Sen. DeMint Defends Trip To Honduras, Cites Library Of Congress Report That Contradicts Him

October 07, 2009 1:50 pm ET — Walid Zafar

On the October 6th episode of On The Record, host Greta Van Sustern interviewed Senator Jim DeMint (R-SC) who recently returned from a congressional trip to Honduras.  The trip, it should be noted, occurred despite the counsel of the State Department.  During his interview, in which he admitted that he only spoke to those who support the ouster of Manual Zelaya, DeMint cited a report by the Library of Congress to prove that the actions taken against Zelaya were constitutional.

DeMint: "The Library of Congress top legal person has said that it was constitutional."

The report does back up DeMint's position, noting:

[T]he judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.

However, the very same report disputes the principal claim that DeMint and few fellow Republican make in justifying the removal of Zelaya.  They accuse Zelaya of actively trying to extend his term in office and become another Hugo Chavez.  The report notes:

On March 23, 2009, President Zelaya issued Executive Decree PCM-05 2009 ordering a public consultation (Consulta Popular, or referendum) throughout the national territory so that the Honduran people could express their opinion as to whether, during the 2009 general elections, a fourth ballot box should be installed at the polling stations to decide whether to convene a National Constituent Assembly for the purpose of drafting a new political Constitution. The same Decree gave a mandate to the National Institute of Statistics (INE) to take charge of the survey.

On face value, DeMint is half right.  He is absolutely wrong that Zelaya wanted to rule forever but it seems that he is right when he claims that Zelaya's ouster was constitutional. 

Not so fast.  Turns out the Library of Congress report has some serious methodological flaws.

Rosemary A. Joyce, a professor at the University of California, Berkeley, took exception to the conclusion made by the Library of Congress and wrote a scathing letter to Librarian Billingsley and Director Mulhollan, criticizing Ms. Norma C. Gutierrez's report:

There are four problems with Ms. Gutierrez' analysis:

(1) She cites a single Honduran legal analyst as a source of personal communications "confirming" conclusions she draws. Her source is a known supporter of the de facto regime in Honduras, Guillermo Pérez-Cadalso, who testified on behalf of the de facto regime in July's hearings in the US Congress.

This is not a disinterested source. There are numerous Honduran law professors, as well as constitutional law authorities in the US and Spain, on record in writing finding the Honduran Congress exceeded its legal authority in claiming to remove President Zelaya from office on June 28. None of these authorities is cited.

(2) Ms. Gutierrez, rather than analyze the arguments made by the Honduran Congress, as the questions she was asked would require, creates her own novel theory: that the Honduran Congress used a constitutional power given it to interpret the Honduran Constitution so as to justify its removal of President Zelaya.

Specifically, she suggests that the Congress must have interpreted its Constitutional authority to "disapprove" of the actions of a president, extending the definition of "disapproval" to include "removal from office".

Such a claim was not, however, actually made by the Honduran Congress in its June 28 actions. This is a post-hoc rationalization for their actions proposed by Ms. Gutierrez, apparently with guidance from Mr. Pérez-Cadalso, who is cited as confirming this rationalization in a footnote citing a phone conversation.

(3) In fact, on May 7, 2003, the Honduran Supreme Court had nullified the claimed power of the Congress to interpret the Constitution. Thus, it is not surprising that the Honduran Congress made no such claim on June 28, since they no longer could assert such authority, which the Supreme Court had rejected.

(4) Even during the period when the Honduran Congress acted under the belief it had the power to interpret the Constitution, it was bound by procedures that required it to explicitly note that it was interpreting the constitution, and to define the circumstances of the definitions they proposed.