The Warrantless Wiretap Program Was Illegal

When Jim Comey testified before the Senate Judiciary Committee, he refused to say the warrantless wiretap program was illegal.

SPECTER: Well, you don’t have to.

If the certification by theDepartment of Justice as to legality is required as a matter of law,and that is not done, and the program goes forward, it’s illegal. Howcan you — how can you contest that, Mr. Comey?

COMEY: Thereason I hesitate is I don’t know that the Department of Justice’scertification was required by statute — in fact, it was not, as far asI know — or by regulation, but that it was the practice in thisparticular program, when it was renewed, that the attorney general signoff as to its legality.

There was a signature line for that.And that was the signature line on which was adopted for me, as theacting attorney general, and that I would not sign.

So itwasn’t going forward in violation of any — so far as I know –statutory requirement that I sign off. But it was going forward eventhough I had communicated, "I cannot approve this as to its legality."

Jack Goldsmith doesn’t say so directly, either. But in this excerpt from his book, he makes it very clear that Alberto Gonzales should have no authority to investigate leaks about FISA–and particularly shouldn’t subpoena Goldsmith–since Gonzales had had to be get bailed out of an illegal program in the first place.

  1. Anonymous says:

    â€I am not permitted to say much about how Jim Comey, Patrick Philbin, and I, with the crucial support of former Attorney General John Ashcroft and others, struggled to put the Terrorist Surveillance Program on a proper legal footing:

    When they discovered there was an illegal program, all they did was try to make it legal?

    Are we to assume, from their own words, that they never pursued the existing illegalities, instead they CONSPIRED TO HIDE IT while they changed the rules so it was no longer illegal?

    And when even that didn’t work, when the Cheneybots refused to change their evil ways, the Comeys and Ashcrofts jumped ship?

    Marcy, if they KNEW it was illegal and did nothing to bring charges, or kept others from pursuing those charges, or deliberately kept Congress and the public from knowing the illegal nature of the program, doesn’t that constitute obstruction of justice?

    Shades of Alberto Gonzales!

    Protect the President, not the Constitution.

    Even if you must break the law.

  2. Anonymous says:

    Hey, don’t look at me, I’ve been saying this thing was illegal and unconstitutional from the get go. And for the response that will be forthcoming from cboldt; yes, I understand that those (legality and Constitutionality) are two different things, I believe both independently apply. Joint and several culpability if you will.

  3. phred says:

    But, if Congress doesn’t give a damn about whether the law was broken (and evidently they don’t) and DoJ was participating in the law breaking — then who the hell is left to press charges?!?! This is the Catch-22 that drives me to distraction. While the public looks on aghast, waiting for SOMEONE to DO SOMETHING, all the responsible parties appear to have their hands dirty so they WILL NOT pursue it.

    If only the framers of the Constitution had built in an emergency parachute making it possible for citizens to directly appoint someone to press charges when the â€officials†responsible resolutely fail to do so…

    And FWIW, JEP I think you’ve got it exactly right. Comey and Goldsmith et al., only appear to have behaved well when compared with those who couldn’t be troubled to do even the minimum to obey the law. Yet at heart, they did nothing either, but tried to rationalize away the clearly illegal conduct of their masters. It is sickening and infuriating that we find ourselves beholden to such people, because of the utter lack of anyone with any moral rectitude in DoJ.

  4. cboldt says:

    – And for the response that will be forthcoming from cboldt … –

    I was going to let it stand w/o comment. But since you got my attention, the comment that entered my mind was along the lines of the administration changing its legal rationale, maybe mixed with changing the contours of the surveillance.

    I figure â€changing legal rationale†is why Gonzales was careful about assigning â€belief in legality†to Ashcroft. That is, I think Gonzales knows the legal rationale changed, and that the legal rational under Ashcroft was no longer operational — probably because it was crap.

    As for the program being unconstitutional, I’m certainly open to that being the case. I’m just being anal about withholding an opinion until some evidence comes in that demonstrates â€unreasonableness†or programmatic searching outside of for foreign intelligence information.

    And I’m still edgy about â€foreign intelligence information†being morphed into a generic justification for snooping anybody.

  5. Anonymous says:

    â€I understand that those (legality and Constitutionality) are two different things, I believe both independently apply.â€

    Lawyers can argue from any angle, we all need to stop giving so much creedence to the obscurity factor and start dwelling on what is obvious.

    We can argue legal intracacies forever, as long as we are willing to see this as a debate and not a protest.

    As for me, the debate was over long ago, and everyone still arguing the issues is just a Bush enabler.

    Like I said, cboldt can always find an obscure argument, just that alone shouldn’t sconstitute authority, or credibility.
    Especiually when it is intended to only to distract us from discussing the truth.

    Most of cboldt’s legal arguments are just that, a bit of legal minutia, barely relevant, but very distracting. CBoldt’s arguments are so often like a pea of opinion versus a mountain of facts, legally intriguing, technically stretched out for effect, and served as fact and authority, not opinion.

  6. Anonymous says:

    If only the framers of the Constitution had built in an emergency parachute making it possible for citizens to directly appoint someone to press charges when the â€officials†responsible resolutely fail to do so…

    It is called â€special prosecutor†and it would still be with us, but it was abused so egregiously in the Clinton impeachment scam that they eliminated the position.

    Here’s the authority…
    from NYTimes Op-Ed Contributor NEAL KATYAL
    IN 1999, when the Independent Counsel Act (the law that gave Kenneth Starr and Lawrence Walsh their mandates) was expiring, I was given the job of writing the new Justice Department rules for the appointment of a special prosecutor since the department would once again be responsible for overseeing such investigations. There was one hypothetical to worry about once the Independent Counsel Act lapsed: a case in which the attorney general…(is)…suspected of possible misconduct. The rules were therefore written to vest the decision about whether to appoint a special prosecutor in the top Justice Department official not embroiled in the controversy. Today, the only way to get to the bottom of the United States attorney scandal — which involved the administration’s firing of nearly 10 percent of America’s top prosecutors — is to use these rules and appoint a special prosecutor.
    The nightmare has now come true.…..atyal.html

  7. phred says:

    JEP, just a quibble, but I meant it when I referred to the framers, the weight of the Constitution is much stronger than more recent â€rules†which can expire.

    By the way, I had the pleasure of hearing Neal Katyal speak not too long ago and was very very impressed. Somehow, I suspect he won’t make the short list for the new AG

  8. drational says:

    although perhaps at this point a moot issue, Goldsmith makes it clear the controversy Gonzales denied was indeed concerning the TSP.

  9. Mary says:

    Keep in mind that AFTER he put it â€legally aright†Judge Taylor ruled it unconstitutional and subsequently the FISA court have ruled parts illegal.


    Not that I would go so far as to say that, â€It seems rich beyond my comprehension that Goldsmith would be incredulous at being served by a subpoena.â€

  10. Anonymous says:

    JEP – So now you are accusing ME of being a Bush enabler. Man, you have jumped the shark of credibility with thath thought. And the reason lawyers argue about details is because details matter; that is where the devil is. Furthermore, whining about an independent counsel provision, or lack thereof, is silly if the people who could trigger it, if there was such a provision, refuse to do so. There ARE people with the ability to investigate this, they are the representatives in Congress and they refuse to do so. I still do not understand your relentless attacks on cboldt. Whatever his base point on the political spectrum, I have seen nothing but intelligent input supplied here. Is it more detailed and reserved than the framework from which i have been attacking these problems; yes, and I for one appreciate that because it is absolutely necessary to have that element of the discussion. We are all better off for having it.

  11. Anonymous says:

    â€the weight of the Constitution is much stronger than more recent â€rules†which can expire.â€

    I wasn’t disagreeing with you at all, but I was expecting the very argument from our naysayer that you were expecting, also.

    Actually, the point you make her is the same onb I am making. There are statutory regulations that simply can not be argued when weighed against Constitution.

    But that always seems to be the tack our trolls take, to put some obscure Tom Delay era statute up against the very Constitutinal guarantees that statute defies, and arguing as if they are equal sides of a legal argument, when they are really nothing more than a legalese defense of indefensible.

    They use laws as selectively as they use lies. And in this age of legal chaos and unsettled political futures, we don’t need any more obfuscation, we need sincere truth.

  12. Mary says:

    Just another blurb of Goldsmith’s philosophy from that excerpt:

    Because the law is not always designed for or up to the task of the crisis, successful leadership sometimes requires bending or breaking the law.

    Successful leadership means being a criminal now and then – eh, so who cares as long as you OWN the Justice department. It’s not breaking the law, or even the getting caught, it’s the being above prosecution and retribution that counts – and then you just need a spiffy enough politician to make breaking the law as attractive seeming as Al Capone made it.

    With that unabashed and smug definition of successful leadership RUNNING the Office of Legal Counsel (as the â€step up†selection) how is it that anyone actually wonders what happened to the Dept fka Justice?

    It’s pretty darn official – both sides of the aisle are rushing to the embrace of a LAW PROFESSOR touting the ideology that being a good politician means never having to worry about the law.


  13. Anonymous says:

    Mary – Don’t know if you saw this yesterday, but i was thinking of you when I wrote it:

    â€[bmaz discussing seeing Goldsmith on Book TV] … Jack Goldsmith puffing up with pride over his new book. What a totally full of himself little fat fuck that guy is. It was hard to tell what impresses Goldsmith more about himself; that he was at the hub of the Bush Administration saving the world from terrorism, or that he is now saving the world from Bush. Legend in his own mind doesn’t even begin to describe this guy; Mary is absolutely right on the money with her disgust for him.

  14. Anonymous says:

    So now you are accusing ME of being a Bush enabler.
    No, what I said about you was that you argue minutia in the face of much more profound realities.

    I was talking about cboldt, not you…

    What I said was, quite simply,
    â€As for me, the debate was over long ago, and everyone still arguing the issues is just a Bush enabler.â€If you accept that as a description of you, so be it…

    I have never considered you in that category, and I have read lots of your posts, you misread mine…

  15. Mary says:

    Bless you bmaz. I’m never right on the money, but I’m glad that you don’t think I’m far in left field.

    I really have to wonder at how you manufacture validity for the â€in-house sup ct†OLC rulings when they are spun and spieled by someone who doesn’t actually believe that Presidents need to follow the law?

  16. Anonymous says:

    I was talking about cboldt, not you…

    What I said was, quite simply,
    â€As for me, the debate was over long ago, and everyone still arguing the issues is just a Bush enabler.â€

    If you accept that as a description of you, so be it…

    As for vbeing a Bush enabler, I have never considered you in that category, and I have read lots of your posts, you misread mine…

    But I do think you and others have enabled cboldt with way too much credibility, bosed solely on obscure legal arguments in the facer of much more profound truths.

    My point is, the argument was over long ago. Now we need answers, not arguments, and as long as we continue to allow obscure legal defenses to take our eyes off the truth, we aren’t moving forward, we are moving laterally at best, or digressing, at worst.

    We shouldn’t be debating whether Bush and Cheney broke the law, we should be deciding what to do about it. As long as we are still acdepting an argument of any sort, to the contrary, we enable their ongoing obfuscation.

    Nothng personal meant here, just simple logic.

  17. phred says:

    bmaz & Mary, just to add my two cents, I saw Goldsmith on Moyer’s show the other night and was most definitely struck by the sense that his book is a very serious CHA (H stands for His) attempt. On the one hand, he evidently tried to put a stop to something, but on the other he DID NOTHING to bring charges against those who had broken the law. I agree, he is a puffed up, self important weasel, and Comey’s testimony placing Goldsmith at the center of a firestorm, that in reality appears to have been a dimly lit candle, is only feeding into his super-charged Ivy League ego.

  18. phred says:

    JEP, I don’t really want to get in the middle of your anti-lawyer tirade, but I would like to mention that it is only through the law that we can hold up our â€self-evident truths†to the light of day not only for examination, but to understand how to enforce infractions against them.

    The main reason I fritter away so much time here is because I learn so much from the legal expertise of our lawyer friends here. Not just your garden variety right and wrong, but the mechanisms by which wrongs may be addressed.

    I had a most valuable exchange with bmaz and cboldt awhile back trying to come to an understanding of which trumps which: a member of Congress MUST report knowledge of illegal conduct, or classified information about which a briefed member of Congress may not speak.

    Without knowing what tools are in the legal toolbox, we have no hope of finding our way out of our current morass. My personal animosity at this point is mostly directed at Congress. The framers of the Constitution gave them all the tools they need to fix the problems at hand, but they refuse to use them. This is why I was pining earlier for a set of keys to the toolbox held by the public, but the framers never envisioned that one branch of government would lose interest in wielding its power. I would not have imagined it either.

  19. Anonymous says:

    JEP – no particular affront taken. cboldt does deal in very intricate minutiae; but those details must be known, understood and in conformity with the more general arguments, else the more general arguments and profound truths fail and/or don’t hold up. I appreciate the scrutiny and feel that the aggressive positions I tend to take are that much stronger if they can stand up to it. I don’t always agree with the analysis, although I often do, but feel better off for it. And let me make one thing crystal clear, I appreciate your comments as well and have no problem with you disagreeing with cboldt; that is also a good thing. The personal attack and denigration of value of cboldt’s contribution do trouble me however.

  20. katie Jensen says:

    Our democracy has been scarred not by the legal arguments or the validity or lack of legal validity for the surveillance. It has been scarred by the lies, the subterfuge, the complete and absolute refusal of this administration to engage in democracy as it transforms the constitution without our knowledge.

    That is the crime. All of this could have been dealt with by having an honest president and an honest discussion. I suspect there is room for the debate. My resentment is that the strength of this nation was denied by this president’s very cynical view that the American people could not and should not be trusted to have the discussion. The secret would not have disempowered the program. The secret being known might have actually caused more of an obstacle for the terrorists by having them know how they are being surveilled.

    Bush lied. What he did was illegal and it is too late to make it right.

  21. Anonymous says:

    Katie – That is exactly right. Anything that the Administration truly needed to do could have been accomplished within a legal and constitutional framework. But BushCo is to lazy, belligerent and arrogant to actually do the right thing; not tho mention it would prohibit their inappropriate uses of the surveillance they are undoubtedly making.

  22. Anonymous says:


    I missed that discussion, it does sound valuable.

    I’m not a permanent commentor here, but I lurk always and post when I feel compelled. This is one of the best blogs on the sphere, and when an issue is exhausted here, it has usually been dissected into its component parts.

    But what I do see so often, especially with particular commentors (who seem to have jumped aboard just after this blog finally gained the credibility it was due) is that the thread will be leading towards a very specific resolution, then it goes off on a legal tangent that does not resolve anything, it only complicates the argument again, bacjk at an obscure point

    And the legaleze addicts who hang out here are easily distracted by those legal meanderings.

    And please, don’t ever think I don’t have an incredible amount of respect for Marcy’s blog, and everyone who posts here, I’ve learned more between TNH, FDL and TPM than any other blogs, and I go way back as far as the blogosphere is concerned…

    But I have observed how addicted my fellow lurkers and commentors all are to obscure legal arguments, like most lawyers who are impressed with their fellow attorneys who can come up with an argument to defend any criminal. Kind of like the political managers all held Rove in high esteem for his low-life tactics.

    But this isn’t Judge Judy’s court, this isn’t a traffic fine we are discussing, this is our Constitution!

    I am not as impressed by the apologists’ arguments as some of you are, and much less patient when it seems to me a red herring. I find them distracting and, occasionally, very damaging to the final conclusions that might have been drawn without the diversions.

    And as for â€The framers of the Constitution gave them all the tools they need to fix the problems at hand, but they refuse to use them.â€

    No offense, but anyone who thinks the Democrats have a large enough majority to â€use them†(constitutional tools) doesn’t know the Blue Dogs very well.

    There’s another election ahead of us before we get the kind of progressive majority that actually reflects the public will, and until then, blaming Nancy Pelosi or Harry Reid, or even the Democrats in general, is just naive and counterproductive.

    Also, this is the crux of the statutory/constitutional conundrum we discussed earlier, because we let them create NEW laws (Patriot Act, wiretaps, rendition and torture, etc. et al) that defy our Constitution, and continue to re-up those illegal laws in a downward spiral, all for the sake of war-for-profit.

    As long as we allow those new â€illegal laws†into an argument against that Constitution, we are ignoring, actually defying the rule of law.

    Which is what I meant earlier by â€legal chaos.â€

  23. Anonymous says:

    â€The personal attack and denigration of value of cboldt’s contribution do trouble me however.â€

    if you can find a personal statement inmy criticism of cboldt, please, enlighten me.

    I didn’t call cboldt a jerk or an asshole or anything personal, I said, basically, that cboldt’s arguments were often red herrings intended to defer from resolution of the real issues, and that some on this blog give cboldt too much credibility because of his/her legal gymnastics.

    Find the personal comment, and tell me where it is, I’ll go back and look muyself, but I don’t think I wrote anything personal…

  24. Anonymous says:

    â€Certainly puts the members of Congress that were briefed in an even more tenuous position as well.â€

    If it is anything like Bush’s WMD lies, I would guess there was some serious spinning going on in those briefings, which would provide some legitimate â€plausible deniability†defenses, especially from Democrats, who no doubt got a much more watered down version of those briefings than their Republican counterparts.

    I would guess only the Republicans on those committees got the real story, so they might well be culpable. I doubt any Democrats were brought into the â€whole loop,†except maybe Elephant Joe.

  25. Anonymous says:

    greenhouse, the word â€troll†doesn’t mean anything personal…

    â€Troll†means anyone who gets onto a blog whose ideology they disagree with and deliberately discourage its â€members†with negative posts. Some â€trolls†are pros working for the R’s some are just provocatuers with a penchant for negativism.

    And there can’t be trolls on the right wing sites because their administrators don’t allow contrarians of any sort.

    And how do you know a troll?

    Read ten comments by them, and if they are all negative or provocative, if they all seem to be promoting the Republican Party line, they are probably a certifiable troll.

    â€Troll†isn’t a personal insult on the blogs, it is a label.

  26. phred says:

    JEP, I see where you and I differ in our criticism of Congress. You expect the Dems to be the only self-interested party in Congress that should be inclined to exercise its perogatives. I am equally baffled by the Rethugs being equally disinterested in exerting their authority. Well, ok, I’m not that baffled, which is why I refer to them as Rethugs rather than Republicans. The Republicans in Congress ceased acting in their own best interests years ago. These days they give every appearance of operating as a criminal organization, ceding their own authority to the President (who at the moment happens to be the Republican Godfather — maybe that’s a stretch, I’ve never seen the movies, but humor me).

    The brilliance of John Adams’ approach to the Constitution was his faith that each branch would act in its own self interest. Congress has failed to live up to that expectation. Remember, it was the Republicans in Congress who finally told Nixon he had to go.

    You seem to be viewing Congress through the party-prism (which they appear to be doing as well). But I am unrepetant in my assertion that Congress has all the tools it needs, it simply refuses to use them. The Rethugs are sinking the Republican Party all on their own without any help at all from the Dems (really, none at all). One would think there would be Republicans in Congress with sufficient self-interest to reassert their authority. But, I haven’t seen it.

    You further underestimate the ability of minority parties to take advantage of parliamentary rules to keep from being railroaded by the majority. The Republicans have historically used these to good effect. The Democrats perhaps need to brush up on Robert’s Rules of Order, because they seem to be incapable of holding the line against the minority party and a lame duck President. I mean really, that is just embarrassing. Pelosi’s and Reid’s failures have been failures of leadership, not of numbers. And they better get their act together soon if they expect those numbers to change as dramatically as they hope in 2008.

  27. Anonymous says:

    â€You expect the Dems to be the only self-interested party in Congress that should be inclined to exercise its perogatives. I am equally baffled by the Rethugs being equally disinterested in exerting their authority.â€

    Actually, I expect the war mongers and profiteers in both parties to continue to enable the Cheny/Bush gang.

    I’m not baffled at all by the fact that they have abdicated their Congressional powers, it has been quite a proifitable abdication.

    Just remember one thing; The conspiracy of greed needs no meeting room.

    If you were a Texas Senator or Congressman, would you want to take Bush’s gravy train away from him? Aren’t your top contributors all no-bid book cookers? You might lament it loudly on the floor of Congress, but back home, you would be swimming in new mney.

    That goes for California, Kansas and every other state where the military/industrial complex has become the local Daddy Warbucks.

    It is not baffling at all that these crooks gave up power, because it has made many of them millionaires, and helped some of their frinnds become billionaires.

  28. Anonymous says:

    â€And they better get their act together soon if they expect those numbers to change as dramatically as they hope in 2008.â€

    Phred, nothing Pelosi, Reid or anyone else does is going to change the inevitability of the 2008 election. The Republicans themselves admit it with every resignation. The media won’t say it, because so many publishers are republican, but the Republican Party has been cast into utter failure by the Bush legacy, and Larry Craig represents why that will not be reversed before the next election.

    Like I just said, the media won’t tellus, but all you have to do is see the resignations coming from the R’s and you know they already know what I just said was true.

    Pelosi and Reid aren’t playing tiddly winks, they are doing whatever they CAN do, in the face of one of the most greedy, devious and dangerously sociopathic administrations in our shoret and glorious history as a nation.

  29. Anonymous says:

    Phred – Immediately go buy or rent The Godfather Parts I and II; they are breathtakingly great movies from the script to the acting to the cinematography to the musical score – everything. If you appreciate good, make that great, film; these are must sees.

    As to your other point; that is exactly right. Bush is an albatross around the GOP neck. The single smartest thing they could do for both the short and long term prospects of their party would be to join in an effort to remove both Bush and Cheney. In a selfish way, I am sort of glad they don’t and won’t; but it would be both the right and the smart play. As to the vaunted â€Blue Dogsâ€, if you get the bandwagon going; they will jump on or wither on the vine and die. You never have all the jurors on board for the verdict before you conduct the investigation and trial. It is the right thing to do, if the Democrats would just lead; the followers will come.

  30. JohnJ says:

    phred: I am suspicious that the skew factor here may be redirected self interest; that is you save you own a$$ first. I am convinced that there is information â€accidentally†collected by the surveillance program that is being used to overshadow the interest in protecting one’s party, branch of gov., or the constitution.

    (It looks like reading all you lawyers is affecting me; ~22 words to avoid one that begins with ’Bla’.)

    I’ve said before; J.Edgar Hoover used the existence of your â€jacket†as a tool of negotiation. We saw the typical contents of the â€jackets†as he and Nixon handed them to Joe McCarthy. The lack of any substance to the accusations didn’t slow down the proceedings at all.

  31. Anonymous says:

    â€You further underestimate the ability of minority parties to take advantage of parliamentary rules to keep from being railroaded by the majority.â€

    Here’s the hypocrisy factor at work, when the Dems used these same tactics, the Republicans threatened to change the rules.

    You obviously are capable of watching a game on a level playing field, Phred, but this has been an uphill battle by the Dems, against cheaters and liars who really don’t care about our Constitution.

    So there’s a huge difference right now between the Dems and republicans, and your benign model of equal guilt is beginning to sound a bit naive.

    No offense meant, I like your model of party equality and integrity, but I haven’t seen that kind of atmosphere since 94, so it would be hard to use it as an example today.

  32. cboldt says:

    I take no offense with JEP’s expression of how he views my contributions here. Better to talk about the issues though. The points in my posts either stand or fall on their own (in light of other information, analysis, etc.) I’ve been known to change a position, and I’m not inclined to add -more- distraction by bellyaching when one or two readers says they find my posts distracting.

    I think I have reasonable independent judgement about my own contribution v. distraction. I can think of only one poster that I’d have open warfare with today, if provoked. That person doesn’t post here.

    I do appreciate the sentiments of support, but they distract from the point of the thread too. But this place will run (and read) better if I’m left to defend myself when I feel the urge.

  33. phred says:

    bmaz, yep, that’s why I’m all over the idea of running primary challengers against recalcitrant Dems. That oughta get their attention right quick.

    As for the Godfather movies, I have heard this a lot, but somehow I’ve never gotten around to it. Suffice it to say, I’m not a fan of the mob genre in general nor of Scorcese in particular (ok, go for it, I know I’ll take a lot of heat on that one). And as funny as it may sound from a retired rugger I’m not big on violent movies as a rule (there are exceptions, but I won’t bore you with my movie-related personality quirks

    JEP I agree there is an inevitability to the demise of the Rethugs in 2008, but I will never discount the Dems knack for shooting themselves in the foot.

  34. phred says:

    JEP, Pelosi has the power to bring articles of impeachment up for a vote on the floor of the House. The fact she refuses to do so makes her the problem. Yes, the Rethugs lie, cheat, steal, and probably use bad language. Yes, they have done their damnedest to rig the system. But the Dems can fight back and they don’t. I simply do not agree with the helpless Reid and Pelosi meme. Real leadership requires leaders to lead. As absurd as the sentence sounds it is nonetheless true. If Pelosi wanted to end the reign of terror she could rally the caucus behind her. Perhaps she hasn’t done this because she lacks the skills. Perhaps there is no one in Congress who possesses such skills, but we are sorely in need of someone who does.

    Even if you don’t agree with going straight for impeachment, there is even less reason not to enforce Congressional subpoenas. Yet, I don’t see a thing being done about Miers or Bolton or anyone else. There are myriad ways for Pelosi and Reid to flex their muscles, get the attention of their wayward members, and actually take charge. When they begin to take such action, I’ll back off my criticism, but not until I see action where thus far I have heard only words.

  35. Anonymous says:

    â€I will never discount the Dems knack for shooting themselves in the foot.â€

    You mean like Larry Craig?

    This â€The Dems sure know how to lose†mentallity seems a bit trite, considering what happened in 2006.

    Phred, I was raised in a very well-connected Republican family in Iowa, my grandad was on Nixon’s Committee to Re=elect the President. I don’t trash the GOP out of spite or hostility, I simply know better than to compare the two parties as if they are two faces of the same mistake.

    When I talk about the Republican Party, I speak from many years of experience, not from a partisan point of view. I’ve seen the Republican Party from inside, and I still don’t like what I saw.

    From my personal perspective, the Republicans worst stereotypes have been manifest in the Bush administration, and comparing them to the Democrats because the Democrats are the opposition party is just what they want us all to do.

    This has gone way beyond partisan bickering, to a point of Constitutional survival. So if I don’t seem inclined to casualize or ignore what the Republicans have done, it is not from partisan perspective.

    It is from a patriotic perspective.

  36. Anonymous says:


    If you go to the Downing Street Memo site, which is the primary place for imnpeachment supporters,or john Conyers’ old blog, or Harry Reid’s blog, or even over to KOS, way back in its infancy, and you search out my JEP moniker for old posts, you might find that we agree completely about impeachment.

  37. Anonymous says:

    â€If Pelosi wanted to end the reign of terror she could rally the caucus behind her.â€

    No offense, but this is Just Plain Wrong… the bluedogs might just say â€no†on the right and the Libs might just tell her â€no†on the left, in any given endeavor, Democrats aren’t as inclined to fold for each other the way Republicans do. Call it teamwork versus individuality, considering where that Republican teamwork has taken us, I prefer the individuality myself.

    Pelosi’s not going to promote impeachment if she knows it won’t make it to the floor. NOT ENOUGH VOTES! And to assume she can demand the vote she wants suggests she has powers well beyond what she actually wields.

  38. Anonymous says:

    Phred – I undersatand your stated concerns etc. as to not having viewed Godfather Parts I and II. Given all that, I still recommend you see them. The depth, texture, quality and significance far outweighs those factors, as strong as they may be for you; at least in my opinion. Ok, I’ll stop now.

  39. phred says:

    bmaz, I respect your opinion greatly, and like I said my film afficianado friends have been harping on me about it for years. So I may actually cave in one of these days — I’ll let you know if I do

    JEP, in response to your Larry Craig reference I give you Gary Hart, Bill Clinton, and John Silber (the last, an act of stupidity so huge on the part of Massachusetts Dems that it gave us Bill Weld, who arguably paved the way for MitWit). But honestly, I am not trying to get into a pissing contest with you (despite all appearances to the contrary). Earlier you wanted less discussion of legal minutiae and more talk of action, what can we do to put an end to the abuse of this administration. This in turn returns me to my earlier wish that in lieu of Congress rising to the occasion, the public could somehow step in and appoint a special prosecutor (or whatever else might have been a more appropriate option back when the Constitution was written).

    I agree with you that the excesses of this administration is off the charts. I agree that the Rethugs are evil, where the Dems are merely ineffectual (incompetent, complicit, hamstrung by the math, take your pick).

    I am merely pining for what we haven’t got. A leader. Someone who can step in to fix this mess. ’Cause despite my best efforts to cajole those in positions of power, no one has yet stepped up. And I am totally on board with you wanting to figure out what to do, rather than dwell on the limitations of the law. But, short of impeachment, I haven’t heard of any alternatives. I’m still hoping for something though, because the assault on our Constitution must be stopped.

  40. pdaly says:


    The acrobatic parsing that Comey went through to say he didn’t sign on his signature line but that does not necessarily mean the TSP was illegal suggests to me that he believes in the Unitary Executive theory–or at least does not disbelieve that theory strongly enough.

    phred (â€If only the framers of the Constitution had built in an emergency parachute making it possible for citizens to directly appoint someone to press charges when the â€officials†responsible resolutely fail to do so… â€),

    I think the People could try on such a parachute. The US Constitution clearly states that all powers not enumerated for the US Government belong to the States and to the People. The People may not have used such a parachute before, but it does not mean the People cannot do so now when it is needed. (IANAL, so I see no problems with this tactic).

  41. phred says:

    pdaly — I like the way you think, so do you think some sort of petition drive along the lines of â€the undersigned appoint so-and-so to investigate the following crimes…â€, that could be interesting.

    By the way, from his appearance on Bill Moyer’s program, Goldsmith seems to be in the unitary executive camp, or at least he felt the President’s powers had been excessively curtailed since Watergate and that we needed a â€strong Presidentâ€, IIRC. I cringed to hear him say it. Here’s the link if you haven’t seen it.…..ile3.html.

  42. pdaly says:

    Yes, I think that would work for me.
    But we are not planning on petitioning a king or anything, so let’s not use that word. We could call it the Pitchfork & Torch memo. There would have to be a state by state signing I suppose, then a final Ykos-like convention to tally the results and announce the tribunal.

  43. pdaly says:

    re: Goldsmith on Moyers

    I walked in on the program after the introductions. I guessed from his comments that he was Goldsmith (with the helpful prior and informative missive on Goldsmith by Mary at this site)

  44. Anonymous says:

    Re JEP @ 18:04:

    It was deeply improper for Pelosi to â€take impeachment off the table†in May, 2006. It may (or may not) have made sense from the Dems’ standpoint regarding the tactics for the upcoming election, but as the likely Speaker designate in the event of a Dem victory it was wrong. It’s the Congress’s Constitutional responsibility to impeach when the actions of an office holder so warrant. Instead of â€taking it off the table†she should have said something such as â€If the Dems become the majority party we won’t consider impeachment frivolously (like the GOP did in 1998) but if the administration’s actions appear to be above the Constitutional threshold we will thoroughly investigate as appropriate and consider impeachment if the findings so warrant.†On the one hand, that might have (but more likely not) restrained the Bush-Cheney excesses of the year 2007. On the other, we wouldn’t have the present situation in which it is impossible for Pelosi to even consider the â€I†word without being slammed for going back on her word.

  45. phred says:

    To: {name here… Fitz?}
    From: The Government OF the People
    RE: Pitchforks & Torches

    Dear Sir,

    It has come to our attention that Congress has lost interest in the rule of law. The People of the United States, however, remain keenly interested in the continued fair application of the laws to all who dwell within the borders of our country, including elected and appointed members of the government in residence in Washington, D. C. It has further been made known to us that several such members of the government have been implicated in various criminal activities. Since Congress has recused itself from this politically awkward, potentially embarrassing investigation of their colleagues and friends, we the undersigned, by the power vested in us by the Constitution, have appointed you Special Prosecutor to fully investigate the crimes specified in the attached Appendix. Indeed, should you uncover more wrongdoing than that covered in the Appendix, you are hereby authorized to follow your investigation wherever it leads until the People are satisfied that the rule of law has been restored to our land.

    The People of the United States of America

    How’s that pdaly?

  46. pdaly says:

    Phred, looks great.

    Just a couple of suggestions.

    You should CC it to the 3 (or 4?) Branches of Government just to show we are polite, despite our pitchforks and torches.

    It also needs a brief note to inform whomever signs the Congressional checks that we are redirecting $1 billion from nonbid contract payments to our designated Special Prosecutor to pay for the investigation. (Am I being hopelessly optimistic that this will be enough to cover the expenses?)

  47. phred says:

    Well, I should think after our Special Prosecutor blows through $1 billion, we should be able to arrange for whatever else we need through redirecting supplemental bills otherwise destined for those same nonbid cost plus contracts — isn’t that how it works?

  48. pseudonymous in nc says:

    It’s the Congress’s Constitutional responsibility to impeach when the actions of an office holder so warrant.

    I think Pelosi was right, in the sense that the demand for impeachment has to be perceived as coming from outside Congress. But the demand is coming, and the phone is off the hook.

  49. Mary says:

    Phred – very nice letter (and I didn’t watch the Godfather movies either – although I read the first book) I have horses and didn’t want to deal with that scene. As a matter of fact, through what I’m sure may be a bit of karmic balance at work, I have a horse named Filharmonic.

    Re: Comey parsing – I think when pressed he specifically referred to the Watergate issue – that some in the Bush DOJ say that, â€If the President does it, it is not illegal†and that he didn’t necessarily believe that, but wasn’t going to opine as to the legal validity of that argument.

    BTW, for EW – Lombardo & Co. convicted in Chicago today.…..GMbXdH2ocA

    I’m sure defense counsel is crushed that his closing argument gambit didn’t save the day – after all, he quoted the former head of DOJ’s Office of Legal Counsel:

    Ladies and gentlemen of the jury, successful leadership sometimes requires bending or breaking the law

    Sad to see that the DOJ actually knows what to do with that kind of argument when they strip out the politics. It would really be easier if they were just incompetent bumblers, instead of highly educated, well trained, amoral, eyes wide open pro-torture, pro-Executive Branch crime commission advocates.

  50. P J Evans says:

    I think I’d make that ’the Government OF and BY the people’.
    Just my opinion; ignore if you wish.

  51. phred says:

    Mary — I love the karmic balance of your horse’s name. I’m all about creative spelling

    PJ — any and all suggestions welcome

  52. sojourner says:

    I am REAL late to this party, but Phred, you touched on something I have wondered about: developing an independent petition. For instance, I live in Texas, and I truly do not feel that my interests are being properly represented. I suspect that a lot of other persons feel the same way (particularly when we have people like John Cornyn who has his nose stuck so far up Bush’s butt).

    Anyway, to my way of thinking, the idea has merit… I am just afraid that with court challenges, etc, that Bush would already have done his total damage and gotten out of Dodge.

    I am just totally sick of these idiots!

  53. phred says:

    sojourner — The memo is obviously tongue-in-cheek, with a tip o’ the hat to Lincoln’s comment to his general along the lines of… If you’re not planning to use the army General, do you mind if I borrow it for awhile?…

    In all seriousness though, there are simply no words to describe the frustration I feel standing here on the sidelines, cheering to beat the band, trying to get Congress to pick up the ball, while they pretend there isn’t one on the field. It’s beyond maddening.

  54. Tomj says:

    Maybe someone covered this above, I didn’t find it…but maybe by ’illegal’ Goldsmith ’just’ means unconstitutional. Since there are no criminal penalties for simply unconstitutional acts, maybe there is no crime, in the reasoning of Goldsmith (not mine).

    Regardless of the legal reasoning, I’m troubled by the length of time it took for the internal system to work. If I was smashing in someone’s face, would it be okay for my lawyer to look over the books to see if there was a way to make it all legal? What are the legal options for someone sworn to uphold the constitution? Must they remain silent, somehow seek out the FISA count? It seems strange to me that lawyers must remain silent in the face of illegal activity, more so if they swore an oath and were voted in by Congress.

  55. Taechan says:

    JEP-â€Phred, nothing Pelosi, Reid or anyone else does is going to change the inevitability of the 2008 election.â€

    Inevitability of R’s on their way out of power? I’m inclined to agree with you. Inevitability of the D’s gaining many seats? I strongly disagree. The D’s capitulation seems founded upon the political calculus of ’who else are you going to vote for?’–> inevitability. Very simple change of that calculus would occur should a new party arise, providing that other choice and someone other than a D for disgusted Republicans to vote for–similar effect for how Joementum won the election but was primaried out (a big reason why I think primary challenges are of limited value to get action). Such a scenario would appear rather unlikely, but could occur simply by having the Net-roots flex their muscle to leverage action NOW. We will be taken for granted so long as we allow ourselves to be. Besides, it may well behoove many of us to consider such a play with a new party simply to capture enough seats to prevent passage of bills that DO NOT pass the smell test.

    Just a feeling I’ve got that enough folks (even on Dkos) are getting pissed-off enough to put their activist energies elsewhere.

    JEP-â€Pelosi and Reid aren’t playing tiddly winks, they are doing whatever they CAN doâ€

    No, they could have (just the two of them) shut the FISA-gutting-Act down, but didn’t. ’Nuf Sed.

  56. MarkH says:

    It’s a shame there weren’t more people pissed off at Bush & Co back in 2004.

    Even now we have problems with too many electronic voting machines, so there still might not be enough people pissed off (so far as a vote would show).

    But, we keep on trying to restore and renew our Constitution.

  57. Dismayed says:

    Taechan. Yep, it’s coming to that, and Dem leadership is just putting on theater.

    Change starts in the primaries.

  58. greenhouse says:

    â€Troll isn’t a personal insult on the blogs, it is a label.â€
    Posted by: JEP | September 10, 2007 at 16:50
    Wow JEP, if you say it, then it must be true. On top of getting patronized, I can’t believe you actually believe the shit you spew.