Magneto’s Threat Against President Richard Nixon

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June 16, 2014

Magneto in X-Men Days of Future Past threatened to assassinate President Richard Nixon and a substantial number of his cabinet during the Sentinel product demo gone horribly wrong. The story took place before, during, and after the Paris Peace Accords, which was signed on January 27, 1973.

As such, the attempted assassination had to be in the final days or January or early February 1973 (which magically looked like summer). We can assume the cabinet members included:

Vice President Spiro Agnew, who may or may not have been at the Sentinel demonstration;

Secretary of State William Rogers;

Secretary of the Treasury George Shultz (Unlikely at the demo);

Secretary of Defense Melvin Laird;

Attorney General Richard Kleindienst;

Secretary of the Interior Roger C. B. Morton (Unlikely at demo);

Secretary of Agriculture Earl Butz (Unlikely at demo);

Secretary of Labor James D. Hodgson (Unlikely at the demo)

It was unlikely the other cabinet members were in attendance. However, there was a high likelihood that the Speaker of the House Carl Albert would be in attendance. It is hard to say whether or not Senator James Oliver, the President Pro Tempore would have attended the ceremony. Given the high cost of the project and national defense interests, it would make sense for Congress to have key players attend the demonstration.

Who Would Be President if Everyone at the Sentinel Demo Died?

Knowing who was in attendance would have a major impact on the Presidential Line of Succession in case of a mass assassination. This is why one cabinet member does not attend State of the Union Address, in the event of a Tom Clancy-type attack taking place on the United States Capitol Building.

The short order of Presidential succession goes from President to Vice President, followed by the Speaker of the House; then the President Pro Tempore of the Senate; then the Secretary of State; then Secretary of the Treasury; then the Secretary of Defense; then Attorney General; then Secretary of the Interior, then Secretary of Agriculture; followed by the Secretary of Commerce; Secretary of Labor; and further down other cabinet members.

If Magneto had killed President Nixon, the Vice President, the cabinet members present, and possible Congressional leadership in the Presidential Line of Succession, there was a high chance someone like Senator James Oliver or Secretary of the Interior Roger C. B. Morton would have become the 38^th President of the United States.

And that would have been weird and terrifying, but would show the Constitution was prepared for a nightmare situation.

Good thing the 1970s did not see a Constitutional crisis where someone never elected President or Vice President became President. Just imagine one Congressional term with three Vice Presidents….

Do No Threaten A President

Threatening a President is a bad life choice. US law states that:

(a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.

(b) The terms “President-elect” and “Vice President-elect” as used in this section shall mean such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. The phrase “other officer next in the order of succession to the office of President” as used in this section shall mean the person next in the order of succession to act as President in accordance with title 3, United States Code, sections 19 and 20.

18 USCS § 871.

Magneto’s threat on Nixon and the cabinet was not done through the mail, but in person and televised. A World War 1 Era 1917 statute prohibits any person from “knowingly and willfully . . . [making] any threat to take the life of or to inflict bodily harm upon the President of the United States…” Watts v. United States, 394 U.S. 705 (U.S. 1969).

The Watts case took place during the Vietnam War. An 18 year-old voiced his feelings towards the Draft and stated: “They always holler at us to get an education. And now I have already received my draft classification as I-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” Watts v. United States, 394 U.S. 705, 705 (U.S. 1969).

The young man was convicted of knowingly and willfully threatening President Johnson. Id.

The United States Supreme Court reversed, holding both that the 1917 statute was Constitutional, but that the Defendant lacked the “willfulness” required by the statute. The Court did not fully state “willfulness” required “an apparent determination to carry them into execution,” but the Government failed to prove the Defendant was a true threat to the President.” Watt, at *706, citing Ragansky v. United States, 253 F. 643, 645 (C. A. 7th Cir. 1918).

The case against Magneto being a “true threat” against the President is extremely clear. Magneto dropped RFK Stadium around the White House, ripped a bunker out from many stories below the White House, and aimed multiple guns at the President for a public execution. There is no question that Magneto was a true threat to the President before Raven (or Mystique) and the X-Men stopped him.

…and while Mystique certainly took many steps to murder Bolivar Trask, she did not go through with it. President Nixon might have given her a pardon for her saving the day.

Thoughts on My Mother & Father's Day

By

Josh Gilliland

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June 15, 2014

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June 15, 2014 would have been my mother’s 60th birthday. Cancer kept her from being here, but it is very fitting that today is also Father’s Day.

My grandparents ironically did not become parents the day my mother was born. They would not adopt her for several days later, before taking her home from the hospital.

Adoption is one of the most important bodies of law we have in America. It ensures that children are raised by parents who love them, opposed to state bureaucracy.

A retired state court judge in Arkansas told me that adoption cases were his favorite cases to preside over, because of the fact he was helping children. God bless everyone brave enough to adopt a child, and the attorneys and judges who make the process work in the best interests of a child.

Grammy&Mom-3Weeks

My grandfather is the model of fatherhood. A dedicated farm boy, who worked his way through college in a candy store, to ultimately become a dentist. Former patients still speak fondly of him, despite the passage of 30 years since he retired. He served our country during World War II in the Navy in the Pacific, returned to Iowa, and met his future bride on the bus ride home. The University of Iowa dedicated an entire dental clinic in his honor this year. He is very proud of his support to help others become dentists.

My grandfather went into the healing arts because of his older sister Ruth who helped raise him. Ruth was a nurse and she ultimately would become President Eisenhower’s personal White House nurse in the 1950s.

There is no question my mother’s time as a teenager candy striper and becoming a paramedic were in no small part because of her father. She too believed in helping others. I literally have no idea how many people are alive today because of the 10 years she spent as a paramedic. It was her favorite career and one cut short while injured in the line of duty. It was impressive that firemen who had not worked with her in over 15 years attended her memorial, complete with a fire engine to remember one of their own.

Fatherhood is not easy. The entire point of being a dad is to safely raise a child to go on into the world. It takes hard work, from simply being there, to helping teach a child to read, and instilling proper values. The list of what a Father must do goes on. It would be pure Hell for any Father to watch both a wife and then a daughter die of cancer.

For all of the Fathers out there, thank you for being a Dad.

And Mom, Happy Birthday.

"I Don’t Want Your Future [Legal Nightmare]!"

By

Josh Gilliland

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June 14, 2014

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Jessica Mederson, Esq., and Joshua Gilliland, Esq., put on their X-Uniforms and jump in the Blackbird to discuss legal issues in X-Men Days of Future Past. For example, who would have been President if Magneto had been successful in killing President Nixon and his Cabinet? Would it even remotely be Constitutional to use Sentinels to hunt Mutants?

Does Killing Mutants With Sentinels Violate the Equal Protection Clause of the Constitution?

By

Josh Gilliland

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June 11, 2014

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X-Men Days of Future Past highlighted a disturbing idea: the US Government deploying Drones (Sentinels) to kill US citizens solely on their racial status (Homo Superior, opposed to Homo Sapiens). There would be no crime, no arrest based on probable cause, no right to counsel, or even a trial. Simply killed for their racial status.

Would that be Constitutional?

No, for multiple reasons.

As a preliminary matter, a Court would find a “mutant” is a “person” and a US Citizen under the law. Determining that a Homo Superior is a human being is not as controversial as claiming Orca Whales have their 13th Amendment rights violated at Sea World (an argument that lost in Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).).

A Homo Superior is born like Homo Sapiens, often from other Homo Sapiens. Whether you believe life begins at conception or viability, there is no question that human beings are conceived and born of other humans. Moreover, Homo Sapiens and Homo Superiors can have children together. Human beings cannot cross-bred with other animals (Thank God).

The Constitution would not tolerate human rights being striped of those born of other human beings. Moreover, the very idea someone’s child is “not human” because they are Homo Superior has the moral weight of determining humanity by eye color.

There are many historical examples of countries enacting raced-based legislation, imposing nightmarish laws in the past. In the United States, one only needed to have 1/32 African heritage to qualify as a “slave.” Courts even took the view that there was a “presumption of law…that a person of African descent is a slave, but that the presumption may be repelled by any evidence tending to show he is free.” Lee v. Tapscott, 2 Va. 276, 282 (Va. 1796). Further evidencing horrific legal abominations, Nazi Germany required someone to have 1/16 Jewish heritage to be a “Jew” for Hitler’s genocidal war crimes.

Those are two examples from the eighteenth through twentieth centuries etched into my memory from college. The horror of state licensed inhumanity should never be forgotten.

There are far more good laws than bad. The Due Process Clause of the 5th Amendment states that “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . ” The 14th Amendment to the United States Constitution further states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

A Court would be hard pressed to say a “mutant” is not a person under the law without resurrecting the ghosts of Dred Scott and Korematsu. A Judge who would uphold the use of Sentinels would simultaneously channel Chief Justice Taney in saying mutants were not “people” and Korematsu,except instead of interning mutants because of their racial status, to kill them without a trial, regardless whether any crime had been committed. Any such law would be convicting citizens for the crime of being a Homo Superior with an extra-judicial death sentence.

There is no way Congress could authorize the use of Sentinels without triggering “Strict Scrutiny,” because it is a race-based law that calls for the execution of US citizens. While the Government could argue there is a compelling government interest in national defense, there is no way they could argue systematically killing citizens without a trial is in the government’s interest. Secondly, there is no way any such law would be narrowly tailored, because the Sentinels would systematically kill any mutant. (See, Richmond v. J. A. Croson Co., 488 U.S. 469, 476 (U.S. 1989), for the strict scrutiny test). There would be multiple less restrictive means to carrying out the compelling government interest of national defense without mass murder.

The Constitution further requires the right to a trial and counsel. People in the United States cannot be randomly arrested for no reason, let alone roadside executions by a Drone. There is simply no way the use of Sentinels would be Constitutional because of the extreme denial of Due Process or Equal Protection for Homo Superior citizens.

She-Hulk, Esq: A Discussion on A Super-Hero Lawyer

By

Josh Gilliland

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June 9, 2014

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I loved John Byrne’s Sensational She-Hulk back in 1989. It was a fun ride, from space truckers to breaking the fourth wall.

I have been very impressed with Charles Soule’s new She-Hulk series, focusing more on the practice of law than smashing super-villains.

However, unlike the actual practice, no one gets to fight robots or have judges accept motions without any underlining pleadings.

Marguerite Kenner (@LegalValkyrie) and Alasdair Cookie (@AlasdairStuart) joined me while on holiday from the United Kingdom to discuss the first four issues of the new She-Hulk comic.

We cover many topics, including She-Hulk setting up her law practice, the duty of loyalty to clients, and the legality of secretly recording someone in California from the first issue of the new series.

We also analyze whether or not Kristoff Vernard’s Application for Asylum in form I-589 would be granted. Let’s just say he would have challenges overcoming the history of whether he has “persecuted another person” or “represent a danger to the United States.”

The Sleeping Dragons of Isolationism

By

Josh Gilliland

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June 6, 2014

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The Hobbit is an excellent allegory about the dangers created by Isolationism. The film The Desolation of Smaug brings this point home with both the Woodland Elves and humans at Lake-town. The book, originally written in the 1930s, corresponds with the United States passing multiple “Neutrality Acts” in an effort to avoid getting involved in “another” European war. Highlighting this attitude while Germany was in the midst of re-arming, Americans in college were taking the “Oxford Pledge” that they would never defend the United States under any circumstances.

We are lucky the Greatest Generation proved this was a minority view.

Isolationism is a political doctrine of non-engagement with any other country. It is not pacifism, but simply not interacting with countries. An Isolationist government generally requires an extremely strong military to deter any attack. Moreover, if the Isolationist country is challenged, they would need to deliver a massive attack to make an example of an aggressor country. While there is no merit to proportional responses, as they generally only lead to other attacks, an Isolationist country would need to respond to a small threat by leveling a city if challenged militarily. Few countries have the stomach for such a hawkish foreign policy.

The key isolationist in The Desolation of Smaug is Thranduil, the Elvenking. Thranduil has memorable lines such as “Other lands are not my concern. Here in this kingdom we will endure,” upon learning of a growing foreign policy threat. Moreover, his solution to hearing from an Orc prisoner that “Your world will burn. Death is upon you. War is upon you,” is to double the watch and close the border. Instead of facing a threat early, Thranduil’s policy was to wait for it to get worse.

The counter to Thranduil is Tauriel (who is not in the book), who takes the point of view that those who are fighting evil should not be abandoned, whether it is Dwarves off to reclaim their homeland from a dragon or the Orcs who are building their army for future aggression. Her worldview is “It is our fight. With every victory they grow stronger. When did we let evil grow stronger than us?”

J.R.R. Tolkien wrote The Hobbit while the United States thought it could avoid another Great War by ignoring Europe. One such individual was Senator Gerald Nye who argued World War I had been fought solely for business purposes. Senator Nye would push through multiple “Neutrality Acts” that would prohibit trade with nations at war, somehow thinking that non-involvement would lead to a safe result with Hitler. The Neutrality Act of 1935 called for the following:

…[T]he prohibition of the export of arms, ammunition, and implements of war to belligerent countries; the prohibition of the transportation of arms, ammunition, and implements of war by vessels of the United States for the use of belligerent states; for the registration and licensing of persons engaged in the business of manufacturing, exporting, or importing arms, ammunition, or implements of war; and restricting travel by American citizens on belligerent ships during war.

NEUTRALITY ACT OF 1935; NEUTRALITY ACTS

Case law applying the Neutrality Acts had Judges referring to areas engaged in war as “the forbidden zone.” United States ex rel. Koentje v. Reimer, 30 F. Supp. 440, 440-441 (D.N.Y. 1939). Examples vary, but many include ships en route to Europe being turned around after a nation was declared a combat area by the President. In one such case, merchant sailors tried recovering a months wages for breach of contract when forced to turn around on the way to Norway. The Court held there was no recovery, because the contract had not been breached, because the ship was not legally permitted to go to Norway. Hopkins v. Moore-McCormack Lines, Inc., 175 Misc. 109, 110 (N.Y. City Ct. 1940).

Riding barrels to Lake-town is not the same as taking a ship to Norway. However, there is a common theme in both: Europe and the Lonely Mountain both had dangerous dragons.

Isolationism does not provide any protection against a fire-breathing nation. In The Hobbit, Smaug could just as easily burn the Woodland Elves and Lake-town just as he did the Dwarves in the Lonely Mountain. Correspondingly, Germany could have threatened the United States if it had completed the development of long-range bombers, rockets capable of crossing the Atlantic, or the goal of fleet of Bismark super-battleships to shell the East Coast, or an Atomic Bomb. Letting Europe burn would not make America safer.

Luckily for world history, there were Americans willing to risk their citizenship to sneak to Canada to get to England to join the RAF. Moreover, it was a good thing Churchill knew how to stand his ground after Chamberlain’s foolish appeasement with “Peace in Our Time” and France’s quick defeat. Furthermore, thank God for Franklin Roosevelt with “Lend Lease” and winning a third term in 1940.

Threats to national security do not get better with age. Watching a threat, whether it is a dragon slaughtering Dwarves or tanks rolling over a country, cannot be ignored until the threat comes to your border. The best time to fight a threat is at the beginning, not after it has started invading other countries.

The United States cannot hide behind Isolationism, either from fear of quagmires or the naive idea that abandoning all overseas bases will make us safer. An active foreign policy is required to influence friends through engagement and help those being tormented by a dragon. Ignoring the world only empowers those who would burn it down.

Boston Legal

By

Jessica_alegalgeek

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May 30, 2014

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I’m in Boston this week for the first time since the 20th Century and am very excited to be back here after so long. After I saw Boston’s most important monument — the statue for the Make Way for Ducklings ducklings — I had a chance to pause and reflect on the city’s great legal and historical significance.

Of course, key moments leading up to the American Revolution happened here: the Boston Massacre, the Boston Tea Party, and the Battle of Bunker Hill. Many great early American leaders also hail from Boston, including John Hancock and Abigail Adams. Abigail’s husband was not only the second President of the United States but also a lawyer. As a lawyer he believed so strongly in the right to counsel that he provided a successful legal defense to the British soldiers who were accused in the Boston Massacre. He also nominated, years later, the great John Marshall to be the Chief Justice of the United States Supreme Court, a key nomination that shaped the future of the judicial branch of the federal government.

On a lighter — and more contemporary — note, Boston also ties together my love of the law, geek stuff, and Hollywood. Boston Legal, of course, provided the original Captain Kirk with his other iconic role, as the lawyer Denny Crane (I refuse to acknowledge that cop show). And, just yesterday, one of my girl crushes, Mindy Kaling, gave the commencement speech at Harvard Law. In fact, I think she’s still in Boston so maybe I can bump into her! Time to stop blogging!

But first…if you’re ever in Boston, you really need to see the ducklings. And even if you don’t have kids, read the book. It’s cute and the illustrations are adorable.