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STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
Ed Felien, )
) PETITIONER’S ANSWER TO
Petitioner ) STATE’S RESPONSE
)
)
Michael Freeman, )
Hennepin County Attorney ) D. C. File No. 27-CV-08-10883
)
Respondent )
This memorandum is an answer to the Respondent’s response to Petitioner’s writ of mandamus asking the court to order the County Attorney to prepare charges against George W. Bush on three separate and distinct criminal offenses. This memorandum will also address the request by the Petitioner to allow video cameras in the courtroom for the purpose of recording the proceedings.
Before responding to the separate points of contention and matters of law, it is deeply troubling to the Petitioner that the many allegations of criminal misconduct by George W. Bush were not dealt with in the Response. It is the Petitioner’s sincere belief that to deny a hearing on the actual crimes committed by this man because of legalistic technicalities would be a denial of justice.
This petition does not ask the court to judge the actions of the President of the United States, rather it asks that the County Attorney investigate those private actions of George W. Bush that seem to be contrary to Minnesota law. As a private citizen, George W. Bush does not enjoy special immunity from criminal prosecution for crimes he may have committed. Even as President of the United States he does not enjoy immunity from criminal prosecution. Our Constitution says that Senators and Representatives shall be “privileged from Arrest during their Attendance at the Session of their respective Houses,” but it does not grant the same immunity to the President. Further, the Tenth Amendment to the Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
We can conclude from this the Petitioner has a Constitutional right to bring this petition before a Minnesota District Court, and that this Court has jurisdiction to hear the matter in question.
Is the President immune from judicial process? At one point in his Presidency, Richard M. Nixon refused to turn over tapes to Congress claiming Executive Privilege. The Supreme Court ruled against him (United States v. Nixon, 418 U. S. 683, 94 S. Ct. 3090, 41 L. 2d 1039 (1974)) and said, “Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”
Further, the Court has said, in U. S. v. Isaacs, 493 F. 2d 1124, 1144, “criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.”
It is the claim of the Respondent that State ex re. Wild v. Otis, 257 N. W. 2d 361 (Minn. 1977) “is completely dispositive of this case.” Respondent cites the judgment: “the decision whether to initiate a particular prosecution is discretionary and therefore normally beyond the scope of mandamus.” The important and operative word in this quotation is “normally.” Normally the County Attorney should have discretionary power to prosecute violations of criminal law, but even Wild grants exceptions, “While citizen does not have a right to appear before a grand jury and persuade it to indict, he is free to attempt to get a grand jury to take action and grand jury can permit aggrieved citizen to appear as witness.” And, further, the Court affirmed “Mandamus Remedies available to an aggrieved citizen when prosecutor refuses to commence a prosecution include petitioning district court to appoint a special prosecutor.”
Respondent further cites Biemel and Waldron, but these cases are irrelevant to the Petitioner’s writ. The writ asks that the Court order the County Attorney to do his job and prepare charges against George W. Bush for crimes he has committed against the people of Minnesota. The writ does not ask the court to allow that a “private citizen might commence and maintain a criminal prosecution.”
Petitioner insists he has great respect for the office of a county attorney. Understanding that the office came into being in the United States at about the time of establishment of the republic, the creation was a recognition that it was in the common good that an objective force should prosecute crimes to avoid victims seeking vengeance and to avoid the rich having greater power over the law than the poor. In her summary to her article “Victim Participation in the Criminal Process,” in the Journal of Law and Policy, Erin Ann O’Hara says, “To summarize, public enforcement of the criminal law can (1) contribute to the provision of equal access to justice; (2) increase the accuracy of verdicts; (3) help to more effectively separate criminal from noncriminal conduct; and (4) help to ensure that the guilty are punished while tempering the potential excesses of victim desires for revenge.”
It must be agreed that justice is “normally” served by the county attorney’s discretionary power to prosecute, even though private prosecutions are still allowed in Ohio, Alabama and Montana. But George W. Bush is not a “normal” defendant, and his crimes are not “normal” crimes. He has fraudulently represented a war against Iraq as essential for our national interests when in reality the war only benefits his private interests. With his Saudi friends he has cornered the supply of oil and raised prices. And through his longtime family contacts with the CIA and the Mafia he has arranged for the transporting of heroin into Hennepin County.
Petitioner wrote to Hennepin County Attorney Michael Freeman on six separate occasions appealing to him to file charges against George W. Bush for these crimes. Notwithstanding a very cordial and frank exchange of views, the County Attorney refused to commence criminal proceedings. Fortunately, the Petitioner has the remedy of asking the District Court to issue a Writ of Mandamus ordering the County Attorney to prepare charges.
Authority for this action can be seen in Minnesota Statute 388.12: “Attorney to Assist. The judge of any district court may by order entered in the minutes at any term of court appoint an attorney of such court to act as, or in place of, or to assist the county attorney at such term, either before the court or grand jury. The person so appointed shall take the oath required by law of county attorneys and thereupon may perform all duties at such term of court, but shall receive no compensation where the county attorney is present at such term, except by the county attorney’s consent, and to be paid from the county attorney’s salary.”
This court should determine that there is probable cause that George W. Bush has committed serious crimes against the people of Minnesota. This court should issue a Writ of Mandamus ordering the County Attorney to prepare charges against George W. Bush. Pursuant to Minnesota Statute 388.12, this court should appoint Petitioner, Ed Felien, to assist County Attorney in the preparation of charges to be presented to a grand jury.
In 1908 the American Bar Association adopted a Canons of Professional Ethics for public prosecutors. It said, “The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done.”
2. This Court Should Allow Petitioner’s Request to Allow Video Cameras in the Courtroom.
In Petitioner’s request for video taping of the proceeding, Petitioner expressed a sincere appreciation of the seriousness of the matter before the court: “Petitioner swears he appreciates the seriousness of the matter before the court and that he has the utmost respect for the court and for the office of the County Attorney. Petitioner further understands that, although it is the responsibility of all participants to uphold the dignity of the court, it is solely the discretion of the judge to determine when courtroom behavior is inappropriate.”
In his memorandum, Respondent claimed that this writ, “while honestly brought and the product of sincerely held beliefs, is nonetheless a political product with a political purpose.” Petitioner would argue that all actions in every court, from the highest to the lowest, have a political content. Mostly, they are a reflection of currently held political beliefs, but a decision that reaffirms the status quo is still a political statement. To deny access to video cameras because political ideas would be expressed that might be unpopular or contrary to the status quo would be a clear infringement on Petitioner’s freedom of speech under the First Amendment.
In accordance with the foregoing, Petitioner respectfully requests the Court to grant the Writ of Mandamus, appoint Ed Felien to assist the County Attorney in presenting charges before a grand jury, and allow video taping of the proceedings.
______________________________________
Ed Felien
3152 10th Avenue South
Minneapolis, MN 55407
Telephone: 612 822 4662
Fax: 612 822 0342
edfelien@pulsetc.com