Balkinization  

Friday, December 30, 2005

Prosecutorial Discretion

JB

Which potential crime do you think is most worth investigating?

(1) The President's decision to engage in warrantless surveillance of American citizens in apparent violation of federal law.

(2) The decision to leak the information to the public that the President had engaged in an apparent violation of federal law.

The Associated Press reports that the Justice Department, in its infinite wisdom, is now investigating (2), not (1).

In one sense that's not surprising: Justice Department officials are pretty deeply invested in defending the legality of the President's actions. So even if (1) is a far more serious potential crime than (2), it may require a special prosecutor or Congress to investigate the Administration.

And that's all the more reason to begin an independent investigation immediately. At this point, the Attorney General has a pretty serious conflict of interest.


Comments:

I agree the President's orders to engage in warrantless surveillance of American citizens are in (more than)apparent violation of federal law.

I am wondering what would be the scope of an investigation into this, and what good such an investigation would do. I am thinking particularly of a congressional investigation.

The details of what conduct was entailed in the surveillance, e.g., what was done and to whom, as well as the results of the surveillance, would presumably kept secret from public disclosure for national security reasons.

All internal documentation concerning the legal justification for the warrantless surveillance would presumably be protected from public disclosure by invocations of executive or similar privilege.

All the President's Men will testify simply that President Bush consulted his legal advisors concerning the legality of the warrantless surveillance and was informed that it is legal.

Thus, an investigation may not reveal much, if any, information to the public concerning what was done and to whom, and, consequently, the facts that would be necessary to form an independent assessment of the legality of the conduct would not be made public.

So wouldn't the final product of any such investigation simply be a record larded with the political bloviations of the investigators, and their respective conclusions that the conduct (the details of which cannot be revealed) was or was not illegal?

If so, wouldn't an investigation just be a waste of time and money? I think that as long as the President can say he was motivated by his duty to protect Americans from terrorism and he relied on the legal opinions given by ostensibly qualified advisors that such conduct was legal, there does not seem to be a very good case for impeachment.

It appears the only way there will be a definitive ruling that the warrantless surveillance was illegal is if SCOTUS says so, but even then, given the President's apparent belief that his Article II Commander-in-Chief power trumps any action taken by Congress under Articles I or the Judiciary under Article III, it is seems questionable whether the Bush administration would recognize the validity of a SCOTUS ruling that the conduct is illegal.
 

Fully agree with the post.

The Admin. has to take this ludicrous position because they are saying they did nothing wrong and that they have the authority to conduct this surveillance for national security purposes; thus, for the sake of consistency, they have to go after anyone who compromises this program they are billing as essential to security.

Also, don't forget a healthy dose of chutzpah.
 

What's to investigate?

Bush's admitted he directed the spying. Because of the impeachment clause, he can't be prosecuted.

Sure, sure, DOJ could investigate the NSA operations folks. But (1) we already know they did it. And (2) they have the defense of "good faith reliance on govt counsel" and "I was just following order" (oops, that second one may not be a defense).

So really only Congress can meaningfully investigate what happened here.

If this Country is really lucky, if we really are "on God's side," then one of the two houses of Congress will have a Democratic majority next January.

Only then will we get any sort of meaningful investigation.

Only then can we hope to be saved from Cheney's obsession with the Stalinization of Washington, DC.
 

I don't understand the fantasy life of academics. The Justice Department had blessed the NSA wiretapping program. The Congressional leadership had been informed of it and hadn't objected. Now maybe the great conlaw judge in the sky (if you believe in that sort of nonsense) and Prof. Balkin think the program was illegal, but when I was in law school, we learned that law is politics, and if there is no one with the political power to enforce a view, that view simply doesn't count as law.
 

Sean writes, "The Congressional leadership had been informed of it and hadn't objected."

My understanding is that Congressional members were asked how they would feel about passing a law to allow the President to do this; they said "no"; the President did it anyhow. Said Congresspeople were not allowed to publicly object, because they were required not to make known this concealed operation.

Sean, I'm troubled by your "might is right" argument. Are you so extremely skeptical as all that? What the law says and how it should be interpreted, well, people shouldn't even voice these opinions unless they have the political power to enforce these views?

Plus, well, if Professor Balkin and other highly regarded legal scholars voice concerns such as this, it could help Congress grow enough spine to stand up to the President.
 

I certainly did not say "might is right." But I did say, and do believe, and was taught, and will defend the proposition, that "might is law." If Prof. Balkin wants to argue that NSA wiretapping is wrong, rather than illegal, that would be a different topic. But my recollection is that over althouse.com, Prof. Balkin refused to be drawn into policy discussion.
 

Sean:

You state that “when [you were] in law school, [you] learned that law is politics, and if there is no one with the political power to enforce a view, that view simply doesn't count as law.” I went to law school too, and can’t recall ever hearing that proposition articulated by any professor, or reading it in any instructional materials. It’s certainly nothing I “learned” in the course my legal education. I can’t say I understand it, but I do find it very interesting, and would like to look into it further. However, (given my admitted ignorance of the subject) I don’t know where to look. For that reason, I would be most grateful if you would provide some authority (citation, reference, etc.), which would help me begin my inquiry.

All the best,

Thomas Martin Doyle Jr., J.D.
(Univ. of Connecticut School of Law, 1994)
 

Former Solicitor General and current Harvard Law Prof. Charles Fried has an Op-Ed in yesterday's Boston Globe on the subject and he thinks it's just peachy what George W has done and asks what is the harm to Americans who happen to be a party to an international communication in being eavesdropped upon. Perhaps Fried might volunteer to have a Lojack type device installed in him so that we can all know what he says and does at all times. Wouldn't that be just peachy, and what would be wrong about that? It is only a short step from the international to the domestic communication and George W and Fried are providing cover and precedent to take that step. Fried might put this issue in the form of a question on his next exam. I wouldn't be surprised if the students focused on the Fourth Amendment, but he might.
 

"Because of the impeachment clause, he can't be prosecuted."

As far as I'm aware, there's nothing in the impeachment clause to even suggest that a sitting President can't be prosecuted. Even if Democrats had a need not so long ago to pretend otherwise... It simply makes clear that impeachment and removal doesn't count as prosecution for purposes of double jepardy.

Prosecute away, if you can find a willing prosecutor to take on the case. I'd find it vastly entertaining.
 

Sean wrote : "when I was in law school, we learned that law is politics, and if there is no one with the political power to enforce a view, that view simply doesn't count as law."

Sean, I don't know that I've ever heard it put so directly in any school venue, so I would really be grateful to see some sources for the view. A background in sociology would certainly support such a view; as you say in a later comment, it is not that might makes right, but it certainly makes law. However, there is a fatalistic tone to your final clause, "that view simply doesn't count as law," which I think is worth thinking about. Think Plessy v Ferguson. Then think Brown v. Board. The law didn't change; the political makeup of the nation and the bench did. The law remained the same between Plessy and Brown, but the earlier failure to enforce that law was finally corrected. Would that fit the perspective you are offering?

Pertaining to the current situation. Granting Bush war powers was absurd; war is a relationship that obtains between nations, and no amount of war laden rhetoric (be it "war on drugs" or "war on poverty" or "war on terror") can justify confusing the rhetorical label with the denotative meaning of the term. It was irresponsible of this president to ask for these powers, it was a dereliction of duty for Congress to grant his request, and it is the duty of the bench to strike them down. That we may not see the bench fulfill its duty in our lives is a tragedy. But just because the current power structure will not enoforce the law does not mean that law "doesn't count." Such laws count even more when they are being run rough-shod, and it is our duty to do what we can to see them enforced.

Or die trying. We are a complacent bunch. We continue to trade our freedoms for convenience. I sit here in my comfortable home carping about the illegality of Bush's actions, the insanity of my nation having institutionalized the failure to distinguish between a rhetorical use of the word "war" from the actual existence of war. You (as in "y'all") read these words in relative comfort. "Tree of Liberty," "blood of patriots and tyrants" and all that.

Hopefully the GOP death hold on our government will slip in the next elections and the tree can make do on more convenient agricare systems.
 

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It looks like Justice is doing PR for the White House. To evade taint from the NSA revelation, Bush acts shocked, shocked that the liberal press and Democratic opportunists should suggest the tapping and secrecy about the tapping were anything but vital, vital to national security. "Look over at Justice" he says. "The only concern at Justice is the compromising national security leak that has just occured. 'Illegal, to tap'? Who you kidding?!"

Great teamwork by Rove, McClellan and Gonzalez.
 

I would think it prudent to investigate both the leaks and the executive surveillance.
But, one thing comes to mind regarding the leaks, which is:
If the white house knew about the leaks a year ago, when The Times was asked not to publish the information, why didn't they investigate the leaks at that time? Presumably they new they had a potentially serious security breach. Or, did they conduct a covert invesitgation? Not a question I suppose can be answered, but one that comes to mind.
 

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