Vincent Bugliosi, Manson trial prosecutor, dies at 80 http://t.co/RknC7DHQvc – His book about the Manson trial – "Helter Skelter" was superb

— U.S. Citizen Abroad (@USCitizenAbroad) June 9, 2015

The article referenced in the above tweet took me to a comment that led me to the article referenced in the following tweet:

None Dare Call It Treason | The Nation http://t.co/vA3SqYJVzq via @thenation – Fascinating: Vicent Bugliosi – Lawer + Author: Helter Skelter

— U.S. Citizen Abroad (@USCitizenAbroad) June 9, 2015

Vincent Bugloisi died last night. He was a famous American prosecutor – his fame largely resulted from the Manson prosecution. He was able to parlay that experience into the best selling book – Helter Skelter.

Why I am writing this post?

Americans abroad (or those who are accused of being one) have been and continue to be subjected to a barrage of unjust laws and politicians that are either “self interested” or “indifferent”. Some have actively supported bringing the injustice of citizenship taxation, FATCA and FBAR into the courts. This has begun in Canada. Jim Bopp continues to threaten a FATCA lawsuit in the U.S. There has been discussion of (and it is looking like one will be initiated) a lawsuit challenging aspects of citizenship taxation in a U.S. court. So, the question becomes:

To what extent can we expect the courts to be helpful? Clearly the courts can be helpful only to the extent that they are independent of partisan politics and independent of the government. On a practical level:

To what extent can members of the public expect fair treatment in the courts? I don’t know the answer.

The State of Florida and the 2000 U.S. Election – Bush v. Gore

This is interesting for at least two reasons:

1. There is evidence that the votes of Americans abroad mattered in the State of Florida.

David Barstow and Don Van Natta, writing in the New York Times, state:

On the morning after Election Day, George W. Bush held an unofficial lead of 1,784 votes in Florida, but to his campaign strategists the margin felt perilously slim. They were right to worry. Within a week, recounts would erode Mr. Bush’s unofficial lead to just 300 votes.

With the presidency hanging on the outcome in Florida, the Bush team quickly grasped that the best hope of ensuring victory was the trove of ballots still arriving in the mail from Florida residents living abroad. Over the next 18 days, the Republicans mounted a legal and public relations campaign to persuade canvassing boards in Bush strongholds to waive the state’s election laws when counting overseas absentee ballots.

Their goal was simple: to count the maximum number of overseas ballots in counties won by Mr. Bush, particularly those with a high concentration of military voters, while seeking to disqualify overseas ballots in counties won by Vice President Al Gore.

Leaving aside Gore v. Bush, this is a strong indicator that votes from Americans abroad can make a difference. Those who want to remove the FATCA Party Democrats from the White House really do need to exercise your right to vote. I understand that it’s easy to register to vote in Florida. Imagine if all Americans abroad found a way to register to vote in Florida (it’s an important State). If Americans abroad were a factor in the 2000 Election (without even knowing they could be), imagine what they could do if they know they can make a difference!

2. Back to Vincent Bugliosi

The second tweet above, references an interesting article written by Mr. Bugliosi expressing his view of the quality of the Supreme Court decision in Bush v. Gore. The article is long, detailed and complex, but he does make the case that the decision was a gross abuse (misuse) of the equal protection clause. The equal protection clause is part of the 14th amendment. The 14th amendment is what guarantees those with a U.S. birthplace (and possibly subject to the Jurisdiction of the U.S.) citizenship at birth. It is also the basis of the Supreme Court decision in Afroyim (which guarantees that the Government cannot strip people of their citizenship without consent). Afroyim could well provide the basis for a constitutional challenge against certain aspects of “citizenship based taxation”. In Afroyim, Justice Black ruled that:

Citizenship is no light trifle 268*268 to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a co-operative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

I recommend Mr. Bugliosi’s article to you. It includes an interesting discussion of the 14th amendment. It also includes:

The Court majority, after knowingly transforming the votes of 50 million Americans into nothing and throwing out all of the Florida undervotes (around 60,000), actually wrote that their ruling was intended to preserve “the fundamental right” to vote. This elevates audacity to symphonic and operatic levels. The Court went on to say, after stealing the election from the American people, “None are more conscious of the vital limits on its judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people.” Can you imagine that? As they say, “It’s enough to drive you to drink.”

What makes the Court’s decision even more offensive is that it warmly embraced, of all the bitter ironies, the equal protection clause, a constitutional provision tailor-made for blacks that these five conservative Justices have shown no hospitality to when invoked in lawsuits by black people, the very segment of the population most likely to be hurt by a Bush administration. As University of Southern California law professor Erwin Chemerinsky noted: “The Rehnquist Court almost never uses equal protection jurisprudence except in striking down affirmative action programs [designed to help blacks and minorities]. I can’t think of a single instance where Scalia or Thomas has found discrimination against a racial minority, or women, or the aged, or the disabled, to be unconstitutional.”

Varying methods to cast and count votes have been going on in every state of the union for the past two centuries, and the Supreme Court has been as silent as a church mouse on the matter, never even hinting that there might be a right under the equal protection clause that was being violated. Georgetown University law professor David Cole said, “[The Court] created a new right out of whole cloth and made sure it ultimately protected only one person–George Bush.” The simple fact is that the five conservative Justices did not have a judicial leg to stand on in their blatantly partisan decision. In a feeble, desperate effort to support their decision, the Court cited four of its previous cases as legal precedent, but not one of them bears even the slightest resemblance to Bush v. Gore. In one (Gray v. Sanders), the state of Georgia had a system where the vote of each citizen counted for less and less as the population of his or her county increased. In another (Moore v. Ogilvie), the residents of smaller counties in Illinois were able to form a new party to elect candidates, something residents of larger counties could not do. Another (Reynolds v. Sims) was an apportionment case, and the fourth (Harper v. Virginia) involved the payment of a poll tax as a qualification for voting. If a first-year law student ever cited completely inapplicable authority like this, any thoughtful professor would encourage him not to waste two more years trying to become a lawyer. As Yale law professor Akhil Reed Amar noted, the five conservative Justices “failed to cite a single case that, on its facts, comes close to supporting its analysis and result.”

If the Court majority had been truly concerned about the equal protection of all voters, the real equal protection violation, of course, took place when they cut off the counting of the undervotes. As indicated, that very act denied the 50 million Americans who voted for Gore the right to have their votes count at all. It misses the point to argue that the five Justices stole the election only if it turns out that Gore overcame Bush’s lead in the undervote recount. We’re talking about the moral and ethical culpability of these Justices, and when you do that, the bell was rung at the moment they engaged in their conduct. What happened thereafter cannot unring the bell and is therefore irrelevant. To judge these Justices by the final result rather than by their intentions at the time of their conduct would be like exonerating one who shoots to kill if the bullet misses the victim. With that type of extravagant reasoning, if the bullet goes on and accidentally strikes down a third party who is about to kill another, perhaps the gunman should ultimately be viewed as a hero.

Other than the unprecedented and outrageous nature of what the Court did, nothing surprises me more than how it is being viewed by the legal scholars and pundits who have criticized the opinion. As far as I can determine, most have correctly assailed the Court for issuing a ruling that was clearly political. As the December 25 Time capsulized it, “A sizable number of critics, from law professors to some of the Court’s own members, have attacked the ruling as…politically motivated.” A sampling from a few law professors: Vanderbilt professor Suzanna Sherry said, “There is really very little way to reconcile this opinion other than that they wanted Bush to win.” Yale’s Amar lamented that “for Supreme Court watchers this case will be like BC and AD. For many of my colleagues, this was like the day President Kennedy was assassinated. Many of us [had] thought that courts do not act in an openly political fashion.” Harvard law professor Randall Kennedy called the decision “outrageous.”2