Comments (19)

v. popvli wrote on October 26, 2007 6:18 PM:

given that the president does not personally carry out his directives to protect the country, do the agents who discharge his will also rise above the law when conducting actions deemed necessary for national security? to whom and how many shall a president give such authority? what safeguards are in place to prevent abuse of these expanded powers by not only the president, but also by his agents?

Eric Ferguson wrote on October 26, 2007 6:23 PM:

I suggest we all contact our senators. So what if the acting AG stays in office and is just a hack? There's a matter of principle here, and if even right after Gonzo we can't make a stand against the abuse of presidential power, when can we?

dasher wrote on October 26, 2007 6:52 PM:

Good on ya, Bernie!

I'll be calling my senators (Specter and Casey, for all THAT'LL be worth) opening of business on Monday.

chisholm wrote on October 26, 2007 6:59 PM:

Ferg--

I think what has to happen first is an institutional mindset in the Democratic Party. They don't play to win, they play to tie. They don't like being in the minority, mind you, but their ambition ends at power-sharing. That's where and when they stop fighting. Individual members may have personal beliefs and hopes--visions for America they'd like to see fulfilled--but when they stop and think of how bruising the fight would be to get there they recoil, and settle for what they've got. It's as if they're afraid of their own dreams. I've given up looking for anything principle-driven until there's been a purge from the ground up. (And to those who react negatively to the word "purge," it's not always crazy orthodoxy. Sometimes the whole system really is rotten.)

chisholm wrote on October 26, 2007 7:06 PM:

Erm, that'd be "I think what has to happen first is a change in the institutional mindset in the Democratic Party."

Scratch that, too. Make it "revolutionary change."

Dave Huntsman wrote on October 26, 2007 7:19 PM:

Why didn't someone at the hearings simply use the words:
"What happened to 'no one is above the law"?

This man clearly believes a President can - at his own whim - simply define himself to be above the law. How can we allow (another) such man to be AG?

Steambomb wrote on October 26, 2007 8:55 PM:

Look! If the Democrats thought for one minute that they were going to get any evidence of wrongdoing on Bush out of Mukasey they were foolish at best. Mukasey is and was a defender of white collar criminals. His experience will lead only down one path and that is to cover up the corruption of the Bush regime. Hell they would be better off leaving someone that is inept at the postion in it so that they could at least hope they would make a mistake the way that Gonzo did when he lied to congress. That of course wouldn't be good for the country but neither is putting someone with a criminally genius mind in that will bury the skeletons so deep it would be easier to start in china when digging them out.

shipwreckedcrew wrote on October 26, 2007 9:51 PM:

You folks don't know much about your history.

You should spend a little time reading The Terror Presidency by Jack Goldsmith. He covers numerous historical precedents of Presidents disregarding statutes in times of war when those statutes hindered the Presidents' exercise of Commander in Chief powers.

The words of Article II mean something. There is an arena of conduct that is wholly conferred upon the Executive in Article II which cannot be modified by statute, any more than the Supreme Court can originate a bill for raising revenue. If Congress wants to dictate the President's Commander in Chief power it can only do so via an Amendment to the Constitution. A statute doesn't count.

Nell wrote on October 27, 2007 12:34 AM:

Finally, a Senator homes in on the central question. No one should be confirmed as Attorney General who will not plainly say that the president does not have the power to break the law.

Thanks for this post.

shipwreckedcrew wrote on October 27, 2007 5:06 AM:

Nell: What if Congress passed a law that said the penalty for obstruction of congress shall be death, and that there shall be no right of appeal from a trial court conviction?

Does the President have the authority to not "faithfully" execute that law?

Maria wrote on October 27, 2007 10:00 AM:

shipwreckedcrew, that's such a straw man.

shipwreckedcrew wrote on October 27, 2007 1:18 PM:

Maria -- not its not. It addresses the question of whether the President can refuse to faithfully execute an unconstitutional STATUTE.

It has NOT always been the case that the President was obligated to faithfully execute all statutes until the Supreme Court says which ones are unconstitutional. There are three co-equal branches of government. The President has just as much constitutional authority as the other two branches to chose not to enforce statutes he concludes are unconstitutional -- it would be a violation of his oath to PRESERVE, PROTECT, and DEFEND the Constitution.

That oath is in the Constitution, and it is different from the oath taken by federal civil service employees, who swear to "Support and Defend the Constitution".

The President is the ONLY office holder who swears an oath to PRESERVE and PROTECT the Constitution.

So, if Congress passes a statute clearly in violation of the Bill of Rights, does the President, pursuant to his oath of office, have an obligation to disregard that law?

Now, if Congress passes a statute clearly in violation of Article II, does the President, pursuant to his oaht of office, have an obligation to disregard that law?

What is the President's obligation if the statute in question with respect to Art. II is vague?

These are not strawman questions. They are very real questions that the Executive and Legislative branches have been arguing over since the Civil War.

Go read Jack Goldsmith's book.

Richard L. Adlof wrote on October 27, 2007 3:42 PM:

Sanders is dead on correct in his appraisal of Mukasey.

Stamp is forehead with rejected and send Bush a "Try, again." note.

Kelvin Phillips wrote on October 27, 2007 5:10 PM:

"The President is the ONLY office holder who swears an oath to PRESERVE and PROTECT the Constitution." by shipwreckedcrew

But that is precisely the problem! President Bush and his ilk has been slowly destroying the consitituional protections under the guise of fighting "The War on Terror". What good is it when in fighting this so-called war the people lose everything they were fighting for?. Mukasey is part of a much larger problem. The idea of the unitary executive. There were such systems before the advent of democratic republics, and they were called monarchies!

Kelvin Phillips wrote on October 27, 2007 5:17 PM:

"The President is the ONLY office holder who swears an oath to PRESERVE and PROTECT the Constitution." by shipwreckedcrew

But that is precisely the problem! President Bush and his ilk has been slowly destroying the consitituional protections under the guise of fighting "The War on Terror". What good is it when in fighting this so-called war the people lose everything they were fighting for?. Mukasey is part of a much larger problem. The idea of the unitary executive. There were such systems before the advent of democratic republics, and they were called monarchies!

Helen Rainier wrote on October 28, 2007 8:03 PM:

What in the hell is that answer of Mukasey's supposed to mean? I've re-read it several times and for the life of me I can't figure out what he's saying.

jane wrote on October 29, 2007 12:43 PM:

We have a Supreme Court which is supposed to decide which laws are constitutional and should be obeyed -- it should not be the role of the Office of Legal Counsel.

The idea that the President could simply ignore laws that he didn't like was considered and rejected by the Founders.

cjb wrote on October 29, 2007 1:13 PM:

Jane is correct. The hypotheticals used are not valid as the Supreme Court's role is ignored in deciding what is constituional or what isn't. You are insinuating dictatorial powers that the President clearly doesn't have.

Anonymous wrote on October 29, 2007 7:17 PM:

Jane and cjb -- what did FDR do when he sold destroyers to the British in 1940?

He violated the Neutrality Act.

He determined it was in the national interest that he do so.

He obtained a flimsy opinion from his AG -- Robert Jackson, later the author of the famous concurring opinion in Youngstown Sheet & Tube.

And he convinced the Republicans in his administration to convince the Republicans in Congress to not contest his action.

Pretty much the same thing was said about him at the time as is said about Bush now by his opponents.

But the destoryers quite likely prevented an invasion of England by Hitler.