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A Weekly edition of News from around our country

September 19, 1997
Issue #53

by: Doug Fiedor

Previous Editions at: http://mmc.cns.net/headsup.html


Sitting here in an area of the country responsible for America's newly defined mortal sin gives a unique prospective to the current hubbub in Washington. Folks around here understand exactly how tightly this new sin is directed, regulated and subsidized by big- government. And that information makes for some interesting local discussions.

Tobacco has been one of this countries best cash-crops for over two-hundred years. No matter, the nanny-state suddenly thinks smoking to be a dirty habit, and now we all must stop. Or, in the case of those millions of Americans who may not wish to stop, they will suddenly be required to contribute a lot of money to the "distributions" of a few major law firms to continue smoking.

And that is really what this is all about, folks: Lawyers hit the Mother-Lode! The land of the free and the home of the brave is under the control of lawyers (like Hillary's brother) who found a way to scam quite a few bucks off of the habit of others.

It's all quite legal, too. How do we know it's legal? Because the control-freaks (other lawyers) running big-government tell us so! President Clinton proposes legislation. Some in Congress call for new legislation. And even State governments are passing controlling laws. So, it must be legal; huh?

Over the past couple years, the federal government has passed laws to regulate and control air, assembly, association, automobiles, baby food, bugs, chickens, clothing, dirt, drugs, education, employment, farming, fish, guns, hamburger, income, information, juice, literature, mold, oil, owls, peanuts, private property, religion, telephones, TV programming, toilets, transportation, trees, reference material, search and seizure, speech, water, etc., etc. (We left out a few dozen things, but you get the idea.)

There should be no problem for the federal government to regulate tobacco products out of existence then. Is there? Yup, there is! Tobacco is a legal product. Tobacco always has been a legal product, and probably always will be.

What do all of those products and actions listed above have in common, then? One very important point: None are within those enumerated powers given to the federal government by the United States Constitution to regulate. In fact, some -- like association, guns, press, religion, and speech -- are areas categorically forbidden by the Constitution for regulation by the federal government.

That the federal government regulates everything in our lives from womb to tomb anyway is a whole different subject for another day. The fact is, the authority to regulate legal products cannot be found within the United States Constitution. The federal government "gave" itself authority to regulate these legal products and liberties. The Founding Fathers did not intend for the central government to have any such powers, else they would have added them.

There is very good legal precedence for saying that the federal government has no authority to regulate a product, too. In fact, if you look, you will find that precedence within the Constitution. The first time the federal government wished to regulate a legal product out of existence, it went about it correctly: Via a Constitutional Amendment. That was the Eighteenth Amendment -- ratified on January 16, 1919 -- to ban intoxicating liquors. And, as we know, that action didn't work out very well. The Amendment was repealed in 1933.

So, what of this tobacco scam currently being perpetrated on the American public by lawyers? First, no matter what we personally feel about tobacco, Americans should apply political pressure to halt this action. Because, if the legal system can pull this one off -- and make big bucks in the process -- what's next? Anyone think they will stop here? There are plenty of "health" matters to be addressed. Perhaps they'll start looking at excessive fat and sugar in foods. Then they can start on meat, potatoes and salt.

President Clinton says that he wants the retail price of tobacco products increased significantly so that teenagers can't afford them. Well . . . most teens can already get illegal drugs easier than they can booze and cigarettes. Perhaps, when the federal government gets done "controlling" our actions, the least expensive illegal product available to children will be marijuana -- or (hopefully not) even crack.

No matter what the grandstanding politicians do, it will not ultimately be effective. Our second recourse is the United States Supreme Court. And folks, this action ain't gunna fly with the Supreme Court. The politicians know that. But, as usual, they're going forward anyway.


Some States, like the Commonwealth of Kentucky, are a nightmare of boards and commissions made up of unelected people who, nevertheless, make decisions having the power of law. Usually, these panels set minor regulations for their respective trades and often have the power to discipline members of the trade for unethical acts.

Sometimes, though, they also have an opportunity to pass a rule, regulation or law that can significantly increase their own personal income. Usually, we would call that a direct conflict of interest. But, when lawyers are concerned, maybe it's just business as usual. You decide.

The question is: Should real estate buyers and sellers be allowed to close on real property without the use of a lawyer? The Board of Governors of the Kentucky Bar Association (really!) is to consider that this week.

The U.S. Justice Department sent a letter to the Kentucky Bar Association requesting the Board of Governors not prevent trained non-lawyers from doing real-estate closings, but that doesn't mean much. In these cases, the Bar can do as it pleases. A Bar Association decision is binding, and can only be appealed to the Kentucky Supreme Court.

One member of the Board of Governors said that her main concern is making sure real-estate buyers and sellers are protected. Other Kentucky lawyers say that they are concerned because "some non-lawyers doing closings are unregulated." And heck, we can't have people doing unregulated work. At least, not when lawyers can get paid three or four times more for the same job.

Like many States, Kentucky lawyers are actually the unregulated ones. Other than petitioning the State Supreme Court, not much can be done to them for unethical behavior or poor workmanship. And, even then, it all becomes a big secret, and actions taken by the Court are seldom made public.

When we contrast this with the way lawyers broadcast any actions they take for malpractice or unethical behavior against other professionals, we see that there is plenty of room for concern with the Bar Association.

So, is it unethical to rule in favor of yourself? Not if you're a lawyer.


A recent U.S. 6th Circuit Court of Appeals opinion proves that we should all be paying very close attention to the way Hillary and her attorney friends act when questioned for misdeeds.

We will never recommend lying a lot, as Hillary was said to do during depositions and such. But what has come to be called "taking the Hillary" -- don't remember, have no relocation of that, etc. -- seems to be permissible during legal questioning. And let's face it, if that is acceptable behavior for those in government, those who are trained and experienced in the law, it most certainly must be a technique the rest of us should study and remember.

Anyway, on a more practical note, the 6th Circuit Court of Appeals recently said that we may not be able to claim the privilege against self-incrimination under certain circumstances. For instance, targets of a grand jury probe have no right to be provided an attorney unless they were in custody. Also, according to the Appeals Court, targets do not even have a right to know they are being investigated.

A Tennessee man was arrested and convicted for possession of crack cocaine. The evidence used in court included his testimony before a grand jury. His lawyer argued that the use of grand jury testimony violated his right to a fair trial because he was not first warned that anything he said could be used against him, and he was not offered a lawyer.

Apparently, the guy went into the grand jury and honestly answered most of the questions put to him. In other words, he forgot to forget. He blabbed. Therefore, he helped to convict himself. And, the Appeals Court allowed the conviction to stand.

Usually, according to the Justice Department, a letter and an Advice of Rights form are sent to targets of a grand jury probe. Witnesses do have rights, even in a grand jury. Most importantly, witnesses have the right to dummy-up, which, in the above case, would have been very beneficial.

Most grand jury proceedings are little more than a tool of the prosecutor -- a perfunctory proceeding. Prosecutors can indict just about anyone they wish. All they need do is neglect to present exculpatory evidence to the grand jury. And, unfortunately, that is very common.

Therefore, a good rule of thumb is that, if a prosecutor is running the show, say nothing. We all have a Fifth Amendment right against self-incrimination. Start out with that, end up with that, and say nothing in between. Or, ask for complete and total immunity against prosecution for everything said. Then, if you get it, go ahead and tell them everything you have ever done. . . .

But even if you are testifying before the grand jury because you really want to see some bad guys put away, don't forget that if the questioning starts getting a little too close to home for you, consider taking the Hillary. It works for them.


House Majority Whip Tom DeLay is being accused by the liberal national media and the legal community of trying to intimidate federal judges. He admits it, too: "The judges need to be intimidated," DeLay (R-TX) said. "They need to uphold the Constitution." And, if they don't behave properly, "we're going to go after them in a big way."

The Washington Post reports that: "Republicans in Congress are engaged in a broad-based, sustained effort targeting the federal bench. GOP lawmakers have talked about impeaching judges for unpopular decisions, proposed term limits and suggested reducing the number of appeals judges. They have held hearings on 'judicial activism' -- singling out judges who they think have gone beyond interpreting the law to making it -- and offered legislation that would shrink a judge's authority."

So . . . what's wrong with that? Judges have no authority over and above the law. Just because they put on a black robe for a couple hours a day does not mean that the Constitution -- and all other laws -- no longer apply to them. As The Post writes, "complaints about the judiciary are as old as the institution itself." But that's not the point. The point is that some judges simply do not respect our Constitution and/or the rights of the individual citizen. That must change.

An American Bar Association report says that the current interest in the judiciary by Congress could actually threaten judges' independence. "While there is nothing new about judicial criticism," the ABA report said, "there are aspects of the present cycle of political debate that are relatively new and lack clear precedent. . . . In recent years . . . an unfortunate shrillness has often marked the tenor of inter-branch discussions. This new skepticism has caused some to fear that Congress is seeking to over-regulate the courts in ways that are not keeping with a truly independent judiciary."

The Bar Association forgot something. Lawyers and judges are no different that any other professional. Their actions have consequences on the citizens of the United States. Therefore, when they act unethically, negligently or stupidly, they must be held to a strict public accounting.

Furthermore, any judge saying they do not want to hear a Constitutional issue in court should be immediately removed from the bench and lose their license to practice law forever. Any citizen appearing before that court should then have the right to sue that judge for malpractice. On the other hand, some of us should learn exactly when -- which part of the trial -- the bringing up of Constitutional issues is most appropriate.

It is because we cannot trust many judges to honor and defend the Constitution, as written, that we see the current wholesale usurpation of our rights and liberties by the federal government. It is because these judges -- with lifetime tenure on the bench -- sometimes do exactly as they wish, rather than what the Founding Fathers intended, that this country is beginning to resemble a police state. This too must change.

Some say that the bench is now far more conservative than it has been in recent decades. Maybe. But "conservative" doesn't get it. Nor does "liberal." In the judiciary, we need a combination of the two within the demeanor of each judge. We need a liberal interpretation of our individual rights, and a conservative interpretation of our Constitution.

Rep Tom DeLay, is correct in calling for the impeachment of certain judges. He said that to initiate a formal complaint against any judge, "You have to have a good candidate for impeachment, in order to make it stick. We are doing a lot of research on judges' records to see what kinds of attitudes they have."

There is no reason they can not impeach two or three of the worst judges every year. That would go far in keeping the rest in line.

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