Dumbest. Legal Arguments. Ever.

December 29, 2007

It’s hardly a secret that the Bush administration has treated the rule of law as some kind of punch line for the better part seven years now, but Slate’s Dahlia Lithwick has done the political world a tremendous service by documenting the “Administration’s Top 10 Stupidest Legal Arguments of 2007.”

Now, if you’re like me, you may generally avoid these end-of-the-year Top 10 lists. But this one’s a must-read. Most reasonable people who take the law seriously would be humiliated by any of one of these arguments — but the president’s lawyers not only made all of these absurd arguments, they did so in just the last 12 months.

All 10 are worth considering in detail, but here are a few of my personal favorites:

* The NSA’s eavesdropping was limited in scope: Not at all. Recent revelations suggest the program was launched earlier than we’d been led to believe, scooped up more information than we were led to believe, and was not at all narrowly tailored, as we’d been led to believe. Surprised? Me neither.

* Scooter Libby’s sentence was commuted because it was excessive: Dick Cheney’s former chief of staff, Scooter Libby, was found guilty of perjury and obstructing justice in connection with the outing of Valerie Plame. In July, before Libby had served out a day of his prison sentence, President Bush commuted his sentence, insisting the 30-month prison sentence was “excessive.” In fact, under the federal sentencing guidelines, Libby’s sentence was perfectly appropriate and consistent with positions advocated by Bush’s own Justice Department earlier this year.

* The vice president’s office is not a part of the executive branch: We also learned in July that over the repeated objections of the National Archives, Vice President Dick Cheney exempted his office from Executive Order 12958, designed to safeguard classified national security information. In declining such oversight in 2004, Cheney advanced the astounding legal proposition that the Office of the Vice President is not an “entity within the executive branch” and hence is not subject to presidential executive orders.

Remember, these weren’t just silly talking points repeated on Fox News; these were official legal arguments presented in formal settings, all of which were either false, ridiculous, or both.

OK, a couple more, just because I can’t help myself.

* Water-boarding may not be torture: Water-boarding is torture. It’s torture under the Geneva Conventions and has been treated as a war crime in the United States for decades. The answer to the question of its legality should be as simple as the answer to whether boiling prisoners in oil is legal. But in his confirmation hearings to become U.S. attorney general, Michael Mukasey could not bring himself to agree. He claimed not to have been “read into” the interrogation program and to be incapable of speculating about hypothetical techniques. He added that he did not want to place U.S. officials “in personal legal jeopardy” and that such remarks might “provide our enemies with a window into the limits or contours of any interrogation program.”

* Everyone who has ever spoken to the president about anything is barred from congressional testimony by executive privilege: This little gem of an argument was cooked up by the White House last July when the Senate judiciary committee sought the testimony of former White House political director Sara Taylor, as well as that of former White House counsel Harriet Miers, in connection with the firing of nine U.S. attorneys for partisan ideological reasons. Taylor was subpoenaed in June and, according to her lawyers, she wanted to testify but was barred by White House counsel Fred Fielding’s judgment that the president could compel her to assert executive privilege and forbid her testimony. As Bruce Fein argued in Slate, that dramatic over-reading of the privilege would both preclude congressional oversight of any sort and muzzle anyone who’d ever communicated with the president, regardless of their wish to talk.

For all the talk about impeachment of the president, I can’t help but wonder if we might also consider another tack: disbarment of the Bush administration’s lawyers.

It used to be that the media would use its position as the Fourth Estate and deconstruct and laugh at these bizarre explanations so that the public would turn against those that proffered them. Not anymore. Now reporters and their editors dutifully stenograph such bald-faced lies under the guise of being fair and balanced and not fact-checking such claims for their veracity. Why not resort to such audacity when the media gave you an inch and never complained when you took a mile.

  • It’s worth remembering that these folks never got over the raw deal that lead to Nixon’s resignation. When he said, “Well, when the president does it that means that it is not illegal,” most of the democratized world was incredulous. But Dick and his minions thought it was obviously self-evident. In that regard, BushCo’s rationalizations aren’t even necessary. They’re just a courtesy based on a corollary: ‘if the president says it, that means it’s true.’

    (I guess the WH was satisfied with 2007’s top 10 and will save the rationalization for a pocket veto while Congress is in session for 2008’s greatest hits.)

  • Ridiculous as these arguments are they were all that was needed for the WH to get everything it wanted. Along with the statement “If the president does it then it’s not a crime”, comes… if the congress allows it and allows it to continue then it was never a crime. Congress has gone out of its way to make sure Bush will not be impeached to the point that they could have written these ridiculous arguments themselves. Bush/Cheney’s number 1 argument…”Somebody stop me”, (said like Jim Carey from the “Mask”)

    Great post to show how this administration tries to cover its ass.

  • The legal arguments offered up by this WH crowd and now documented over @ Slate are taking us down a very slippery slope. As the current WH resident is spouting off that he goes around the world and spreads good cheer and promotes democracy is, it seems, actively coordinating the demise of our own democratic republic.

    Talk about yelling thief while he has his hand in my pocket, and I think you will have a spot-on analysis of this presidency’s anathama to our heritage. -Kevo

  • “For all the talk about impeachment of the president, I can’t help but wonder if we might also consider another tack: disbarment of the Bush administration’s lawyers.”

    If only. Can’t say I’d want to join any legal club that would have those folks as members. Can’t say I respect anyone who’d want to join any legal club that would have those folks as members. Sadly, impeachment is more likely. Hell, impeachment was more likely when Republicans controlled Congress. Impeachment would be equally likely if it required a unanimous vote of George W. Bush and Dick Cheney.

    I so need to leave the legal profession in my past. This much cynicism is not good.

  • Wouldn’t it be great if we could be laughing about these dumb legal arguments, knowing they had been roundly rejected, or set aside, that there had been litigation that made mincemeat out of them? That the Supreme Court had delivered a death blow to this nonsense? That members of Congress stood up and fought against them?

    Instead, these dumb arguments won the day for the Bush administration, with Democrats blustering weakly, then cowering in fear of being deemed weak on national security,and then caving completely in the face of them, signing on to legislation that allowed continued erosion of individual rights, incursions on our privacy, and ensured that grossly illegal actions could continue unimpeded.

    It is sickening and shameful enough that we have had years of an administration that has had no regard for the law or the Constitution, but the Congress has been criminally derelict by its complicity in some instances, by its rendering powerless those who attempted to hold them accountable, and by its eliminating of the option to impeach. Is it as criminal as the administration’s commission of the crimes themselves? Well, let’s just say that when you allow it to happen, when you make it easier for it to happen, yeah – it probably is.

    Truly shameful.

  • “…with Democrats blustering weakly, then cowering in fear of being deemed weak on national security,and then caving completely in the face of them, signing on to legislation that allowed continued erosion of individual rights, incursions on our privacy, and ensured that grossly illegal actions could continue unimpeded.”

    That’s a pretty bleak yet truthful assessment. If the Dems can’t stand up to Bush and the GOP now how in the world can voters have confidence will they find the back bone to step up and govern in the times of crisis?

  • I have never in my long adult life ever been so ashamed of my government. I wish I could say otherwise. I was one of those 88% (or whatever) of American who were totally behind President Bush after 9/11. Eventually, as with almost everyone else, he lost my support and now, my only hope is that the next months fly by and the Bush administration doesn’t do anything worse then they already have.

    Shame, Shame, SHAME on them!

    Dr Doug

    PS: Of course, we have to remember – we get who we vote for.

  • PS: Of course, we have to remember – we get who we vote for.

    Indeed. Which is why impeachment never really made much sense after the 2004 elections. Even if people didn’t realize what Bush was in 2000, they knew by 2004, or at least had little or no excuse for not knowing. Bush hasn’t done anything since then other than exactly what he was voted into office to do. While that doesn’t excuse him or anyone in his administration from criminal punishment, it really undermines the justification for impeachment. I think arguments for impeachment that don’t explicitly acknowledge that impeachment is, in this case, intended to protect Americans from the impossible-not-to-foresee consequences of their own stupidity by overturning the intended results of an election are nonstarters.

  • There is only one snake. It has two heads.

    That the lameness of Bushco’s legal arguments has not been trumpeted from the rooftops is just another sign of our decay. If someone was to rock the boat then, good grief, things might change. The heartless, ball-less, talentless, clueless son-of-a-bitches who have been making big bank and accruing power on lies and the sweat of any brow but their own might be displaced.

    And we can’t have that, can we?

  • JRS #8 – It would appear that you’re insinuating that since the Democratic leaders in the House and Senate have shown weakness in countering a sitting president that the entire Democratic presidential slate must be written off and a Republican, obviously, must be put into power. What nonsense. The Republicans have been enablers the lot of them to these legalistic excesses, with the exception of the occasional tsk-tsking from a Republican who shows a sense of spine only to melt back into the crowd when the glaring look comes down from the White House. Rather than act as the conscience of their party and try to make changes quietly from the inside, Republicans are now trying to run to the more radically illegal side of Bush. Dems, with all their faults, are the only hope for this nation.

    #10 Robert Johnston – No, because a president gets re-elected does not make anything they do unimpeachable. Please go to right wing sites and tell them that tidbit as a reason Clinton should have never faced impeachment in his second term because the rumors of his being a lady’s man were already out there in his first term. Wear your best asbestos suit. A truly just nation should look for ways to bring lawbreakers to justice rather than let them off on technicalities such as the one you advance.

  • Nothing surprises me anymore since the Constitution has been trashed and fed judges are making law.

  • Narrowly missing out as number 11 must have been the shifting rationale of convenience that the US is “at war” despite our Pretzeldent’s refusal to comply with the clear Constitutional requirement for a declaration of war. Of course we’re suddenly not at war when prisoners of war are captured so they can ignore the Geneva Conventions.

  • Let us remember you don’t pardon someone if you think their sentence is excessive, you reduce the sentence. It appears Bush thought the appropriate sentence for the crime Libby was convicted of was zero.

  • “It would appear that you’re insinuating that since the Democratic leaders in the House and Senate have shown weakness in countering a sitting president that the entire Democratic presidential slate must be written off and a Republican, obviously, must be put into power.”

    Didn’t mean to insinuate that at all. I am just pointing out that since the Dems appear to be so “spineless” on so many issues, ’08 will not prove to be an easy election for them, despite all the mistakes made by the other party the last several years.

  • “…is, in this case, intended to protect Americans from the impossible-not-to-foresee consequences of their own stupidity by overturning the intended results of an election are nonstarters.”

    And so impeachment is only valid to go after sex crimes, or what? If not rescue from stupidity, what is impeachment for? I continue to be baffled as to the argument against impeaching Bush/Cheney. They break the law, they flout the law, they’re begging for it.

  • “…is, in this case, intended to protect Americans from the impossible-not-to-foresee consequences of their own stupidity by overturning the intended results of an election are nonstarters.”

    And so impeachment is only valid to go after sex crimes, or what? If not rescue from stupidity, what is impeachment for? I continue to be baffled as to the argument against impeaching Bush/Cheney. They break the law, they flout the law, they’re begging for it.

    Yes, they begged for it. And the American people told them: “Keep committing your crimes. We don’t mind. We know all about them, but you’re just hunky-dory with us. Four more years!”

    The point is that the American public spoke loudly and clearly by reelecting the clowns, and the purpose of impeachment is not to remove from office a President and Vice-President who specifically had their policies ratified by reelection, whatever those policies are. Bush’s crimes are, well, criminal, but the American people said they’re not political, and that judgment should be respected under our current system of government. There’s nothing we know about Bush and Cheney now that we didn’t effectively know in 2004. We knew about renditions, we knew about signing statements, we knew about lying us into war in Iraq that they had no plans to get out of, we knew about Guantanamo, we knew about torture, we knew about the abuse of secrecy, we knew that they didn’t think the law applied to them. We knew it, and they were reelected anyway. The American people have said, as clearly as they can say, that Bush and Cheney’s obvious crimes, however many consecutive life sentences they’re entitled to upon criminal conviction, don’t disqualify them from holding their offices, and it’s not the place of Congress to overturn that decision of the American people.

    We would be a better country for impeaching Bush/Cheney and removing them from office, but the American people voted to be a worse country. Absent some qualitatively new grounds for impeachment, or some imminent threat to the country from Bush and Cheney remaining in office, impeachment would be nothing more than a purely political decision to overturn the result of a valid election reached with a public that had the relevant information fully available.

    Impeachment exists to remove people from office for political crimes that have not been considered or can not be considered by the electorate. Maybe we need a different form of government, but we have the one we have, and we have the President we deserve.

  • Sadly, Robert, I see much to agree with in your assessment. Our nation’s problems will not disappear when Bush/Cheney leave office–because the sizable portion of the electorate that supports them and/or their policies will remain, ready to support more clowns wanting to do more of the same. We need to focus on education over the course of a generation in order to bring our nation back–and work hard in the meantime to stave off the worst.

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