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Impeachment Desuetude Will Foster Presidential Crimes

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If Bush isn't prosecuted quickly, desuetude will prevent prosecution of his and future presidents' repeat of his crimes. 

George Bush must be brought to trial and prosecuted for his crimes as quickly as possible. It’s not just that he is a despicable criminal that haste is necessary. There’s the “Use it or lose it” principle of law called desuetude. It’s the legal doctrine that if we don’t prosecute Bush in a timely manner, the laws against his crimes no longer apply, and he gets away with it. And the danger is that future presidents can repeat Bush’s crimes and get away with them, too.

The doctrine of desuetude being applicable depends on various descriptions of how long a law has gone unenforced before it becomes unenforceable. It’s the doctrine that “a long habit of non-enforcement or lapse of time,” or that “a long and continued non-use of a law renders it invalid.” George Bush’s first major violation of the law of the land, the Constitution, was in March of 2003, when he illegally declared war on Iraq. George Bush committed fraud upon our nation by conspiring with members of his administration to make up and lie about his reasons for declaring war, which he was legally prohibited from doing by the Constitution.

We’ve already gone five years and nine months without prosecuting Bush for that series of crimes. Is that a long habit of non-enforcement or lapse of time, or a long and continued non-use of the law that renders it invalid? Who knows? How long is too long? How long is a piece of string? To me, to have waited even a few minutes after Bush illegally declared war was way too long. Since there is no definite time mentioned for desuetude to make the law unenforceable, we must prosecute Bush before desuetude kicks in and makes it impossible.

Supposedly, desuetude does not apply to violations of the Constitution. The Supreme Court has asserted that: ‘It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.” This means that even if Constitutional law has never been enforced, it can still be applied to a defendant at any time. Of course, as we know from the 2000 presidential election, this does not apply when there’s a Republican committing voting fraud in Florida and a Supreme Court with a majority of Republicans who only and always vote in favor of a fellow Republican.

The West Virginia Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if:

l. The statute proscribes only acts that are malum prohibitum and not malum in se. Wrong because prohibited but not wrong because it’s evil.

2. There has been open, notorious and pervasive violation of the statute for a long period.

3. There has been a conspicuous policy of non-enforcement of the statute.

In the three items above, I don’t think that desuetude has had time to come into effect. Is open, notorious and pervasive violation of the statute for five years and nine months long enough? Has there been a conspicuous policy of non-enforcement of the statute? In the first case, Bush’s war of five years and nine months is still going on. In the second case, Bush’s Justice Department has had a conspicuous policy of non-enforcement for the same length of time. Is that long enough for desuetude to kick in?

Even if it is and we’ve waited too long to prosecute Bush for his statutory crimes, we can still prosecute him on the second part of item 1. The malum in se provision is excluded from desuetude, and can be enforced no matter how long it hasn’t been. The wrong because it’s evil provision certainly applies to a man who commits an act of aggressive war for no reason at all that results in the deaths of an estimated million innocent people. By any reasoning, by any definition, any man who does that is evil. And, George Bush did that.

 

Ed Martin is an ordinary person who is recovering from being badly over-educated. Born in the middle of the Great Depression, he is not affiliated with nor a member of any political, social or religious organization. He is especially interested in (more...)
 

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is the only moral constraint I can see on the vict... by Brett Paatsch on Sunday, Dec 7, 2008 at 11:15:40 PM
Brett,You walk a very fine and taught tightrope in... by William Whitten on Monday, Dec 8, 2008 at 7:19:07 PM
for something while we live.I'm not hiding fro... by Brett Paatsch on Monday, Dec 8, 2008 at 11:41:59 PM
Brett, I share everyone of your sentaments! I do, ... by William Whitten on Wednesday, Dec 10, 2008 at 12:42:25 PM