Friday, January 13, 2017

Of Emails, Scandals, and Justice Part II

...and so it goes, that any law abiding citizen shall be deemed plebeian and named 'pissant' for the governmental ruling class has ordered themselves above the laws they enact.

It seems that while us commoners lay quietly sleeping, the governmental ruling oligarchy changed the Rules of the House. Where it once said:

It shall now be amended with the following wording (approved on Jan 3, 2017) as such:

  (j) Member Records.-- In clause 6 of rule VII--
    (1) redesignate paragraphs (a) and (b) as subparagraphs (1) and (2):
    (3) in paragraph (a) (as so designated), insert '' as (2) designate the existing sentence as paragraph (a); and described in paragraph (b) ' ' after  '' Resident Commissioner ' ';
    (4) add at the end of the following new paragraph:
     Commissioner in the performance of official duties are ''
(b) Records   created, generated, or received by the congressional office of a Member, Delegate, or the Resident Delegate, or Resident Commissioner has control over such exclusively the personal property of the individual Member, Delegate, or the Resident Commissioner and such Member, records. ' ' .  

Did you catch that? The rules have just changed. It means that from now on any official record (paper, email, note, or correspondence) of any kind and in any form are the sole property of the congressional member, individually.

You're probably thinking, "so what?" right? I'm not a lawyer, obviously, but here's where I see the problem...

I'm going to assume that everyone is familiar with 'pleading the Fifth' where an individual can invoke the Fifth amendment to not say anything because in doing so, it would incriminate him or herself.
Well, there is a similar rule regarding documents. It's called the Act of Production. It does not apply in all cases, just certain cases where an individual is most likely guilty. (emphasis and wording is mine)

To receive protection under the "Act of Production" doctrine, a person's very act of producing the documents (Hiibel vs Sixth Judicial Dist. Ct., 124 S. Ct. 2451, 2460 (2004)) must have all three components: be (1) compelled, (2) testimonial, and (3) incriminating.

It's not enough to just say, 'Hey, no. I'm not going to produce them because I fear incrimination.'
No, the documents themselves must "furnish a link in the chain of evidence needed to prosecute him/her."

In other words, if the very documents requested can be used to prosecute you, then well, just invoke the Act of Production doctrine. Yay. Prosecutors must find another way to nail you to the wall.

And Congress has now made it so that any member's documents/records (created, generated, or received) by their office,  are now the sole property of that individual.
Individual. Not Office.

This means that those documents no longer fall under the Freedom of Information Act for they belong to the individual member (yay for personal privacy exemptions!), not the office, agency, or department. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of the nine exemptions which protect interests such as personal privacy, national security, and law enforcement. Remember that a request for a document which does not qualify as an "agency record" may be denied because only agency records are available under the FOIA.

Protection is available only to individuals, and only covers the testimonial aspect of the production itself, not the contents of the documents.
And congress just made all documents (records) created, generated, or received the personal property of the individual.
It means that a congressional member can now invoke the Act of Production.

How's that for a clear and transparent government?

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