What "Egregious Crimes?"

Some are championing Jonathan Turley's line of argument that all possible criminality by the Executive Branch is equal and the most serious of business, requiring even impeachment. Remember Turley supported the impeachment and removal of President Clinton. This is a wrong headed approach to take in my opinion. You can not reasonably compare anything even arguably done by President Clinton to the brazen attack on the Constitution and the separation of powers by the Bush Administration. I reject Turley's argument in its entirety and think it muddles the issues in a harmful way.

For example, lost in the shuffle of Obama advisor Cass Sunstein's statement about egregious crimes is the fact that Sunstein actually does not believe that Bush Administration did anything wrong. As I discussed in 2005, Sunstein supported the Bush Administration claims on military tribunals and illegal wiretapping. Indeed, Sunstein endorsed the Bush Administration's argument regarding the inherent authority of the President to disregard laws when acting as Commander in Chief. More . . .

Yesterday, on Democracy Now, Sunstein did his best Michael O'Hanlon imitation and tried to rewrite his history of support for the Bush Administration's military tribunals, acting as if he would never be cited as someone who supported Bush's lawlessness. To put it bluntly, Sunstein was prevaricating. In 2002, writing about the Bush military tribunals, Sunstein argued in favor of the unconstitutional Bush military tribunals:

War and the Constitution

Under existing law, President George W. Bush has the legal authority to use military commissions to try certain suspected terrorists for violations of the law of war. In arguing otherwise, George P. Fletcher makes numerous blunders ["War and the Constitution," January 114, 2002]. The key decision is Ex parte Quirin (1942), in which the Supreme Court upheld President Roosevelt's decision to use military commissions to try German saboteurs who had landed on Long Island. The Court concluded that Congress had authorized use of commissions to try violations of the law of war. The Court held that the saboteurs had violated that law, and hence were "unlawful combatants," because they entered the country secretly, without uniform, and with the intent to destroy property. The Court emphasized that unlawful combatants could be treated differently from ordinary soldiers operating in uniform pursuant to an ordinary chain of command.

The Court extended this ruling in In re Yamashita, allowing commissions to try a Japanese general who had participated in atrocities against civilians (also violative of the law of war).

After these cases, President Bush's choice stands on firm legal ground insofar as he seeks to use military commissions to try people who planned and participated in the September 11 attacks (and similar actions). The congressional authorization found sufficient in Quirin is the same law invoked in Bush's order. In rejecting this conclusion, Fletcher misdescribes the law.

Fletcher's key contention is that when civilian courts are open, a military commission cannot be used to try offenses that fall within the civilian courts' jurisdiction. But Quirin rejected that contention in unambiguous terms, saying that this principle had no application to a case involving lawful or unlawful combatants. Fletcher invokes the 1866 decision in Ex parte Milligan as "the leading precedent." But in Quirin, the Court explicitly limited the reach of Milligan, saying that it did not involve a belligerent enemy. Amazingly, Fletcher suggests that Quirin "invented" the category of unlawful combatants. That category was and remains well established in both domestic and international law. ("By universal agreement and practice, the law of war draws a distinction between . . . those who are lawful and unlawful combatants," the Court said, with many citations.) Fletcher urges that it is important to distinguish between Nazi-style violations of moral decency and other violations of the law of war. For purposes of analyzing the legal issues raised by military commissions, this distinction is not relevant, much less important.

(Emphasis supplied.) Sunstein in essence argued for the decision in Al-Marri, which treats the President as an absolute monarch in time of war. In my view, Sunstein is wrong on the law. And in the 2006 Hamdan decision, the Supreme Court disagreed with Sunstein and the Bush Administration.

Similarly, Sunstein endorsed the Bush Administration warrantless surveillance program. And in an interview with Hugh Hewitt, Sunstein used the same condescending tone to dismiss critics of the Bush Administration:

HH: Do you consider the quality of the media coverage here to be good, bad, or in between?

CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is.

Sunstein now wishes us all to forget that he fully supported the Bush Administration's lawlessness. He clearly wants to play a role in a potential Obama Administration. I do object to that possibility. Sunstein has supported the most extreme views of Executive power argued by the Bush Administration. Almost as bad, he has been mendacious about his previous positions, painting himself as in the mainsteam of progressive legal thought when he clearly is in the camp of the extreme conservative views on executive power. If Obama wants a Sunstein in his Administration, let's be clear about what we are getting - not some progressive legal thinker on Executive Power, but someone who hold the most extreme views on the subject, views rejected by the Supreme Court of the United States.

Speaking for me only

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    BTD (5.00 / 2) (#1)
    by Ga6thDem on Wed Jul 23, 2008 at 08:46:41 AM EST
    thanks for the analysis. You do a great job with this stuff and it's one of the reasons I keep coming back.

    I keep having a horrible thought. (5.00 / 1) (#2)
    by Fabian on Wed Jul 23, 2008 at 09:08:33 AM EST
    Cass Sunstein is Obama's Rove-Cheney, the guy who will tell Obama that everything is all right, everything is just fine, that there will always be critics no matter what, so just ignore them.

    It's easy to see how the POV from up there looks a lot different from the POV down here.  After all, any one of us could be frog marched easily enough and no one will rush forward to pardon us or commute our sentence.  Up there?  Well, up there things are a teensy bit different, as seven plus years of Bush has shown us.

    More like Addington (5.00 / 4) (#14)
    by gyrfalcon on Wed Jul 23, 2008 at 09:31:48 AM EST
    who has been responsible for coming up with the legal "theories" behind pretty much the entirety of Bush's power grab over the last 8 years.

    I can agree with that. (5.00 / 1) (#38)
    by Fabian on Wed Jul 23, 2008 at 10:05:31 AM EST
    Could the DOJ survive that?  More of the same?  Could we survive it?

    Well, this fits with Obama's FISA vote in a way. (5.00 / 4) (#3)
    by Angel on Wed Jul 23, 2008 at 09:10:22 AM EST
    I think Obama is just itching to have as much power as Bush.  There will be no reigning in of executive power if Obama gets elected.  

    Not just in a way (5.00 / 8) (#12)
    by gyrfalcon on Wed Jul 23, 2008 at 09:30:39 AM EST
    It absolutely explains it, IMHO.  It strikes me also as fitting into the pattern of his more political actions-- demanding his donors not give money to outside groups, taking over the DNC and melding it with his campaign organization in Chicago, tossing pledged delegates who are long-time activists in favor of newcomers loyal only to him, bypassing experienced locals for state and regional campaign staff in favor, again, of outsiders loyal only to him, etc.

    All of this is characteristic of someone who is not willing to tolerate the possibility of being challenged.

    Weren't we talking about authoritarianism in another thread?


    Correct. Obama doesn't like to be challenged. (5.00 / 3) (#15)
    by Angel on Wed Jul 23, 2008 at 09:34:26 AM EST
    And he's thin-skinned just like Bush.  The similarities of Obama and Bush's personalites are eerie and it frightens me.  I mentioned this on another thread a couple of days ago.  I think we are in for a third act of the same play only the actors will be different.  Who will play Cheney, who will play Addington, who will play Libby, who will play Rice, etc.,  are the only differences.  

    "Thin-skinned" (5.00 / 0) (#100)
    by Alien Abductee on Wed Jul 23, 2008 at 01:07:37 PM EST
    I'm much more worried about John McCain having these extra authoritarian powers, considering his notorious thin skin and "volcanic temper". After all it is his own former Republican colleagues in the Senate who talk about his reputation for being "unstable" and who say things like:

    "His temper would place this country at risk in international affairs, and the world perhaps in danger. In my mind, it should disqualify him."


    "the thought of McCain in the Oval Office 'sends a cold chill down my spine.'"

    Whole Lotta Historical Revisionism Goin' On (5.00 / 1) (#6)
    by bmc on Wed Jul 23, 2008 at 09:24:18 AM EST
    Volume 55, Number 13 · August 14, 2008
    The Democrats & National Security
    By Samantha Power

    President Reagan of course did more than any other person to entrench the Republican reputation for toughness on national security. He ran his election campaign against Carter's apparent softness, brought the Iran hostages home upon taking over the White House, nearly doubled the US military budget, invaded tiny Grenada, and staged covert operations throughout Latin America and beyond. Many "Reagan Democrats" crossed party lines precisely because they saw him as more able to confront Communist threats, and the fall of the Berlin wall confirmed their view.



    Remember when Reagan was transformational and the Republicans were the party of ideas--According to Barack?


    Samantha Power (none / 0) (#67)
    by oldpro on Wed Jul 23, 2008 at 11:19:01 AM EST
    is now Mrs. Cass Sunstein...

    Take it from there...


    If a pres. Obama gets the (5.00 / 3) (#31)
    by zfran on Wed Jul 23, 2008 at 09:52:22 AM EST
    same "powers" as Bush has given to himself, and there were no consequences by a dem. congress, then it seems to me that the dems (ms. Pelosi, etal) want a pres. Obama to keep these powers. If you try to impeach on what Bush has done, you limit the next (dem) president from doing the same.

    but, didn't Obama (5.00 / 1) (#42)
    by TimNCGuy on Wed Jul 23, 2008 at 10:11:00 AM EST
    promise that one of his first actions would be to review all of Bush'd damage and change the "laws"?

    I understand that he didn't really mean "laws" when he said it.  Because it is obviously the job of congress to deal with "laws".  But, wasn't the point he was trying to make that he would go into office and undo the signing statements and the like that Bush had used to grant himself all these extraordinary powers?

    Or, was that just the primary "progressive" version of Obama and not the general election "centrist" version of Obama?


    Well, we know FISA is off (5.00 / 1) (#47)
    by zfran on Wed Jul 23, 2008 at 10:18:59 AM EST
    the table, signed, sealed, delivered!

    I don't want to get off on a tangent here. (none / 0) (#59)
    by rottenart on Wed Jul 23, 2008 at 10:44:36 AM EST
    And it may just be the kool-aid talking, but I'm not so sure that plans to completely wipe that program once in power isn't a hand that Obama's keeping close to his chest. I just don't really see him as a power-hungry dictator. I know the whole "secret plan" business is far fetched, and plenty of people can't bring themselves to rely on that, but Obama's a smart guy. He'll have a lot more leeway once in office.

    It helps if you're one of the ones who trusts him, I suppose. I do.


    "he'll have a lot more leeway (5.00 / 6) (#68)
    by oldpro on Wed Jul 23, 2008 at 11:22:58 AM EST
    once in office" is exactly what people are worried about...

    After the FISA vote, just exactly what would it take to wake you up from the dream of "stuff you can believe in?"


    "secret plan"? (5.00 / 5) (#71)
    by Fabian on Wed Jul 23, 2008 at 11:26:23 AM EST
    See "Richard M. Nixon".

    Secret plan is BS.  Secret plan is bluffing.  Secret plan is vaporware.  It's like "Hope", a catch phrase to give people an excuse to believe in something they have no evidence for.  Show me substance, not CTs.


    I expected these criticisms (none / 0) (#78)
    by rottenart on Wed Jul 23, 2008 at 11:48:13 AM EST
    and they're certainly valid.

    I guess that after the last eight years, after becoming so cynical and jaded that I can barely leave the house, after watching what could and should be a truly republican, representative government get turned into a criminal sham, after watching ever nearer relatives get shipped off to a war that should never have been waged, after listening to my parents and their friends pine for the days of true leadership and their rapturous support for Kennedy and Camelot, after studying what should be a blueprint for all presidents and their governance (the New Deal), after being uninspired by a political leader for as long as I've been politically active (including Slick Willie)...

    ...I've chosen to make a leap of faith. I can point to policy proposals, past accomplishments, etc., but you've heard those arguments and you choose to rebut them with slips and gaffes as proof that Obama is a craven political machine, hungry for power above all else, no different from the 535+ other pols currently running our broken system. I don't.

    I don't think Obama is infallible. I don't expect that he will make the right decision on every issue, every time. I don't think he's led a flawless political career. But for some reason, I believe he's different. And there's millions who feel the same way. So, you can rebut every point I make about his potential as evidence for his phoniness and lack of substance. That's your right, and you are not the first nor the last to hold that position.

    But (and to bring this tangent back to the discussion) I believe, in my heart of hearts, there will be no discussion in 2012 about which of Obama's many crimes we should be discussing impeachment.


    If all you're hoping for is a guy who (5.00 / 4) (#82)
    by gyrfalcon on Wed Jul 23, 2008 at 12:13:14 PM EST
    won't be impeached, your standards are pretty low.

    If you maintain this attitude of starry-eyed unrealistic hope, you are going to have an even harder time leaving your house if there is a President Obama.

    Look at the list of stuff he's done.  The man is absolutely a control freak, from start to finish.  I'm sure he will review all the Bush signing statements and the powers Bush has declared for himself in minute detail.  He will roll back a few to the sound of trumpets and angels singing.

    But he will keep most of them.  Mark my words.  This is not a man who turns back power.  Will he use them for things you and I like better than the things Bush has used them for?  Probably, but that's not the point.  I'm an American.  I don't like benign dictatorship much more than I like malign dictatorship.


    As strenuously as you (none / 0) (#98)
    by rottenart on Wed Jul 23, 2008 at 12:55:25 PM EST
    argue your belief that he "is not a man who turns back power", I can just as strongly argue that he is a fair and intelligent man who will.

    Both are based on faith, not facts. For every reason you have for not trusting him, I can point to one I have as the basis for trust. Additionally, as far as I'm concerned, it's the starry eyed idealists who have changed the world for the better far more than the cynical realists have done.

    Again, I don't want to threadjack this discussion about the case for impeachment of W. so I'll just leave it there.


    No, actually (5.00 / 1) (#103)
    by gyrfalcon on Wed Jul 23, 2008 at 01:57:28 PM EST
    your opinion is based on faith, mine is based on the facts of his pattern of behavior-- not what he says, what he does.  You have made him into who you want him to be, not who he is showing you clearly he is.

    You have no proof (none / 0) (#105)
    by rottenart on Wed Jul 23, 2008 at 02:11:01 PM EST
    that he is only out for power and will keep all the wrongfully accrued authority of the Bush administration. You are doing the exact same thing I'm doing, except projecting a different image. Again, you look at aspects of his pattern of behavior and see a cold, calculating figure who can't be trusted. I will look at other aspects of his past behavior and see the opposite. Despite your assertions of "fact" based opinion, that's still all it is: your opinion.

    You don't read so good, which isn't (none / 0) (#112)
    by gyrfalcon on Wed Jul 23, 2008 at 05:09:56 PM EST
    surprising.  The facts I'm referring to are the facts that he is a power accumulator and control freak.  What he will do with that power if he gets into the White House obviously isn't known.  We'll have to wait to find out-- maybe.  My guess is he'll do the things I suggested he would do, and the odds are high that I'm right on that because of the facts of his past actions and behavior.  Your guess is that he will renounce many or all of those powers, but it's a guess based on hope and unrealistic faith because it goes totally contrary his actions to date.

    Just an aside note.....Camelot (5.00 / 1) (#84)
    by zfran on Wed Jul 23, 2008 at 12:17:20 PM EST
    was created by the media and, someone correct me if I'm mistaken, but it was after his death.

    Fair enough (5.00 / 0) (#102)
    by rottenart on Wed Jul 23, 2008 at 01:28:38 PM EST
    but he seemed to be pretty popular before the Camelot myth solidified his mythos.

    You are semi-correct (none / 0) (#104)
    by gyrfalcon on Wed Jul 23, 2008 at 02:01:02 PM EST
    It was after his death, but it originated with Jackie in an interview with Teddy White that appeared in Life magazine.

    the powers of the president (5.00 / 2) (#39)
    by Capt Howdy on Wed Jul 23, 2008 at 10:05:50 AM EST
    to make appointments and executive orders etc is so far the only argument I have, assuming we really do have a chance of a veto proof majority in the senate, for voting for Obama.  
    but I cant get rid of the nagging feeling that we are getting deeper and deeper into a very bad place.

    High Crimes (5.00 / 2) (#43)
    by arguewithmydad com on Wed Jul 23, 2008 at 10:12:26 AM EST
    I believe that one of the points being made by Prof. Turley is that if you do not use the impeachment power when it should be used, the President can pardon himself while still in office. Once the impeachment process is started, the President may not be able to pardon himself for the high crimes and misdemeanors.  I agree with Turley that if you don't deal with all crimes committed by the president and his administation, you are certifying or legitimizing criminal conduct that will be done again in the next administration.  Sunstein looks like a sheep in wolf's clothing and Obama needs to show him the door before November.

    Don't you mean (5.00 / 1) (#46)
    by tree on Wed Jul 23, 2008 at 10:16:43 AM EST
    a wolf in sheep's clothing?

    Don't you mean (none / 0) (#97)
    by arguewithmydad com on Wed Jul 23, 2008 at 12:46:37 PM EST
    Yes you are right, I should have said a wolf in sheeps clothing.  Thanks, nice catch.

    No sweat. (none / 0) (#107)
    by tree on Wed Jul 23, 2008 at 02:45:07 PM EST
    I just wanted to make sure that you weren't making a different point than I thought you were.

    BTD (5.00 / 4) (#48)
    by tree on Wed Jul 23, 2008 at 10:19:06 AM EST
    I hope you will keep up with your posts on Sunstein. I think it is very important that he does not play a significant role in the Administration, or become a SC nominee.


    based on how much (none / 0) (#49)
    by Capt Howdy on Wed Jul 23, 2008 at 10:22:34 AM EST
    Obama and Hagel look like a ticket I am afraid Sunstein may end up being low on our list of problems.

    Do you really imagine (5.00 / 1) (#69)
    by oldpro on Wed Jul 23, 2008 at 11:25:25 AM EST
    that the Democratic Party would nominate Republican Hagel as our candidate for vice president?


    If that could happen, the party is doomed.

    (Actually, it's probably doomed anyway with Obama's folks in charge).

    Chicago.  Ugh.


    and as far as the party (5.00 / 1) (#76)
    by Capt Howdy on Wed Jul 23, 2008 at 11:42:11 AM EST
    nominating  him,  its starting to look like whatever the O wants the O will get.

    If so, (5.00 / 1) (#92)
    by oldpro on Wed Jul 23, 2008 at 12:31:51 PM EST
    this is not your Dad's Democratic Party any more...nor mine.

    People should have seen this is where we were headed when John Kerry (reportedly) actually considered naming John McCain as his prospective running mate.  What if McCain had siad "yes!?!"

    That mindless piece of recent Democratic Party history rivals only Gore's selection of Lieberman.

    Gore, Kerry....Lieberman, McCain.

    What next?  People are seriously, SERIOUSLY talking about Obama/Hagel.  And why is that?  Could Kerry being one of Obama's drafter/advisors have anything to do with that, I wonder?

    Wake up, people.

    No Clinton would consider a Republican running mate...and not only because they would know what a target that would make them for impeachment or...worse...


    Then (5.00 / 1) (#106)
    by chrisvee on Wed Jul 23, 2008 at 02:12:49 PM EST
    we end up with the Republicratic Party which is what I think we mostly have anyway these days (aka The Villagers). And then perhaps we can form an actual opposition party with all the folks who flee the newly-hatched beastie.

    I agree that it's almost mind-blowing to consider the Lieberman-McCain-Hagel stuff.  I just can't make myself believe that McCain was or Hagel is a serious possibility because why would we willingly introduce that succession nightmare?  Would Dems seriously consider Hagel as a VP option? Or would there be rioting in the streets?

    However, I do believe we could see multiple Republicans in the Cabinet in key positions which almost bothers me more. I realize one is traditional but I hope we don't go overboard by reinforcing Republican memes about what Dems are and aren't 'good at'.


    Gore (5.00 / 2) (#117)
    by tek on Wed Jul 23, 2008 at 06:45:43 PM EST
    didn't select Lieberman.  His campaign manager, Donna Brazile, (if Obama's not the nominee I'm leaving the Party) selected him.  The DNC thought we needed a "morals" Veep.  If the Democrats had one iota of political sense, they would have ignored the impeachment (Clinton should have been censured) and run on Clinton's record.  He still had a sky high approval record.  But that was sort of hard to do since 13 of the leading Democrats voted with the Republicans to impeach their own president--something that would never happen in the Republican Party.  

    Several of the Senators backing Obama today were in that 13.  This election is certainly showing the dark underbelly of the Democratic Party.  It's just as ugly--and autocratic--as the Republican Neocons.


    The Obamabots (none / 0) (#116)
    by tek on Wed Jul 23, 2008 at 06:37:24 PM EST
    will jump for joy if Obama chooses a Republican mate.  If Hillary had suggested such a thing, she would have been crucified.  I can hear it now, "Centrist!  Moderate!"

    She should run with John McCain--it'd be an ustoppable ticket and we would at least get one REAL Democrat in the WH.


    I didnt (none / 0) (#74)
    by Capt Howdy on Wed Jul 23, 2008 at 11:37:27 AM EST
    but I am beginning to.  personally I think I would prefer Hagel to Nunn.
    but thats just me.  at least Hagel is right on the Iraq war.

    Hagel....Nunn (none / 0) (#87)
    by oldpro on Wed Jul 23, 2008 at 12:23:14 PM EST
    what's the diff?

    As Shakespeare so famously said, "What's in a name?"

    "A rose by any other name would smell as sweet..."

    Or something like that.


    impeachment (5.00 / 1) (#51)
    by bluesmoke on Wed Jul 23, 2008 at 10:24:57 AM EST
    Impeaching a president is not an issue of violation of the constitution or egregious crimes.  It is about political will to start the process and the political reality of counting votes

    It's worthwhile (5.00 / 2) (#53)
    by frankly0 on Wed Jul 23, 2008 at 10:27:47 AM EST
    remembering too that Sunstein believes that the Constitution embodies no right to privacy, so that it is not inherently unconstitutional to outlaw either abortion or even contraceptives.

    I don't know what makes the guy tick. He's just all over the map with his doctrines on jurisprudence. There's nothing coherent underneath, so far as I can  make out. His views seem guided by nothing more than some ignoble need to affect unconventional belief.

    I don't think that's right (5.00 / 0) (#56)
    by Steve M on Wed Jul 23, 2008 at 10:36:49 AM EST
    As an academic matter, it is perfectly possible to believe in a right to abortion without believing in a right to privacy.  You just have to ground the abortion right in something else, like the Ninth Amendment or the concept of gender equality.

    The problem is that (5.00 / 1) (#73)
    by frankly0 on Wed Jul 23, 2008 at 11:36:22 AM EST
    there's nothing else in the Constitution besides something like a right to privacy that might ground a right to abortion, and to contraceptives.

    The Justices who found in favor of a right to privacy came by that principally because it seemed to be the most natural general right that seemed to express intuitively what lay behind our right to use contraceptives, and likewise seemed otherwise to be suggested by the spirit of the Constitution.

    And the Ninth Amendment definitely figures into any right to privacy that might be justified by the Constitution -- absent the Ninth Amendment, there'd be no plausible argument that a right such as a right to privacy, which is not explicitly expressed in the Constitution, might be said to be embodied in the Constitution nonetheless.


    Well (none / 0) (#80)
    by Steve M on Wed Jul 23, 2008 at 12:00:10 PM EST
    Justice Ginsburg certainly believes in the gender equality argument, even if you think it's not even colorable.

    I'm not sure (none / 0) (#94)
    by frankly0 on Wed Jul 23, 2008 at 12:37:53 PM EST
    how the gender equality argument might figure into the case for contraceptives, even if it could be used to base a case for a right to abortion.

    In any case, none of this has anything to do with Sunstein's own beliefs on the matter of the Constitutionality of either abortion or contraceptives. He has made it pretty plain that he has no principle in mind that might confer a general right to either.


    Really? (5.00 / 0) (#109)
    by Steve M on Wed Jul 23, 2008 at 03:42:51 PM EST
    I think you are misrepresenting Sunstein's position pretty egregiously here.

    Nope, I'm not. (5.00 / 2) (#110)
    by frankly0 on Wed Jul 23, 2008 at 04:50:36 PM EST
    Here's a comment he made in an interview:

    I think that some of the Warren Court's decisions were a little lawless and jumped too far too fast. In so many areas the court's ideals didn't have clear constitutional foundations. The Griswold v. Connecticut case, which created the general right to privacy, was that kind of ridiculously weak opinion. The court didn't identify a clear constitutional basis for saying that the ban on contraceptives within marriage was impermissible. The court referred to "penumbras" and "emanations"[in the language of the ruling] from the Bill of Rights. But the Bill of Rights doesn't have "penumbras" and "emanations"; it just has a catalog of rights. It would have been better to say that the ban was never enforced and it was a recipe for arbitrary and unpredictable action by the police in a way that does violence to the rule of law.

    Note that there is nothing in Sunstein's suggested grounds for overturning the Connecticut law outlawing contraception that might be general to all such bans on contraception. The only constraint he imposes is that the law, as it stood, was never enforced, etc. The obvious remedy would be to introduce a similar ban that would be enforced, and consistently so -- a simple ban of sale of contraceptives in Connecticut would have served that purpose just fine.

    Sunstein's treatment of Roe v Wade was equally lame.


    For those that think the Bush ... (5.00 / 4) (#64)
    by Robot Porter on Wed Jul 23, 2008 at 11:01:43 AM EST
    administration's notion of executive power is new, think again.

    The Nixon administration held essentially the same position.  John Ehrlichman in his testimony before congress presented the same case that is used by the Bush administration to defend illegal wiretapping to defend the break-in of Daniel Elsberg's psychiatrist's office.

    Senator Sam Ervin would have none of it.  And in a famous exchange he made mincemeat of the argument.

    This Executive Branch power grab has been in the offing for decades.

    And it seems Sunstein would have been right at home in the Nixon administration.

    IMHO (5.00 / 5) (#70)
    by chrisvee on Wed Jul 23, 2008 at 11:25:35 AM EST
    Almost no one gives back power willingly and like a dandelion, you can't eradicate it if you don't get at the root.  These same folks keep coming back to take another bite at the apple.

    So if the Dems aren't being aggressive on these issues of executive power, I think we have to strongly consider the possibility that they may want to wield these powers themselves -- all for the good of the country, of course. With a Dem POTUS and a Dem Congress, what's the likelihood of undoing what the Bush Administration has wrought?  I don't want to count on a President Obama to 'do the right thing'. I want Congress to do its job so that future presidents have a curb on their behavior.

    Even tyrants were cute babies.


    I believe at this point it would (none / 0) (#115)
    by tek on Wed Jul 23, 2008 at 06:33:36 PM EST
    be better to have a Republican in the WH since we are definitely going to have a Dem majority in Congress.  We saw what happened with a Republican in the WH and a Republican majority.  The last time the Dems held both they passed such block-headed legislation that they got out of power for years.

    There's a spread on the Left like the spread on the Right.  There are lots of far left issues I wouldn't want to see codified in law.


    This is somewhat OT... (5.00 / 1) (#75)
    by Pol C on Wed Jul 23, 2008 at 11:41:36 AM EST
    ...but I have a sinking feeling that in an Obama administration, we're going to see Sunstein made a judge on a fast track to the Supreme Court. Obama seems to attract advisors whose intelligence is only matched by their obtuseness.

    Two separate topics (2.00 / 0) (#5)
    by koshembos on Wed Jul 23, 2008 at 09:21:22 AM EST
    The only connection between the Turley story and the Sunshine story is that both are law professors.

    Turley position on Clinton was contextless and, there, mindless. Clinton was dragged through the mud by the Republicans who were trying to trick him. On his only misstep, Turley has jumped all over him screaming bloody murder.

    I know very little about Sunshine; his stands clearly are right wing, but then he is an Obama supporter and that's not much of a surprise.

    The Sunstein analysis helps identify . . . (none / 0) (#4)
    by wurman on Wed Jul 23, 2008 at 09:13:37 AM EST
    . . . the "egregious" disconnect.  Further on, though, & following the flow of the analysis, is Sunstein on the bus with Sen. Obama?

    Can we perceive, with some degree of confidence, that Sunstein may actually be in the far forward seat of the bus, right behind the driver, & advising the Obama Campaign where to steer?

    If Sunstein is one of the "chosen" advisors, then it appears to me as if the entire Obama charade is a bait & switch skam.  Once upon a time, so-and-so stated X; now he states not-X.  And when we get into the Oval Office . . . 'who ever said anything about X?' may be the official position of the press secretary.

    What's a "liberal" academic (none / 0) (#7)
    by andgarden on Wed Jul 23, 2008 at 09:25:07 AM EST
    doing hanging around with Hugh Hewitt? Did he have a mind meld with Joe Lieberman?  

    The problem here is twofold (none / 0) (#8)
    by scribe on Wed Jul 23, 2008 at 09:25:51 AM EST
    First, BTD, your argument - rejecting Turley's - that Clinton should not have been impeached makes the idea of executive branch criminality being prosecuted (either criminally or through impeachment) optional.  Either we prosecute executive branch criminality or we decide that taking on the mantle of an executive branch office also invests the holder of that office with a cloak of immunity from prosecution.

    This does not remove from the equation  appropriate levels of prosecutorial discretion - a minor offense could be addressed by firing the offender and not violate the principle of enforcing the law against offenders.

    But, if we choose the latter alternative - which could support in an intellectually honest manner not prosecuting Clinton (via impeachment or criminally) for perjury - then we also have to (if we intend to be intellectually honest) concur with not prosecuting Karl Rove for any of his misbehaviors, not prosecuting David Addington, Dick Cheney, John Yoo, et als., for conspiring to inflict torture, and so on.  In other words, adopting your view requires, as a matter of intellectual honesty, that the members of the Bush Administration get a walk down the street to a lush think-tank job, as opposed to a perp walk.

    One has to set aside the visceral - and correct -reaction at the Clinton impeachment.  That was a cooked-up set-up job from the beginning, and Clinton's first error was in not recognizing that the Republicans were hunting his head and would stop at nothing to get it.  His second error was in not taking vicious, immediate retributive action against them.  He figured he could charm and triangulate his way out of it, but only wound up tangled deeper in the brier patch they were constructing.  And, consequently, we got a bad precedent as the result.

    The second problem is in the person of Cass Sunstein and, more importantly, what he represents.  As Turley rightly points out, the Democratic strategy has been to vaguely promise change and not really do anything about it, bank on Bush's unpopularity, and accept power.  The current atrocity which is the move toward dictatorship will be cemented.  Sunstein represents that in spades - his timorous approach toward executive branch criminality is, really, just the flip side of the post yesterday on the prosecution of the pool guy in Greenwich CT.  There, the poor (by Greenwich standards) guy was being prosecuted for the death of a hedge fund noble's son when, had the kid been an ordinary guy's kid, the matter would have been resolved with a simple damages lawsuit.  If a poor guy hurts a rich guy, the weight of the world falls on his head.  If the rich guy hurts a poor guy, the poor guy apologizes for getting in the way of the rich guy's shooting at that quail.

    In other words, the determinant of Law and what is or is not lawful, going forward, will be "who" the parties are, rather than neutral principles of general application which apply to all persons equally.  

    Your argument, BTD, falls into the trap of accepting that rubric, because the raw emotionalism over the Clinton impeachment outweighs the rationality which intellectual honesty requires.  Your argument requires - if you're going to be intellectually honest - giving every one of the  Bush administration flunkies a walk.  And it puts you squarely in Sunstein's camp.

    Sorry if you don't like it, but it's not personal - it's logical.  Sunstein's position is purely personal - and makes logic the servant of personalities.

    If every perjurer was prosecuted (5.00 / 3) (#9)
    by Big Tent Democrat on Wed Jul 23, 2008 at 09:29:13 AM EST
    you might have a point. They aren't.

    Impeachment in particular is not a prosecution, which is my point about Turley.


    And under the rules of perjury (5.00 / 2) (#21)
    by tree on Wed Jul 23, 2008 at 09:42:54 AM EST
    elements of the charge were distinctly lacking against Clinton. First off, the "lie" has to be about something "material" to the case and the civil judge in the Jones case ruled that it was not. And second, according to the rather odd definitions set down by the same civil judge, "sexual relations" did not include receiving oral sex, so his answer, while not upfront and honest, was not in fact a lie under oath.



    Oh I agree (5.00 / 1) (#25)
    by Big Tent Democrat on Wed Jul 23, 2008 at 09:45:15 AM EST
    I assumed arguendo that he had for the purposes of arguing against Turley's point.

    andgarden does it more succinctly - high crimes.


    Another thing to remember... (none / 0) (#79)
    by Pol C on Wed Jul 23, 2008 at 11:50:09 AM EST
    ...is that the Jones suit was thrown out of court for lack of merit. The judge essentially told Jones that even if she took everything Jones charged as the absolute 100% truth, Jones didn't have a case. I know Clinton later settled it out of court, but as with a lot of nuisance suits, it was just to make this monumental ditraction go away. The Supreme Court did a monumental disservice to the country in the Jones v. Clinton decision when they unanimously stated that if a sitting President was sued during his or term of office, he or she was required to submit to discovery and trial while serving, rather than hold off proceedings until after he or she had left office. It just opened the door for a lot of looney-tune political harassment through the courts, and I'm sure we'll see plenty of it in an Obama Administration.

    The reason a lot of perjurers are not prosecuted (none / 0) (#16)
    by scribe on Wed Jul 23, 2008 at 09:36:53 AM EST
    is not that they didn't lie, but rather that a prosecutor recognizes that proving beyond a reasonable doubt the fact of their lie under oath and the materiality thereof (the classic elements of perjury) is often impossible.

    In fact, I'd say that difficulty in meeting the burden of proof the first and foremost reason for non-prosecution of perjury.  

    You're getting sidetracked off the main point:  either you prosecute all, or you prosecute none.  Any other approach changes prosecution of executive branch officials into a means of partisan witch-hunting, with the political "outs" being the defendants.

    We all saw how well that went over with the populace, when Rove was, through his marionette Regent U. grads planted at DoJ, causing prosecutors to go after Democrats for fear of losing their jobs.


    But in Clinton's case (5.00 / 2) (#26)
    by tree on Wed Jul 23, 2008 at 09:45:49 AM EST
    the classic elements of materiality and lying under oath were not there.  

    I do not think that is true (none / 0) (#19)
    by Big Tent Democrat on Wed Jul 23, 2008 at 09:41:18 AM EST
    Well, do recall the difficulties in prosecuting (none / 0) (#32)
    by scribe on Wed Jul 23, 2008 at 09:54:40 AM EST
    Libby for his perjury.  And the fine-toothed combs applied to the proofs there.

    Then multiply that by the hundreds of thousands of lies - white, black, little and big - told in courtrooms and depositions every single day.

    It's always the problem of proof.


    It is more than that (5.00 / 2) (#34)
    by Big Tent Democrat on Wed Jul 23, 2008 at 10:00:27 AM EST
    It is prosecutorial discretion.

    But this is the type of tangent that Turley takes you on.

    I reject the relevance.


    I've sat on the grand jury (none / 0) (#61)
    by scribe on Wed Jul 23, 2008 at 10:53:36 AM EST
    where I live, and I saw more liars (in and out of uniform) come before us and tell their marginally-related-to-the-truth tales.  The number indicted, let alone prosecuted, for perjury was asymptotic to zero (I won't give an exact number).

    BTW (none / 0) (#20)
    by Big Tent Democrat on Wed Jul 23, 2008 at 09:42:14 AM EST
    You do NOT prosecute all now.

    And what does that have to do with impeachment anyway?


    You need to get over any emotional (none / 0) (#35)
    by scribe on Wed Jul 23, 2008 at 10:02:46 AM EST
    attachment you might have to your (righteous) revulsion at the Clinton impeachment.  There was a cooked-up case which was sufficiently well-prepared to convince a majority of a partisan House to issue articles.  That's all impeachment takes.  If one could convince 219 representatives that, because Bush likes (or doesn't) broccoli, he should be impeached, that's all it would take.

    Yes, Clinton's impeachment was likely a bullsh*t case and never should have been brought, but it was.

    It needs also be remembered that, despite Clinton's impeachment being a bullsh*t case, his never-prosecuted perjury was material enough and well-proven enough, to get him into a disbarment.  

    The point is, either one accepts that "who" the defendant is matters more than what he did (a relativistic position), or one sees law as a set of neutral principles to be applied equally to all.

    Sunstein and Addington are both of the same persuasion - relativism.  Your argument, BTD, accepts relativism as the frame (Bush = bad, therefore prosecute;  Clinton = good, therefore don't prosecute) then argues against it.  It's intellectually incoherent.


    Actually (5.00 / 1) (#41)
    by Big Tent Democrat on Wed Jul 23, 2008 at 10:09:40 AM EST
    Your argument is simply weak. It has nothing to do with emotion.

    Frankly, I have lost interest in your argument because of your last comment.

    Have a nice day.


    Wrong. (5.00 / 2) (#44)
    by tree on Wed Jul 23, 2008 at 10:14:19 AM EST
    It needs also be remembered that, despite Clinton's impeachment being a bullsh*t case, his never-prosecuted perjury was material enough and well-proven enough, to get him into a disbarment

    A correct interpretation would be that the vendetta against Clinton was strong enough to make it in Clinton's interest to agree to a disbarment in order to end the vendetta. Just as it became in his interest to settle the Jones suit despite the fact that he surely would have won in court. On the issue of materiality alone no respectable prosecutor would have pressed perjury charges.  


    A legal theory (5.00 / 3) (#50)
    by badger on Wed Jul 23, 2008 at 10:24:21 AM EST
    that equates perjury about an extramarital affair with violating treaties like the Geneva Conventions, authorizing torture, attempting to suspend habeas corpus, illegal wiretapping on a huge scale, exposing covert CIA agents and other crimes is asinine on its face.

    now if we could just get reporters (5.00 / 1) (#54)
    by TimNCGuy on Wed Jul 23, 2008 at 10:30:50 AM EST
    and media outlets to talk the way you do instead of the crap we get now where "both sides" have to be dishonestly treated as having equal merit.

    The media habit of having to go with the "some say  blah, blah blah...' in their reports is frustrating.  I wouldn't mind it as much if they ended they "some say" sentence with "but those that do say it are either idiots or intellectually dishonest".


    The problem with your argument (none / 0) (#60)
    by scribe on Wed Jul 23, 2008 at 10:50:44 AM EST
    is that the statute books make no distinction over the subject of the perjury - the crime there is lying under oath.  About what - doesn't matter.  You can be convicted of perjuring yourself for lying about what you had for breakfast, or for lying about what you knew about Valerie Plame's secret identity.  

    And, for that matter, one could argue (and in Republican/neo-con circles, it's a given) that the lives of a few browner-than-you people taken because they stood in the way of greater economic happiness of the Republicans and neo-cons, are worth less than the lives of the soldiers taking them, and still less than the lives of those same neo-cons (who'd never be caught dead doing something as cracker as putting on a uniform to back up their words with their own blood), and that therefore killing or torturing them isn't really as  bad a crime as killing or torturing a white neo-con Republican.  Shoot, that philosophical position is the underpinning of every time the Americans go into a foreign country to kill a bnch of people for some (perceived) slight to American hegemon.  The law, as written, doesn't care - it's a human life, period.  

    The value judgments and such -about which lives are worth more - went out with buying and selling people and nobles getting different (and better) treatment than mere proles.  Bush (and Sunstein) and their interpretation of law, call for bringing all of that back.


    Ha! (5.00 / 1) (#62)
    by Steve M on Wed Jul 23, 2008 at 10:56:42 AM EST
    If you believe some instances of perjury are more worthy of prosecution than others, then you can't argue with someone who believes white people are more valuable than brown people.  Wow, that's a truly breathtaking argument.  It should be framed.

    Clinton's perjury thrown out he is not disbarred (5.00 / 2) (#63)
    by Exeter on Wed Jul 23, 2008 at 10:58:04 AM EST
    The judge ruled Clinton knowingly lied, but it was about something that was not material to the case in which he was being deposed, therefore not perjury.  And as far as being disbarred, his law licenced was suspended for five years in the state that he was licensed to practice law: Arkansas. He was facing getting kicked out of the USSC bar, but he resigned. That was around 2000 and it follows to reason that he is in good standing to practice law currently. Considering this was done by Republicans in Arkansas, I think you can chalk up the suspension to the same ugly politics as the impeachment.

    Seems to me you're being inconsistent (none / 0) (#40)
    by andgarden on Wed Jul 23, 2008 at 10:08:56 AM EST
    Didn't you just write that it was correct that Bill Clinton was impeached?

    It's not inconsistent (none / 0) (#65)
    by scribe on Wed Jul 23, 2008 at 11:06:34 AM EST
    for several reasons.

    1.  Clinton, arguably, committed perjury.  He could have been indicted, but wasn't, in large part because there was an impeachment going on.  I suspect that the independent prosecutor was more interested in getting the case into the impeachment court - where Village politics reigned supreme and there was no proof-beyond-a-reasonable-doubt to a jury of ordinary folks -than in criminal court.  
    2.  The impeachment, we need to remember, was a political act.  There was no requirement that the cause for an impeachment article even resemble a crime.  Anything that met the approval of 219 Representatives was sufficient.
    3.  If one (as the Bush bashers do) argues that (arguably) committing a crime is sufficient to require an impeachment (and I agree with them)then, to be consistent, one has to agree that Clinton's arguably committing the crime of perjury also sufficed to require an impeachment.
    4.  That Bush and Cheney continue to hold office is more a reflection of the cowardice and calculation of the Democratic leadership - which could have done a whole lot more - than of Bush/Cheney's innocence or the impropriety of Clinton's impeachment.  
    5.  For example, Mukasey should have been impeached the first minute he balked at answering anything regarding the US Attorneys' scandal.  Or torture.  Or FISA.  He was already then in contempt of Congress.  That he wasn't was more a calculation by the Democratic leadership that they could make more electoral hay by teasing their base with Republican scandal and the only way out of it being electing more Democrats, than by actually taking out a Republican.  They've worked and teased their base like one uses a treat to tease a dog into jumping or rolling over or whatever.  And the Dem base has dutifully reacted in the desired manner, played like a fiddle.

    Um, I think I'm going to join BTD (5.00 / 1) (#66)
    by andgarden on Wed Jul 23, 2008 at 11:08:55 AM EST
    in the "finished with this discussion" room. This:

    If one (as the Bush bashers do) argues that (arguably) committing a crime is sufficient to require an impeachment (and I agree with them)then, to be consistent, one has to agree that Clinton's arguably committing the crime of perjury also sufficed to require an impeachmen

    doesn't make any sense at all.

    Good day.


    Is every crime a "high crime"? (5.00 / 1) (#10)
    by andgarden on Wed Jul 23, 2008 at 09:30:32 AM EST
    Well that is the clear point (none / 0) (#23)
    by Big Tent Democrat on Wed Jul 23, 2008 at 09:43:51 AM EST
    on impeachment. And I should have made it in my post but I really was not looking to enter that cul de sac.

    That is why Turley's argument is a particularly bad one for progressives to champion.


    Well sure (5.00 / 1) (#30)
    by andgarden on Wed Jul 23, 2008 at 09:51:47 AM EST
    The problem is that listening to some partisans on the right 13 years ago, you'd think than a delinquent parking ticket would be grounds for impeachment.

    This is the whole reason why "Bush lied, people died" is such an effective slogan. There is an implicit comparison to what Clinton did.


    I haven't yet read (5.00 / 1) (#55)
    by rottenart on Wed Jul 23, 2008 at 10:34:36 AM EST
    Vincent Bugliosi's The Prosecution of George W. Bush for Murder, but I would imagine it lays out a case more palatable to what the options will be going forward.

    Concerning the argument above, I always held the view that precisely BECAUSE a Repub cabal tried to impeach Clinton was the reason why impeachment of Bush made so much sense. If a BJ and a sprinkling of perjury are all you have to go on, then war crimes (or rash politicization, or outing a CIA officer, or redacting EPA decisions, or on and on, etc., ad infinitum...) seem to be a slam dunk case(pardon the pun).


    Many grounds for impeachment . . . (none / 0) (#24)
    by wurman on Wed Jul 23, 2008 at 09:44:11 AM EST
    . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

    Is perjury a misdemeanor?  What did the writers even mean by that word? parking tickets? accepting diamond cuff links from the Saud family?

    I don't have a horse in this race because it's obvious that the House of Representatives has the prerogative of deciding what's "impeachable," even if it's silly, stupid, or "egregious."

    Law professors notwithstanding.


    The phrase (5.00 / 4) (#27)
    by Big Tent Democrat on Wed Jul 23, 2008 at 09:46:05 AM EST
    should be read as "High Crimes and Misdemeanors" together.

    Off topic, but an interesting contra Sunstein (none / 0) (#58)
    by wurman on Wed Jul 23, 2008 at 10:42:06 AM EST
    There's a brief, sensible summary at Findlaw (link):
    Apparently, George Mason suggested the phrase to replace the unacceptable "maladministration."  It also had a longstanding usage in British law.
    High crimes and misdemeanors, however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses. In an unrelated action, the Convention had seemed to understand the term ''high misdemeanor'' to be quite limited in meaning, but debate prior to adoption of the phrase and comments thereafter in the ratifying conventions were to the effect that the President at least, and all the debate was in terms of the President, should be removable by impeachment for commissions or omissions in office which were not criminally cognizable.

    Apparently, the phrase was separable into high crimes AND high misdemeanors at the Convention.

    History does not support that.

    Practice over the years, however, insofar as the Senate deems itself bound by the actions of previous Senates, would appear to limit the grounds of conviction to indictable criminal offenses for all officers, with the possible exception of judges.

    If I remember the arguments (none / 0) (#86)
    by gyrfalcon on Wed Jul 23, 2008 at 12:22:05 PM EST
    from impeachment days correctly, the term "misdemeanor" did not mean then what it means now, or the British definition, which is what was used in the Constitution as a model, didn't mean, as it does now, petty crimes.  Can't remember the details, though.

    Is there a Constitutional scholar in the house?


    I don't get it (5.00 / 5) (#11)
    by Steve M on Wed Jul 23, 2008 at 09:30:37 AM EST
    How does intellectual honesty require that we equate Clinton's wrongdoing with Rove's or Bush's?

    Real simple: (none / 0) (#18)
    by scribe on Wed Jul 23, 2008 at 09:39:36 AM EST
    the question a prosecutor asks (and a grand jury weighs, BTW):  Is it more likely than not that a crime was committed and that the defendant was the person committing that crime?

    If that question is answered:  "Yes", then there is a basis for a prosecution.  If "no", then there is not.

    Simple, and it leaves personalities out of the equation.  Sunstein's approach is all about personalities and some being more equal than others.


    Makes no sense (5.00 / 5) (#28)
    by Steve M on Wed Jul 23, 2008 at 09:47:08 AM EST
    You yourself acknowledged the concept of prosecutorial discretion in your comment.  Now you are pretending that no such thing exists.

    It is entirely reasonable to decide that Clinton's wrongdoing was principally a private matter, while Rove's or Bush's related directly to the performance of their official duties and should be prosecuted.  We do not need to go around posturing about how Clinton should have been prosecuted just to "prove" we are not political partisans.

    I also agree with BTD that it is seriously misguided to conflate prosecution and impeachment as if they are governed by the same standards.


    stasis theory requires... (none / 0) (#101)
    by kredwyn on Wed Jul 23, 2008 at 01:18:37 PM EST
    a discussion on the weight involved in the event in question (e.g. premeditated murder v. manslaughter v. self defense).

    One does not equate with the other.


    You misunderstand what impeachment is (5.00 / 3) (#22)
    by gyrfalcon on Wed Jul 23, 2008 at 09:43:06 AM EST
    Impeachment is first and foremost a political process, not a legal/judicial one.  The Constitution deliberately leaves it up to Congress to define "high crimes and misdemeanors."

    Simple law-breaking, particularly on a minor personal matter, such as Clinton's purported perjury, can and should be dealt with through the normal criminal justice process, after the person leaves office if it's impractical or nonsensical to attempt it while he/she is in office.

    Impeachment is the sole remedy we have for reining in out-of-control executives who refuse to abide by the law or who write their own laws for running the executive branch-- which is what Bush, and to a lesser extent before him, Reagan, have done.

    Our much vaunted "balance of power" among the three branches of government relies absolutely on voluntary compliance by the executive, and as we've seen over the last 8 years, it can be completely shattered by an executive who refuses to go along.

    That's what impeachment is designed for, not possible petty personal crimes that have no direct relationship to governing.


    Wasn't something passed after (none / 0) (#13)
    by zfran on Wed Jul 23, 2008 at 09:31:47 AM EST
    9/11 that gave the president extraordinary powers in case of a terrorist act or act of war called the Patriot something (the name escapes me)? "Sunstein in essence argued for the decision in Al-Marri, which treats the President as an absolute monarch in time of war." I often wondered when the time came for President Bush to leave office, would something "extraordinary" happen and he'd invoke this statute and say, well, sorry, I cannot leave the presidency, I am declaring marshal law etc. etc.  

    I believe this document is (none / 0) (#17)
    by zfran on Wed Jul 23, 2008 at 09:38:08 AM EST
    called The "National Security and Homeland Security Presidential Directive"  

    There is (none / 0) (#29)
    by Steve M on Wed Jul 23, 2008 at 09:49:42 AM EST
    a lot of chatter on the liberal blogs about this document, but in my mind it is no different from emergency directives similarly issued by Clinton and earlier presidents.  The only actual difference is, you know, Bush is evil and Clinton is not; while I'm willing to grant that, I don't believe that if Bush intends to seize power and become an absolute dictator or what have you, some order he himself issued makes a difference in whether he gets away with it.

    I somewhat disagree. If this (3.00 / 2) (#33)
    by zfran on Wed Jul 23, 2008 at 09:56:21 AM EST
    "power" gives the president absolute control without the consent of congress, which it apparently does, then what is to stop any president from invoking it when it suits his/her needs. What is in place to stop it, the people? We haven't been able to stop what has happened for almost 8 years. The congress? What have they done to stop what's happened. The dems came into power saying impeachment is off the table. Perhaps they knew a dem pres. would be coming. A pres. Obama would only go further with this stuff, not backwards.

    I'll say it again (none / 0) (#36)
    by Steve M on Wed Jul 23, 2008 at 10:04:11 AM EST
    If the President has the power to seize absolute power, what possible difference could it make that that he writes it down on a piece of paper first?  Either he has that power without the infamous "Directive" or he doesn't have it at all.

    Well, (none / 0) (#57)
    by rottenart on Wed Jul 23, 2008 at 10:40:40 AM EST
    given this particular evil administrations reliance on convoluted legal theories concerning their conduct, perhaps it's just a case of "crossing the tees and dotting the ayes" on their creative legal cover. I agree that there's no need to, but doing it makes it easier to point to after the fact and say, "See! We were totally justified and above board in snatching power!" when the worm inevitably turns.

    CaptainAmerica08, instead of (none / 0) (#85)
    by zfran on Wed Jul 23, 2008 at 12:19:05 PM EST
    downrating my comment, why don't you just tell me what you disagree with regarding my statement?

    The COG & the COOP are oft referred (none / 0) (#37)
    by wurman on Wed Jul 23, 2008 at 10:04:13 AM EST
    Oddly, the references often demonstrate a very limited capacity for reading comprehension.  There is nothing, not a word, in the directive that covers martial law, any changes to the line of succession, any modifications to the on-going functions of elections, appointments, or the management of the executive branch.

    There is, in fact, a paragraph that reads (link):

    (e) "Enduring Constitutional Government," or "ECG," means a cooperative effort among the executive, legislative, and judicial branches of the Federal Government, coordinated by the President, as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers among the branches, to preserve the constitutional framework under which the Nation is governed and the capability of all three branches of government to execute constitutional responsibilities and provide for orderly succession, appropriate transition of leadership, and interoperability and support of the National Essential Functions during a catastrophic emergency;

    The general & specific meaning of this graf is plain as a pikestaff.  Basically, if every human in Washington DC is obliterated in a nuclear disaster, some congressman, who happens to be out of town, may become the president by succession when things are sorted out.

    Meanwhile, every governmental entity will continue to function in terms of plans that are on file & ready to implement for essential functions.

    This directive replaced an older document that did not require ALL of the governmental entities to have plans & which focused too heavily on the executive branch.


    Apparently there are (none / 0) (#45)
    by zfran on Wed Jul 23, 2008 at 10:15:06 AM EST
    attachments to this document as such:

    "24) Security. This directive and the information contained herein shall be protected from unauthorized disclosure, provided that, except for Annex A, the Annexes attached to this directive are classified and shall be accorded appropriate handling, consistent with applicable Executive Orders."

    Are "Executive Orders" the same as Executive Directives" which Bush is the decider as to which ones he follows? Do we know what attachments belong to this directive? Chaos could happen, but, I guess anything could happen!


    Ironic, the first "open" directive(s) (none / 0) (#77)
    by wurman on Wed Jul 23, 2008 at 11:44:30 AM EST
    From Wikipedia (link)
    The signing of this Directive was generally not covered by the mainstream U.S. media or discussed by the U.S. Congress. While similar executive security directives have been issued by previous presidents, their texts have been kept secret; this is the first to be made public in part.

    Here's a version of Annex A (link).  It is the last entry at the bottom of the list & links to a document that you can read with Adobe or WordPad.

    To attribute nefarious skulduggery in these documents is hilarious, especially since they are the first of the kind ever made public.  I do not have a problem with Top Secret classifications for such things as the lines of succession for the CIA (if Langley is obliterated) or the transfer of decision making for the Armed Forces (if the Pentagon disappears).  Apparently, there are folks who think those things should be public information--go figure.


    Well Bush hasn't exactly (5.00 / 1) (#89)
    by zfran on Wed Jul 23, 2008 at 12:23:48 PM EST
    been an "upstanding, following the law" president. This administration is secretive and nothing seems to be binding to them. Will an Obama presidency pull back executive powers to be in align with the Constitution or will he expand on those powers and tell us he's too busy right now to examine those illegalities? Perhaps I do believe in being suspicious of my government....they certainly have given me cause to be.

    This is the 1st time such a directive (none / 0) (#96)
    by wurman on Wed Jul 23, 2008 at 12:43:47 PM EST
    has been made public.

    It is absolutely NOT "secretive!"

    This is the opposite of secretive.


    wolf in sheeps clothing (none / 0) (#52)
    by arguewithmydad com on Wed Jul 23, 2008 at 10:25:56 AM EST
    Yes, I did mean a wolf in sheeps clothing.  Thanks for the catch.

    Turley's Approach is preferable ... (none / 0) (#72)
    by santarita on Wed Jul 23, 2008 at 11:33:38 AM EST
    to me, at least.  I don't read him as saying that impeachment is mandatory but rather it is legally permissible.  But it should be understood as a possibility for big and little crimes.   In practice because bringing Articles of impeachment is an activity by people subject to election every two years political constraints come into play in the decision to bring Articles of Impeachment or not.  And the outcome in the Clinton case was appropriate.  

     If elected representatives and senators bring actions against the President that the voting public find arbitrary and capricious or worse, maliciously inspired, the elected reps will not be reelected.  That is the great check and balance on them that prevents the abuse of their power to impeach.  

    The Sunstein approach takes what should be the proper political exercise of a power and suggests that that should be the legal limit of the power.  Under Turley's approach, the Congress has the legal power but is constrained by the political realities.  His approach is better.

    I, for one, think that Clinton should not have been thrown out of office for his perjury but I also don't think that removal of a president for committing perjury is totally beyond the pale.  The President should be a shining example of respect for the rule of laws.  In the Clinton case, there was the strong odor of entrapment and malicious prosecution.  Of course, many Republicans think that the Nixon impeachment was also malicious.  The outcomes in both cases were appropriate and really show that the founding fathers were pretty good at balancing the legal and the political..

    Re Sunstein/Addington... (none / 0) (#81)
    by oldpro on Wed Jul 23, 2008 at 12:01:49 PM EST
    "You want a scary thought? Imagine a fanatic in the mold of Dick Cheney but without the vice president's sense of humor.

    In her important new book, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals," Jane Mayer of The New Yorker devotes a great deal of space to David Addington, Dick Cheney's main man and the lead architect of the Bush administration's legal strategy for the so-called war on terror.

    She quotes a colleague as saying of Addington: "No one stood to his right." Colin Powell, a veteran of many bruising battles with Cheney, was reported to have summed up Addington as follows: "He doesn't believe in the Constitution."

    So writes Bob Herbert in his NYT syndicated column, alerting Americans to the seriousness of the damage done to the US by the Bush administration, thanks to the mindset of people like Addinton and those who listened to him and acted on his recommendations.

    If Sunstein = Addington and Obama is elected, we could be in even more serious trouble in this country than we are under Bush/Cheney.

    Buyers' remorse, anyone?

    BTD?  Other 'attorneys for Obama'?

    What's the remedy?

    A question of judgement. (5.00 / 1) (#93)
    by Fabian on Wed Jul 23, 2008 at 12:32:35 PM EST
    It's not that Obama is inexperienced.  It's that Obama seems clueless and takes advice from people like Sunstein.  One of my first reasons to like Hillary was that she knows her way around D.C. and knows who to trust and who not to trust.  I was afraid that Obama might "fall in with the wrong crowd" who want to use him.  And so far, it doesn't look good.  I wonder who the VP will be.  I think the VP pick won't win Obama any votes, but it might be the difference between "maybe..." and "no way!" for some.

    Inexperienced = clueless (5.00 / 1) (#95)
    by oldpro on Wed Jul 23, 2008 at 12:42:01 PM EST
    in my book.

    And that is precisely why he was the perfect draftee for the "team to take out the Clintons and take over the party."  So far, so good, I'd say...for the wannabes who couldn't get elected themselves to the presidency but who can ride this horse (they hope) to the Darby...Kerry, Kennedy, Daschle.

    The question is, how do Sunstein and Power fit with the Obama powerbrokers?  Who brought them in?  Daschle?


    "Takeover" (none / 0) (#90)
    by gyrfalcon on Wed Jul 23, 2008 at 12:28:25 PM EST
    by Charlie Savage, "The Return of the Imperial Presidency," also keeps finding Addington at the center of Bush's power grabs, and not just in service of the WOT but in purely domestic matters.

    Is this an "egregious crime" (none / 0) (#83)
    by scribe on Wed Jul 23, 2008 at 12:17:04 PM EST
    Bob Novak hitting a pedestrian with his car.  (Thankfully, the pedestrian had only "minor" injuries.)

    Or is this the egregious crime:  Bob Novak's car is a Corvette.


    The pedestrian had ROW! (none / 0) (#88)
    by Fabian on Wed Jul 23, 2008 at 12:23:18 PM EST
    So it's not some jaywalker.  Lovely.  Hope to hear more details.  As someone who has spent a good chunk of their life walking, biking and riding the bus, I have a serious grudge against the inconsiderate, irresponsible and mentally absent drivers on the road.

    Um, as someone who drives (none / 0) (#91)
    by gyrfalcon on Wed Jul 23, 2008 at 12:30:18 PM EST
    I have a serious grudge against the inconsiderate, irresponsible and mentally absent pedestrians and bicyclists on the road.

    Motorists outnumber (none / 0) (#108)
    by Fabian on Wed Jul 23, 2008 at 03:28:56 PM EST
    the others and they operate lethal weapons.

    I've smacked cars that were close enough to me to be near misses.  The car didn't take any damage when I hit it.  The reverse is rarely true.


    Very true, which is why (none / 0) (#111)
    by gyrfalcon on Wed Jul 23, 2008 at 05:04:59 PM EST
    it is most incumbent on the pedestrian/bicyclist to pay attention and follow the rules.  The guy with the car can't see as well, can't stop as fast, can't maneuver as adroitly or as quickly, is worrying about other large heavy metal objects on the road that can kill him, or cost him a lot of money.  Pedestrians and bicyclists are small and can and do pop up anywhere, and smart ones don't put their lives in the hands of car drivers by expecting them to do all the work and take all the precautions.  Unfortunately, there are a lot of not-smart peds and cyclists.

    Drivers expect cars (none / 0) (#113)
    by Fabian on Wed Jul 23, 2008 at 05:40:09 PM EST
    they look for cars, they often think cars are the only things on the road.  So they don't look for the cyclist on the side of the road or they don't look to see why the vehicles ahead of them are slowing down or moving left.  (But cyclists can do a lot more to be visible to drivers.)

    Once I was turning right and waited to let the cyclist ahead of me make the right turn and get ahead of me so I would make my turn behind him instead of beside him.  I got an angry honk from the driver behind me who just wanted me to get out of his effing way.  It was a perfect contrast.  I'm worried about someone else's safety and the other driver is worried about losing two seconds of precious time.


    It sure would be interesting (none / 0) (#99)
    by Alien Abductee on Wed Jul 23, 2008 at 01:02:15 PM EST
    to know what he does consider "egregious crimes."

    His comments on that Democracy Now debate with Greenwald were stunningly contemptuous.

    I wonder how much of what he posits is intellectual wankery and a desire to distinguish his own brand intellectually versus an actual interest in producing the kind of lawless Executive his argument leads to. Not that the difference really matters in the end if he becomes a significant influence on an Obama Administration.

    More Evidence (none / 0) (#114)
    by tek on Wed Jul 23, 2008 at 06:28:54 PM EST
    that my theory is correct.  The Dems didn't impeach Bush because they want the expanded power themselves.  They can only make use of it if they have a weak (puppet) president.  The fact that this Sunstein is one of Obama's advisors shows that they are studying how Democrats can misuse Executive power.

    Never believe a Democrat is necessarily better than a Republican.  Rod Blogojovich has just about ruined Illinois and is most likely going to join George Ryan in jail.  Another youngish man supported by his Daley Machine father-in-law.  He is totally corrupt--and happens to be buds with Obama.