The U.S. Supreme Court just issued its decision in Gamble v. United States, and “left the door open for state prosecutors to prosecute Trump campaign officials regardless of whether federal officials have already done so.”[2] In his dissenting opinion, Justice Neil Gorsuch—President Trump’s first appointment to the Court—wrote:
A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime. So if all the might of one “sovereign” cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this “separate sovereigns exception” to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.[3]
Our Supreme Court has been a tragic, pathetic joke for years, certainly since it blessed infanticide in Roe v. Wade—and the killing of more than 55 million American babies.[4] Also, Chief Justice John Roberts constitutes the second worst decision that former President George W. Bush made during his eight-year presidency—other than the senseless Iraq War in which more than 5,000 Americans died and many more were maimed, and trillions of dollars were wasted, for nothing.[5]
Perhaps an editorial of The New York Sun described the Gamble decision best:
How is it possible that, after all the tumult over the Supreme Court, the only two justices to grasp the plain language of the Constitution in respect of double jeopardy are — wait for it — Neil Gorsuch and Ruth Bader Ginsburg? It’s amazing enough that there are but two sages for the bedrock prohibition on double jeopardy. More amazing still that the question unites the right- and left-most justices.
The case, known as Gamble v. U.S., involves an ex-con named Terance Martez Gamble. He was pulled over in a traffic stop in 2015 at Alabama. A gun was found in his possession in violation of both Alabama and American law. Gamble pled to the state charges and drew a year. Then the federales turned around and charged him again for the same offense, drawing additional time for the same deed.
The justices rejected his appeal in an opinion — by Justice Alito — that reminds us of President Clinton’s hemming about how it depends on what the meaning of “is” is. In this case, it depends on the meaning of the word “offense.” The justices reckon there were two offenses, one carrying the blasted gun in Alabama and the other the same gun at the same time in the United States. Could the United Nations also charge him?
. . .
Justice Thomas, sage of what Myron Magnet, in his new book, calls the “lost Constitution,” manages to concur with the majority’s ruling against Gamble while attacking stare decisis. The ink wasn’t even dry on his concurrence when the press started warning that Justice Thomas was — yet again — prepping the ground for overturning Roe v. Wade. Others were more focused on the implications of Gamble for Paul Manafort.
New York, after all, is preparing to bring charges against President Trump’s former campaign manager even while Manafort sits in the Big House hoping for a pardon on federal charges. It’s not so clear, though, that New York will throw at Manafort the same charges Mr. Mueller levied. To discern differences between the federal and state cases against Gamble, though, one would need an electron microscope.
Our own interest in this case is neither stare decisis nor Paul Manafort nor Ms. Roe nor Mr. Wade. It is the plain language of the Fifth Amendment, where the prohibition against double jeopardy is laid down. Our national parchment was supposed to be a bar against such injustices as the state appealing acquittals or the law chasing someone from one court to another.
This is beautifully marked by both Justices Ginsburg and Gorsuch in two dissents. Justice Ginsburg, citing precedent about the separateness of federal and state laws, warned of “frittering away” Gamble’s liberty “upon a metaphysical subtlety, two sovereignties.” Thundered Justice Gorsuch: “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.”
It is not our intention to suggest that there can never be, say, a federal prosecution after a state acquittal. During the Jim Crow era, southern juries often ignored the facts. In those cases, though, the argument would be, and was, that the accused racists were never in genuine jeopardy in the first place. That is not what happened in the case of Terance Gamble.
All the more inspiring that the two dissenting judges from opposite ideological ends of the bench came together on this bedrock. It doesn’t suggest the confirmation battles are about nothing. It does remind all of us not to panic. The thinness of the vapors at the altitude where these justices breathe makes it hard to predict how they will behave. History teaches that great dissents have a way of getting vindicated over time.[6]
We can only hope that Justice Gorsuch’s dissenting opinion becomes the law of the land, which is not very promising given the 7-2 ruling—or for Paul Manafort and others who tried to help President Trump and may be caught in the insidious web of double jeopardy. We have to thank our Supreme Court again for the perpetuation (or creation) of tragic injustices.[7]
© 2019, Timothy D. Naegele
[1] Timothy D. Naegele was counsel to the United States Senate’s Committee on Banking, Housing, and Urban Affairs, and chief of staff to Presidential Medal of Freedom and Congressional Gold Medal recipient and former U.S. Senator Edward W. Brooke (R-Mass). He and his firm, Timothy D. Naegele & Associates, specialize in Banking and Financial Institutions Law, Internet Law, Litigation and other matters (see www.naegele.com and Timothy D. Naegele Resume-19-4-29). He has an undergraduate degree in economics from the University of California, Los Angeles (UCLA), as well as two law degrees from the School of Law (Boalt Hall), University of California, Berkeley, and from Georgetown University. He served as a Captain in the U.S. Army, assigned to the Defense Intelligence Agency at the Pentagon, where he received the Joint Service Commendation Medal (see, e.g., https://en.wikipedia.org/wiki/Commendation_Medal#Joint_Service). Mr. Naegele is an Independent politically; and he is listed in Who’s Who in America, Who’s Who in American Law, and Who’s Who in Finance and Business. He has written extensively over the years (see, e.g., www.naegele.com/whats_new.html#articles), and can be contacted directly at tdnaegele.associates@gmail.com
[2] See https://www.thedailybeast.com/scotus-reaffirms-double-jeopardy-exception-allowing-trump-campaign-officials-to-be-tried-by-state-feds (“Supreme Court Reaffirms ‘Double Jeopardy’ Exception With Mueller Probe Implications”—”The U.S. Supreme Court on Monday reaffirmed a 170-year-old exception to the Constitution’s double-jeopardy clause, and left the door open for state prosecutors to prosecute Trump campaign officials regardless of whether federal officials have already done so. The case, Gamble v. United States, has drawn attention for its potential effect on Special Counsel Robert Mueller’s federal prosecutions on Russian interference in the 2016 election. Had the ‘dual sovereignty doctrine’ been repealed, states would not be able to pursue investigations parallel to the federal government. . . . State prosecutors in New York have brought charges against former Trump campaign chairman Paul Manafort Jr., who was sentenced to seven and a half years in prison, in the event that President Trump pardons him”).
[3] See Gamble v. United States, p. 64 (emphasis added), by clicking on the following link: https://naegeleblog.files.wordpress.com/2019/06/gamble-ussc-decision.pdf (or by downloading the decision).
[4] See https://naegeleblog.wordpress.com/2012/12/20/abortions-and-autos-kill-more-in-america-than-guns/#comment-17243 (“Finally, More Abortion Bans Are Coming”—”Roe v. Wade unleashed a holocaust of epic proportions, which ranks with the greatest holocausts in human history—including the Nazi Holocaust, Stalin’s Soviet Holocaust and Mao’s Chinese Holocaust. Indeed, more human beings have been killed as a result of abortions—since the U.S. Supreme Court handed down its decision in 1973—than in each of the other three holocausts”).
[5] See, e.g., http://www.wsj.com/articles/trump-and-the-mexican-judge-1465167405 (“[President] Obama . . . contributed to the Democratic intimidation campaign against Chief Justice John Roberts ahead of the 2012 ObamaCare ruling. ‘I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,’ the President said at an April 2012 press conference. The Chief Justice ruled as the President recommended”); https://www.bloomberg.com/news/articles/2019-03-01/hold-the-revolution-roberts-keeps-joining-high-court-liberals (“Roberts Keeps Joining High Court Liberals”)
[6] See https://www.nysun.com/editorials/ginsburg-gorsuch-and-gamble/90732/ (“Ginsburg, Gorsuch — and Gamble“) (emphasis added).
[7] See https://naegeleblog.wordpress.com/2013/07/15/justice-and-the-law-do-not-mix/ (“Justice And The Law Do Not Mix”—”The United States is a nation where rogue prosecutors reign, whose goals in life include the prosecution of even the innocent. Federal, State and local prosecutors ruthlessly and gleefully pursue countless numbers of innocent Americans for a multitude of crimes that were never committed; and the judiciary has allowed this to happen. Corruption is rampant among federal prosecutors and those who work with them, such as FBI agents. No amount of rational thinking or discourse can be applied to a system that is inherently and systemically corrupt”); see also https://www.foxnews.com/politics/supreme-court-ruling-deals-potential-blow-to-paul-manafort-as-he-battles-state-charges (“Supreme Court ruling deals potential blow to Paul Manafort as he battles state charges”) and https://www.nytimes.com/2019/06/17/nyregion/manafort-rikers.html (“Paul Manafort Seemed Headed to Rikers. Then the Justice Department Intervened”).
Good afternoon Mr. Naegele,We have communicated before and you were even so gracious as to give me some of your legal insight. I will forever be grateful not only that you would take the time to read a note from me, but then to comment, and then to interact for a brief moment. Thank you sir.I write to you today to comment on this latest missive of yours. I read them all religiously.I am a 67 year old, staunch patriot, did not serve out country as a soldier but will certainly pick up an arm and defend out united stated to the death. My question sir, which may simply be rhetorical, is WHAT THE FUCK HAPPENED AND WHAT IS HAPPENING. The division, the hate, the horror of the last 8 years and the ongoing treason. In my 67 years of life I simply cannot believe what we are experiencing. If you do read this, thanks.Just wanted to vent to SOMEONE who gets it or seems to.Be well sir, stay safe, and thanks for your ongoing commentary.Best to you,Larry Angstadt
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Thank you, Larry, for your comments. It is nice to see you back, commenting once again.
The only times in my life when I have seen such strife and unbridled hatred were during (1) Watergate, and somewhat earlier during (2) the Vietnam War era.
There were riots around the country protesting the war; and in Washington, D.C. where I was stationed as an Army officer at the Pentagon, there were bumper stickers on cars that asked “Where is Lee Harvey Oswald now that we really need him?” They alluded to the fact that Oswald had killed JFK; and some hoped that the same fate might befall President Lyndon Johnson, who was hated by vast swaths of the American people.
A close friend of mine at the Pentagon was an Army officer who worked in the White House as a social aide, in addition to his regular military duties. He and his wife had befriended Chuck and Lynda Bird Robb, the elder of the two daughters of LBJ; and my wife and I joined the three of them for a picnic one day. The Secret Service protection surrounding the five of us was considerable. I felt sorry for Lynda because she seemed like a very nice person.
See https://en.wikipedia.org/wiki/Lynda_Bird_Johnson_Robb (“Lynda Bird Johnson Robb”)
As I have mentioned in articles and comments, I went from the Pentagon to Capitol Hill, where I served as an attorney with the U.S. Senate Banking Committee, and later headed a senator’s staff before entering the practice of law in Washington. Indeed, I was just leaving the Hill when Watergate was breaking, and I lived through all of it.
President Trump is hated today, just as LBJ and Richard Nixon were. However, the major differences are:
See https://naegeleblog.wordpress.com/2019/06/14/the-chicken-hearted-neanderthals-in-the-gop/ (“The Chicken-Hearted Neanderthals In The GOP”)
Will things get worse between now and the end of the Trump presidency? Possibly, because the Democrats—and I began as one—are fighting desperately and viciously for the soul and future of America. They are “street fighters,” just as Trump is; and there is little question that it is and will continue to be a “battle royale” fought to the bitter end by the combatants.
See https://en.wikipedia.org/wiki/Battle_royal (“Battle royal”)
Is this good for the country? Of course not. But what Barack Obama and his fellow co-conspirators did to destroy the candidacy and then the presidency of Donald Trump was treasonous. If our legal system has any integrity left at all, each of the co-conspirators will be brought to justice, so that a message will be sent loud and clear across our great nation and to the world at large: NEVER AGAIN!
As I asked about Obama after reading his book (twice), “Dreams from My Father,” which was shocking unto itself:
See https://naegeleblog.wordpress.com/2009/12/05/is-barack-obama-a-racist/ (“Is Barack Obama A Racist?”)
I believe Obama was and is a vicious un-American, racist, anti-Semite, who is the second most despicable president in American history, after JFK.
See https://naegeleblog.wordpress.com/2010/10/04/john-f-kennedy-the-most-despicable-president-in-american-history/ (“John F. Kennedy: The Most Despicable President In American History”) (see also the extensive comments beneath this article) and https://naegeleblog.wordpress.com/2019/06/14/the-chicken-hearted-neanderthals-in-the-gop/#comment-17680 (“The Traitor Obama Frolicks In France While His Role In Trying To Destroy Trump Is Investigated”) and https://naegeleblog.wordpress.com/2019/11/15/when-will-barack-obamas-trial-for-sedition-begin/ (“When Will Barack Obama’s Trial For Sedition Begin?”) and https://naegeleblog.wordpress.com/2019/07/29/barack-obama-is-responsible-for-americas-tragic-racial-divide/ (“Barack Obama Is Responsible For America’s Tragic Racial Divide”) and https://naegeleblog.wordpress.com/2018/05/24/should-barack-obama-be-executed-for-treason/ (“Should Barack Obama Be Executed For Treason?”)
Thus, Larry, try to settle back and watch events unfold like a “soap opera.” Yes, the stakes are enormous, for the future of our great nation and the American people. But I believe “justice” will prevail and triumph in the end . . . or at least I hope and pray that this is so. Our Founders launched a great American experiment, and it has persevered through many crises during its history; and I have faith that this will continue.
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HUMPTY DUMPTY REVISITED
Progressive (incremental) expansion of Federal jurisdiction and prerogatives has been the trend for the past 100 years (My lifetime and that of my parents). Each time, the Supremes either “take a few liberties” or expand Federal power and control over the states. The net result is government gets bigger and bigger and individuals get progressively smaller, by comparison.
Accordingly, the States are most often left with less than their Constitutionally delegated powers they were once given by the Founding Fathers, by default. This new interpretation of “sovereign states” is yet one more example where, when it suits the purposes of the majority, they rule in favor of the State Authority. The “Deep State” wins another one.
Its one more blatant example of the pervasive corruption of the entire Federal Court system. President Trump has already had numerous run-ins with a number of (corrupt or partisan) Federal District Court Judges. Unfortunately, he can only appoint new judges, but can not fire a single one. So, “the Federal system” carries-on over time while Presidents and other politicians are “here today, gone tomorrow”.
So, gradually, since 1930, our Republic has been dying a slow death. We have increasingly become an Oligarchy in its place and not just in America (Germany is similarly run by elites). Plato suggested all Republics become corrupt and devolve into Oligarchies at first, and then eventually dictatorships or countries run by Tyrants. Apparently, this is our collective Karma.
Rule of Law is long gone and has instead has become rule by men. Thus, our Democracy has become broken and can not be fixed simply by one President. “Humpty Dumpty took a great fall. All the King’s horses and all the King’s men can not put Humpty Dumpty back together again”.
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Thank you, Craig, for your comments.
I respectfully disagree with your dire prognosis. The pendulum swings; and in the final analysis, it swings toward the middle, and not to either extreme.
I have been outspoken in my criticism of Congress, our courts (both federal and state), our politicians, etc. But as I wrote almost ten years ago now:
See https://naegeleblog.wordpress.com/2010/02/26/america-a-rich-tapestry-of-life/ (“America: A Rich Tapestry Of Life”)
Call it optimism or idealism or what have you, I believe in the future of the United States. Our Founders were brilliant in launching this “Great Experiment,” and my guess is that they would be stunned by its remarkable success—as an inspiration, and yes beacon to the world.
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GLASS HALF EMPTY, GLASS HALF FULL
As I have written (commented) many times before here and noticed that with each successive “swing” of the political pendulum, it never seems to quite go all the way in the right direction before it swings back towards center, and then a bit farther to the Left with each cycle. So, it does not necessarily balance out.
If you doubt it, then look at California history. When my late father was a young man, there were no income taxes in Calif. It was a real Republic in-practice back then 1930’s, 1940’s and 1950’s. Not any more. No matter who we elect or what their political party, we never seem to go back to what we were ( a low tax Republic).
Instead, we just become a more regulated, taxed, and consequently slower (economic) growth state. So, millions of people and businesses, both large and small, as well as productive individuals have left since 1990 for lower cost, lower tax states like Texas, Arizona, Nevada, Florida, and such. They are not likely to return in my lifetime. So, optimists can’t face the grim reality and must keep-up Hope. Many just decided it was more practical for them to “vote with their feet” as the late President Ronald Reagan once remarked.
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Thank you again, Craig, for your comments.
You reside in the most Leftist state in the nation. Indeed, many Americans would love to see it jettisoned from the Union. I remember when my kids were in high school in a suburb of Washington, D.C., and were approaching college ages, the parents of their friends would not even consider sending their kids to colleges in California. To them, it was like falling off the edge of the Earth.
I listened politely to what they said, but knew better because I had grown up in California, and loved the state and its natural beauty and wonderful people. Indeed, I was in law school at Berkeley during the Free Speech and anti-Vietnam War protests, so I was able to put things into perspective.
I served as a special consultant to the State of California on matters pertaining to financial institutions, during the first administration of Governor Jerry Brown. I had just recodified the banking laws of the State of Maine, which was a wonderful and very satisfying experience; and California became a client of mine too. An old friend, who was Secretary of Business and Transportation and had been Jerry’s roommate at Yale Law School, brought me to Sacramento to help them.
Maine was very professional; whereas, what I found in California was somewhat “bizarre,” to say the least. My friend was great, but others occupying high positions in the state were to the left of anything that I had encountered, even on Capitol Hill. Today, California has moved even farther to the left, despite the Republican governorships of Ronald Reagan, George Deukmejian, Pete Wilson and Arnold Schwarzenegger.
See https://en.wikipedia.org/wiki/List_of_governors_of_California (“List of governors of California”)
It is a state that caters to the eco-Nazis and others of their ilk, but it is not representative of the United States or Americans across this great country. You and other Californians will have to suffer through the decline of California until the pendulum swings back the other way, sadly to say.
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Hello and very good discussion. For what it’s worth and simply stated, I believe the pendulum is swinging rightward. I do not see a Conservative Supreme Court under RINO Roberts (yes, a Bush2 judge). He is a disappointment but President Trump is appointing more conservatives to the lower courts and if all (I believe it will) goes well, he will have another opportunity to replace Ginsburg when she retires. This rightward trend should last at least two or three decades. Enjoy the holiday! MP
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Thank you, Mary, for your thoughtful comments as always.
Yes, I agree: our President is reshaping the U.S. Supreme Court and other federal courts around the country, which will have a lasting impact.
The replacement of Ginsburg may come first. Perhaps Breyer will be next.
And yes too, have a great 4th. 😊
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Mitch McConnell: Master Of The Senate And The Judiciary
This is the title of an article by former Speaker of the U.S. House of Representatives Newt Gingrich, who has written perhaps presciently:
See https://www.gingrich360.com/2019/08/mitch-mcconnell-master-of-the-senate-and-the-judiciary/ (emphasis added)
I have not been a “fan” of McConnell; and I have almost total disdain for the RINOs in Congress, such as Mitt Romney and his former running mate, the ex-Speaker Paul Ryan. However, I may have to rethink my position with respect to McConnell, certainly if he delivers again and again, during the likely eight years of the Trump presidency.
And yes, Mary Peklar may be correct in her comments above these. 🙂
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LIKE: Hello and thank you for your acknowledgement. I am not a “fan” of Mitch McConnell either. However, after reading your comment, I will rethink my opinion. I primarily voted for President Trump because he promised us a more Conservative Supreme Court.(so far, so good) He did present a list of nominees before the election approved by a Conservative group and stood by that list, despite the foul tactics from the Left used to disparage Mr. Kavanaugh’s fine reputation in front of the country and his family. Trump stood by Kavanaugh. Your comment serves as a reminder that McConnell stayed behind the scenes to get his confirmation passed. As a side-note, I would like to add it’s not that I forgot the Senate must approve the judicial nominees, but I got bogged down with the unnecessary and “out of control drama” displayed by the other side and lost sight that we finally won a battle. McConnell does deserve credit for that victory. Both Graham and Collins (lightweight RINOs compared to Romney, 50 shades) did a fine job and showed the courage to confirm, sort out, and explain to the American people about due process, clearly not given to Judge Kavanaugh. Another positive note is WE should be grateful Romney was Not a part of the judicial confirmation process during Trump’s first two years in office. Let’s just hope he does the right thing when the time comes.
I will admit (maybe I’m impatient or greedy), that I would have liked it if McConnell showed backbone and eliminated the Filibuster to pass more of Trump’s agenda. I am sure you will agree that once the Dimms take over, they will eliminate that arcane rule. To McConnell’s credit, he did use the Biden rule and Reid’s nuclear option (DEM creations) against the Democrats during the judicial confirmation process. Have a good day! MP
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Thank you, Mary, for your prescient comments as always.
I believe the “jury is still out” with respect to Kavanaugh. As I have written:
See https://naegeleblog.wordpress.com/2018/10/06/will-kavanaugh-prove-disastrous-for-the-democrats/ (“Will Kavanaugh Prove Disastrous For The Democrats?”)
Among other things, Kavanaugh has been praised by the senile Ginsburg; and he may follow in the footsteps of John Roberts, not Neil Gorsuch.
Similarly, Lindsey Graham is out for himsef, and cannot be trusted fully. Obviously too, Mitt Romney is a carpetbagger RINO who should be removed from the Senate, like his running mate Paul Ryan is gone from the House. I am ashamed that I voted for them.
Lastly, we can only hope—and yes, pray—that Donald Trump remains healthy and serves eight years in the presidency. Perish the thought of the Leftist Dems getting back in power. And yes, I began as a Democrats but will never vote for one again.
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Thanks, I concur 🙂
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I think that the Supreme Court should be abolished because they did not do their job of upholding the Constitution of the United States of America, so why do we need them? They are a disgrace of how they handled the fraudulent 2020 election. I don’t care what happens to them if they get packed, or if they get abolished. They really should have 4 year term limits at a minimum, so we can get rid of the dead weight as needed!!
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Thank you, Mary Ann.
If you read the following article, and my other articles that are cited in the footnotes, you will see that I agree with most of your conclusions.
See https://naegeleblog.wordpress.com/2021/02/23/finally-clarence-thomas-opens-his-mouth/ (“Finally, Clarence Thomas Opens His Mouth”)
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See https://www.washingtonpost.com/local/on-eve-of-huge-supreme-court-term-a-prayer-from-on-high/2021/10/03/88910f60-2464-11ec-8d53-67cfb452aa60_story.html (“On eve of huge Supreme Court term, a prayer from on high”)
This is the pinnacle of hypocrisy. John Roberts is the very worst decision that George W. Bush ever made, aside from launching us into the tragic Iraq War, in which more than 5,000 Americans died and many more were maimed, and trillions of dollars were wasted — for nothing.
As of several years ago, 55 million American babies had been killed since the Supreme Court’s decision in Roe v. Wade, which is Infanticide.
This is ten times the number of human beings who perished in the Holocaust. Yet, Roberts has the gall to invoke God’s name in such unspeakable cruelty and savagery — and to do so in a Catholic church. This is blasphemy.
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See https://naegeleblog.wordpress.com/2021/12/01/imagine-being-the-greatest-killers-in-history/ (“Imagine Being The Greatest Killers In History”)
This is all we need to know about the so-called “Justices” of our Supreme Court.
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