gallup organization in early June reported, “A steady 58% majority believe that the…ruling…should stand while 35% want it to be reversed. These sentiments are essentially unchanged since 2019.”

The wording on Gallup’s poll question has changed somewhat through the years but, “Dating back to 1989, support for reversing the decision has averaged 32%, while opposition has averaged 59%.”

In the most recent poll, the question focused on the impact of an overturn and whether respondents favored letting states set their own standards.  That survey, run last month, showed 63% of respondents thought it would be a “bad thing” to let states set their own policies. Those who said it will be a “good thing” were at 32%.

There has been no doubt this issue has been a partisan thing for a long time. In the most recent Gallup survey, 80% of Democrats and 62% of Independents favored the status quo.  Among republicans, 58% favored what the court ultimately has decided. Only 34% of independents and 15% of Democrats favored reversal.

But the U.S. Supreme Court is not ruled by polls although its makeup might be determined by people whose political positions ARE ruled by polls.

Catholic voters, for example.

A Pew Research Center 2019 survey found 56% of Catholics felt abortion should be legal in all or most cases. Forty-two percent disagreed.  The 56% is close to the 60% of non-evangelical Protestants and 64% of Black Protestants who supported legal abortion. In one of the fastest-growing demographics—people who are not religiously affiliated—83% told pollsters that abortions should be legal in all or almost all cases.

Writing in America, the Jesuit Review in 2018, Patrick T. Brown, a former government relations staffer for Catholic Charities USA, said, “Since 1973, no institution in the United States has been more firmly committed to protecting the unborn than the Catholic Church. Yet Catholics are just as likely to procure an abortion as other U.S. women. Why?

“According to the latest numbers from the Guttmacher Institute, 24 percent of women who procure abortions identify as Catholic, almost the same as 22 percent of all U.S. women who called themselves Catholic in a 2014 survey by Pew Research Center. In the same sources, evangelical Protestants made up 27 percent of all women in the United States but only 13 percent of those who underwent abortions, revealing a greater reluctance toward choosing abortion, a greater reluctance toward revealing their religion on a survey or both.”

Here’s one thing you won’t hear:   Republicans who are critical of “activist” judges when discussing this ruling.  You won’t hear Republicans railing against “legislating from the bench” either.

Again, this ruling tends to reverse the table.

There are fears this ruling is just the beginning of court-established national policies on contraception, LGTBQ+ rights, and gay marriage being dismantled and becoming matters of states’ rights.  Roe does not mean the court’s rulings on those issues automatically will be part of the Right’s version of a cancel culture but those who want them reversed should ponder how hard they want to poke those Tigers and what the reaction will be when they have poked too hard.

This ruling is certain to become a significant election issue in November when we will learn if it and reactions to findings of the January 6 Committee as well as fears of the present court’s future actions will produce less of a Red Wave than many on the Right expect.

Pro-life interests have prevailed.

For now.

But a younger generation born and raised in an era of birth control, abortion, and gender recognition in its various forms might be maturing with different outlooks.

In times such as these and decision such as this, we often return to former New York Governor Al Smith, a Catholic who ran for President in 1928, a time when there was a lot of “anti” attitudes in our nation.  Many think Smith’s greatest liability in the election was his religion.  He warned:

“It is a confession of the weakness of our own faith in the righteousness of our cause when we attempt to suppress by law those who do not agree with us.”

Protest Ground Rules, Chapter Two

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Last Wednesday, we shared some observations about protestors gathering at the homes of Supreme Court Justices after the leak of a purported preliminary ruling throwing out Roe v. Wade.

Last weekend, the host of FOX News Sunday Night in America, Trey Gowdy, pointedly identified these targeted protests as more than illegal.  He argued they strike at the foundation of our nation and its liberties.

In an era where liberty and license are too easily confused—and where that confusion is often deliberately stoked by those who seek to grow their power from it to the detriment of the nation—one word seems expendable.

But Gowdy maintains that that single word is essential to our existence.

America has a rich history when it comes to protests. You can argue that our nation was formed as a protest. And the First Amendment certainly contemplated people would want to express their beliefs and assemble and petition the government. But there’s a very important word in the First Amendment that doesn’t get a lot of attention: the word “peaceably.” 

—as in the right of the people “peaceably” to assemble.

You may recall Chris Cuomo once asked, “show me where it says protestors are supposed to be police and peaceful.” Okay, Chris, it’s right there in the First Amendment, the same amendment which allows you and others to make a living on television. It requires peace, and if you’re not peaceful it’s a crime.

You are welcome to protest and you don’t have to be polite or fair or even accurate but you do have to be peaceful. 

Our next guest, Esther Salas, is a federal judge who was also the very proud parent of an outstanding young man. A little less than two years ago, they were at home enjoying each other as loving families do; the doorbell rang and her son Daniel bounded up the stairs to answer it. It was not a neighbor. It was not a deliveryman. It was a disgruntled lawyer armed with a gun and her home address and he shot her only son to death and seriously injured her husband.

This judge and her family were targeted because she was a judge. Becoming a federal judge is the pinnacle of a legal career. But it provides no insulation to the pain of losing a child to an act of violence.

And now there are people showing up at the homes of Supreme Court Justices. And to what end? For what purpose?

How does showing up at someone’s home advance your argument?

How is it persuasive to intimidate family members and neighbors? Do you really think you will change minds or change the way that judges look at cases and issues, by posing a threat? 

It’s against the law to show up at a judge’s house trying to intimidate or influence a decision. You are welcome to disagree with judges. You can take issues with their rulings, if you think a judge is wrong, you can appeal, you can defeat that judge at the ballot box or through impeachment. But you are not welcome to show up at a judge’s house to intimidate or influence that judge. 

And to that end, why are the home addresses of federal judges publicly available in the first place, especially as threats and security incidents against judges are on the rise?

Something is going on in this country and it is not good. Heckling people at restaurants, accosting them as they leave a rally or a political event, storming the Capitol, trespassing on other people’s property—to what end?

Your protest doesn’t have to be fair or accurate, although it would be much more persuasive if it was. Your protest doesn’t have to be polite although it’s ironic you are using bad behavior to complain about somebody else’s perceived bad behavior. But protests so have to be peaceful. And when they’re not, you give license on both sides of the ideological spectrum to do the same.

Protesters should be peaceful and law-abiding. Whether it is in pursuit of criminal justice reform, the counting of the electoral college, or decisions about what rights lie in the penumbra of other rights.

The law is about the only thing holding this country together right now. You are free to disagree with the law, argue against it, seek to change it.

You are not free to disregard it, because when you disregard the law, even in your pursuit of some perceived higher ideal, you weaken the law. And once it’s weakened, it is weakened forever. And you’re most assuredly not welcome to show up at a judge’s house to complain about a decision, no matter how strongly you feel. 

 

 

 

 

 

 

 

 

 

Protest Ground Rules

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There are few, apparently.

The Hill, a political newspaper in Washington, D.C., reported a couple of days ago that “Abortion rights activists in recent days have gathered outside the homes of three conservative Supreme Court justices to protest Roe v. Wade’s potential demise, taking their advocacy in an intensely personal and politically divisive direction.”

The homes are those of Justices Brett Kavanaugh and Samuel Alito and Chief Justice John Roberts. The article says the protests have “forced the White House to navigate a thorny question about the proper bounds of political discourse…” While outgoing press secretary Jen Psaki denounced threats of violence but stopped short of condemning the demonstrations—“We certainly allow for peaceful protest in a range of places in the country. None of it should violate the law,” she said.

But violating the law might be what they’re doing.  A friend of ours has pointed out Federal U.S. code 1507 that says any individual who “pickets or parades” with the “intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer” near a U.S. court or “near a building or residence occupied or used by such judge, juror, witness, or court officer” will be fined, or “imprisoned not more than one year, or both.”

We’ll wait to see if the Justice Department steps in.

These protests, while posing some liability for the participants, are not likely to be severe enough to launch a May 9th investigative committee.

But the circumstances do raise related issues about protests whether at courthouses, capitols, or street corners. Some are constitutional. Some are practical.

We have witnessed a lot of protests in a lot of years, including the storming of the local newspaper by Lincoln University students upset about an editorial highly-critical of Martin Luther King just days before his death, and disturbances on the campus (Lincoln in an HBCU, for those unfamiliar with the school) for a couple of years that resulted in a National Guard presence.

We have seen people standing quietly in front of the post office holding signs urging us to get out of Vietnam, Afghanistan, the United Nations, etc.

Many years ago when gay rights was in a much earlier stage we remember seeing members of a group called ACT-UP! Marching around the state seal in the Capitol rotunda chanting, “You say ‘don’t f—k,’ we say ‘f—k you!”’  That pretty well ended organized political protests in the Capitol.

We watched the Medicaid 23 interrupt Senate debate on Medicaid expansion one day with prayers and songs. They wound up being charged and dragged into court.

Prayers, cursing, burning, quietly holding signs are all part of our rights as American citizens to protest. It’s right there in the First Amendment: “Congress shall make no law… abridging the freedom of speech…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

So protesting grievances is an inborn right of Americans. The accompanying responsibility for doing so in a way that does not violate the word “peaceably” belongs to the demonstrators and the subjective judgment of what is beyond propriety lies with the justice system that has the U.S. Code on one hand and the First Amendment on the other.  .

Attached to that system is another value judgment that lies with the protesters: Will the event do harm or good to the causes of the protestors?

Frankly, we doubt demonstrations at the Supreme Court building  influence the opinion-makers inside the building very much if at all.  We do find targeting the private spaces of the judges by demonstrating at their homes is an unwarranted invasion of their lives and certainly the lives of their families and their neighbors.

Your quiet observer doesn’t even like it when a car goes slowly through my neighborhood with the bass turned all the way up in the large speakers in the backseat and shakes the windows of his house.

In our fervid proclamations of our rights, it is easy to overlook the responsible, reasonable, and respectful exercise of them. Trying to use statements of our rights as bludgeons doesn’t seem from this lofty view to be a responsible action to take.

But what is left when leaders appear to be unmotivated by the responsible, the reasonable, and the respectful?

Whatever it is, it must be a principle of our freedoms that the mob cannot be allowed to rule. It can express itself.  But decisions must be made in cooler surroundings than on the passionate streets.  And the likely best decisions are most often made in the quiet regardless of whether they please us.

Decisions by the courts can be protested in the courts with better arguments than those shouted outside the fences that protect the decision-makers.

 

 

 

 

 

 

Somebody could file a lawsuit

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—So we said last week in writing about the difficulties of re-drawing congressional or legislative districts after each census.

Those of us who are of a certain age (I think I am beyond it, actually) remember a St. Louis mover and shaker named Paul Preisler (rhymes with Chrysler, as I recall) who was a pain in the neck on redistricting after census counts in 1950, 1960, and 1970.

Preisler was a Ph.D. biochemist, lawyer, photographer, civil libertarian, photographer, and once an instructor at the Washington University School of Medicine.   He also was a Socialist back in the days when it wasn’t quite the curse word that it has become.

In the 1930s he helped found the St. Louis chapter of the American Federation of Teachers and as its first president he led a successful effort to let the public school teachers there organize.

He joined the Socialist Party during the Depression and sued the Board of Election Commissioners when the board refused non-partisan candidates and minority parties the right to have poll watchers and challengers. The Missouri Supreme Court came down on his side, giving minority parties the authority to have poll watchers and challengers.

This guy never seemed to runout of gas.  Two years after the St. Louis chapter of the AFT was created, he ran for a place on the city board of education.  The school board rejected his candidacy because the board’s constitution made it non-partisan.

The Missouri Supreme court ruled three days before the election that the school board had to let Preisler run.  The board had to print new ballots. Preisler lost but he says he was running on principle, so the loss was okay.

When he got back from the war, he went after the city school board again because of its policy banning married women teachers from being teachers.  He won that case, too, and shortly thereafter decided, at the age of 48 that  he wanted to be a lawyer.

And he did.  In fact he was a professor at the Wash-U law school and became professor emeritus in 1969.

By then he had gotten into challenging redistrict maps.  His first target was again the St. Louis Board of Education. In 1952 he challenged the way the city Board of Election Commissioners had drawn new district maps. He won again and new maps were drawn.

Not one to be satisfied just filing lawsuits, Preisler filed himself in 1954—as a non-partisan congressional candidate. When Secretary of State Walter Toberman refused to accept his filing fee, saying that splinter parties (such as the Communists, and this was at the height of anti-communist feeling in the country) and Communists could not have candidates if the party didn’t get a lot of votes in the preceding election. Preisler argued that he should be able to run as a person rather than as a representative of a political party. The Missouri Supreme Court agreed with Preisler, again.

Not content with shouting from the sidelines, Preisler ran for office several times: twice, as a Socialist, for the legislature (1934 and ’36), six times as a non-partisan for a spot on the St. Louis Board of Education with campaigns starting in 1937 and continuing to 1971. He ran as a non-partisan for the St. Louis Board of Aldermen.

He never won any of the several offices for which he ran, which was fine with him because he ran to make a point.

In the 1960s he targeted the state. He decided the new congressional districts drawn after the 1960 census were not as compact and as nearly equal in population as the law required.  That was 1962.  When the legislature tried again and the public accepted the map in ’65, Preisler refiled his lawsuit in early in ’66 and the State Supreme Court agreed with him in the summer of 1966 that THAT map was unconstitutional.

The cases all led to landmark rulings on compactness of districts and the legislature’s authority to exercise its discretion, the court writing in the 1962 case naming Secretary of State Warren Hearnes as defendant that, “[A]ny redistricting agreed upon must always be a compromise. Mathematical exactness is not required or in fact obtainable and a compromise, for which there is any reasonable basis, is an exercise of legislative discretion that the courts must respect.”

For a time Preisler did pro bono work for the American Civil Liberties Union.  The State Historical Society of Missouri, which houses 22 cubic feet of his papers at its St. Louis Research Center, says, “He defended the right of students to wear long hair, hold anti-war demonstrations, and the publish uncensored newspapers. He also defended prisoners and women against discrimination.”

He was also involved in municipal affairs, once filing a suit against the City of St. Louis that eventually killed city plans to build a roadway through Shaw’s Gardens.

When he died in 1971 at age 69, Paul Preisler had another challenge to congressional districts pending. He lost that one, posthumously, in 1975.

There has been no one like him since.

But every time there’s a redistricting map drawn for congressional or legislative districts, there’s always that uncertain time.

Truth as a Defense 

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(The Missouri General Assembly is back in session and it, the governor, and assorted denizens of the hallways will be generating ample material for observation for the next four months or so.  We are giving Dr. Frank Crane a bit of a vacation until the end of the session so we might increase the number of appropriate observations pertinent to the times. While they might be of questionable value to you, they are good therapy for your obedient observer. We begin with a story of early United States history and how it might play out in our time.)

Journalists sometimes have to decide whether to break a law by publishing information beneficial to the public or whether to withhold the information and therefore do a disservice to the public.

That ethical dilemma for the journalist who decides to publish then can become a legal issue that is uncomfortable for prosecutors, among others, to consider. When First Amendment protections of the press enter the mix, the situation offers only awkward choices.

Case in point:  Governor Parson is confident the Cole County Prosecutor will file a charge against a St. Louis Post-Dispatch reporter who discovered a flaw in a computer program that endangered the security of personal information of thousands of Missouri educators. The governor believes he breached state law on computer information accessibility.

The newspaper did not publish the findings until the Department of Elementary and Secondary Education had fixed the problem.  Clearly, from this observer’s standpoint, the public was better served.  But also clearly from the governor’s standpoint, a law was broken. And as a former sheriff, he took umbrage with what he perceived as law-breaking.

Former Missourian Ulysses Grant, on being sworn in as President of the United States on March 4, 1869, proclaimed, “Laws are to govern all alike—those opposed as well as those who favor them.  I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”

The sentiment often is credited erroneously to Abraham Lincoln, perhaps based on an 1838 Lyceum speech in Springfield, Illinois.

Throughout our country’s history, the rigidity of law has been challenged by those who push against that rigidity. We could regard the Declaration of Independence as our country’s greatest challenge to existing law, for example.  Or the Civil Rights movement in more recent decades.

But more than fifty years before the Declaration of Independence, an important and surprising legal decision was made that seems to be important to the disagreement about the propriety of the report on education department computer security.

John Peter Zenger, the publisher of The New York Weekly Journal, was accused of libel by Royal Governor William S. Cosby in 1733 after Zenger accused him of various corruptions including rigging elections.  Under the laws of the time, any publication of information critical of government was considered libelous.

Zenger lawyer Andrew Hamilton, the most famous colonial attorney of his time, did not deny the accusations had been printed. But he demanded the prosecutor to prove they were false. The judge told the jury it had to convict Zenger if it found he had, indeed, printed the stories. But the jury stunned the judge, the governor, and many others when it returned after only about ten minutes of deliberation and found Zenger NOT guilty.

The finding was the first time in this country that truth was considered an absolute defense against the governor’s complaint that the law prohibited publication of information critical of government.

That ruling is considered by some historians as critical to the circulation of ideas that led to the Declaration, the American Revolution, and the development of our Constitution and Bill of Rights—and the First Amendment that includes press freedom.

Can the “truth is an absolute defense” be used in the case of the Post-Dispatch story?  We’ll see.  It is unlikely this series of events will rise to the historical significance of the Zenger case. But free public knowledge of truth must have value in a free society and a chance to emphasize that value in this time of the Big Lie should not be missed.

The principle established in a courtroom 288 years ago casts a light on the governor’s belief that a law must be strictly enforced despite the exposure of truth and the prosecutor’s decision about how to best address the issue of public benefit versus strict obedience.

The Unanswered Question

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There is an unanswered question that we did not address in Monday’s observation in this space about the governor’s accusation that a newspaper had “hacked” a state education department website.

It is unfortunate that Governor Parson refused to take questions after last week’s press conference in which he said he wants St. Louis Post-Dispatch reporter Josh Renaud criminally charged for notifying the state he had found personal information about thousands of school teachers easily obtainable from a Department of Education website.

Someone should have asked—and we are confident WOULD have asked—“Did the story tell the truth?”

That has been the critical question for 300 years whenever a United States political figure does not like what a reporter has written about him or her—since 1734 when New York’s Royal Governor, William Cosby, jailed newspaper publisher John Peter Zenger for eight months on a charge of libel.  Cosby proclaimed Zenger’s criticisms of his actions amounted to “divers scandalous, virulent, false and seditious reflections,” an 18th Century equivalent, perhaps, to Governor Parson’s complaint that the Post-Dispatch and Renaud were involved in a “political game” intended to “embarrass the state and sell headlines for their news outlet.”

The jury in the Zenger trial was out for only ten minutes before finding him not guilty. His  attorney had argued that a statement cannot be libelous if it is true regardless of the discomfort it causes someone, in this case the Royal Governor. More than fifty years later, Freedom of the Press became part of the nation’s constitution.

More than a century ago, a Missouri Capitol reporter was jailed for reporting the truth. Robert Holloway of the long-defunct St. Louis Republic was jailed after reporting in 1917 that a Cole County Grand Jury had indicted a top state official for selling coal from the state’s coal supply.  The official was John W. Scott, the former Commissioner of the Permanent Seat of Government.  Holloway also reported the grand jury was investigating whether Penitentiary Warden D. C. McClung improperly used state property. Grand jury proceedings, even today, are supposed to be secret.

His story ran before any indictments had been made public, leading the judge who had convened the grand jury to haul Holloway before him to tell where he had gotten his information. When Holloway refused to reveal his source, the judge jailed him until he talked, or until that grand jury’s term ran out. The Missouri Supreme Court upheld the order.

State Historical Society Executive Director Gary Kremer, who wrote about the Holloway case for the Jefferson City newspaper several years ago, has a picture of Holloway seated at his typewriter next to a barred jail window as he continued to report, his stories datelined “Cole County Jail.” He finally was released after two months on a promise to appear before a new grand jury if it called him.  It refused to take up the whole issue when it was convened. Those who had been indicted by the earlier grand jury were found not guilty.  Holloway remained a reporter, off and on, for most of the next three decades.

But he remains, as far as we have been able to determine, the only Capitol reporter ever jailed by the state of Missouri for telling the truth.

The governor’s call for Cole County Prosecutor Locke Thompson to take action against the newspaper gives Thompson a lot to think about.  There’s the First Amendment protection of press freedom. The newspaper attorney doubts the state’s law on computer tampering sufficiently applies to this case because the computer code allowing anyone to access the information was readily available through the Department of Education’s website.

There might also be a question of whether the state law on computer tampering is unconstitutional prior restraint on reporting information gained through legal means from a state computer. And proving the newspaper published the information with malicious or criminal intent will be difficult.  To the contrary, the newspaper’s actions to withhold the story until the department fixed the problem the investigation pinpointed is a strong argument against criminal intent.

But the basic question remains.  Did the reporter tell the truth?  There is no acceptable “yes, but” response. Zenger-Holloway-Renaud (or the name of any reporter since 1734) are linked together by that question.

And that is the only question that matters.

Notes from a Quiet Street  (Hot Summer Days & Nights Edition)

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We have officials from Missouri and many other states who are threatening to punish school districts and local health departments, in particular, if they institute mask mandates.  Our Attorney General, Eric Schmitt, is the chief guardian against local mask mandates and he now has a class action lawsuit forbidding school districts from having the mandates. He says parents and families should decide if children wear masks, not those who act in loco parentis when hundreds of children are together.  Parents and families, he says, should make decisions based on science and facts—-as if officials in charge of hundreds of children in close contact with one another can’t make decisions based on science and facts.  Or should not be allowed to make decisions based on science and facts.

The lawsuit also cites a low COVID death rate among school children.

Isn’t one child dying from this plague too high a death rate?

We find all of this energy by governors and attorneys general—almost unanimously Republicans—on this issue peculiar.

Remind us again which party is it that does the most griping about government over-reach, especially the federal government telling states (who know what’s best for their citizens) what should be done.

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One thing we’ve noticed about the pandemic, and now “the pandemic of the un-vaccinated,” is that no preacher has tried to capitalize on it as God’s punishment for this or that nation condoning this or that whatever.  Perhaps it is because all nations, whatever their faults, are fighting this thing—and deciding what human trait is being punished is impossible to determine, even by those who in the past have claimed exclusive knowledge of God’s intent.

But maybe God can’t get in a word edgewise amidst all of the conspiracy cacophony that has helped give the pandemic new vigor.

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There’s been a slew of book released revealing more about the more chaotic last chaotic days of the Trump administration. It is unlikely—we certainly hope it is unlikely!!—that we will ever again see so many books from so many insiders so critical of a president. But there’s one insider book we are waiting for although it might not come until the author determines that he will be more benefitted than damaged by his words.  Potential bombshell-author Mike Pence seems to think the success of his future is still too closely tied to his recent past to discuss it.

But, boy oh boy, the tales he could tell…….

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We notice, by the way, that the former VP is becoming more visible on the public speaking circuit.  He’s hitting some of the big venues—a few weeks ago he repeated his lamentable attack on Critical Race Theory at the inaugural Feenstra Family Picnic in Sioux Center, Iowa.

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Watching the drought envelop the West, we are reminded of some jokes that we heard back in the very hot summer of 1953 while growing up on our little Illinois farm.  That was the summer when the thermometers reached the 90s in late May and the heat wave ran well into September with several days in the triple digits.  In fact, the last 90-plus day was not until October.  Few homes or cars were air conditioned and I can recall my mother closing the curtains in the morning to keep out the sun during the day.

It was so hot that I saw three dogs chasing a tree.

We got a little rain one day and we sent what was in our rain gauge to the University to be analyzed. It came back only 35% moisture.

That was the winter is snowed a little bit but the snow was so dry we just shoved it into the ditch and burned it.

Not sure but those might have been told by Sam Cowling on Don MacNeill’s Breakfast Club that broadcast from Chicago for 35 years on the NBC Blue Network (which became ABC Radio) and is known as the program that created morning talk and variety as a viable radio format.

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Several months ago we told the story of a Cole County man who got married into a family situation that sounded like the story told in the song, “I’m My Own Grandpa.”

Well, we’ve found another one.  From the Sedalia Capital, a newspaper founded when Sedalia was making an ill-fated run at taking the seat of government away from Jefferson City, February 21, 1925 issue.  Page 5 has a picture of a nice-looking lady captioned, “Miss Ruth Davis’ marriage to her stepbrother, Andrew Jean Stormfeltz at Kansas City, Mo., made her mother also her stepmother and her mother-in-law, and her stepfather her father-in-law. She’s her own stepsister-in-law.  Figure it out.”

We’re not genealogist enough to know, but would that make their children their own cousins, or their own aunts and uncles, step or otherwise?

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I beg your pardon

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Ming the Merciless came to mind the other day.  The villain in countless Flash Gordon comics, movie serials, motion pictures, television shows and series programs, Ming presided over the Kingdom of Mongo and Flash was his nemesis.

Ming and Mike Parson have nothing in common. But word association kicked in when I noticed the latest word that Governor Parson issued 36 more pardons to imprisoned Missourians a few days ago.  By our count, that raises his total to 105 pardons in the last six months along with four reductions in sentences—commutations.  And I thought, “Mike the Merciful.”  And that led to the next thought, Ming. Odd how the mind works sometimes.

We haven’t combed the records of all of our previous governors but we suspect Governor Parson might already have set a record for pardons. Certainly he will have a chance to set one if he has not set it by now.

But it is unlikely that any previous governor has had the chance Mike Parson has had to take these actions.  It seems that his predecessors, we don’t know how many, did not act on about 3,700 clemency petitions.  His office says he has made a slight dent in that total by dispensing with about 500 of them.  Obviously, he’s not in the mood to rubber-stamp anything.

These circumstances might surprise some people.  He’s a conservative for one thing and conservatives are sometimes stereotyped as “lock ‘em up and throw away the key” people.  He sure isn’t a liberal who stereotypically would open prison doors to release all kinds of bad folks.

He’s a former sheriff and we’ve heard some law enforcement people complain that they work hard to put people away only to see some stereotypically soft-hearted judge let them go.

And here we have conservative Mike Parson, former sheriff, letting more than 100 people (so far) out of prison early.

If we were still an active reporter at the Capitol, we’d want to interview him about this issue. It’s one of the things we miss about not being an active reporter anymore—access to explore issues such as this with people such as Governor Parson.  So we’ve suggested to some colleagues they do it.

Just think of it as an old fire horse who thinks he hears the fire bell ringing again every now and then.

Without trying to read the governor’s mind, might we suggest a couple of things?

First, because he’s a former sheriff, maybe he understands that the justice system isn’t always fair to the people law enforcement officers spend a lot of time arresting.  Mandatory sentencing isn’t particularly fair all the time.  And not all of those going to prison are by nature bad people who deserve the stiff penalties they’re given whether under mandatory standards or otherwise.

Second, people change.  They earn a second chance and no good results from denying it to them.

Third, the accumulation of clemency requests not acted upon by predecessors is just plain wrong.  Justice delayed is Justice denied, we’re told.  Justice can be served in a lot of ways, and continuing to hold a redeemed soul behind bars isn’t justice. Or, at least, it hasn’t been for more than 100 people in the last six months.

From what we’ve seen, the bar is pretty high to merit a Parson pardon or a commutation. The folks to whom he’s giving clemency have not earned it by just doing time; they’ve earned it by what they have done with their time.

Last December, when he announced his first batch of pardons, he said he chose those who have “demonstrated a changed lifestyle and desire to move on from past behaviors.”

“If we are to be a society that believes in forgiveness and second chances, then it is the next chapter in these individuals’ lives that will matter the most. We are encouraged and hopeful these individuals will take full advantage of this opportunity.” 

He has told his legal team—less than a handful of people if we read the latest Blue Book staff list correctly—-to keep reviewing the files.  That’s a lot of reading and follow-up questioning for that small number of people to do. But they’re chipping away at it.

He said in December that he wants it clearly known that he’s not “soft” on lawbreakers. “There must be serious consequences for criminal behavior,” he said. “But when individuals demonstrate a changed lifestyle and a commitment to abandoning the ways of their past, they should be able to redeem themselves in the eyes of the law.”

It’s a clear message—-Lock ‘em up.

But remember where the key is.

And WHAT it is.   And what it is, is the inmate.

 

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