Brunson Rehearing: Why History is Doomed to Repeat Itself

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  • Source: UncoverDC
  • 09/19/2023

 (Editor's Note: This is the 1st of a 2-part series about the Brunson Petition for Rehearing pending before the U.S. Supreme Court)

A couple of months ago, we published a column about a petition for a writ of certiorari pending before the U.S. Supreme Court (SCOTUS), known as "The Brunson Case." We did so because the petition was generating an incredible amount of "buzz" on social media and garnering a lot of attention in conservative media. As predicted, SCOTUS declined to "grant cert" and hear the case.

We hate to even say "as predicted" because—as we stated in in our original column—there was never any chance SCOTUS was going to take up this case.

"We have read the lawsuit filed by the Brunson brothers. In our honest opinion, it does not seem to have any basis in constitutional law. Frankly speaking—as found by the 10th Circuit Court of Appeals in their dismissal—it's frivolous." ~From the UDC column 'The Truth About the Brunson Case'

Here We Go Again

On the day SCOTUS published the Order List denying the Brunson petition—along with 366 of the other 372 petitions considered by SCOTUS during their January 7th conference—the Brunson's promised to file a "petition for reconsideration." (Spoiler Alert: SCOTUS Petitions for Rehearing have an even lower rate of success than initial petitions for cert which—as we've already detailed—are a 1000 to 1 long shot in the best of circumstances.)

Facebook posting by Raland Brunson after SCOTUS denied the petition for cert.

Clip from A Few Good Men (1992) - "Move to reconsider!!!"

It appears they made good on that promise. The petition for rehearing has been filed, and—in an action we're sure will again be misinterpreted—SCOTUS has already scheduled it for their regularly scheduled February 17th conference meeting.

Those promoting the Brunson lawsuit will probably again spin this as a sign SCOTUS is "anxious" to take up the case when the exact opposite is true. As we again noted in our prior column.

"The truth is, the only reason this case got to the stage of a petition for a writ of cert with SCOTUS this quickly is because it completely lacks merit." ~From the UDC column 'The Truth About the Brunson Case'

Never mind that the original petition was denied without comment. As Adam Carter noted on Truth Social, it most likely indicates the decision was unanimous. Had any of the justices felt strongly the petition deserved a hearing, a dissenting statement would probably have been included in the denial—not just lumped into the section denying over 200 other petitions en masse. Even if there were four justices still willing to vote to grant cert, you would at least expect to see a concurring statement signaling the legal arguments they'd want to consider in an amended petition. None of that is present.

The Dept. of Justice (DOJ) appears to have, once again, declined to respond to the petition for rehearing. And SCOTUS has not requested a response from the government—as it did in another case in the same order list—and clearing the way for quick reconsideration.

God's honest truth is this case is flying through the SCOTUS procedural steps because everyone involved knows this case has no chance of it ever getting a hearing. The more cases that remain active on the SCOTUS docket means more work for the Clerk of the Court—maintaining the files, monitoring and updating the status, having "touchpoints" with the parties involved, etc. They are going to take low-hanging fruit (i.e., frivolous cases) and sail them through the process to get them off the docket in order to lighten the caseload. That's the only reason this case is moving at warp speed by SCOTUS standards—not because it was ever being taken seriously.

Petition for Rehearing

As we will detail later, we were attacked mercilessly—including by the Brunson's themselves—for our column back in December. Apparently, we just did not understand the real meaning of the Constitution. But when reading the Brunson petition for rehearing, a few things jumped out at us.

In our column—when citing the 2020 election contest case Texas v. Pennsylvania—we explained the constitutional concept of original jurisdiction.

"Anytime a state sues another state, SCOTUS has original jurisdiction over the case. This means they are literally the only court in the land than can hear the case." ~From the UDC column 'The Truth About the Brunson Case'

Nowhere in the Brunson's initial petition did they mention original jurisdiction at all. Yet, suddenly, the term is now being used (incorrectly) in their rehearing petition. That's kinda weird.

This, of course, completely contradicts their prior petition, where they sought to have SCOTUS remand the case back down to the lower court and with an order to rule in their favor.

If SCOTUS has original jurisdiction over the lawsuit—then by definition—no other court could hear the case. Their lawsuit should have never been filed in a lower trial court, to begin with. It's usually not a good sign when you are completely upending your own legal arguments while requesting a rehearing.

Something else jumped out at us. In the section of the latest Brunson petition discussing "fraud vitiates everything it touches," they use the term "legalese." Again, a term that never appears in the original petition.

Gee... we wonder where they might've gotten that from?

"Another phrase that gets thrown around a lot—and cited explicitly in the Brunson petition—is 'fraud vitiates [makes void] everything into which it enters.' This is a legal doctrine established in U.S. contract law... While this type of legalese might sound pretty convincing to an untrained ear, legal precedents in contract law do not trump constitutional powers." ~From the UDC column 'The Truth About the Brunson Case.'

It certainly seems possible the Brunson's simply lifted concepts and terms from our column about their lawsuit and threw them into the rehearing petition—in a sort of jumbled up, word salad fashion—in order to make it sound more impressive. If that is, in fact, the case, how much sense would that make? I thought we didn't know what the hell we were talking about?

"Your Article on the Brunson Case, It's a Major Buzz Kill"

Just to paraphrase some of the responses to our first column about the Brunson petition:

"So why are you attacking this lawsuit? Are you 'controlled opposition'? Are you being paid do so? Aren't we all on the same side? What's with the circular firing squad?"

We'll address some of the questions (fair or otherwise), attacks, and accusations that were thrown our way. For starters, nobody—and we mean nobody—has been more on the forefront of election integrity issues than UncoverDC. A simple keyword search for "election integrity" on UDC's website will put all those doubts to rest. Go read for yourself the 40+ pages of content exposing election corruption dating back to the Summer of 2019—UDC's founding.

Just recently, Arizona GOP gubernatorial candidate Kari Lake, Trump spokesperson Liz Harrington, and Arizona Senate Elections Committee Chairwoman Wendy Rogers have all shared out UncoverDC reporting on the malfeasance in the 2022 Arizona elections. So before you come at us with accusations of running interference for the 'cabal' stealing our elections, you better have a better-documented track record than us.

As also predicted, the reaction to our first column has been toxic.

"I know there's a lot of people going bonkers crazy over this thing. And they get very mad at you when you point out these deficiencies, but they exist… Don't kill the messenger just because I'm pointing this stuff out. I'm blown away about how angry people get." ~Tracy Beanz on Telegram

The amount of negative comments and hate mail we received in response to our (now provably accurate) reporting is unbelievable.

Although it went through several revisions, Deron Brunson even penned an open letter in response to our column where he initially accused us of an "act of treason"—an offense punishable by death—for daring to (accurately) report on the merits—or lack thereof—of the lawsuit. Thankfully, later versions of the letter omitted the treason accusation. Perhaps it was pointed out to Mr. Brunson that accurate reporting by a Free Press probably didn't rise to the level of a capital offense according to the Constitution he claims to understand so much better than us.

To anyone accusing us of getting paid to attack and discredit the lawsuit, we never have—and will never—compromise ourselves by taking payment to write anything (i.e., commissioned). Tracy Beanz has stated publicly she does not even take a salary from UDC. Adam Carter has never been paid a dime by UncoverDC, The Washington Pundit, or anyone else for any of his work in journalism. He is an accountant by trade and makes his living working in the field full-time.

All of UncoverDC’s content is always freely available—never behind a paywall—and UncoverDC accepts minimal advertising or paid promotions. This is unlike other conservative media organizations that plaster banner ads and pop-ups all over their websites or do constant ad reads during their live/video content.

From the Rumble channel of Tyler Fischer

Based on the vitriolic reaction we got from being the only ones with the guts to publish the truth about this lawsuit ahead of time, do you really think this was a net financial winner for UDC? Just go read some of the comments from when we first published the piece and read how many people swore never to read or follow us again—something we knew going in.

"If that were our goal, trust us, we would run with this story as many other—normally reliable—news sources have. The volume of emails, texts, messages, and posts asking us to cover this case in detail has been unreal. And the reaction to everything that isn't utter praise for the lawsuit has been nothing less than vicious. But UncoverDC's motto is 'Actual Journalism,' and the truth is the truth." ~From the UDC column 'The Truth About the Brunson Case'

So our motivation clearly wasn't financial or to gain followers. We do it for one reason, to get accurate information out to the public we believe is important for the future of the country—and we're good at it. Because—as this story demonstrates better than any other—if not for us, then who?

Then what is the motivation for our reporting on this lawsuit? It’s simple. Frivolous cases like these are damaging to election integrity efforts—both in the court system and the court of public opinion—as explained by constitutional attorney Robert Barnes on a recent episode of Bourbon with Barnes.

The Founders Really Knew What They Were Doing

Now that we have clarified our motivations for publishing the original column, you might be wondering why there is a need for a follow-up since the rehearing petition was not getting nearly as much attention. Well, it wasn’t until President Trump decided to pour kerosene all over it by sharing out a Just The News article about the rehearing petition on Truth Social.

Honestly, it's not to pile on or take a "victory lap." We thought this was a good opportunity to expand on some broader constitutional concepts that come up both in this case and other stories.

We must again reiterate:

"We will be the first to admit our constitutional processes are not functioning as our founders intended. We are only speaking to how the system was designed to function." ~From the UDC column 'The Truth About the Brunson Case'

No constitution is going to withstand forever when one side of the political spectrum infiltrates every major institution of a country and then refuses to abide by it. But as we will demonstrate, most other countries with lesser governing documents would have been long lost after suffering through what we have the last few decades. The reason we still have a clear path to victory and restoration of a functioning constitutional republic is due to the brilliance of The Founders—and the safeguards they put into place nearly a quarter of a millennia ago.

Group of privileged, upper-middle-class useful idiots LARPing they are Marxist radicals ... not knowing they're the first ones that get marched to the gulags when their masters seize absolute power.

When you really study the design of the Constitution, how it anticipated and addressed future conflicts, and compare it to those in other countries—one thing becomes apparent—the Founders really knew what they were doing when they were cooped up in the Pennsylvania State House (known now as Independence Hall) for four months in 1787.

Portrait of the Constitutional Convention of 1787

The thing that must be understood—which seems so prescient today—is, above all else, the Founders feared concentrated power in the hands of a few individuals.

"Here you had thirteen staunchly independent, former colonies who had just found a war of independence to free themselves from a tyrannical foreign ruler. Out of that fear, the original Articles of Confederation did not even provide for a true chief executive to administer the federal government."
~From the UDC column 'The Truth About the Brunson Case'

They knew the nature of government and institutions was to become corrupted. That's why they spent over eight fortnights—packed into a small meeting hall through the heat of an entire summer—over a century before the advent of air conditioning.

The reason the convention took so long? The Founders debated every possible scenario they could conceive that could lead to a tyrannical takeover by the federal government and the best remedies to prevent it from happening. In all cases, the final remedy was a political one. This was done so the people would have the ultimate say on any issue of vital national importance and would never have a final determination imposed on them.

"The Founders entrusted this power solely to Congress because it is the political branch and most accountable to the people. In theory, if Congress were to abuse its authority—and remove a member of the other two branches against the will of the people—those members could be voted out of office in short order. Hence, the people would have the remedy to correct the imbalance and hold the ultimate check on power." ~From the UDC column 'The Truth About the Brunson Case'

To cite just a few examples. As we saw during the 2020 election contests, Article 2 Section 1 (known as the Electors Clause), the Founders gave sole, plenary authority to State Legislatures to appoint Electors to select the President and Vice President. This was done because state legislatures are the constitutional bodies closest—and therefore most accountable—to the people. Most states have 100+ individual legislators living and working within the communities they represent every day. They are the most populist and least corruptible constitutional institutions—unlike state executive or judicial branches, where just a handful of bad actors could co-opt and corrupt the process.

State legislatures have, regrettably, largely delegated this authority to their state governors in order to administer and certify their elections, and state and federal courts to review the results and resolve disuptes. This has been done, frankly, out of sheer laziness. State legislators don't want to be burdened with having to work over the holidays post-election.

The 2020 election exposed the short-sightedness of these decisions. From November 2020 to January 2021, Republican-controlled legislatures in contested swing states were simply unable to meet to investigate accusations of election fraud, with corrupt governors refusing to call them into special session.

Gov. Doug Ducey (R-AZ) refusing to call a special session of the Arizona State Legislature in December 2020, "I'll see the Legislature in January."

We would argue the important election integrity reform that needs to be made is to pass legislation or amend state constitutions to require legislatures to meet in session—after the election—to review the administration of those elections by the state executive branch and certify the results, as intended by the Founders.

The next example we will cite is one we briefly touched on in our prior column when discussing the 2020 presidential election contest.

"The 'cabal' could not risk members of Congress changing their minds at the last minute—due to political pressure from constituents outraged after hearing all the evidence—and refusing to certify electors from at least three of the contested states. Had that happened, the election would have been declared contested, and the House of Representatives voted by state delegation (50 votes total) to determine the winner. Republicans—holding the majority of state delegations—presumably would have declared President Trump the winner." ~From the UDC column 'The Truth About the Brunson Case'

As we stated in the column, the Founders considered "irredeemably compromised" presidential elections possible—and even expected them to occur in the future—at the time of the constitutional ratification. For that reason, they gave the power to resolve the disputed presidential elections to the newly elected members of the House of Representatives.

This was done because those members were the only ones directly elected by the people to federal office under the original design of the Constitution (members of the Senate were not directly elected until passage of the 17th Amendment). The Founders believed this was the most equitable solution since those members had been on the ballot in the same election now in dispute in the presidential & vice presidential context. Therefore their votes would most accurately reflect the will of the people in the election. Should those members fail to carry out the will of the people, they would all be subject to reelection or removal in less than two years. The people would be able to hold them accountable—for their actions—in short order.

Photo of the January 6th, 2017, Congressional Certification to elect President Donald J. Trump

Conceptually, this highlights a fatal flaw in the Brunson lawsuit. Most of the named defendants were on the ballot in the 2022 midterms. So if the Article III courts were to follow through on the remedy being requested—and now throw those Congress members out of office—they would effectively be usurping the authority from the voters. The people had their say. If their constituents choose to return those members back to Congress, how could anyone argue the Founders intended SCOTUS have the power to overrule the people's political determination? It is antithetical to the entire design of the Constitution.

There’s one last example we will cite in this section. With two days left as the Constitutional Convention was wrapping up, the Founders thought they had a nearly perfect document. George Mason of Virginia stepped forward and asked what happens if it all fails? What if the entire federal government—including Congress—became hopelessly corrupted and began imposing tyrannical rule on the whole country? Just for that reason, a last-minute change was inserted into Article V. A provision for a Convention of States was included whereby the people—through their state legislatures—could completely bypass the D.C. Swamp and directly amended the Constitution to reign in an out-of-control government.

Once again, the people hold the ultimate power.

Mark Levin's monologue from July 2018 on the need for The Convention of States to bypass Washington D.C. and amend the Constitution

Be on the lookout for Part 2 of this series, where we will get into the specifics of the Brunson lawsuit to show why it wasn’t sound, and hopefully educate our readers on what to look for in the future.

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