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Why is Overproduction the Worst Muda?

Publié le 04 janvier 2015

By Xavier Perrin (xperrin@xp-consulting.fr)

It is often said or written that lean is the elimination of wastes, wastes being defined as non-value-added activities (also called muda). For helping teams to implement lean, we teach them the seven wastes and we expect them to identify and eliminate these wastes in their work area.

Considering lean as « elimination of waste » is a damaging shortcut in that it prevents focusing on the ultimate goal. Elimination of waste is not an end in itself.

Taiichi Ohno, the famous TPS initiator, stated « All we are doing is looking at the time line, from the moment the customer gives us an order to the point when we collect cash. And we are reducing that time line by removing the non-value-added wastes »(1).

Eliminating wastes should be considered from this point of view. The seven wastes which were initially listed by TPS’ promoters are the wastes of:

  • Overproducing
  • Time on hand (waiting)
  • Transportation
  • Processing itself
  • Stock on hand (inventory)
  • Movements
  • Making defective products

(See ref 1)

In some companies, mnemonic tricks are used for helping people to memorize the seven wastes. For example, the word TIMWOOD stands for Transportation Inventory Waiting Overproduction Over-processing Defects. Such expressions miss the point of overproducing being the worst muda. Why is overproduction the worst muda?

The reason is that overproduction is the root cause of most of other wastes, as it creates inventories, hides quality problems, and generates transportation and motions… Moreover, if overproduction isn’t considered as the worst waste, most supervisors will think that it is better to keep workers producing for avoiding the waste of waiting. This is obviously inconsistent with the JIT principle. Thus, overproduction is worse than waiting. Actually, the waste of waiting should be addressed with line balancing, leveling production (Heijunka), cross training and smart assignment of workers. It should not be addressed by overproducing.

There is also a frequent misunderstanding about the waste of waiting. Sometimes waiting is viewed as idle machines or parts waiting in queues. This is clearly not the meaning given by TPS’ promoters. People are the most important resource of a company because it is the only resource with a brain! Ohno said (2): « I had decided not to worry about capacity utilization rates. [...] It means giving higher priority to the utilization rate for our human resources than to the utilization rate of equipment ». Shingo also explains (3) that the cost of workers is considerably higher than the cost of a machine: « Given this choice, the machines’ operation rates are always sacrificed in order to eliminate the workers’ waiting time under the TPS. […] The basic rationale is that machines are cost-free after depreciation, but workers must be paid wages forever with wages tending to increase over time ».

Another primary aspect of lean is « respect for people ». How can we respect people when expecting them producing parts which are not required from the customer? Considering the priority of high machine utilization means considering machines of higher importance than people. Thus, waiting is a muda because it means under-utilizing the most important resource of the company. Overproduction is the worst because it actually makes you waste your most important resource, that is, people. Reducing waiting fosters kaizen for improving utilization of human resources.

Another lighting word (2) of Michikazu Tanaka who worked with Ohno: « Kanban is a tool for tapping people potential by fostering a creative tension in the workplace. [...] motivation is everything ».

In conclusion: beware of shortcuts! Another shortcut would be considering lean as the sole strategy for your company. What is your goal? What are your strengths and weaknesses? Which opportunities and threats are you facing? The lean approach is only one way for reaching your goal.

(1) Toyota Production System – Beyond Large-Scale Production – Taiichi Ohno – Productivity Press – 1988

(2) The Birth of Lean – Koichi Shimokawa and Takahiro Fujimoto – The Lean Enterprise Institute – 2009

(3) Non-Stock Production: The Shingo System for Continuous Improvement – Shigeo Shingo – Productivity Press – 1988

4 réactions sur Why is Overproduction the Worst Muda?

  • Just my five cents:
    Again, a great article by Xavier!
    I totally agree that overproduction (producing too much or too early) is an important source of all other forms of waste. On the other hand, I think that making a « ranking » holds a danger: the mindset might grow that, if you don’t overproduce, you won’t have waste! Of course, that is not the case!
    Now, some thoughts about why people seem to love overproduction:
    1. How « Lean-educated » are all supervisors, managers, C-levels, etc.? What I mean by this: are they comfortable with the fact that some production is halted for some time because there is no demand at that time? Also goes to the question already cited whether the organisation and the employees have enough flexibility to continue to use the most important resource (people) in a process where the need exists or use the freed time on continuous improvement.
    2. Many organisations, especially in production environments using machinery, use OEE (important factor in TPM). However, in many cases, the original concept of OEE is misused (or not really understood?). OEE is « invented » to show the main factors where improvement is possible (sort of Pareto). What we see in the real world, is that OEE is frequently used as a sort of « show off » where the only aim is to get that final OEE figure up! So: let’s produce 24/7 and without interruptions and we get to 100% OEE! Sounds like overproduction? The problem lies in the first factor of OEE; availability! Indeed, the availability factor means (free language): what percentage of time available to run the machine, did it effectively run? In a Lean environment, time available to run needs to be specified as time where there is an actual demand to produce! Therefore, when no demand, this time needs to deduced just as time when factory is closed, etc. If you really want to check versus 24/7, then you calculate TEEP and not OEE.
    Best regards,

  • Hervé Galon dit :

    Thanks Xavier for another brilliant contribution.
    I would add that overproduction locks cash earlier than needed, something our friends from Finance would prefer to avoid… Let’s get them on our side!

    • Xavier Perrin dit :

      Thanks Hervé. I totally agree with you: all arguments that can let our friends of finance on our side are welcome! It could be helpful for convincing those of them who induce overproducing for high utilization rates and low overhead rates…

    Follow the link above for other reactions (Click on GAURIER Frédéric)

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Soviet Union

Trade with the Organization of Petroleum Exporting Countries

The Organization of Petroleum Exporting Countries (OPEC), particularly Iraq and Algeria, absorbed the largest share of the Soviet Union's ""unidentified"" exports (see table 52, Appendix A). Although Soviet statistics usually showed a very low or negative trade balance with these countries, the balance was probably high because of arms sales. In the 1980s, some OPEC countries, particularly Iran and Iraq, together with Syria, which was not a member of OPEC, exchanged oil for Soviet arms and military equipment. Oil from these countries was resold to the West for hard currency. In the late 1980s, the Soviet Union attempted to increase its exports of nonmilitary goods to these countries. In May 1986, the Soviet Union and Iraq agreed to increase Soviet nonmilitary equipment sales, and in August 1986 an attempt was made to revive Iraqi gas sales.

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…more wage inequality data

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Phnom Penh

We had booked another Mekong Express bus to take us from Battambang to Phonm Penh, departing at 07:30. As the office was just around the corner, we left in time to grab a takeaway coffee on route and then found a little shop next to the office that was selling various pastries. The woman spoke no English, so when we pointed at a few different ones, the only thing we could make out was ‘coconut’, so we grabbed a few each and a plain baguette and handed over the $1 she asked for.
This time we were in a minivan for the 5-hour journey, which I had pre-booked online, so we could get a front seat for Sadie.

The journey took 6 hours in total, as we had a 30-minute stop half way, the minivan was comfortable enough and the driver was decent enough, so overall the journey wasn’t bad at all.
When we arrived at PP, the vehicle hadn’t even stopped and about 10-15 Tuk Tuk drivers swarmed the doors. We could hardly get out the doors, they were all jostling for business and once we managed to get our rucksacks out the back, one had attached himself to Sadie. On asking him the price to take us to the hotel, about 2km away he immediately quoted $4. I’d already checked, and Grab was operational in PP, and the cost would have been $2 with them. He had a grumble about fuel costs and using local drivers but accepted the fare for S2 and off we went. Over the few days here, we discovered that $2 is a standard fare and gets you most places you want to go within the main tourist parts of the city.

We were staying in the Prantara Heritage Suites, which was in a central location and right next to the Royal Palace. In fact, as we later discovered, the British Ambassador’s residence was right next door to us, though despite our wandering past a few times (including once when lots of smartly dressed people were outside waiting to go in for a dinner), we never got invited in!

After moving room, due to the balcony we had being inside surrounded by glass like a greenhouse with no door separating the rooms, we chilled out for a bit and then decided to go up to what was meant to be one of the main tourist areas in town for drinks/food called St282. But once we got there after walking 20 minutes past the Independence Monument, we were less than impressed with the few streets we walked round. Everywhere was quiet, most bars were expensive and looked shit, so after a quick couple of beers, we got a Tuk Tuk down to another popular area, St172.
The first bar we went to was just a dive bar full of the stench of weed, the few surrounding that were ‘lady-bars’ with flashy neon signs, and the one we eventually stopped at was just old expats with young ladies! We had a couple of drinks in there, at least they were cheap, but our first impressions of this city were not good.
To top the first night off, we went to what was a recommended restaurant on TripAdvisor for dinner. I had ordered Pork Belly and it said it came with a salad, and Sadie had ordered a Chicken Burger, hoping it would come with fries or even some potato chips as in the pictures online. What arrived for me was a few cold bits of pork mixed in a salad which was mostly greens. Sadie got her burger, which was nice, but it came with a slice of watermelon and nothing else! So, we cut our losses and headed back to the hotel.

We gave ourselves 3 full days in Phnom Penh, and were already thinking that was probably too long, however we had set aside one full day to explore the city, another to do S21/Killing Fields and one to catch up on research, laundry etc. With not having breakfast booked with this hotel, we went out the next morning to find some food before exploring. Most of the decent places we found near our hotel were either very expensive, vegan/vegetarian/healthy or a mixture of both!
Enso was a bit of both, with a business type crowd in there with laptops, with varied menu with mostly healthy options but you could have some bacon etc if you wanted. Sadie ordered pancakes with bacon and maple syrup whilst ordered French toast. Both were delicious, massive plates and we washed them down with some lovely iced coffees.

We then got a Tuk Tuk the few kilometres to Wat Phnom which is a 14c Buddhist Temple at the top of a small hill. After that, we walked along the riverside and then went to Wat Ounalom which is another temple complex from the 14c. Planned to go to the Royal Palace, but discovered it shuts for a few hours around lunchtime, so we just headed back to the hotel and planned to go another time.
I’d found an Indonesian place called Warung Bali nearby, and since we both loved the food in Indonesia and craved some, we decided to go there for dinner after having a few drinks down the riverside where had discovered the $0.50 beers are available. The food was amazing, and we had Chicken Satay and Nasi Ayam Goreng, both favourites of ours whilst in Indonesia.

On our second day in PP, we had decided to do the S21/Killing Fields trip in the same day, the best way to do this is to just hire a Tuk Tuk driver for the day who would take you to them both and wait for you as long as needed. We didn’t pre-book anything, and after yet another amazing breakfast at the nearby Artillery Café where I had an amazing Tofu Burrito and Sadie had amazing pancakes with fruits, we found a driver called Pol(sp?) who would do this trip for us for $20.
So, we headed off around 10am and first stop we decided would be S-21, or Tuol Sleng Genocide Museum is its full name, and one of an estimated 158 over Cambodia. It is a former school that was taken over by the Khmer Rouge in 1976 and turned into a prison and interrogation centre. I won’t go too much into the history of the place, but the whole place has a sense of sadness and it is eerie walking round.

Previous friends who have been recommended doing the self-guided audio tour, so we took that advise and it has approx. 30 clips which you start at certain points on the tour.
I’ll be totally honest and say that this was one of the hardest places I have been too and obviously given the history of the place, the audio descriptions, the harrowing images, leftover equipment and just the sense and smell of walking round the place was very upsetting. We spent around 2-hours wandering round taking it all in, you go inside the 4 main buildings that once were classrooms full of innocent children, which turned into the place of one of the most horrific crimes of the century. Here is where men, women and children were detained and tortured by the Khmer Rouge, before being taken to their execution.
There are no words I can really find to describe it, however if you get the chance to go, then please do.

After that we went on the 40-minute journey through the suburbs of PP and to the outskirts of the city, to the area known officially as the village of Choeung Ek, one of the vast number of Killing Fields sites across the country that have an estimated 1.7 million bodies between them, approx. 25% of the country’s population at the time. This is where the people were taken too after being held prisoner, made to sign confessions, and ultimately signing their own death warrants.
This is probably the most famous of them all, which now has a permanent memorial dedicated to all those who lost their lives here, and houses over 5000 skulls of some of the bodies exhumed from the mass graves that cover the site.

Again, we took the audio guided tour which was included in the cost at this site and gives quite graphic details whilst you wander round. Still to this day, bones and rags of cloth belonging to the victim’s surface usually during wet season, which was when we visited. Seeing those scattered around was heart-breaking, along with the graves and especially a tree which was used to batter children to death, before they were thrown to their demise.

We spent another couple of hours here, taking it all in and then we headed back to the hotel as the heat of the day was ferocious. Arriving back at the hotel about 3pm, we had a torrential downpour of rain which eventually went off around 8pm, so took that opportunity to go out for some amazing momos which we hadn’t had since Nepal, followed by a delicious Indian meal.

Our last day in PP was a relaxing one after the day we had previously took it out of us, started with breakfast at the first place we went too, then went shopping for a few bits and then back to the hotel to sort through hundreds of photos from the previous week. Sadie took a trip to see the Royal Palace, but sadly couldn’t get in as the King was in residence and there was police and security everywhere. Apparently, there was some huge parliament meeting the past couple of days, as our Tuk Tuk driver Pol explained to us, it was evident something big was going on by the amount of armed police and security all over the city. We have an overnight stop back in PP the following week, so hopefully we can get into the palace next time.

Our evening was a quiet affair, had some local food and then packed for another early bus to take us to our next destination via a ferry.

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Deborah Yaffe

By Deborah Yaffe, Jan 4 2021 02:00PM

In her too-short life, Jane Austen traveled very little, barely venturing beyond a few counties in southern and midlands England and never making it even as far as Scotland, let alone the European continent.

So perhaps it was inevitable that a recent episode of The Grand Tour, a British reality show featuring comic yet rugged automotive undertakings, should have deployed her name as tiresome shorthand for decorous, unadventurous Englishness.

I do not watch The Grand Tour, but my husband and daughter have been fans for years. They loved it in its classic BBC incarnation as Top Gear and stuck with it when it changed its name and moved to Amazon four years ago, after the BBC fired its star, Jeremy Clarkson, for an array of offenses that culminated in his punching a co-worker.

Thus it was that in the waning days of the old year, these amoral members of my immediate family convened in our TV room* to catch the latest episode, wherein Clarkson and his two sidekicks travel to Madagascar to search for a priceless treasure supposedly buried by the eighteenth-century French pirate Olivier Levasseur, known as La Buse (“The Buzzard”).

Because one of the gang, James May, warns that his friend Mary told him years before that Madagascar had the world’s worst roads, the three men modify their vehicles for rough terrain before heading out. But at first, the roads seem fine, and Richard Hammond laments that he has wrecked his high-performance hatchback by adding a set of tractor treads.

“I prepared my car for Armageddon, and you brought me to a tea party!” Hammond tells May. “What were we thinking? We took off-roading advice from Jane Austen!”

Hammond riffs further on his vision of the offending Mary (“some girl in a floaty skirt”) who, he is sure, exaggerated the risks. “The worst thing that happened was a daffodil fell out of her bicycle basket and she panicked,” he opines. Switching to a falsetto, he imitates the supposedly overwrought, Austen-like Mary: “Oh, this is terribly rough! It’s absolutely awful!”

So far, so misogynistic (Girls! Such prissy whiners!) until, of course, the punchline: The roads quickly turn not just bad, but epically bad, with mud puddles as deep as moon craters and ruts that resemble small hills. “My friend Mary was right,” May concludes.

Mary may get her revenge, but no apology is offered to Jane Austen, caricatured here – and not, alas, for the first time -- as the epitome of safe, spinsterish tedium, in marked contrast to Real Men leading exciting, physically taxing lives. Austen’s vindication will just have to wait for the episode in which the Grand Tour guys try to navigate genuinely treacherous terrain: life as a woman in nineteenth-century England.

* OK, yes: I skimmed through the episode once I heard about the Austen mention. Still not a fan, though.

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BACHELOR’S EVE (Nigerian) Romance Comedy

BACHELOR’S EVE (Nigerian) Romance Comedy

The story captures the events that happened in the last twenty-four hours of the wedding between Uche and Adesua. Adesua the bride, lied about her virginity for five years and is now confronted with the dilemma of telling the truth of find a means to turn her lie to reality. CASTS: Kehinde Bankole, Wole Ojo, Gbenro Ajibade, Doris Simon, Jumoke Odetola, Ajibade Smart.

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DejiKing Concepts Enterprises: BACHELOR’S EVE (Nigerian) Romance Comedy
BACHELOR’S EVE (Nigerian) Romance Comedy
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BOUND (Nigerian) Romance Drama

Romantic drama Bound follows Chinenye, 35, a beautiful career woman who suffers numerous scoldings from her family and friends due to her inability to get married. Elochukwu, despite all of Chineye’s indecisiveness and fear for commitment remains in her life with a resolve to show her unconditional love. Starring stars Rita Dominic, Eyinna Nwigwe, Joyce Kalu, Nicole Banner, Duke Emmanuel, Neye Balogun and more.

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DejiKing Concepts Enterprises: BOUND (Nigerian) Romance Drama
BOUND (Nigerian) Romance Drama
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Archive for February, 2009

Delivered from Demonic Seizures

Friday, February 27th, 2009

Recently we received this victory report from a dear lady who ministers in Alabama:

“During a weekly prayer meeting, GOD ended 24 Years of Demon Possession and Uncontrollable Seizures for me. Two weeks later I received the Baptism of the Holy Spirit, I know and understand FULLY what it feels like to be possessed, and I understand the battles that will arise after Deliverance. I thank GOD for making a way of escape for me, and ending my torment.  I have not had a seizure since 1996. HE also delivered me from smoking 5 packs a day. GOD IS SOOOO GOOD!”

Submitted by Jay Bartlett

Tracking Device: Removed!

Friday, February 27th, 2009

Wow, this dear sweet lady who has been forcefully involved in a satanic cult since birth, has just received a blessing about an hour ago……

At age twelve, they surgically inserted a long, thin tracking device into her right arm which spanned from her elbow to her wrist. This is how this loathsome, brain-washing organization kept track of this woman when they wanted to know her whereabouts. NOT ANYMORE!

Since her glorious salvation experience last week, we have been in counsel. She said since we spoke in the last couple of days and I began to pray with her, this object began to move, then to make its exit through a hole in her arm that appeared yesterday. I spoke to this cursed object in Jesus Name and commanded it to go out of the body of this new woman of God.

It moved out of the bone, where it was surgically placed. Yes, you read correctly, upon command, it moved out of the bone and began to move up the arm and out of the hole. At the end of the prayer, two wires and the device had moved from the wrist and out of the exit area, COMPELTELY out of the body. No pain (only soreness), and no blood (only what was attached to it.)

Tracking object removed by the power of Jesus!

OH…and I forgot….this hideous cult BRANDED an upside down cross with 666 on it, on her thigh. At the same time, this mark burned into her skin DISAPPEARED completely.

Praise be to the Lamb, His mercy endures FOREVER!

Posted by: Joey Guess of Cameron, Texas

Asrasta Defeated in Public Chapel Service!

Sunday, February 22nd, 2009

God, again, blessed our public Salvation Army chapel service. Again, we had a good attentive and enthusiastic crowd that was anticipating the Spirit of God to touch lives! I preached a message on the Weapons of our Warfare and demons surfaced within many people among the crowd. I then proclaimed the gospel and many repented of their sins and gave their lives to Jesus! After leading everyone in Holy Communion, we conducted public exorcisms, and a stream of people, many in tears, quickly approached the front (some of them even cut in the line and pleaded for prayer as the needs were so dire) including a lady suffering HIV, a lady partially blind & who heard growls when I preached, a drug kingpin, several people who heard demon voices while I preached, a man with severe physical pains in his knees, a lady who felt evil, and a small group needing physical & emotional healing.

God was pleased to confirm His message with miracles. The first man, a 25 year old named Jeremiah, I prayed with, came with his wife and 3 beautiful & precious little ones.

“When you were preaching, Jay, I heard a loud voice tell me you were preaching lies!”

I asked Jeremiah, “I preached directly from God’s Word, so, who do you think this voice was?”

Exactly, he knew it, I knew it and everyone else in the chapel knew it!

I brought him up to the platform and had him hold a consecrated cross and as soon as he did; a evil spirit surfaced and caused him to go into convulsions, his entire body shook and could see the demon’s utter hatred of the CROSS! His eyes glazed over and the demon shivered and in front of all, to make a public spectacle, we commanded the evil spirit to leave and his body collapsed to the ground. We continued to command the demons to release him and to come out and they did! He was so happy and was rejoicing in the goodness of God as he felt the demons leave his body! He couldn’t hear any more voices! We silenced them by driving them out in Jesus name! Now, his precious wife and three children have a new daddy, a FREE daddy! (His wife also manifested demons and she was set free also—another story to be told!)

Another lady approached me in tears requesting prayer as she felt evil, bad, and ugly! I shared with her how precious and beautiful she was from Psalms 139 and a demon manifested, shrieking and with loud cries fought me. She also went into convulsions and lost consciousness.

“What is your name?”

“Do you have a right to her,” I inquired.

“Yes, she thinks she’s bad and evil.”

I called this dear lady named Sheila up and called the demon to go back down. She was crying and obviously upset that all of this was occurring but I assured her that this demon was going to the pit in Jesus name but I needed her to renounce all of the verbal curses she had placed upon her life by speaking herself in such negative ways, “I’m bad,” “I’m ugly,” “I’m evil.” She admitted that due to her past lifestyle she condemned herself and would often tell herself she was evil, ugly, and bad. These words opened a door for this vile spirit to enter her.

As soon as she renounced these self inflicted curses we called up Asrasta.

“NOOOOOOOOOO, I’m not leaving.”

“Yes, you are! Repeat after me,” I instructed.

“I, Asrasta, release this woman, in the name of Jesus and I now go to the pit.”

It fought me especially the part, “and I now go to the pit.”

This demon was no match as those assembled in the chapel stood to their feet and commanded the demon to repeat those word in Jesus name! The demon obeyed and with loud cries left the woman!

So many others were delivered from evil spirits, many I couldn’t get to as there were so many! One lady had to leave the chapel to vomit because the spiritual pressure against the demons within her were so GREAT that it made her sick!

We prayed a prayer of faith for a lady extremely sick, who was diagnosed with HIV. I believe she was healed and promised to give us a report in the coming days!

Even a drugpin from New Orleans who was passing through only to end up in the chapel service searching for a WAY OUT, came to Jesus and was delivered!

It’s amazing, it truly is, our blessed Trinity, who lives forever!

Submitted by Jay Bartlett

Voodoo Spirit Resisted but Came Out!

Thursday, February 19th, 2009

Last night at the church, a dear lady surrendered to Jesus Christ for the very first time in her life. She had a head knowledge but had not repented of her sins. She had incredible difficulty praying with me, VERY difficult for her to even verbally confess Jesus. But, by God’s mercy, she prayed and light could be seen on her face! She was giggling as she was so joyful in making that decision. She said she could feel that her heart was warming up! Isn’t that awesome!

Then I had her even destroy a picture, in front of all, that she had drawn at the church…a picture filled with Satanic symbols and the sign of the beast 666. I also destroyed the book she had published that was about murder!

Then we began the exorcism. Within seconds of placing holy water & sacred oil on her head a spirit surfaced by the name of Tiera which was interesting as she thought Tiera was a broken part of her (good lesson for all who have dissociation–ensure you test the parts of you to see whether they are spirit or human). Her eyes glossed over and a perverted smirk appeared on her face.

The demon was violent and extremely hateful, as it flung my Bible across the sanctuary. It was in a rage but Jesus prevailed! I called forth the holy angels of God and within minutes they came into the sanctuary and I told the angels to carry her up to the front of the sanctuary (she was sorta in the middle of the sanctuary). The angels picked her up and placed in a upright position so I could minister to her. The demons warred against the holy angels. There was a intense battle but again God prevailed!

Tiera held on the spiritual rights of animal sacrifices and consumption of blood. The rights were removed and 2999 of the Tiera spirits were commanded to leave and she could feel them leave her body!

Then a major war occured. It was with the very last Tiera spirit, it was a voodoo spirit from prior generations (just a informational tibit~voodoo spirits tend to be very difficult and persistent due to their very nature of their being I have discovered as I have ministered in numerous voodoo areas of the world). It had entered her ancestors, I think 3 or 4 generations ago, as they practiced voodoo and sacrificed a little baby to the devil! This specific demon passed through the bloodline of the family into Kimi!

For a long time I battled this evil demon, as it fought back with great persistence, that it amazed me, as we were torturing it beyound belief! The demon shouted, “I’m going to murder her,” “I’ll leave when she is dead,” “I’m never leaving.”

I’ll be honest, I was worned out but then…

The fire of the Holy Spirit descended upon me in unusual power and I commanded this voodoo spirit to leave and it left her body in the name of Jesus!

WOW!!! She was so relieved and was experiencing the glory of God resting upon her life! She was really tired but so relieved!

Submitted by Jay Bartlett

Victory over Evil Beings in South Africa!

Friday, February 13th, 2009

My wife was feeding our little one early this morning (around 1am) and we received a call from a young lady (she was calling from South Africa) needing liberation from luciferian spirits that had been tormenting her for many months and afflicting her body with various pains. She wasn’t able to get to the phone in time.

Well, in God’s mercy, she called again, early this morning. I had just gotten up and feeding the kids when the phone rang again. It was this precious lady from South Africa needing freedom! I was so thankful she called as I just knew God was wanting to heal and deliver this precious saint who was suffering from all kinds of spiritual attacks.

“My grandmother was involved in the occult,” she revealed.

I asked her to get some water and her Bible. We blessed the water (therefore we had some holy water present) and God’s Holy Sword!

I had her drink the water, the demon within her groaned! Then I had her place her Bible on her heart! I led her in prayer to renounce the generational curses of occultism, spiritism, etc and immediately the evil spirit surfaced and SCREAMED!!! This dear Christian lady began to choke and cough, the demon was attempting to hinder! The pains in her body intenstified! She was hurting all over! “I’m Lucifer,” the demon revealed to me.

Other luciferian spirits surfaced during the deliverance…

I continued to pray and she renounced the generational curses and commanded the evil spirits to leave her body. With loud cries, the demons were expelled and she began to weep on the phone, so relieved as she could feel the demons leave and felt so much lighter! I continued to pray for deep inner healing and it was taking place. She was not only delivered but instantly healed of numerous physical pains located throughout her body that were causing her all kinds of persistent troubles!

(though on the phone there are limitations, God, in His love, rescued this dear lady who couldn’t find anyone to deal with the demons within her in her country so she called me)

Then a few hours later another demon afflicted lady came to our home for lunch and she was delivered of 14 evil spirits. God is glorious and deserving worship!

Submitted by Jay Bartlett

Wednesday, February 11th, 2009

I am completely blown away by His mercy! Two nights ago a local pastor came in for prayer. She was oppressed by cancer: colon cancer and Hodgkin’s/Lymphoma. This was the shortest deliverance session I have ever done. First of all, this woman was practically blameless. When we went through breaking curses and repenting of sin, there was very little, I was amazed that someone could live with such little sin for their entire life. When I went after the demons, they all said “I know I can’t hang on to her, I’ll go to the pit now.” Ha! No fighting, and almost no resistance for two hours as the demons of illness and cancer left in the Mighty Name of Jesus.  At one point, you could see that she had experienced an extreme relief. She said she saw tubes and clabber that looked like chicken necks come out of her belly and bowels and up through her mouth, and out of her body that tasted sour as they came out. Later, as I searched for more and we sent the Lord’s angels to look for more cancer. She suddenly was shocked and began to weep uncontrollably. When she was able to speak, she said “I saw it……..I can’t believe it…….I saw a cross right in front of your face… was bright and white as snow….I can’t believe it!” All of us in the room began to praise Him. What an awesome God we serve folks! Give Him all of the praise!

Posted by: Joey Guess of Cameron, Texas

Cursed Animals Expelled from Lady

Monday, February 9th, 2009

Note: some of this information may upset those who are spiritually vunerable so please do not read any further. This information needs to be made public so people can know Jesus is ABLE to heal those tormented in unusual manners. –Jay

We met for nearly 10 hours, last night, at the Mt Olive Free Methodist Church and conducted two intense exorcisms. I urged many of you to pray as I would be performing spiritual surgery on one of the ladies possessed, within her body nature, two literal animals–parts of animals that the cult spiritually surgically placed within her belly. One was a part of a lizard, it’s tail, scales, and fragements of it’s skin. These pieces of the lizard were cursed and placed inside of her. There was another animal part within her also, a rabbit’s foot, that had been cursed and placed within her stomach area. As you can imagine this lady has been experiencing, for many years, all kinds of stomach problems and issues. No wonder, she had animal parts within her. This isn’t unusual, though, the church is ill equipped on getting cursed objects out of bodies. I have seen all kinds of cursed things removed from the the demon possessed. The late German Lurtheran pastor & exorcist Blumbhardt of the 19th century writes of animals being inside the demonized (including a bat & a turtle) and being removed by the power of the cross of Jesus!On this victory night, a demon surfaced by the name of Jackinas who was holding into place the lizard. Melaco was the other evil spirit who held unto the rabbit’s foot. The power of Jesus is greater though and can remove cursed things from the body!

For a couple hours the power of the Holy Spirit was evident and assisted in the surgery with the Father & Son!

In Jesus name, I commanded the spirit to release the animals and to depart with it via the mouth. We witnessed parts of the lizard being expelled out of her mouth into a wastebasket and other gunk! It was disgusting and vile as the parts of the lizard were being expelled. But, I was reminded that after these animals were removed, this dear lady was going to feel so much better!!! And she did!

In Jesus name, I commanded the spirit to release the rabbit’s foot, and the foot of the animal came out immediately from the mouth as she heaved into the wastebasket! It was covered with blood and other gunk! God is so good and delivered this dear lady whom we love so very much!

The spiritual surgery was successful and this without having to take her to the hospital!

Submitted by Jay Bartlett

Satanic Oaths Broken and Demons Expelled

Wednesday, February 4th, 2009

Last night, two individuals came to the church needing deliverance, both received some liberation. In fact, the one lady, named Tina (whom many of you know), was freed from over two thousand demonic spirits named “Jezebeth.” They had entered as a result of some ancient Satanic oaths that were uttered in the past. They were within an dissociative identity named “Nataley” who is only 19 years old. But the great power of God overcame the enemy–as it only took an hour to expel 2002 spirits from the identity as the broken part turned to Jesus and renounced the spiritual rights.

God is so merciful!

Submitted by Jay Bartlett

Godly woman freed in Jesus Name!

Sunday, February 1st, 2009

What a freedom session in Central Texas yesterday! A Godly woman came in yesterday for help. She had been oppressed by sexual demons causing all sorts of trouble for her at work and in public. For three hours, we cast out:

Molestation, Shame, Guilt, Self Pity, Haughtiness, Masturbation, Hindu, Buddism, Jehovah’s Whitnesses Sect false religion demon, Catholic demons, Kundali, Lust, Generational Prostitution, Fornication, Mockery, Confusion, Witchcraft, Leviathonic spirits, and 3 un-named root spirits.

This is a wonderful story of a woman who had been to 25 different deliverances and received little to no help. But she kept pressing forward, and finally received that precious bread of the children. Keep pressing into the Lord no matter what, just like this lady did! His deliverance WILL come in Jesus Mighty Name!

Posted by: Joey Guess


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What will you do when faced with a Crisis?

Imagine when faced with a crisis, your team has to start from a zero-based approach. Is it not better to have a blueprint designed to guide you before, during and after a crisis?

A Written Crisis Management and Communication Response plan is essential in today’s always -on, 24/7 world. News and information flow in “real-time” and Stakeholders expect you to to respond effectively to crisis reality and communication challenges.

When a crisis hits an organisation, it is time for Crisis Managers to take the lead and a plan guides the way.

Crises offer organizations both immense opportunities and threats. A Crisis has the potential to destroy people, fine reputations, disrupt operations and destroy share prices and the integrity of an organization.

The challenge lies in how to respond to and in such an event.

Appropriate Crisis Response includes preparation, response and recovery components, but more than that it is led and managed by well trained, competent leaders that understand the how, why and what of a crisis and can lead through the proverbial stormy seas.

The Importance of the First Responder

There are first responders in any incident. Sometimes it is the trained first aider that rushes to deal with an injury, sometimes it is the PR Department fielding a call from the media alleging environmental pollution, other times it may be the HR and Security managers that have to attend to an incident of workplace violence.

First Responders may be in your legal department fielding product recall liabilities, but regardless of their specific job titles, they must be capable of grasping the enormity of a critical event as it unfolds. “Before first responders arrive to assess a crisis, your internal leaders need to be prepared for – and trained in – the science of crisis response”, to quote Laurence Barton in the excellent book Crisis Leadership Now – A Real world guide to Preparing for Threats, Disaster, Sabotage and Scandal.

Crisis Managers understand that what at first seems like a non specific event or problem could rapidly escalate into being a genuine crisis. I like to call these smouldering crises, small, insignificant events that can result in unplanned visibility should it go public.

A smouldering crisis is any serious business problem which is not generally known within or without the organisation, which may generate negative news coverage if or when it goes “public” and could result in fines, penalties or unbudgeted expenses or breakdown of relationships.

Crisis Managers understand their industry and worry about potential incidents that can harm. Oil companies like Engen, BP and PETROSA worry about potential refinery fires, explosions, spills and other disruptions – and there are specific grounds for that. A Few years ago the Engen refinery in Durban was hit by lightening resulting in a major fire and millions of rands of damage.

Organisations like Sasol worry about a recurrence of the explosion that claimed a number of lives.

Organizations worry because even though they have excellent health & safety records, not even the best crisis prevention plans cannot always a momentary lapse of reason, an oversight or just plain human error.

Others worry about potential product recalls – and you should if you are selling, manufacturing or distributing – as we have had a number of high profiled withdrawals.

Other organizations worry about workplace stoppages’, outages and potential mistrust being created through wrongful actions by employees.

Research show that no organization is immune. And that should make you worry whether you are a director, shareholder, or employee.

But worry is like a rocking chair. You move back and forward but go nowhere. Should you not train your leaders in the science of crisis response?

Should you not be preparing for a crisis by creating a cadre of competent potential crisis leaders? That decision is yours.

Just remember that Noah built the Ark before it rained. This training and/or toolkit will help you to be prepared and to be a Crisis Leader like Noah.


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Tuesday, December 15, 2015

Con Law Exam 2015: Abortion Law in a Fiorina Administration

by Michael Dorf

It's that time of year again--when I'm too busy grading exams and papers to blog as often as I like. Thus, I give you the exam I recently administered to my 1L constitutional law students. They had 8 hours to write exams totaling no more than 2,500 words, but you, dear readers, can take as much time as you like.
The following facts apply to all questions, except where otherwise noted.

In November 2016, Carly Fiorina is elected President of the United States, while the Republican Party strengthens its majorities in the Senate and House of Representatives. Making good on a campaign promise to “use all lawful means to combat the scourge of abortion,” in March 2017, President Fiorina’s Attorney General, Chris Christie, seeks and obtains a federal grand jury indictment of Dr. Jill Barbary, for allegedly committing first-degree murder in violation of 18 U.S.C. § 1111, which authorizes the death penalty or life imprisonment for the “unlawful killing of a human being with malice aforethought” where the killing occurs “[w]ithin the special maritime and territorial jurisdiction of the United States.” The indictment is filed in federal district court in the Southern District of New York, and is assigned to Federal District Judge Alison Nathan.

The facts are not in dispute. Dr. Barbary was the ship’s doctor on board the U.S.-flagged cruise ship Pinafore. While the ship was sailing off the east coast of the United States, Jane Doe, a passenger who was 23-weeks pregnant, came to the sick bay with what Dr. Barbary quickly diagnosed as severe preeclampsia. After Dr. Barbary explained to Doe that continuing her pregnancy would put her at high immediate risk for a potentially fatal stroke, Doe consented to an abortion. Dr. Barbary attempted to perform a conventional D&E, but complications from Doe’s preeclampsia required her to rush the procedure, and as a consequence, the fetus emerged alive from Doe.

Dr. Barbary thought that the equipment in a neonatal ICU at a Level IV or Level V hospital might perhaps be sufficient to sustain the very premature infant, but when she radioed to shore, she learned that a helicopter dispatched immediately could not bring the infant to such a hospital in less than three hours. However, she knew that, without the kind of intervention available at a sophisticated hospital, the baby would die within minutes. Meanwhile, Dr. Barbary observed signs of severe distress in the infant. Rather than permit the infant to continue to suffer before dying, Dr. Barbary injected a lethal dose of morphine, and the infant died seconds later. Jane Doe, who was still unconscious when Barbary injected the morphine, awoke a few minutes later. Upon learning what Dr. Barbary did, Doe thanked her for “showing mercy to my baby.”

When the Pinafore docked in New York harbor the next morning, the ship’s nurse, James Frederickson, reported the incident to a reporter for the New York Post. A front-page story in the next day’s paper (under the banner headline “SHIP DOC MURDERS BABY”) led to a federal investigation, and then to the indictment.

The indictment relies on the Born-Alive Infants Protection Act (BAIPA), 1 U.S.C. § 8. It provides:

(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.
(b) As used in this section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
(c) Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being “born alive” as defined in this section.

Dr. Barbary does not contest that the ship’s location at the relevant time subjected her to federal maritime jurisdiction, as defined in 18 U.S.C. § 7. Nonetheless, her lawyer has filed a motion with Judge Nathan, seeking to have the indictment dismissed on the ground that her prosecution would violate the Fifth Amendment’s guarantee of substantive due process.

Question 1: For purposes of this question only, you are a law clerk to Judge Nathan. Advise her whether she should grant the motion to dismiss the indictment. You should assume that there are no relevant precedents in the Southern District of New York or the Second Circuit, and thus, to the extent that you make arguments based on precedent, you should rely only on decisions of the U.S. Supreme Court.

The following facts apply only to Questions 2 and 3.

By statute or otherwise, all states provide some protection to infants “born alive,” per the common law rule that Congress codified at the federal level in the BAIPA. However, states vary with respect to the punishment available. In response to the publicity surrounding the Barbary case, Congress passes and President Fiorina signs the Protecting Unborn Children Against Monstrous Doctors Act (PUCAMDA) of 2017.

PUCAMDA expands the federal murder statute, 18 U.S.C. § 1111, insofar as it applies to fetuses born alive during the course of attempted abortions, so that it now applies to attempted abortions throughout the United States, not just in the maritime and territorial jurisdiction of the federal government. PUCAMDA thus makes it a federal capital offense for a doctor or anyone else anywhere in the United States to kill a fetus born alive during an attempted abortion.

Section 1 of PUCAMDA recites as authority “the Commerce Clause, because abortion is an economic activity substantially affecting interstate commerce, and/or Section Five of the Fourteenth Amendment, because failure to protect from murder some, but not all, persons born alive, denies the unprotected persons the equal protection of the laws.”

Section 2 of PUCAMDA contains the following “fallback” provision: “In the event that PUCAMDA, on its face or as applied, is found by a court to exceed the scope of congressional power, PUCAMDA shall only apply to attempted abortions performed using instruments or other materials that have traveled in interstate or foreign commerce, or in facilities constructed from materials that have traveled in interstate or foreign commerce, or in facilities that rely on interstate or foreign commerce for heating, cooling, electricity, or communications.”

Section 3 of PUCAMDA contains a secondary fallback provision: “In the event that both Sections 1 and 2 of PUCAMDA, on their face or as applied, are found by a court to exceed the scope of congressional power, Medicaid is hereby repealed. In such event, Medicaid is also hereby re-enacted exactly as before, except now with the condition that no state shall receive any funding for Medicaid unless it adopts, with respect to killings of infants born alive after attempted abortions, the same definition of and penalties in its state murder law as appear in the federal murder statute, 18 U.S.C. § 1111, as informed by the BAIPA.”

For purposes of Question 2, you are an advisor to New York Governor Andrew Cuomo. New York law provides substantial protection to infants born alive. For example, New York Executive Law § 291 states: “The opportunity to obtain medical treatment of an infant prematurely born alive in the course of an abortion shall be the same as the rights of an infant born spontaneously.” In addition, New York Penal Law § 125.05 appears to contemplate the possibility of a homicide prosecution of a doctor (or other person) who intentionally kills a fetus born alive after an attempted abortion.

There are no reported decisions of New York cases in which the born-alive rule of Penal Law § 125.05 was applied to the killing of a fetus born alive after an attempted abortion, so it is unclear whether the substance of New York law already parallels federal law. However, it is quite clear that New York law differs at least with respect to penalty, as New York has abolished the death penalty. Governor Cuomo is very concerned about the possibility of federal prosecutors or local prosecutors (under Section 3 of PUCAMDA, should it be activated) seeking the death penalty for a doctor who kills a fetus born alive after an attempted abortion. But it is unclear to the governor whether PUCAMDA is constitutional.

Question 2: Write the analysis portion of a memo to Governor Cuomo discussing whether PUCAMDA falls within the powers of Congress. Even if you conclude that the law is valid without one or more of the fallbacks coming into play, be sure to evaluate the validity of all Sections.

The following facts apply only to Question 3.

The Freedom of Access to Clinic Entrances (FACE) Act, 18 U.S.C. § 248, provides for criminal and civil remedies against persons who use force or the threat of force to obstruct access to reproductive health services, including abortion. However, the most prominent uses of force against abortion providers have resulted in the most serious criminal charges being brought under state law. For example, Michael Frederick Griffin, who killed Dr. David Gunn in 1993, was convicted of murder under Florida law, and is now serving a life sentence in state prison. Likewise, Robert L. Dear, Jr., who killed three people and injured others at a Planned Parenthood facility in Colorado in November 2015, was (you should assume for purposes of this question) prosecuted for and convicted of three counts of first-degree murder under Colorado law.

On the same day that she signs PUCAMDA into law, President Fiorina takes two actions regarding the FACE Act. First, she issues pardons to everyone who has been convicted of, or stands charged with violating, the FACE Act. Second, she issues an executive order—co-signed by Attorney General Christie—instructing the FBI and other federal agencies “to exercise prosecutorial discretion to de-prioritize FACE Act violations. The Fiorina Administration will treat the FACE Act as a dead letter.” In a memorandum accompanying the executive order, President Fiorina explains:
Although the courts have rejected constitutional challenges to the FACE Act under the First and Tenth Amendments, as the head of a co-equal branch of government, I have the power and duty to make an independent constitutional judgment. I conclude that in fact the FACE Act violates the First Amendment rights of pro-life protesters, violates the Tenth Amendment rights of states, and violates the Fifth Amendment rights of unborn children. Moreover, to the extent that the FACE Act may reach unprotected conduct, it is wholly redundant with state law. It should therefore be an extremely low law enforcement priority. So long as there are real threats to the security of the United States from ISIS terrorists and others, the Fiorina Administration will not waste resources on unconstitutional prosecutions under the FACE Act.
For purposes of Question 3 only, assume that you are an attorney for Planned Parenthood (PP). Although PP has good relations with state and local law enforcement in many places, its leaders fear that in strongly pro-life areas, the withdrawal of the threat of federal prosecution under the FACE Act will greatly increase the risk to patients and employees of private violence and intimidation.

Question 3: Write the analysis portion of a memorandum to PP President Cecile Richards assessing the likelihood of success of a court challenge to President Fiorina’s policies regarding the FACE Act.

Shag from Brookline said...

Query: Is Sharia inspired law constitutional? Justice Scalia would seem to be a "no" vote.

Joe said...

Item: http://religionclause.blogspot.com/2015/12/nyc-municipal-judge-sworn-in-on-quran.html

My one comment here is that after reading an interesting district judge opinion on the contraceptive mandate that it is a bit amazing how much work product these people have to handle along with their trial court duties in general.

Unknown said...

Risks / effects of abortion in terms of health / physical:

1. Sudden death due to severe bleeding
2. Sudden death due to anesthesia failed
3. Deaths were slow due to a serious infection around the womb
4. A torn uterus (Uterine Perforation)
5. Damage to the cervix (Cervical Lacerations) which will cause a defect in subsequent children
6. Breast cancer (due to an imbalance of estrogen in women)
7. Ovarian cancer (Ovarian Cancer)
8. Cervical Cancer (Cervical Cancer)
9. Liver cancer (Liver Cancer)
10. Abnormalities of the placenta / placenta (placenta previa), which will cause a defect in subsequent children and severe bleeding during the next pregnancy
11. Being sterile / not able to have children again (ectopic pregnancy)
12. Infection of the pelvis (pelvic inflammatory disease)
13. Infection of the lining of the uterus (endometriosis)

By rak minimarket and rak murah

Thanks For Sharing

Unknown said...

Can you post the best answer? Or your own?

Paige Britton said...

Love these questions. Would you share your syllabus or reading list for this course? I'd like to know what I don't know. Thanks!


text:
Friday, October 11, 2019

House Impeachment Procedures

by Michael C. Dorf

Let's begin with what's clear.

1) Congress has the power to subpoena private citizens and past and present executive branch officials to testify and to produce documents so long as the witnesses and materials sought bear some rational relationship to a legitimate congressional purpose, including impeachment and potential legislation. The Trump administration's withholding of appropriated funds from Ukraine makes the present impeachment inquiry obviously relevant to Congress's power of the purse. So too, Trump's conduct--as indicated by his own statements--makes the inquiry relevant to consideration of impeachment. Absent identification of specific objections on national security, particularized executive privilege, or other pressing grounds, executive branch officials and private parties must comply with congressional subpoenas. A court has rightly rejected Trump's claim to the contrary in litigation over Trump's financial records. Likewise, the White House Counsel letter to Congress asserting the president's right to refuse to "participate" in the impeachment inquiry is "bananas."

2) The key claim in the White House Counsel letter is that the procedures to be used in the House for the impeachment inquiry are unfair and thus unconstitutional. This is a very very bad claim. Article I gives the House "the sole Power of Impeachment" and grants it the power to "determine the Rules of its Proceedings." The letter cites procedures employed in prior presidential impeachments as precedents, but does not provide any reason to conclude that the House at the time thought it was constitutionally obligated to use the procedures it did or was setting a precedent that would be binding in the future. In Nixon v. US, the SCOTUS said that a challenge to the procedures used for a judicial impeachment trial in the Senate presents a non-justiciable political question, relying substantially on the fact that Article I assigns the Senate "the sole Power to try all Impeachments." The parallel language regarding the House means that its procedures as well would not be subject to judicial second-guessing.

So what's unclear? One question (that I'll address very briefly) is remedy. A second question concerns the most prudent course for the House to follow.

The non-justiciability of the question whether the procedures a congressional body uses for impeachment implies that if Trump goes to court, he'll lose. Of course, Trump won't go to court; he'll need to be dragged there. And if he makes a defense there along the lines of the White House counsel letter, he'll lose. The problem is that the election might occur before the courts finally rule in favor of the House. Accordingly, my colleague Josh Chafetz wrote in yesterday's NY Times that the House should consider self-help measures, such as having its sergeant-at-arms arrest Rudy Giuliani (assuming the US Attorney for the SDNY doesn't beat him to it!).

But if the courts are possibly too slow and arresting the likes of Giuliani too risky, another option the House might want to consider is actually adopting procedures more like the ones laid out in the White House Counsel letter. Doing so would not guarantee Trump's cooperation with the inquiry. Trump and his spokespeople would likely argue that the actual procedures are defective in some way, or invent some new excuse, or simply stonewall. But if so, the House could call Trump's bluff in the court of public opinion. And stonewalling could be the basis for drawing an adverse inference: You won't let Gordon Sondland testify? We accordingly conclude that he would say you did use the withheld Ukrainian money for leverage.

Moreover, although the White House Counsel is absolutely wrong in his conclusion that the procedures he describes are constitutionally required, adopting something like them might actually be a good idea. I say adopting something like them rather than the proposed procedures themselves, because there are ways in which the House would want to depart. For example, the right to cross-examine witnesses is considered part of the Sixth Amendment right of confrontation at trial; witnesses rarely testify anonymously. Yet, the House has very good reason to keep the identity of the whistleblower(s) secret--namely, to protect the whistleblower(s) from retaliation and private violence that the president has more or less openly encouraged. Other people whose cooperation is needed may likewise require protection for their identities.

Still, if some of the procedures we associate with a criminal trial are not necessarily appropriate to the impeachment inquiry, most trial-like procedures would increase the reality and perception of fairness and even-handedness. Those are goals worth pursuing for their own sake but also because of the stark political reality that the Senate probably won't vote to remove Trump. Even with public opinion moving towards impeachment, likely voters in Senate Republican primaries are still pretty clearly anti-impeachment and pro-Trump. And Mitch McConnell will have substantial input into how a Senate impeachment trial plays out (though CJ John Roberts would make initial rulings). That means that the main forum for airing Trump's betrayal of his oath of office is the House. It behooves the House to come across well to the public.

Against all of the foregoing, I have heard it said that the House procedures make sense because impeachment is like grand jury indictment, with trial in the Senate like a trial before a petit jury. And during proceedings before a grand jury, the accused has no right to confront adverse witnesses or present his own witnesses.

There's something to the grand jury analogy, but Democrats should stop using it, because it could be politically dangerous. The most likely outcome is still House impeachment followed by Senate non-removal. No matter how House Democrats structure the proceedings, Trump will claim that a vote not to remove him by 34 or more Senate Republicans is "complete and total vindication." The claim will not be credible, but it will be less incredible if Democrats have been to that point portraying the two-step process as closely analogous to indictment-then-trial.

By contrast, conducting hearings that allow some opportunity for Trump to defend himself (but not to impose substantial delays) will make clear to an even larger segment of the public that if Trump escapes removal by the Senate it will have nothing to do with his fitness for office. Indeed, given the nature of the people likely to be called as defense witnesses (such as Giuliani), more opportunities for Trump to defend himself before the House could end up strengthening the case for impeachment.

Finally, the White House Counsel letter also complains about the failure of the full House to authorize an impeachment inquiry. Like the other complaints, this is wrong as a matter of constitutional law. To the extent that it might help the House in obtaining judicial orders, however, it's worth pursuing. I assume that Speaker Pelosi hasn't sought such a kickstarter vote because some swing-district Democrats whose votes are needed would rather not yet go on record. That's a "political" rather than strictly legal calculation, but given the nature of the choice, it's fair to make such a calculation.

Bottom Line: The White House objections are bad as legal objections and made in bad faith. Still, some of the points might be worth pursuing anyway.

Joe said...

The ongoing process has not been a totally secret ex parte affair, which makes the grand jury metaphor limited in more than one way. Republicans are there to provide Trump's side to some degree as we saw during the Mueller hearing. Mueller was questioned by Republicans. It was open to the public. And so on. Various people were questioned (again with Republicans) secretly, such as related to Ukraine affair, but to my understanding there was no interest in the Trump officials being questioned in open session anyway.

Trump has -- unconstitutionally at this point -- resisted having people questioned openly or providing various materials. It would be a lot more easy to take these demands if it was seen as a sort of quid pro quo with something more offered to show good faith. Provide the witnesses and subpoena material and I question it the Dems will refuse bringing with it some additional means of defense like their own witnesses or additional power to cross-examine or something.

But, Republican members already serve that function, so I push back some of that anyway. If Republicans want to actually work with the Democrats to seriously take part in the impeachment process with any amount of good faith, I'm sure something could have been worked out. Like with the PPACA, there is a faction of Dems who are just dying for something like that.

Anyway, I understand the prudential reasons here, but I need to see more good faith from the Trump side before giving in much more. Because the process already provides various methods for Trump to protect himself. The whole thing is on some level b.s.

Steve Davis said...

Very interesting. I thought the White House counsel letter was poorly reasoned, but at the same time I was (and am, although your comment is helpful) uncertain what procedures, if any, the House and Senate are required to follow and how they enforce them. Is there a good, thorough scholarly work on the procedure of impeaching the President?

Do you agree with the argument that, strictly speaking, the President is not entitled to Due Process in an impeachment proceeding because what's at stake does not involve a deprivation of "life, liberty, or property"?

Michael A Livingston said...

I actually agree with Trump that the impeachment process has dubious motivation and has cut several legal corners. However, it's difficult to argue that a President can ignore otherwise legal subpoenas because s/he distrusts their motivation. I hope the courts can come to some reasonable compromise on this issue or its back to the English Civil War (I would link to the movie Cromwell but it does not appear that your blog accepts links).

Michael C. Dorf said...

Steve's question about due process is interesting. Were I starting from first principles, I'd say that yes, the president has a property or liberty interest in his job, but we're not starting from first principles. In the Judge Walter Nixon impeachment case, Justice Souter wrote in a concurrence that a challenge to a trial in the Senate by coin toss would present a justiciable question, but the majority rejected that view, treating the procedures the Senate selects as entirely within its discretion. To be sure, the conclusion that the procedural choice is not subject to judicial review doesn't mean it's not subject to constitutional constraint. The House itself here has an obligation to respect whatever due process rights the president has. But while I reject the grand jury analogy for largely pragmatic reasons, I think a House member could reasonably rely on it in defending a fairly one-sided process, so long as there were an opportunity to challenge evidence, etc in the Senate.

As for good sources, the leading books (Charles Black updated by Philip Bobbit; Tribe and Matz) focus mostly on substantive standards. I think the Gerhardt book on impeachment might have something on procedure.


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Day: 27 February 2011

I came across a post the other day which got me thinking.  The author had made some personal observations about photography, and someone else had responded by starting a debate about whether digital photography was “real” photography, and further, was it ruining photography! Whilst it was a very polarised debate, it did make me start […]

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The all-new Sensors + Systems show starts tomorrow

13 September 2011

The all new Sensors+ Systems for Control and Instrumentation Show takes place at FIVE, Farnborough, on 14th and 15th September 2011. Key companies exhibiting at the show include Bronkhorst (UK), Fischer Connectors, HBM Test & Measurement, Igus (UK), Roxspur Measurement & Control, Micro-Epsilon, STS Sensors, StrainSense and Variohm EuroSensors to name but a few.

The free Workshops will cover a wide range of subjects. From Micro-Epsilon, there will be a presentation about a 2D laser scanner with integrated Ethernet for automated inspection and process control, while Honeywell Control Systems will concentrate on 'Becoming Wireless'.

A discussion on 'MEMS Accelerometers for industry and instrumentation' will be given by Colibrys from Switzerland, and Justin Leonard from Igus (UK) argues: are 'Cables - The Weakest Link?'

National Instruments will be advising 'How to Harness Cloud Computing for Data Acquisition', and Ian Ramage from Techni Measure will be enlightening attendees on 'Strain Gauge Applications in Industry with Wireless Communication and Energy Harvesting'.

From the Profibus Group, Paul Chaddle will be presenting 'Five Essential Factors to Consider when Implementing Profibus/Profinet'.

Other companies will be giving presentations, including Burkett Fluid Controls, Adsyst (Automation), NPL, HBM, Sensors KTN and PARC, some covering more than one subject.

Many exhibitors, including Dwyer Instruments, ESI, Fischer Connectors, Roxspur Measurement & Control, Balluf Sensors, Variohm Eurosensor and Vishay Measurement Group will be using the show to display their latest products. Isotech will be showing its new precision temperature measuring instruments whilst Micro-Epsilon will host the UK launch of its blue laser sensors, Impress Sensors, meanwhile, will show its ultra-high pressure sensor, which is capable of measuring up to 6,000bar.

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Children and Families #1: The Mind of a Child

Marianne, a petite 4-year-old, came to see me after her mother had received a spate of notes home from her preschool teacher complaining about aggressive behavior. Since very few girls have problems with aggression, especially at this age, I was intrigued to see what sort of little terror would appear in my office. I was skeptical as well, since I had met her mother and father, and neither was remotely aggressive or intimidating.

After Marianne had been in my office for five minutes, my skepticism about her teacher's ``diagnosis'' was confirmed. This was not an aggressive child. To the contrary, my growing understanding of her was that she was actually quite sensitive, very concerned about how adults and other children related to her and quite prone to having her feelings hurt if she experienced anything that seemed like rejection.

I learned that some children in her preschool class occasionally made comments that she took as indicating that they disliked her. What looked like aggression was in truth the effort of a hurt 4-year-old to defend herself against a perceived affront. I phoned the teacher and shared my understanding  Read More
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Children and Families #2

Q. What causes encopresis?
A. In nearly all instances, encopresis is the result of chronic constipation. For this reason it is often referred to as “functional encopresis,” or “encopresis with constipation.”

How can I tell if my child has encopresis?
A. If your child has fecal stains in his underwear, with or without small  Read More
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Children and Families #3 School Avoidance

The first day of school is a huge milestone for every child in every family.
Nervousness about a new experience is much more normal than it is otherwise. Here are some things that you can do to help your student prepare for the first day of school or the first day in a new  Read More
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Children and Families #4: Asperger Syndrome

Understanding Asperger Syndrome

Asperger Syndrome, like autism, is a neurodevelopmental disorder. it cannot be cured, but children, adolescents, and adults with Asperger Syndrome can learn techniques that will help them compensate for their disability. In 1944, a pediatrician named Hans Asperger described a group of children with at least average intelligence who had marked interpersonal  Read More
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Children and Families #5: Fears and Phobias

Children’s Fears

Peter Goldenthal

Brian Johnson was a few days short of his eleventh birthday when his parents first brought him to my office. A bright, funny, and engaging child, Brian had a lot going for him: friends, a remarkable verbal gift, loving parents. He also had something that interfered with his enjoying  Read More
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Children and Families #6 Bullying

In mid-April, twelve-year old Mike Dougherty walked into my office an entirely different young man. His shoulders, usually curved inwards, were straight; his back, usually stooped, was upright. His head was held higher than usual. His chest looked fuller, as did his shoulders. He was smiling. He looked me right in the eye.

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