Delaying the Return of the Rule of Law

Anonymous Liberal asks why AG Mukasey is refusing to turn over the new "family jewels"–the OLC opinions authorizing torture and warrantless wiretapping. Now, as a lawyer, AL is challenging the legal basis to withhold those opinions. But I’m interested in the tactical reason Mukasey is withholding those opinions.

Delaying the OLC Opinions and Holder’s Nomination

I would suggest we think about the timing–not only of this refusal, but also recent GOP attempts to stall Eric Holder’s confirmation process.

As Pat Leahy laid out in a statement, the Republican response to early discussions of Holder’s nomination were quite supportive.

In my statement to the Senate on November 20, I commended Senators Hatch, Sessions, Coburn, and Grassley for their nonpartisanship when they praised his selection.  Senator Hatch spoke of his support for Mr. Holder, his experience and reputation. Senator Sessions, a former prosecutor, U.S. Attorney, and State Attorney General who is well aware of the problems at the Justice Department, said he was disposed to support him.  Senator Coburn called it “a good choice.”  In addition, Senator Grassley has acknowledged Mr. Holder’s impeccable credentials while reserving judgment.

But in the last week, Specter and the Republicans have been squawking to postpone Holder’s nomination hearings beyond the January 7 and 8 timeframe when Leahy has them scheduled. They promise, they say in mock good faith, that Holder will be considered and probably approved within a week or so of when Obama takes office on January 20. But with their actions, they’re still calling for what amounts to at least a one-week delay in Holder’s swearing in.

So Republicans are now attempting to orchestrate at least a one week delay in the time when Holder becomes Attorney General, to January 27 or thereabouts.

Mukasey’s refusal to turn over the OLC opinions looks like it may cause the same kind of delay. The first report of the delay on OLC opinions–based on a December 3 Mukasey press conference–pointed specifically to the inauguration as the day when they might be turned over.

But the Justice Department’s new leaders may not gain access to the Bush administration’s most sensitive legal opinions until after the January inauguration, Mukasey told reporters in what could be his final news conference.

And the same report included an interesting paragraph tying Mukasey’s refusal to "provide guidance" to Holder to early approaches on the terrorist program.

Mukasey said he has yet to meet Eric H. Holder Jr., the former federal prosecutor nominated Monday by Obama to take the nation’s top law enforcement job. Yesterday, Mukasey refused a request to provide advice to his likely successor, instead pointing out that the department had changed in orientation since the terrorist attacks seven years ago. 

In the context, this seems to tie to those opinions, which after all reflect the department’s "orientation" during the early days after 9/11.

But the effect is the same: Mukasey appears to be attempting to avoid talking to Holder about anything pertaining to those opinions. The two delay tactics–over Holder’s nomination and over the opinions–would have the coordinated effect of ensuring that the new Attorney General will know nothing about those opinions until late January at the earliest.

I would suggest these potentiall coordinated delays may be related to one of two things.

The Telecom Immunity Lawsuit

First, consider one more issue of timing that might be related. On December 2, Judge Vaughn Walker held a hearing on the EFF"s lawsuit challenging the legality of granting the telecoms immunity via Congressional action. We know that Vaughn Walker is very skeptical of the legal basis for immunity. And significantly, one of Walker’s biggest questions is why he should dismiss the suits againt the telecom companies now, when we’ve got a new Attorney General coming in, who might judge the program to be illegal (which would then scuttle the immunity deal).

Justice Department attorney Carl Nichols didn’t get through his first full sentence defending the constitutionality of retroactive immunity for spying telecom carriers before U.S. district judge Vaughn Walker interrupted to ask about President-elect Barack Obama.

"We are going to have new attorney general," Walker interjected in Tuesday morning’s hearing in a San Francisco courthouse. "Why shouldn’t the court wait to see what the new attorney general will do?"


"The Department of Justice rarely, if ever, declines to defend the constitutionality of a statute," Nichols said. "It’s very, very unlikely for a future DOJ to decline to defend the constitutionality of this statute."

Again, note the timing, on December 2, Nichols represented to Walker that Obama’s Administration wouldn’t defend the FISA amendments. But the WaPo reported on December 3 that Mukasey was refusing to advise Holder, presumably about precisely these issues [ed.: fixed "wouldn’t" for "would," thanks Mary].

Recall that, in order to get immunity, the telecoms must get the Attorney General to certify that the program they participated in was legal. By delaying the time when Holder will get those opinions, Republicans are making it much more likely that Judge Walker will rule on immunity before Holder can declare the program illegal.

(Note, Walker has not indicated in the minutes from the hearing when he will rule on the EFF challenge to immunity.)


The other reason the Administration may be delaying turning over the OLC opinions is to give Bush time to pardon the torturers (and, potentially, John Yoo and the like).

Sure, Mukasey’s talking boldly about how the torturers–and specifically those who wrote the opinions–won’t need a pardon.

"There is absolutely no evidence that anybody who rendered a legal opinion . . . did so for any reason other than to protect the safety of the country and in the belief he or she was doing something lawful," Mukasey said. "In those circumstances, there’s no occasion to consider prosecution or pardons." 

But note his emphasis on those who "rendered a legal opinion."

If Mukasey is so certain the people who wrote those opinions were acting legally, then why won’t he turn them over until after such time as Bush will have given his last minute pardons?

The refusal to turn over both the wiretap opinions and the torture opinions almost makes me believe there’s an opinion there that emphasizes avoiding legal consequences as distinct from protecting the country, huh? 

61 replies
  1. wigwam says:

    OT a bit: I don’t think I’ve seen anything here or at FDL regarding the Senate Armed Service Committee’s report blaming the detainee abuse on Rumsfeld, Rice, Meyers, etc.

    Did I miss something?

    • freepatriot says:

      we’ll get to that

      I’ve seen anything here or at FDL regarding the Senate Armed Service Committee’s report blaming the detainee abuse on Rumsfeld, Rice, Meyers, etc.

      that one is already public, so the repuglitards are just gonna ignore it, since they can’t sweep it under a rug for another month

    • emptywheel says:

      Planning on getting to it.

      Between trying to refute all the crap flying about the auto bridge bill and the Republican attempts to claim that Obama had sex with Blago in exchange for a Senate pick, I haven’t gotten to it yet. It’s been a busy week.

      • freepatriot says:

        check my response at 5

        I’m Psychic, or psycotic, or sumtin …

        actually, I meant that Obama is gonna expose all this crap once he gets his hands on the controls

        people keep on talking about comity and bipartisanship, but Obama survived in Illinois politics

        can’t do that without learnin bout kneecapping the opposition

        my only fear is that Obama and the Democrats get hold of the evidence and suppress it, to keep the repuglitard party alive but seriously pruned, in order to ensure a Democratic Majority for years to come

        ie: Obama holds the evidence, and uses it to destroy selected repuglitards who try to present a threat to Democratic Power

  2. freepatriot says:

    I think the repuglitards KNOW they’re DEAD MEAT, so they’re delaying the inevitable death

    mukasy can hide the evidence for another can pardon his criminal minions, but what’s done is done

    any way you slice it, the repuglitards gotta explain some things that can’t be explained by a person who has any shred of moral decency

    the facts are coming out


    in 1946, we used germany’s soverign rights to HANG the NAZI officials who had done the same things george bush is guilty of

    My Grandfather was awarded a Bronze Star and a Purple Heart inthe war that made the Nuremberg Hearings possible

    there ain’t NO WAY people like my Grandfather are suddenly gonna forget what the fought for just to save the repuglitards

    wouldn’t you try to bury the evidence as long as possible if you knew what you had done ???

  3. FrankProbst says:

    I don’t think it’s an issue of avoiding legal consequences. I think it’s an issue of wanting to avoid really bad PR for a little while. They know that those opinions are going to be leaked. I think that they want to give everyone a chance to get out of town before they hit the press. That way, when the story breaks, everyone involved will be “private citizens”, and I’ll bet most of them will be taking extended vacations outside the country after their eight years of tireless work protecting the US. After that, we’ll need to “move on” from this “old news”.

    Judge Walker, thankfully, does not look like he’s going to fall for any of this.

    • freepatriot says:

      wanna bet on that one ???

      I’ll bet most of them will be taking extended vacations outside the country after their eight years of tireless work protecting the US

      If I was an American citix=zen and I knew I’d committed crimes against humanity, I wouldn’t go to a foreign country

      too much of a chance of winning a one-way trip to the Hague

      • Rickbrew9x says:

        As I recall from a few years ago when it hit the news that Bush had purchased a sizable ranch in Paraguay, one of the things that went along worth the purchased was a law passed by the Paraguayan Senate that individuals living there would not be subject to extradition to the Hague.

        I can’t find my notes on the subject, but that was during the time when the Bush daughters were in Buenos Aires, Argentina a few years back. One of them got their purse stolen or something. There was speculation that they had visited Buenos Aires from the Paraguayan get-away.

        I can imagine a situation in which Bush himself, because of his status as ex-President, has no need to move to Paraguay, but a number of his minions might well find moving to Paraguay more congenial and cheaper than spending money on lawyers and yelling “No comment” to reporters.

    • Leen says:

      While Bush hides behind bailing out the auto industry, and the “we are winning” in Iraq and Afghanistan campaign’s that the MSM are more than willing to go along with or just not cover.

      We sure have been hearings a bipartisan theme song over the last year “time to move on, turn the page, a new chapter” hogwash.

      But out here in the peasants world folds are held accountable for all sorts of non violent crimes and do plenty of time in prison for them. The Bush administration thugs (including Mukasey) who have continuously operated below the law look like they are going to walk.

      What a twisted pathetic message. I truly do not know how any of these upper level criminals can wonder why there is no respect for our so called justice system across this nation.

  4. lizard says:

    I think (and this is, horrifyingly, only about 1/3 in jest) that among the legal opinions that have not been turned over is the one that says it is perfectly lawful for the Attorney General to destroy any document he likes before the next administration takes office.

  5. wigwam says:

    Bush faces a quandry regarding pardons:

    – The pardoned party can’t plead the fifth.

    – Accepting a pardon is (supposedly) an admission of guilt.

    If I understand correctly, however, a person doesn’t have to make the choice of whether or not to accept a pardon until and unless they are indicted. At that point, they must spend their pardon if they want to stay out of jail. And, perhaps if they plead the fifth, that’s considered a rejection of the pardon.

    In fact, per the Constitution, Presidents don’t pardon people; rather, they pardon “offenses.” Whatever!

    • bmaz says:


      The meme that just will not die. Pardons are granted as a ministerial act by the executive. Unless there are conditions attached, there is nothing the pardonee has to do. He does not have to “admit guilt”. He doesn’t have to do anything. And the pardoned party can plead the 5th to any offense except for the exact one pardoned, or transactionally related/lesser included offenses that, by the nature of the pardon, he can no longer be in jeopardy on.

      • freepatriot says:

        He doesn’t have to do anything. And the pardoned party can plead the 5th to any offense except for the exact one pardoned

        ya, sure, you don’t have to do ANYTHING

        just admit guilt

        that’s the part you seem to miss

        in order to accept the pardon, you have to admit you are guilty of the crime being charged

        then we can put you in front of a camera and let you describe your crimes (can’t avoid that)

        individual criminals might survive, but the repuglitard party wont

        • bmaz says:

          just admit guilt

          that’s the part you seem to miss

          in order to accept the pardon, you have to admit you are guilty of the crime being charged

          That is patently false. Not true.

        • lizard says:

          You are just flat-pit wrong, here, as a matter of settled law. The pardon power is absolute (with the single exception of impeachment) and UNREVIEWABLE. It does not need to be accepted, no admission of guilt need accompany it’s use to circumvent punishment and it cannot be modified by statute.

          Please do your homework, and do not pretend to know what, obviously, you do not.

      • freepatriot says:

        oh, and the International Criminal Court doesn’t recognize any pardons

        so sitting in front of a camera and confessing to your crimes might be a little uncomfortable

        not to mention dangerous to your freedom

        • lizard says:

          We are not signatories to the ICC. An ICC indictment would put a crimp in their traveling plans, but without the cooperation of the US government, an ICC action is merely annoying.

          • bmaz says:

            Yep and it is really close to inconceivable that any first order country would even think about extraditing for this without US permission. Just ain’t happening.

      • wigwam says:


        Per the Wikipedia:

        It appears that a pardon can be rejected, and must be affirmatively accepted to be officially recognized by the courts. Acceptance also carries with it an admission of guilt.[4]

        The cited case is: Burdick v. United States, 236 U.S. 79 (1915)

        • bmaz says:

          Wikipedia is ignorant here; this is where we reach the limits of wiki’s usefulness. Burdick has distinguished, if not effectively set aside, by many cases and controversies in the nearly 100 years. Listen, if you want to bite off on this bullshit, have at it; you will have lots of company, because the false meme is pervasive. It is also dead wrong.

          • wigwam says:

            Here is what the Wikipedia claims of Burdick:

            Burdick v. United States, 236 U.S. 79 (1915)[1], was a case in which the Supreme Court of the United States held that:

            * A pardoned man must introduce the pardon into court proceedings, otherwise the pardon must be disregarded by the court.
            * To do this, the pardoned man must accept the pardon. If a pardon is rejected, it cannot be forced upon its subject.
            * A pardon carries an ‘imputation of guilt’, and accepting a pardon is ‘an admission of guilt’.

            A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on.

            United States v. Wilson established that it is possible to reject a (conditional) pardon, even for a capital sentence. Burdick affirmed that the same principle extends to unconditional pardons.

            But it does go on to say that:

            The status of the Burdick decision is in question as a result of the decision of President Clinton to grant a full and unconditional pardon to Henry Ossian Flipper. Flipper, the first African-American graduate of the United States Military Academy, did not accept the pardon, as he had been dead for over 50 years.[2] In addition, the pardon was considered to be an act that cleared his good name.[3] It did not constitute an admission of guilt. Flipper’s clemency application also noted the Supreme Court made it clear, in 1974, that the “requirement of consent was a legal fiction at best.”[4]

            • lizard says:

              Burdick, if it applies at all (which is doubtful), would only apply if a pardon were issued AFTER a conviction, to expunge an already extant criminal conviction and sentence

              The pardon power comes to the US constitution in the light of it’s history in post magna carta England, and that history (which the Court will consider if US law is silent or questionable on whichever specific question is brought before it) makes clear that a pardon issues before an indictment PRECLUDES indictment on the specific charges pardoned. No acceptance, no ‘bringing before a judge), nothing.

              This one actually goes back to Roman law, in that both indictment and trial were seen as A Taking of Reputation, itself a punishment, and a foundation of the legal requirement of appealing to a judge for the ability to indict. A pardon precludes ANY punishment, and that would (under roman law, anyway) cover any court proceeding which would cost the defendant time or money. A pardon in the US constitution and English law does not preclude civil actions (which differentiates it from the Roman model) but it is just as sweeping and near-absolute in criminal matters

              • freepatriot says:

                it’s the powers it doesn’t grant that you should focus on

                can’t refuse to testify

                can’t avoid a subpeona

                and it don’t grant the right to commit perjury either

                don’t restrict yourself to America’s past, or even western civilization, to find the solution

                there’s all kinds of precedent in the world

                that’s the only clue ya git …

                • lizard says:

                  And neither Bmaz nor myself was arguing against any of those points (yet, anyway.) We were simply clarifying on the single point we spoke to. You know, the point on which you were completely (altho vehemently) WRONG. You might want to consider actually responding to points made as opposed to straw men that are completely unrelated, to avoid sounding like a republican speech writer.

    • PJEvans says:

      I’m wondering who he’s intendign to pardon, since he’s already said that the torture stuff doesn’t need pardoning: he has memos saying it was legal.

      • wigwam says:

        He’s not above issuing prophylactic pardons, just in case some prosecutor somewhere gets a wild hair, so to speak.

  6. radiofreewill says:

    There must be an Opinion that Renders the Servants of Bush’s UE Ideology *immune* from the Rule of Law – as long as they acted *believing* that that OLC Opinion legally *pixie dusted* the Rule of Law for them – iow, as long they Truly Believed and Acted Loyally, they had a ‘Get Out of Jail Free Card’ from Bush.

    Something like an ‘Enabling Act’ for the ‘Insiders’ that green-lighted the promotion of Gooperism (Greed-Racism-Dominionism) as an Idealized Social Norm, special, exceptional and Above All Others.

    A kind of “If the President says it…” legality Memo for the Trout-Mouthed “No Character Needed” Followers – who Really Believe they are in a War of Mutually-Exclusive Worldviews to Claim Extreme Social-Financial-Religious Control over US in a Threatening World.

    How else to explain All those Goopers Goose-stepping with their hands on their belt buckles emblazoned with “My Loyalty is My Honor”?

  7. Mary says:

    on December 2, Nichols represented to Walker that Obama’s Administration wouldn’t defend the FISA amendments

    Is that what you meant? It sounds as if he was saying they would defend (based on historical precedent as the norm)

    Mukasey really doesn’t make the argument that what the lawyers who issued the opinions did was “legal” as much as that they did it in “good faith” which is pretty much the argument you make when what you did was wrong, but you are hoping to still escape consequences through lack of mens rea, if it is a mens rea crime.

    And he’s trying to proffer a “reasonable reliance on advice of counsel” in conjunction with that – and that’s where his interesting take that they can’t provide the opinions bc they aren’t “doj” opinions to provide, but instead “belong” to the CIA and NSA (which is pretty funny, in a way, since the NSA lawyers were not allowed to see the opinions and you have to wonder if they shared those opinions with the telecoms and waived privilege that way anyway) as clients – he’s trying to set up an atty-client privilege separate from “classification” standards, presumably acknowledging that the PUBLIC Executive Order on classification disallows classification of evidence of crime. Remember when the DOD opinions were released, there was no classification authority on them anywhere, and yet the acting counsel “signed off” on DE-classification.

    Reasonable reliance, though, is not a defense to many crimes and always depends on a waiver of atty client privilege to make the opinions and their circumstances public. I think as much as DOJ, Obama’s crew should be interested in talking to Lamberth and Kollar-Kotelly. I’m kind of wondering WHO was advised about the FISA Court Chief Judge’s(and Judges’)determination(s)that the program was unconstitutional. Lichtblau seems to evidence Larry Thompson knew enough that despite the *threats to national security* he began to refuse to sign off on FISA applications.

    So, were the “clients” at NSA (Hayden) made aware of the judge’s (s’) ruling(s)? If not, how does that square with “good faith?” Were the “clients” made aware of JAG and Taft’s responses to torture?

    Covering up KNOWN conflicting opinions and rulings is not exactly great evidence of “good faith.” Covering them up, not only from outside view but from even your clients — that would be pretty darn bad.

    • freepatriot says:

      Covering up KNOWN conflicting opinions and rulings is not exactly great evidence of “good faith.” Covering them up, not only from outside view but from even your clients — that would be pretty darn bad

      makes damn fine evidence of Obstruction of Justice though …

    • bmaz says:

      If I was in his position, i guess I would argue this crap too; but, really, this is bullshit. The DOJ represents the United States Government. saying he can’t produce because the DOJ asked for the opinion originally, acting like the OLC no longer has any copy of it’s own work, or that it owes an unyielding duty to the DOD (for instance) like it is some sovereign entity is tedious, at best.

  8. lizard says:

    Unilaterally extraditing? No. I think we are the only people arrogant enough to try that.

    It is concievable that European judges (France and Greece have laws allowing for this, I think, but I am not an expert) might impose sanctions on business interests of an ICC indictee if those interests are within jurisdictional reach of the judge, but I don’t see that threat keeping anybody awake at night.

    • bmaz says:

      Interesting thought there on the business interests. I have never pondered that. Would be pretty funny to watch the corporate mass hand wringing over that. Maybe somebody like Blackwater or KBR I guess; but I still see the chances as approaching zero. Too bad; scenes we would like to see.

  9. Jkat says:

    yep .. there’s obviously somethng very rotten in the barrel somewhere .. it’ll be interesting to see it come rolling out ..[hopefully.. we will]

  10. bobschacht says:

    If you didn’t see Moyers’ Journal Friday night, please go to their website and watch the interview with Glenn Greenwald, and the companion page on the Rule of Law! And recommend it to all of your friends! This is the best TV segment of the week, IMHO. I hope members of Obama’s transition legal team watched it. After all, if Mukasey isn’t giving them anything, they’ve got time on their hands, right? (Heh.)

    Bob in HI

  11. Mary says:

    Not only is it tedious, I’m not sure how much of it I would argue, given the alleyways it opens. Really, if NSA was the client (as opposed to just President Addington) then how to you justify preventing client’s in-house counsel from having access to the opinions? And who with the client did you advise of the known rulings about the plan by the FISC Chief Judge? And how do you advise the non-lawyer client of that info without letting their in-house counsel know about the competing info too, so inhouse can make a decision on how to advise their non-lawyer client?

    If it was NSA proprietary advice, who ok’d giving it to Addington and the OVP? OVP isn’t part of NSA or CIA. The Pres might be arguably the titular head of each of those agencies, but OVP isn’t in that chain. As a matter of fact, OVP has argued that it is a whole separate branch – how does privilege still attach if they’ve been sharing with OVP?

    Just one of many things that occur as you watch Mukasey spin.

    • emptywheel says:

      Incidentally, Mary, in work that has been set aside for auto shit, the OLC is also arguing that it is not releasing unclassified OLC opinions to Congress because the Administration didn’t rely on the analysis itself in making the decision they did. They’re saying that the result (torture) is the same, but that the OLC memo is not the thought process they used to finally justify torture.

      Which, if we used that logic correctly, would seem to mean that the Administration decided to torture without relying on the legal analysis in the opinion, but at the same time are claiming that they can’t be prosecuted because they relied on the opinion.

  12. JohnLopresti says:

    It seems like Scotus is elaborating something resembling a new fabric defense in a narrow case several people have referenced known as Iqbal, as a sort of corollary to the IG construct and viewable as a Federalist society rejoinder to the Levin McCain document summary which recently appeared in the public sphere. Reading the exchanges in Iqbal’s opening argument, it seems that Scotus appears to want to set the executive apart from ordinary due process in matters which were responses to the 911debacle, something like a 911UE. The skinny, to me, seems a kind of heat of battle disclaimer for the inscrutable bureaucracy. I doubt Holder will do much about these trends, but the current officeholders probably want the smooth transition to occur all after the official date of the formal shift to the next bunch of elected people. With respect to the Icc, notably absent from the 1998 list of signatories, to my reading, are People’s Republic of China, United States, Russia, India, Indonesia, Thailand, and quite a few in the levant. If there is progress integrating better with that process, it appears to be a work spanning several governments, probably an important work. Meanwhile, besides political haymaking and headline garnering, the departing decisionmakers want their guarantees from the folks who are going to be in office end of next month just to be on the safe side; make that a walk-in safe.

  13. freepatriot says:

    the times, they are a changin

    I could tell you what’s gonna happen, but you wouldn’t believe it

    nobody believed me when I said george was gonna invade Iraq either

    history repeats itself

    don’t matter what anybody remembers

  14. scribe says:

    You forgot the OLC also provided memos on torture and interrogation, some of which have not yet made it to light. There are a plethora of torture victims in Gitmo seeking to plead guilty. Most recently (w/in the last 2 weeks), the judge put off accepting their guilty pleas because he wasn’t sure whether a pro se defendant in a capital case can plead guilty, and whether and to what extent that defendant’s mental status would or could be an issue in the proceeding. By stalling both the disclosure and the confirmation, the Repugs can string out into the spring (they hope) any DoJ oversight of that, and any Presidential action to shut it down, until such time as their loyalist officers in the military (like that general who got himself fired upwards for putting his thumb and hand on the scales to get sexy cases in time for the election) can ensure a death penalty for a terrist. Then they pump up the propaganda machine against Obama (and his Muslim co-faith terrist buddies).

    Think back to Waco and Ruby Ridge in 93 – the bureaucracy bumbled on under autopilot for literally months, exacerbating both situations, until Janet Reno was confronted with a situation gone to shit at Waco in like her first week on the job. And that was after two failed AG nominees – Baird and one other who was on the screen for like a week or so.

    I say stick with my prior suggestion – if anyone gets delayed in confirmation, appoint them effective 12:01 PM 1/20/09 as “Acting” whatever. Then, and particularly as to the AG, unleash a blizzard of GJ subpoenas on the friends and families of the senators stalling the process (they all have something needing investigating, be it a campaign financing problem, a kid on coke, or whatever), indict Rove, Bolten and Miers for contempt of Congress, and Friendly (and whomever else is in the White House Counsel’s office on the “delay Congress” beat) for obstruction of a congressional inquiry and conspiracy to obstruct justice. Then send a curt letter of apology to Specter indicating that “the press of business in the DoJ currently prevents attending any hearings. Since you had no problem with the prior AG blowing you off, surely you will not have any with me doing likewise.”

    Then, if need be, have Reid take the Senate into recess and use the recess appointment power. There will be a recess before the seven or so months under the Acting Statute expire.

  15. lizard says:

    I think the “we have no need to pardon” noises are a tactical move to try and avoid damage to bush’s legacy (I guess he thinks it could somehow get worse) not a serious statement of intent. I think what he is hoping for is some move by the Dems that he can label as partisan persecution. He will then claim that, even tho he didn’t WANT to pardon anybody, the democrats seem intent on putting innocent people in jail, leaving him no choice but issue pardons, in the name of justice and freedom. It will be a crock of shit, but it will give the noise machine what it needs to whine and moan abouot the unfairness of it all.

  16. oldoilfieldhand says:

    There are thousands of young legal zealots around the world who will be working on the torture memos when they finally see the light of day. Can not President Obama rejoin the ICC and the Democratic Congress ratify our membership? Problem solved.

  17. lizard says:

    The ICC is a treaty which needs ratification. It can be (and certainly WILL be) filibustered in the senate. Many democrats will join the opposition (On the grounds that we cannot subject ourselves to foreign law when the rest of the world hates us) and it has, unless something RADICALLY changes, no chance at all of happening. Now, the current economic upheavals are a radical change and might convince our government to be a little less of a one-man band an begin to consider itself just another player on Team World, but I really doubt it. If anything, the current upheavals will probably turn us from xenophobes into isolationist xenophobes.

  18. LabDancer says:

    Fascinating as may be the discussion here on what if anything the person who might benefit from a presidential pardon, I’m with Ms ew on questioning the clear efforts by the AG to delay the TIMING of the release of ‘certain’ OLC opinions.

    First: Note – – this may seem too obvious to be worthy of this, but I think its significance is paramount – the OLC page titled “Memoranda/Opinions” clearly indicates the AG has “directed” it to publish “selected” opinions – – selected based on a test, being those that the DOJ – – apparently on the assumption that particular animal has some will distinct from that of the AG – – “has deemed appropriate” for publication.

    To be clear: the AG being the chief officer of the DOJ, the AG would be treated as included in the definition of “the DOJ” – – such that the power to select which opinions get published is effectively that OF the AG.

    Second: the OLC page titled “What’s New At OLC” lists a number of links to specific opinions. I’ve read a half dozen of those published in 2008 and reviewed the list back a few years, and I note:

    [a] for the most part, they on extremely narrow, technical, even arcane points – – the sort of ‘issues’ that would tend to bring the eyes of the dweebiest of legal beagles drowning in pools of tedium;

    [b] of the 6 that I read, arguably all 6 and explicitly 4 referred to the notorious Unitard theory of government in some basic way; that is: pivotal to that part of the discussion in the opinion proper that leads to the issue being ‘resolved’ in the sense of guiding some behavior on the part of the particular executive agency or office most obviously affected by the issue

    [eg On the issue of whether and to what extent an office in an agency that hosts a conference the logistics of which are run by a private contractor – – I’m not sure it’s the implication, but given this is the Bush administration, I would expect the running of most if not all such conferences would be contracted out – – can allow certain items provided to participants which fall under the heading of being billed by the contractor to under the heading “personal convenience fee” said contractor may choose to charge the participants. The answer appears to be that the government has oversight authority to compel production of a receipt for the cost of the room, but none whatsoever over the pole, the strippers, the champers and the party hats where none of those is integral to the subject matter of the conference and associated charges are assessed by the contractor to the participants under a “personal convenience fee”.]


    [c] there is ROUTINELY a lag time of months, and very often many months, between the date shown on the opinion for its authorship and the date on which it first showed up on the website.

    All this suggests a number of things as likely, of which I will now state several of the more obvious:

    – that there are an awful lot of important OLC opinions which remain unpublished – – quite possibly the majority of those issued, and possibly the great majority

    – it appears quite possible that the importance of the unpublished OLC opinions, in the sense of the Bush administration’s [to employ Glennzilla’s term] War on the Rule of Law and to the interests of the People in the workings of their government and how same affect them both collectively and individually, vastly outstrips that of the published OLC opinions

    – in corollary to this last, it also appears possible that the COMBINED importance of the published OLC opinions PLUS those that, while to date at least technically ‘unpublished’ nonetheless have come to light, in whole or part, through a whistleblower, administriation convenience, leak or pleak, is also significantly outstripped by that of the OLC opinions which remain unpublished and at most only speculated about, and

    – the OLC has continued to, and continues to, crank out opinions, and can be expected to crank out opinions right to the bitter end of this bitterest of administrations.

    Third: I have in mind that on many occasions during headier days President Bush would say to members of the working press that in effect he ‘meant what he said’ – in other words, assuming you could get past the fractured syntax and dumbed-down affected-Texan [not necessarily an oxymoron – surely even college-educated Texans in general don’t form sentence nearly as awkward and oblique as his], in whatever he said it was always right there for us to put together 2 [or thereabouts] and 2 [sorta] and force out a 4 [near ‘nuf fer gummint work].

    Still-President Bush asserted fairly recently that he doesn’t foresee the need to issue mass pardons.

    Very-much-still AG Mukasey shortly thereafter followed up with the expansion on that idea to which Ms ew, among other things, refers in this post.

    Those in the administration have also pointed up their view of a distinction between OLC opinions that ‘were acted on’, and those that were not.

    It would seem to me that ONE corollary to such a distinction, consistent with the non-issuing of mass pardons, would lie in different TREATMENT of the two kinds of OLC opinions.

    For instance, that an OLC opinion not acted on [though perhaps commissioned, and thereafter perhaps reviewed, or both] is effectively of no importance, including of none to compliance with the Presidential Records Act, and so is, effectively, of no more significance than the absence of an itemized receipt for a pole, strippers, champagne and party hats – and thus eligible for disposition via shredder –

    the critical decision of whether or not an OLC opinion was ‘acted on’ being in the eye of the beholder [as opposed to the Holder] –

    whereas conversely an OLC opinion ‘acted on’ – being an OLC opinion DEEMED by the President/administration to have been ‘acted on’ – would fall as neatly as possible within the Unitard theory,

    and accordingly any ‘act’ undertaken based on it would be, by extension, an act of the President.

    Now, given that OLC opinions are still being cranked out, and can be expected to continue to be cranked out right up to the moment the new president is sworn into office, and that it would take a good deal of time and painstaking effort to review all the unpublished ones to determine into which category each falls

    [the latter exercise requiring a rare talent the likes of which may not extend past the doors of the OVP]

    I would think it would be quite understandable why the current administration would wish to have as much time as it can get away with between issuance of the very last OLC opinion and the determination of whether it is deemed publishable.

    • greenharper says:

      This is really funny! That’s a compliment.

      I love the Unitard theory. Anyone who’s actually ever worn one for longer than, oh, say, two hours, will understand.

  19. Mary says:

    31 – funny how that works, isn’t it?

    I’d be a bit slower to say what is settled law when the situation involves direct Executive Branch orders and directions to violate the law, that are then pardoned. I don’t think there’s been any case law on that point. The political precedent on it would be Nixon (whose criminals were not pardoned, although Nixon himself was pardoned by Ford) and Iran/Contra, where the Weinberger and Abrams pardons set a pretty daunting standard – and coupled with Abrams later participation in the Executive Branch under W are pretty appalling.

    The primary issue that you run into on the case law front is that criminal enforcement lies within the Executive Branch, and a President would have to argue in diminution of his own office to argue that a prior President’s pardon was subject to attack. Bush made quite a few noises when he was elected about revoking Clinton’s Rich pardon (like Libby and Cheney would have let him even try that) but didn’t, still, there has been spec on that front – if the office of the President can pardon, can the pardon be revoked?’

    I think there is another valid argument (one that will never get made in court I’m guessing) that as a matter of pure statutory construction pardons of persons whose crimes constitute violations of the Constitution and who commited their crimes at the behest of, or in conspiracy with, the President are excluded from his pardon power, as to interpret his power othewise would nullify the protections in the Constitution and Bill of Rights and equally nullify the separation of powers between the three branches of government. To allow otherwise is nullify the bill of rights, habeas protections, etc. since a President could order violations of the Constitution and insulate perpetrators from Congress and the courts with pardons. While its true that Congress can impeach, if part of the activities involve obstruction of Congress and “classification” of illegal activities, or even if the activities are undertaken late in a Presidential term, then knowing and deliberate violation of the Constitution and usurpation of the powers of Congress and the courts to make the law and adjudicate its violations, can be de facto terminated, with no check. I think in a normal statute or contract setting, if the issue came up in a true advocated setting, the construction would be deemed to prohibit pardons by the President of actions directed by the President. But that’s not going to happen, so I’m not sure why I spent the time typing it up.

    Oh well.

    43 – I think they are taking all the time they can to scrub and doctor files and figure out who knows what and who they can trust and what people know but can’t prove and how they keep it covered up. Pretty much like any other criminal family (I have to kind of laugh over Fitzgerald and the FBI crew in Chicago getting so exorcised over the scummy Blago when they have all been dutifully and voluntarily working to make the US a state sponsor of torture for 7 years and none of them seem to get “breathtaken” and “repelled” by any of what their own crew has done).

    If Obama’s crew were willing to play hardball, one of the first things they would do is declare that Bradbury has been serving illegally after Congress failed to appoint him and that all his opinions are formally revoked and are being reviewed to see which can be reissued and in what form. That would catch some attention, for all those guys and gals relying on what Bradbury upchucked. Again, something that won’t happen.

    Well, I’ve wasted time while the scones were cooling down. Night

    • LabDancer says:

      I’d agree generally with this – – and that it adds both to the height of the pile and how precarious it must be to work it down.

      I think my biggest point is that, granting anything like the prodigious capacity for sustained focus and labor raised in the few profiles [eg The New Yorker], and in first-person reports [eg Goldsmith], there’s such an awfully tall – and growing – pile of essentially paranoia-laden labor to be attended to, all of which in the end must go through one person, and in the end Addington’s still just human.

      [I realize that last point is likely to be treated like a George Burns set up to the all the Gracie Allens here – and have at it; Gracie was a treasure – but I’m sure it’s also true … pretty sure]

  20. 19genco says:

    I agree that the delay in the release of the OLC opinions and meeting the new AG are to delay, most likely for purposes of immunity to the Yoos of the Bushworld. However, it does not seem as though it would effect the FISA suits, unless Bushco has some inside info that Obama would reverse the Bush AG’s position. If Obama really wanted to revisit the AG opinions for the FISA suits, and the Bush maneuvering had not given them time to review the legality of the program, assuming Obama wanted to do something, Obama could simply direct someone from the AG’s office to file a motion with Judge Walker to delay his opinion, pending their review right after he was sworn in. My guess is that if Obama were that concerned he could sign the motion himself because he is a lawyer. I also think if such a motion were filed, Judge Walker would be more than happy to delay his decision in order, if for no other reason than to give Obama the chance to make his decision on the subject moot, and avoid an appeal.

  21. lizard says:

    I think this might get me nominated to receive my very own tinfoil hat, but i am beginning to believe that the bushies will NEVER turn over many of the documents that they are required to pass to the next admin. I have NO idea how they will do it, but I am betting they will at least try.

    How about an OLC opinion that states that classified OLC opinions that are no longer in force can be destroyed rather than being turned over?

    • nonplussed says:

      The Administration has already demonstrated their prowess in creative archiving solutions. They have “accidentally” managed to defeat protocols which were relatively foolproof a quarter century ago. I would be quite surprised if a lot of electronic files didn’t pass into digital heaven by the 20th of January.

  22. LabDancer says:

    “How about an OLC opinion that states that classified OLC opinions that are no longer in force can be destroyed rather than being turned over?”

    Really – who are you?

      • LabDancer says:

        I meant merely that, having brought on a discomforting brain cramp in an attempt to respond to Ms ew’s post by first resorting to an attempt to channel the authoritarian mind [What Would a True Bushie Do?], I found your superior efficacy more than a little unnerving.

  23. lizard says:

    I agree completely. I am hoping that the Bushies screw up the cover-up as badly as they screwed up everything else. It would be a sad irony if the only thing they did competently was covering their tracks.

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