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Tina Peters federal petition for bond was dismissed without prejudice on Monday, with the court finding that it cannot intervene because the matter is pending in state court:
“Without question, Ms. Peters raises important constitutional questions concerning whether the trial court improperly punished her more severely because of her protected First Amendment speech. But because this question remains pending before Colorado courts, this Court must abstain from answering that question until after the Colorado courts have decided the issue. Accordingly, based upon the Younger abstention doctrine, her Application must be DISMISSED WITHOUT PREJUDICE.” Read the order here.
Notably, the court did not touch the merits of the First Amendment appeal, and Judge Varholak even acknowledged the importance of her claims – but those claims are pending, not exhausted, in state court, and that means the federal court is mandated by law to abstain from intervening.
Watch Ashe's detailed breakdown of the order here.
Earlier in the day, Peter Ticktin published his letter that he sent to President Trump on Saturday. The letter presents a novel legal theory that the President can pardon all crimes (ostensibly except those involving impeachment) because of the pronouns used by the constitutional framers.
In essence: America Uses “They/Them” Pronouns So Trump Can Pardon Tina Peters.
“However, from the time of its inception until after the Civil War, when one considered the ‘united States,’ it was thought of as the various countries or states which had become united. Hence, when its pronoun was used, it was always ‘they,’ ‘them,’ or ‘their.’ For instance, Article III, Section 3, Paragraph 3, of the Constitution states: ‘Treason of the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.’ [...]
In that day and age, they were speaking of the United Countries, and the President was given the right to pardon all offenses. Moreover, it does not make sense that they intended to give the individual states the power to circumvent the President’s power to pardon.”
Did the framers intend to give the President the power to override the Governor on matters of state law? That seems like a stretch for the Revolutionary framers… But for the Reconstruction framers? They probably did. Of course, my position is that those amendments are illegitimate because the state legislatures that ratified them were appointed by the federal government. Regardless, those amendments transformed our nation…
We are in a transformational moment again in our nation.
Which kind of America do we want to be?
I like the constitutional question presented here, because I think this Supreme Court could render a decision that moves us closer to originalism. But that would not be a good outcome for Tina Peters, however; her argument (as I understand it) relies on the Reconstruction ideology, and requires the federal government to claim more power than it should have.
So, this specific action – pardoning Peters and fighting about authorities in court – could lead to a binding precedent that helps America restore the liberty of her youth – but cuts off opportunities for Tina Peters’ release. “What truly matters is not which party controls our government, but whether our government is controlled by the people.”
Ticktin joined Bannon yesterday to discuss his letter, and he mentioned at the beginning of the interview that the letter was the legal work of Stephanie Lambert, a well known election attorney and activist that works with Patrick Byrne. Then he said this:
Do you see what just happened there? Peter Ticktin effectively gave Trump a deadline to operate outside his authority (according to legal consensus going back to the founding of our nation). He framed it as Trump just needs to decide to do the right thing.
There is a lot of that going around.
Do this novel thing, and Tina will be out by Christmas. If Tina isn’t out by Christmas, it’s all President Trump’s fault. It must be because Todd Blanche is blocking Trump from doing the right thing. And Bondi and Eagle Ed. That ol’ dummy Trump, he just can’t find good help these days… I guess we better bomb Venezuela.
That narrative is not only very likely fake. It’s stupid.
Tina Peters should be released because what is happening to her is cruel and usual and the product of weaponized government and asymmetrical justice. From a legal standpoint, that would be considered an “exception to Younger.”
“And, in any event, at no point does Ms. Peters argue that this Court should find an exception to Younger, as opposed to arguing that the three Younger requirements were not satisfied.”
According to the court, Peters counsel never made that legal argument – despite all these months of briefing the court on Younger.
Is that Trump’s fault, too?
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