Mukasey’s Paradox & Other Mischief
It has taken no time at all to understand that in his own way Attorney General Michael Mukasey is even worse than Alberto Gonzalez. That is because he is more clever than Gonzo in doing the White House’s bidding, which is to say suborning the law at every opportunity.
Law school prof Jonathan Turley has reached a not dissimilar conclusion in writing in a Los Angeles Times op-ed piece that:
“The recent decisions of . . . Mukasey to block any prosecution of Bush administration officials for contempt and to block any criminal investigation of torture led to a chorus of criticism. Many view the decisions as raw examples of political manipulation of the legal process and overt cronyism. I must confess that I was one of those crying foul until I suddenly realized that there was something profound, even beautiful, in Mukasey’s action.
“In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers.”
It is worth noting for the umpteenth time that none of this mischief might have transpired had feckless Democratic leaders like Senator Charles Schumer drawn the line at Mukasey’s nomination hearing when he bobbed and weaved on what constituted torture and blew them off by saying that he’d get back to them after he was sworn in.
As Turley also notes, that is the ultimate paradox.
Meanwhile, there is the reason that Mukasey was nominated in the first place: Gonzalez couldn’t keep his stories straight about why nine U.S. attorneys had been sacked, eventually had to resign and is now lawyering up for coming legal fireworks.
Although the answer is something of an open secret, Congress wants to know where the orders to purge the attorneys came from.
This prompted contempt citations against, Joshua Bolten, President Bush’s chief of staff, and Harriet Miers, the prez’s former counsel and failed Supreme Court wannabe, after the White House claimed executive privilege and refused to let them testify. Mukasey has dutifully said he will not refer the contempt citations to a federal grand jury.
House Majority Leader Nancy Pelosi, who like other Democratic bigs seems to show up for work with a spine on some days but not on others, has responded that she will give the House Judiciary Committee the authority to file a civil lawsuit against Bolten and Miers in federal court.
23 Responses to “Mukasey’s Paradox & Other Mischief”
[...] Mukasey s Paradox & Other MischiefThe Moderate Voice – Gonzalez couldn t keep his stories straight about why nine U.S. attorneys had been sacked, eventually had to resign and is now lawyering up for coming legal fireworks. [...]
[...] Prometheus 6 | All respect and no restraint wrote an interesting post today onHere’s a quick excerptMukasey’s Paradox & Other Mischief March 6th, 2008 by SHAUN MULLEN It has taken no time at all to understand that in his own way Attorney General Michael Mukasey is even worse than Alberto Gonzalez. That is because he is more clever than Gonzo in doing the White House’s bidding, which is to say suborning the law at every opportunity. Law school prof Jonathan Turley has reached a not dissimilar conclusion in writing in a Los Angeles Times op-ed piece that: “The recent decisions of . . . M [...]
Shaun – I agree that the 'Mukasey Paradox' is very troubling. Circular logic such as this to avoid accountability (even if I don't agree that all the issues being discussed have criminal aspects) is the hallmark of tyrannical and corrupt governance. And these precedents, left unchecked and unchallenged, could reverberate for decades to come, and across party and ideological lines.
That conceded, I still fail to see the why behind the sturm und drang over the US Attorney firings. I have yet to read a legal analysis that states anything other than they serve at the President's pleasure, and unless the firings violated traditional protected class rules, no crime could have been committed.
All the best in legal chicanery serving at the presidents bidding! This country in so many ways has become a mockery of itself under the GWB mantle, and the dems have neither the strength nor steadfastness of purpose to counter it. It is a tragic saga, and all the moreso in that it continues to be cheerleaded by a signinficant portion of the electorate! The amount of betrayal, hypocrisy and shame has to leave any thinking person of conscience feeling stunned.
(christ, I really have to stop drinking decaf)
AustinRoth:
You are indeed correct that U.S. attorneys serve at the president's pleasure.
But if truthful testimony was to be elicited from Bolton and Miers (and pigs will fly before that happens) they should leave no doubt that the firings, in the aggregate, were because these U.S. attorneys were not cooperative enough in the White House's desire to use them as Republican Party functionaries.
Hahahahaha…this was a great post.
I, and I dimly regard others (perhaps Shaun as well) here at TMV as well, saying during the latter days of the Gonzo saga that the Left should love him for his dim-wittedness. His machinations were always obvious and heavy-handed.
So now there is a smart A-G, and the Left is confounded.
I agree with AustinRoth…this is really a non-event. There is no there there…the lawsuits would not likely get to trial before Bush's term is over. The Supreme Court would not likely rule until the next Presidential election.
Plus, when President Obama purges his attorneys (including the by-then Netroots demonized Patrick Fitzgerald) half-way through the term for their outrageously impertinent prosecution of his victimized cronies back in Chicago…look for the Democrats to quietly set the whole issue aside…and the Nutroots to toss all digital traces of the debate down the Memory Hole.
(JSpencer…Decaf is the work of the Devil. I get a shipment of the real goods from Brazil every month. Pure caffeinated goodness!!! )
“But if truthful testimony was to be elicited from Bolton and Miers (and pigs will fly before that happens) they should leave no doubt that the firings, in the aggregate, were because these U.S. attorneys were not cooperative enough in the White House's desire to use them as Republican Party functionaries.”
But Shaun, again, if no one is even suggesting that a criminal act has occurred (as none has), what right does Congress have to pry into the Executive Branch's legal decision making?
To me, the fact of Congress trying to use subpoena power for a purely political act, over an area that Constitutionally they have NO oversight, is more egregious that the firings. The President was within his rights (even if you don't like the why), but Congress was out of bounds.
I can't see SCOTUS ruling any other way, if it ever gets there, and I say it is a 8-1 or 7-2 ruling, maybe even unanimous.
Austin Roth–
First you concede this is the hallmark of tyranny and corruption. Then you admit that it's a terrible precedent. But you end up saying the President can do whatever he wants, because it's not a crime.
Your own logic seems circular.
Macan–
Your ability to predict the future notwithstanding, it's my understanding that new Presidents traditionally replace the US Attorneys when they first enter office, not half-way through the term. But if the next President were to do what you predict, he would be able to claim the actions of President George W Bush as sufficient precedent.
Conservatives used to respect tradition.
Sometimes the real scandal is what's legal.
AR- What about lying before congress and obstruction of justice?Destruction of evidence (millions of relevant e-mails?)
It seems pretty obvious that they are covering up political maneuvering of the Justice system by Karl Rove.
Even if there is no crime in firing the attorneys, at the least it was unethical and improper on an unprecedented scale in our history. Would you like the next Democratic president to interfere in political corruption cases? So that cases against congressional democrats are slowed, but those against powerful Republicans are rushed to justice before an election? Admit it these are signs that we are becoming a banana republic.
Enjoy the conversation, but just remember these numbers……….# of people who tune into American Idol–32 million, # of people concerned about the ethical application of the rules of inside baseball 4 years ago in a lame duck administration–32.
CO- Count me in both categories. When I was growing up sports figures were role models who conducted themselves as such. Millions of kids who play baseball are worshipping drug-induced cheating. I feel the same way about Americans who have been caught with drugs in their system in the Tour de France. Maybe its not the best thing for Congress to spend its time on, but the attention that the hearings bring will clean up the sport.
I still can't understand why so many conservatives were so concerned that Clinton lied about sex with an intern, yet have no concern about the DOJ under Bush, which has undermined the entire system of justice so that the prez and his merry men can be protected.
kritt – how can you have obstruction of justice and destruction of evidence when no crime was committed?
Austin Roth–
If there's an investigation pending and a bunch of potential evidence is destroyed, isn't that the crime?
Destruction of records and information, even to evade an investigation, does not rise to the level of a crime unless said destruction was to avoid prosecution, and the investigation was one intending to lead to potential charges.
Avoiding embarrassment, even from Congress, in the absence of any underlying criminal action that is being covered up is not of itself a crime.
So again, as no one has claimed that the firings were illegal, just perhaps unethical, destroying evidence of non-criminal activity, in the face of a non-criminal (and likely un-Constitutional) investigation, is not a crime.
We should take this discussion over to Volokh, see what the pros think.
AR, I , too, have been searching out the legal issues. I have found nothing other than what is in substance the last sentence of your first post. I am left to conclude the actual law blogs have lost interest in it.
AR-
Your aregument seems to be that there was no crime because there is no proof of crime. By that reasoning, then, all the unsolved murders we have on the books never happened?
Granted, the attorney firings are not as compelling as dead bodies, but some dead bodies are discovered by merely following vague suspicions. A person fails to answer the phone. A suspicious package is dumped in the middle of the night; And etc.
Congress , legally mandated to do oversight, has supicions, but they are thwarted in efforts to follow up on the suspicions . Were that not so, they might find evidence that vindicates the executive branch, or they might find something highly objectionable. That 'something' does not have to reach the level of a crime, btw.
To maintain that efforts to unearth what actually happened iare nothing but a
political ploy is to defend the executive, regardless of consequences.
The consequences are huge, however. Hillary Clinton and Obama are learning from this process, I'm sure. Is the legalese argument to continue in perpetuity, then?
What's at stake here is enough transparency to maintain trust in our governemtn.
That's a cause that supercedes your leglistic arguments, IMO.
We need to know what happened, whether that was a crime, a misdemeanor, or a non-event, like you say. We can't know what happened by merely making assertions and legal arguments.
There is simply too much at stake for our future.
No, I have made no such argument, and wouldn't. My argument is there is no crime because by the Constitution, they serve at the President's desire.
As I clearly have said, unless someone is advancing the argument that they were fired under protected class violations (race, creed, etc.), which absolutely no one has even hinted at, then no crime CAN have occurred.
It just is not and cannot be a crime of any nature for the President to fire them for purely political reasons. Hell, he could fire them because he doesn't like their wife/husband/dog. He doesn't NEED a reason, and any reason other than race, creed, etc., simply cannot be illegal.
Therefore, it cannot be the case that covering up evidence prevents us from knowing if a crime occurred.
And quite clearly, you seem to want to willfully misrepresent what I have said.
AR-
Sorry, if I seemed to willfully misrepresent' your postition.
What I said is truly what I honestly perceived it to be.
You keep referriing to crimes, but that's not the issue. There are, indeed, certain rules in place against the politization of the work done by the various Depatments of Government, and that would be especially important for the DOJ. These ruels even have names, which I can't remember at the moment.. These Departments were never meant to be an arm of the President's political party, whatever that might be at a certain time.
The suspicions in Congress were based on the fact that some firings occurred in the context of ongoing prosecutions, or the dearth of same. Justice and political expediency are not the same thing, and pressure from members of Congress (of the President's party) was also involved.
You give a very broatd reading to the President's legal rights, but don't acknowledge Congress's legal right to conduct oversight. What we have here is the two legal rights colliding.
As I said, the overriding issue here is not what's legal., and cetaily it's not a question of crime. It is the necessity for the people to trust the governement. When checks and balances and oversight are eroded, trust is eroded, and that presents a real danger for a nation's ability to hold together.
IAbove and beyond what is legal is the question of what is right.
That can't be decided by mere asertions of privlege .or legal writhings.
We need to know what happened. If nothing of consequence happened, then we need to know that.
Withholding information, btw, just raises more suspicions. That's not good for anyone.
I do agree that they should not have destroyed any records. I also agree that Congress has the right to ask questions, but not in this case the right to demand answers. Their oversight powers are limited to no small extent by the Constitution, and the courts have consistently ruled that way.
I have no problem with the argument that unethical conduct has occurred, and that the conduct is detrimental to good governance, and that any destruction of evidence erodes confidence. My objection is trying to raise that conduct to criminal levels.
It was classic stonewalling. Cheney, who has been around since Nixon/Ford knows how to cover his tracks.
Having sex with an intern is no crime either- but lying about it under oath and obstruction are. So the cases are very similar, except stonewalling worked much better for Bush/Cheney than it did for Clinton.
AR- Once destruction of evidence has occurred and those close to the president have refused to testify before Congress or gave purposley vague testimony how is it possible to determine whether criminal activity occurred? Destruction of evidence is obstruction, and that IS a crime.
kritt, I am tired of this, so last time – you can't obstruct in the absence of a chargeable offense. You CAN perjure under oath whether charged with an offense or not, i.e., as a witness for instance. They are different legal concepts.
Good night.