Mukasey's Paradox
Law professor Jonathan Turley has just provided a perfectly brilliant analysis of the current administration in his op-ed piece in today's Los Angeles Times. I am going to quote it extensively because his logical argument requires it.
The recent decisions of Atty. Gen. Michael B. 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.
...
Once in office, Mukasey still had the nasty problem of a secret torture program that was now hiding in plain view. Asked to order a criminal investigation of the program, Mukasey refused. His rationale left many lawyers gasping: Any torture that occurred was done on the advice of counsel and therefore, while they may have been wrong, it could not have been a crime for CIA interrogators or, presumably, the president. If this sounds ludicrous, it is. Under that logic, any president can simply surround himself with extremist or collusive lawyers and instantly decriminalize any crime.
However, this is only half of Mukasey's Paradox. The other half occurred last week when Mukasey refused to allow contempt charges against White House Chief of Staff Josh Bolten and former White House counsel Harriet E. Miers to be given to a grand jury. Bolten and Miers stand accused of contempt in refusing to testify before Congress in its investigation of the firings of several U.S. attorneys in 2006. Mukasey wrote to House Speaker Nancy Pelosi that their refusal to testify could not be a crime because the president ordered them not to testify under executive privilege.
Under this logic, no official can be prosecuted for contempt as long as a president ordered them to commit the contempt -- even if the president's assertion of privilege is clearly invalid or incomplete. In this case, many experts have expressed skepticism that all or any of President Bush's assertions of privilege in this case would be upheld.
When Mukasey blocked the contempt cases, many legal experts were filled with rage. But I came to see his rationales as objects of beauty rather than scorn. When one combines the two decisions, they fit neatly into Mukasey's Paradox. Mukasey was saying that lawyers could not be charged criminally because the president ordered them to commit the act -- and that the president could not be charged criminally because lawyers told him he could do it.
And the end result of this beautifully constructed paradox?
Mukasey's Paradox, if adopted, will result in administration officials being effectively beyond the reach of the law. ..."
I do believe that just might be the perfect description of tyranny.
The recent decisions of Atty. Gen. Michael B. 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.
...
Once in office, Mukasey still had the nasty problem of a secret torture program that was now hiding in plain view. Asked to order a criminal investigation of the program, Mukasey refused. His rationale left many lawyers gasping: Any torture that occurred was done on the advice of counsel and therefore, while they may have been wrong, it could not have been a crime for CIA interrogators or, presumably, the president. If this sounds ludicrous, it is. Under that logic, any president can simply surround himself with extremist or collusive lawyers and instantly decriminalize any crime.
However, this is only half of Mukasey's Paradox. The other half occurred last week when Mukasey refused to allow contempt charges against White House Chief of Staff Josh Bolten and former White House counsel Harriet E. Miers to be given to a grand jury. Bolten and Miers stand accused of contempt in refusing to testify before Congress in its investigation of the firings of several U.S. attorneys in 2006. Mukasey wrote to House Speaker Nancy Pelosi that their refusal to testify could not be a crime because the president ordered them not to testify under executive privilege.
Under this logic, no official can be prosecuted for contempt as long as a president ordered them to commit the contempt -- even if the president's assertion of privilege is clearly invalid or incomplete. In this case, many experts have expressed skepticism that all or any of President Bush's assertions of privilege in this case would be upheld.
When Mukasey blocked the contempt cases, many legal experts were filled with rage. But I came to see his rationales as objects of beauty rather than scorn. When one combines the two decisions, they fit neatly into Mukasey's Paradox. Mukasey was saying that lawyers could not be charged criminally because the president ordered them to commit the act -- and that the president could not be charged criminally because lawyers told him he could do it.
And the end result of this beautifully constructed paradox?
Mukasey's Paradox, if adopted, will result in administration officials being effectively beyond the reach of the law. ..."
I do believe that just might be the perfect description of tyranny.
Labels: Bush Legacy, The Unitary President
posted by Diane at 3:46 AM
1 Comments:
And to think that this man was a judge!
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