On 09-22-98, the day after this motion was filed, it too was denied. I have now moved it up the ladder to The Eighth Circuit Court of Appeals. This is a motion to reconsider my suit to stop Congress from releasing porn on the web in the form of the Starr report.
In the United States District Court for the Western District of Missouri Southern Division
In the United States District Court for
the Western District of Missouri
United States of America
United States House of Representatives,
Case No: 98-3387-CV-S-RGC
Motion to Reconsider
COMES NOW Plaintiff Marc Perkel, to ask that this court to reconsider its order of September 17th 1998 for the following reasons:
Rule 6(e) and the Independent Counsel
In it's order this court ruled:
"In reviewing Chapter 40 and Section 49 of Title 28, the Court reads Section 595 to mean that the Independent Counsel does not need to seek leave of court under Federal Rule of Criminal Procedure 6(e) to deliver evidence gathered by the grand jury to Congress within the context of an impeachment proceeding."
However in the case of In re: Oliver L. North, et al. (Omnibus Order 1994) the Court of Appeals of the District of Columbia was faced with the same situation and ruled the opposite way stating:
It appears then that the Independent Counsel is covered by Rule 6(e) and its bonds of secrecy. We nonetheless note that the Courts may loosen those bonds under the terms of the Rule. "Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made--(i) when so directed by a court preliminarily to or in connection with a judicial proceeding." Rule 6(e)(3). It is upon this exception that the Independent Counsel's ultimate argument rests, and it is under this exception that we ultimately order disclosure.
Our ruling here is not without difficulty. In the first place, the exception applies only in connection with judicial proceedings. We held supra that the compiling of the report is not itself a judicial proceeding, but at most the Act of an Executive Department Employee, and in a sense, only a statement by an individual occupying that position. See (supra). Nonetheless, the decision of release, in whole or in part, is the Court's.
e North Court also held that, "We further conclude that the Independent Counsel as an attorney for the United States is covered by the strictures of Rule 6(e) of the Federal Rules of Criminal Procedure."
Although the Congress may ultimately begin an impeachment proceeding, it is not yet made that decision. At this time no impeachment proceeding exists. The House can only bring Articles of Impeachment that it would then refer to the Senate for an impeachment proceeding.
Even in the context of an impeachment proceeding, the Congress would be acting as a quasi-judicial body. As a quasi-judicial body, the Congress itself would be able to receive and examine grand jury evidence as expressly permitted by the court. However, it would be disclosed only if the purpose of an impeachment proceeding and not to be disclosed to the public. In this context, Congress acting as a judicial body would itself be subject to the restrictions of Rule 6(e).
The ultimate argument here rests with the fundamental rights of the citizens who are forced to testify in front of grand juries. A grand jury, by definition is on Constitutional thin ice to start with. In order to justify the government's ability to question a person under oath without benefit of an attorney is the promise that the proceeding is secret and that the use of the information is limited by active involvement of the Court. The use of the evidence obtained is strictly limited to the bringing of a criminal indictment and no other purpose. To use grand jury testimony in any other way requires and order of the Court and good cause must be shown to do so. It is the responsibility of the Court to jealously guard the constitutional rights of the witnesses and to ensure that their fundamental rights are protected.
It is therefore a violation of the rights of Monica Lewinsky, or any witness, to have this information disclosed to the public without some sort of due process of law. Before the government can publicize the graphic sexual details of Ms. Lewinski performing oral sex on the President, there must be a point where a Court has specifically ordered it's release and has determined what can be released and to whom. Any process that denies Ms. Lewinski or any citizen the opportunity to object to the publicizing of grand jury testimony violates the 14th Amendment to the Constitution and the fundamental right to due process of law. It is unconstitutional for there to be a form of grand jury proceeding and a process to release to the public testimony without leave of the court to do so. If this court was correct in it's ruling that Rule 6(e) doesn't apply to the Independent Counsel, then it is the duty of this court to rule the Independent Counsel laws unconstitutional. Plaintiff therefore moves this Court to do so.
Balance of Harm
In it's ruling this court determined the favor of balance of harm in favor of the House of Representatives. Plaintiff contends that it did so erroneously and asks this court reconsider the balance of harm. In it's decision this Court correctly notes that the cat is out of the bag as they say and that removing the material from the government web site does not remove it from the Internet. I believe that this Court missed my point about preventing future harm.
In further arguing this point, I point out to the Court that today, as you read this motion, Congress is transmitting more X-rated material of an even more offensive nature. This includes X-rated video that the news media has already made the decision to transmit this over the G-rated media channels. Had this court granted my TRO, the Congress would not today be releasing this new X-rated material which is described as significantly more offensive that last weeks transmission. Thus my future fears are in fact well founded and I fear that this will lead to yet other releases of yet even more pornographic material. I believe that when this Court views this new release of government pornography that it will see things my way.
Additionally, it has been reported that in an interview in 1987 with Dianne Sawyer, Kenneth Starr stated:
"Public media should not contain explicit or implied descriptions of sex acts. Our society should be purged of the perverts who provide the media with pornographic material while pretending it has some redeeming social value under the public's 'right to know.' Pornography is pornography, regardless of the source."
I agree with what Mr. Starr used to believe in 1987.
What does the public really need to know? Do we have a right to the news? Absolutely! Do we have a need to know the details of a sex act between two consenting adults? No. That's private. Mayor Marion Barry was reelected mayor of Washington DC after he was caught on camera smoking crack cocaine, and we're going to throw the President of the United States out of office over a blow job? And we have to expose the public to the details of this? This is insane!
Tampering with the Election
Elections are the core of a democratic society. In fact the two elements that I consider the test of a true democratic society are free and honest elections, and a judicial system with high standards of integrity and the will to enforce its own rules. I contend that these releases of X-rated material have everything to do with influencing the elections and undoing the will of the voters in the 1996 presidential election, and nothing to do with an impeachment process.
First of all the Independent Counsel is prohibited from representing the government and representing clients who have an interest in the outcome of the investigation at the same time. Mr. Starr and his firm represent tobacco interests that are fighting 500 billion dollars worth of taxes and contribute more money to the Republican Party than any other Republican donor. Richard Mellon Scaife, who is a very active political enemy of the President, has offered and funded for Mr. Starr a job at Pepperdine University paying one million dollars a year. Mr. Scaife has funded directly and/or indirectly the civil lawsuit by Paula Jones against the President. Mr. Starr assisted Ms. Jones in her civil case. And there is an investigation to determine if money was paid to David Hale to testify against Susan McDougal ultimately came from Mr. Scaife. My point in this is that there is an appearance of a conflict of interest where a reasonable person might question the impartiality of the Independe nt Counsel.
With an apparent conflict of interest as background, Mr. Starr delivered his report to Congress containing secret grand jury testimony. A grand jury by nature is a tool of the prosecutor and is a one sided process. One has to assume that a one sided process produces a one sided result. This one sided document, with its X-rated content, was published by the Congress without even giving the President an advance copy so that he could formulate a response.
I would assume that an impeachment process is required to be fair an impartial. Certainly the Congress is at least required to fake the appearance of fairness and impartiality in such an important process. For the Congress to publish a one sided report, with graphic sexual content, without giving the President any opportunity to review it and respond does not meet the test of even faking a fair process and therefore can not be characterized as being a part of an official impeachment process. I contend that on the face of the record that it is not part of an impeachment process, and that it is in fact an attempt to undermine the 1996 presidential election as well as the 1998 congressional elections which includes my election. I would also point out that in releasing this report, and the video tape that is today being transmitted, that Congress has broken the pornography laws of all 50 sovereign states. When the Congress publishes a one sided pornographic document in violation of th e law, and denies the President due process, such an act can not be characterized as being part of an official impeachment process and can only be characterized as election tampering. This court therefore has a duty to the Constitution to enjoin any and all activities that undermine the electoral process.
The Plaintiff appreciates the Courts concerns about judicial restraint. To order the legislature to restrain itself is a very bold step and should not be taken lightly. In fact, I would think that a Federal Judge might feel inadequate or afraid to make such a ruling. If this is the case, I move that this court move this case to a high enough court to make this bold move.
However, the Court does have its duties to serve the people. A court must act when it has a duty to act. In the 1908 case of ex parte Young states:
Under these circumstances, the language of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat, 264, 404, is most apposite. In that case he said: "It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgement, and conscientiously perform our duty."
Thus, if this Court has a duty to act, it would be a violation of the Constitution to not do so. This Court has no more right to decline the exercise of jurisdiction that is given, than to usurp jurisdiction that is not given.
At what point does the Court have jurisdiction to restrain Congress? Suppose for example that the Congress decided to air video of a woman having sex with a mule on the Cartoon Channel. Would not this Court have an obligation to stop that and rule the act illegal? This is an extreme example, but it's not much more extreme that what Congress is doing today. I contend that releasing X-rated material into the public media is in violation of the laws of every state as well as industry and community standards. I therefore contend that this violation of state pornography laws. Congress passed no act that specifically repealed those laws. It is therefore the duty of this Court to rule that the Congress's transmission of pornographic material is unlawful and order Congress to obey the law. To fail to do so would be the same as ruling that Congress is not subject itself to United States laws. It is therefore not lawful for this Court to permit congress to do so.
The Independent Counsel has the power of the court to call a grand jury, subpoena witnesses, and compel them to testify against their will. If he uses the power of the court, then the court has a responsibility to the people to supervise the use of that judicial power. This court therefore has a duty to act if there is a reason to act.
Speech and Debate Clause
I am very troubled by this Court's ruling that the Speech and Debate clause cover information posted on the Internet by Congress. This court seems to be ruling that the Internet is the same as debate on the House floor. Under the Speech and Debate Clause, a Congressman can say things on the house floor that he couldn't get away with saying on the street.
I contend that the Speech and Debate Clause protects House members from liability only, not from injunctive relief. The judges of our nation share similar immunity from suit in that a judge is not liable for any acts done in his judicial capacity. But a judge can be sued for injunctive relief to stop a judge from continuing to commit an improper act. In Pulliam v. Allen, 466 U.S. 522, 529 (1984) the Supreme Court held that judicial immunity does not extend to declaratory and injunctive actions. I contend that the Speech and Debate Clause was never intended as a barrier to prevent the Courts from using injunctive powers. Such a ruling would give members of congress immunities greater than those enjoyed by the federal judiciary.
Additionally troubling is that if this court is right then the Congress can post libelous material on the Internet with full immunity including injunctive immunity. Members could post nude pictures of their opponents wives that were artificially created and no court could stop them. The idea that this court has ruled that a member of the House can post anything he wants on the Internet with total immunity from liability and injunctive relief scares the hell out of me. If I'm elected to Congress, I pledge to abuse this power as a demonstration to the public about how wrong this ruling is. This ruling allows members of Congress to act totally outside of the rule of law. I contend that this court doesn't have the jurisdiction to grant Congress unconditional immunity to members of Congress. Plaintiff urges this court to reconsider this ruling.
Separation of Power, Balance of Power
The government of the United States is based three branched of government with a clear separation of power and a balance of power. Each branch is supposed to have supervisory authority to make sure that the other branches stay loyal to the Constitution. I contend that the Independent Counsel may be too independent. The Independent Counsel seems to operate as a fourth branch of government with no supervision or control by the other branches. Plaintiff therefore raises the question of the Constitutionality of the Independent Counsel to be above the law usurping the powers of the monarchy and asks this court to rule the Independent Counsel law unconstitutional.
Repealer of Pornography Law
Plaintiff also contends that Congress's release of pornographic material constitutes a repealer by implication of all national, state, and local laws that deal with the possession, sale, and distribution of X-rated material. Could a clerk at Get 'n Go be charged with the sale of pornography to a minor by selling him a newspaper? If not then how can the same clerk be charged with selling Hustler Magazine to a minor if the newspaper contains the same material as Hustler Magazine? As the Supreme Court has frequently reminded us, "repeals by implication ... will not be found unless an intent to repeal is 'clear and manifest.'" Rodriguez v. United States, 480 U.S. 522, 524, 94 L. Ed. 2d 533, 107 S. Ct. 1391 (1987) (citations omitted). I contend that when the Congress voted to release the Starr report that it didn't realize that it was by implication repealing all the pornography laws in all states. I therefore ask this court to rule the act of Congress that released the Starr report to be a void act and to require Congress to specifically repeal all laws affected directly by this new action.
Tenth Amendment Violation
The Tenth Amendment declares that there are enumerated powers delegated to the federal government and reserved powers delegated to the states. The federal government can only act within the context of the enumerated powers. Standards of pornography are powers that are reserved by the states. However, by the Congress releasing this X-rated material, they have effectively undermined the ability of the states to pass and enforce their own pornography laws resulting in a clear usurpation of the powers reserved to the states. In the State of Missouri, for example, it would effectively repeal RSMo 573.040, "Furnishing pornographic materials to minors." I contend therefore that Congress is acting outside its powers in putting pornographic material on its Web Site. Missouri defines "Pornographic for Minors" as:
"Pornographic for minors", any material or performance is pornographic for minors if the following apply:
(a) The average person, applying contemporary community standards, would find that the material or performance, taken as a whole, has a tendency to cater or appeal to a prurient interest of minors; and
(b) The material or performance depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors; and
(c) The material or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
Under Missouri law, the material that the Congress released on the Internet and continues to release on the Internet, I believe, would easily fall under the classification of "Pornographic to Minors". The law would prohibit me, as an individual, from publishing in the newspaper the exact same thing that Congress is publishing in the newspaper indirectly by publishing it on the Internet. I contend that this Court has a duty to enjoin Congress from violating the laws of Missouri and from usurping the powers reserved to the States by undermining local pornography laws. For this court to fail to exercise jurisdiction is the same as ruling the Congress is above the law.
Monica Lewinsky, a private citizen of the United States of America, was forced to testify in front of Kenneth Starr's "secret" grand jury against her will. She was compelled to speak under threat of contempt of court and jail. Susan McDougal, whom I consider a hero, is an example of what happens if you don't comply. Kenneth Starr made it clear to Ms. Lewinsky that if she didn't comply that he was going to persecute her family, which he did when he dragged her mother in front of the grand jury. Ms. Lewinsky was forced to testify fully and truthfully under threat of prosecution for perjury about intimate sexual acts that she performed with her lover, President Clinton, who she probably still cares about.
Ms. Lewinsky's "secret" testimony was then delivered to Congress who then put it out unedited on the Internet so that the whole world can know how she gives head. And because the government posted this X-rated material, hundreds of newspapers printed it and delivered it to the homes of Christian families where their Christian children can read it. These children then ask their parents questions about why an adult woman would allow an adult man to put his penis in her mouth. All this in the context of "Whitewater" which was a land deal that occurred in Arkansas when Monica Lewinsky was only 4 years old. Kenneth Starr did this using the power and authority of the courts, and this court is telling me that the courts powerless to stop Starr from abusing the Court's own power? I refuse to accept that.
Czech President Vaclav Havel, one of the moral beacons of Eastern Europe's liberation from Communism, expressed concern in his recent visit to America about American justice by agreeing with Czech commentators who compare Kenneth Starr's investigation to tactics used by the former Czechoslovak communist secret police. These secret police would dig deeply into political dissidents' private lives under the guise of national security and the public interest. Havel had been one of their main targets. I contend that this court has a moral imperative and a sacred duty to the Constitution to take whatever steps necessary to ensure that Vaclav Havel is wrong in his comparison othe Independent Counsel and the Communist secret police.
Your Honor, I submit this motion out of fear for myself and for this country. I see an Independent Counsel who is undermining the electoral process. I see a judiciary that is impotent to enforce it own rules. The legislature has failed to pass the 1999 budget and we are 11 days away from the government of the United States being shut down. I feel vulnerable to retaliation from the political enemies of the President to use the power of the courts against me. I see the Republican controlled Congress calling for FBI investigations against Salon Magazine for reporting that Henry Hyde, Chairman of the Judiciary Committee, had an affair with a married woman, a story he admitted was true. Now the FBI is investigating journalists for reporting the news. Statistically we know that 40% of men cheat on their wives and therefore there are probably 200 members of Congress who have not yet been caught doing the same thing Clinton did. And there's no doubt that they all lied about it, many under oath in divorce court. Yet these people are going to judge the President for doing the same thing that many of them have done and are likely still doing?
I see the United States Supreme Court hearing less that 40 cases out of 7000 presented this term. It appears they have unilaterally decided to not do their job. Their decisions to allow a sitting president to be sued can only be described as stupid. And their decision to allow a lawyer to be forced to testify against his client is very very scary. I'm not even a lawyer and I sit here with my mouth open and I can't believe what I'm seeing. This is insanity! At the risk of sounding paranoid, I see America in a meltdown. I see the Legislative branch and the Judicial branch as dysfunctional. The only branch that is operating effectively is the Executive branch and the other two branches are trying to shut it down too. All this is happening during a global economic crisis where the experts suggest that our economy and political stability is the main factor keeping the entire planet from global economic collapse. The enemies of freedom and democracy, both foreign and domestic are lookin g for weakness and an opportunity to strike.
Your Honor, read this motion and think about it tonight while you are watching the news as the secret grand jury tapes are played on every television set in the world and ask yourself if you don't have a duty to America to do something about it. This is important, and you know I'm right about this.
WHEREFORE, for the above reasons, Plaintiff prays this court reconsider its decision. Plaintiff asked this court to take any immediate action necessary on an emergency basis to address the issues raised herein.
Marc Perkel - Plaintiff - 09-21-98