Lindsey Graham’s and Jon Kyl’s imaginary colloquy

July 13, 2006

I was talking to someone last week about the Hamdan case at the Supreme Court and my friend mentioned a “fraudulent argument” Sens. Lindsey Graham (R-S.C.) and Jon Kyl (R-Ariz.) presented to the court. I hadn’t heard about it, so I assumed the Republicans had made a misleading, Bush-friendly case.

As it turns out, when my friend said “fraudulent,” he meant “fraudulent.”

Sens. [tag]Lindsey Graham[/tag] (R-SC) and [tag]Jon Kyl[/tag] (R-AZ) drafted a fictional account of a supposed debate they had on the Senate floor and submitted it to the Supreme Court in an effort to convince the Court that it did not have jurisdiction over the recent [tag]Hamdan[/tag] case. Hamdan’s lawyers, however, spotted the [tag]hoax[/tag]. They told the Court that the legislative history was entirely invented after-the-fact, and that it consisted of “a single scripted colloquy that never actually took place, but was instead inserted into the record after the legislation had passed.”

The brief noted that this Graham-Kyl colloquy was “simply an effort to achieve after passage of the Act precisely what [they] failed to achieve in the legislative process.” The insertion of the added comments was noted and rejected by the court.

In fact, Graham and Kyl went to considerable lengths to try pull this stunt off. The phony transcript of Kyl, for example, quotes the Arizona senator as saying, “Mr. President, I see that we are nearing the end of our allotted time.” The same transcript shows the two also added an interruption from Sen. Sam Brownback (R-Kan.) to help add to the authenticity of the Senate debate that never actually happened in reality.

John Dean, former counsel to President Richard Nixon, said the two tried to pull a “blatant scam.” Graham responded by saying, “I know what I’ve done. I’ve done it before and I’ll do it again.”

The senators point out that members routinely add statements to the congressional record. That’s true, but Graham and Kyle seemed to go further, writing a script of phony dialog. I’m curious, does anyone know if this is actually common? It seems a little over the top.

Don’t know if it was used before or not, but as both kyl and graham are attorneys I wonder whether filing fraudulent evidence with a court is cause for disbarment. Seeing that they did not note, for the court’s understanding, that this little script was added after the fact, and seeing the manner in which it was made, to make it look like it was an actual part of a record of which it was not, was meant to intentionally deceive its readers, i.e. the court, this really does smell like some serious ethical and punishable violations occurred.

  • We can hope, bubba.

    Sadly, i wouldn’t be suprised if this was common. Congress constantly revises it’s statements, and once you’re in their revising, why not add a bunch of colloquialisms?

    they should be forced to footnote or otherwise call out additions, subtractions or alterations to the record. As it is, I do not think they have to.

  • I always thought that Graham’s squirelly little voice was hiding a basically immoral character. I expect William J. Haynes to be voted out of committee with Graham’s vote any day now.

    Brrrrrrrr!!!!!!!!!!!!!!!!!!

    What people will justify in their own minds.

  • Maybe next they’ll add statements to the congressional record that George W. Bush swam across the Yangzi river faster than Mao did.

  • Sadly, this only reinforces Scalia’s position that Legislative History doesn’t matter (Stevens’ opinion in Hamdan actually gets a jab in at the manufactuered dialogue; the wingers give the liars a pass).

    Even if this happens with some frequency in the increasingly non-deliberative, partially hydrogenated Congress-like substance (Congress Whip?) I think it is a whole new level when you try to use it at the Sup Ct to claim Congress’ intent in passing a law was exactly the opposite of what the live floor debate would otherwise suggest.

  • Submitting fraudulent evidence to any court, with knowledge that the evidence is fraudulent vis-a-vis being a party to its creation, is supposed to be a criminal offense. I wonder what’s going to happen to these two loons come January, when they’re no longer on the majority side of the aisle? getting disbarred is one thing—but being led down the Capitol steps in handcuffs is quite another….

  • What is really, truly, sad is that Lindsay Graham really is the “best” Republican on the issue of forcing the Administration to write rules in the wake of Hamdan that will withstand judicial scrutiny. Even with this sort of thing in the record.

    Of course, that doesn’t show how “good” Lindsay Graham is, it just shows on this issue he’s the least bad of the scumsucking Corporate Treason Party.

  • Inserting stuff into the record isn’t uncommon, but for those who did it to deliberately misrepresent it as having actually occurred to a Court in order to influence their decision is very different.

  • start broken record: if Clinton had done this. . .
    (and he did lose his license, for something I consider no worse, and perhaps not as bad, as falsifying the record before the US Sup Ct)

  • What really proves the hoax that they were trying to perpetrate is the amicus brief itself which affirmatively represents that the remarks were live and not inserted. I’ve laid out the relevant portion of the brief here and also give a link to the brief itself.

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