“So what’s the way to win the fight?”
“Let me tell you what I found in Tennessee.”
He listened as Howell told him about a trip to Knoxville that a friend of his made about a month ago, to the state archives. They picked the state at random, one of 42 that supposedly ratified the 16th Amendment. In his certification declaration of 1913, Secretary of State Philander Knox noted that Tennessee approved the 16th Amendment on April 7, 1911. Records showed that the amendment itself was transmitted for action to the governor on January 13, 1911. On January 25 a ratification resolution was introduced in the state senate.
“Right there,” Howell said, “we found a problem. A provision of the Tennessee Constitution specifically said that no constitutional amendment could be introduced for ratification unless the legislature in office at the time was elected after the amendment had been submitted. Don’t ask me why they have that rule. It’s weird, I know. But it was state law at the time. In their constitution, no less. But they just ignored it and plowed ahead.”
Howell then explained how the Tennessee legislature violated its own procedural rules, which provided that bills be read once, on three different days, in the House, then if passed submitted to the Senate for consideration.
And vice versa.
“That wasn’t done with this ratification resolution. Even more serious, the Tennessee Constitution at the time forbade the legislature from conveying any new taxing powers on anyone that affected the people of the state. Yet they did it anyway, giving Congress the power to tax income without appropriation. That was definitely new. Then, to cap it off, there’s no record that the state senate ever voted on ratification. Zero. Not a thing. So how did it get approved? And how did the U.S. secretary of state notch Tennessee in the yes column?”
The lawyer inside Malone searched for a loophole, some straw to grasp that might explain those errors, but there were none. Legislation had to be passed precisely according to law. To omit or ignore any part of the process would be absolutely fatal. And with a proposed constitutional amendment? “Almost” would never be good enough.
“And get this,” Howell said. “There’s not a single sheet of original documentation about any of that anywhere in the Tennessee archives. It’s all gone. My friend pieced this together from secondary sources, and a real helpful clerk who knew her way around those old records.”
“So none of that does you a bit of good.”
Howell shook his head. “Not a drop. I need evidence. I think that other memo, the one Larks could not find, is my ticket to freedom. Before I was indicted, I made fifty-plus Freedom of Information requests to the feds. Most of the stuff they gave me was useless, but every once in a while I’d get a tidbit here and there. That friend of mine, he’s since made trips to four other state capitols, searched their archives and found the same thing. Sometimes there’d be original paperwork, but most times it was gone. As if someone came along and cleaned it out. In some of the records you could see where pages had been razor-cut out of minute books.”
He shifted the information into context and allowed it to float loosely through his mind.
Things were beginning to make sense.
And his problem had grown.
*
Kim read the memorandum that Paul Larks had provided to the American Treasury secretary.