"John R. Carroll" wrote in message
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"Ed Huntress" wrote in message
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"Curly Surmudgeon" wrote in message
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On Sat, 08 Nov 2008 21:01:23 -0500, Ed Huntress wrote:


"Curly Surmudgeon" wrote in message
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On Sat, 08 Nov 2008 18:08:09 -0500, Cliff wrote:

On Sat, 08 Nov 2008 06:26:31 -0800, Curly Surmudgeon
wrote:


We're all angry at them, and it's natural to think they *should* be
guilty of some crime, but I doubt if there is anything prosecutable
there.

Warrantless spying on American's in America would be a better place to
start Ed.

And what would be the upshot of that, John? A constitutional debate, settled
by the Supreme Court, in which they tell the executive branch to knock it
off, right? And maybe some civil cases, assuming someone can prove harm, and
even more dubious, that they would be granted standing by the federal
courts. Right?

Where's the criminal act? Whenever Congress tries to tell the executive
branch what they can and can't do, they're on thin constitutional ice. They
may win in the S.C. But that won't be a criminal case. It will be a
constitutional case.

Torture is also against the law.

So the S.C. will settle the issue of what constitutes torture, and tell the
administration that John Yoo's legal arguments are wrong. Again, where's the
crime? You have another constitutional debate, with the executive branch
prosecuting its definition of torture. I don't see who you would prosecute
for a crime. If the Court wants to, it could remand such a case back to a
trial court for prosecution. But would such a case ever see the inside of a
trial court? If it involves a huge constitutional issue -- and this one
does -- it probably would go right to the S.C. for a hearing on the
constitutionality of the issue.

Now, they might think differently at the Hague. But we don't recognize that
court.

I'd also be willing to bet a tidy sum that a Hatch Act case could be
pursued all the way to the White house.

Under the 1993 amendments, it's very unlikely they'd be able to prosecute.
The Hatch Act has been gutted at the federal level.


This stuff isn't either imaginary or the result only of anger.
The President of the United States has been on national television
admitting first that certain acts are illegal and a day or so later,
admitting that they had both been undertaken and that such would
continue - law or no.

When Congress authorized Bush to go to war in Iraq, they opened a Pandorra's
box. Now everything the executive branch does is theoretically under the
cloak of war powers, which are delineated by a mish-mash of Court precedents
and potential constitutional crises that are just lying in wait. Every
president since Lincoln, at least, who has engaged in war has broken the law
under assumed powers and it's rarely been challenged.

Nobody wants to bring these cases because they don't want to raise the
spectre of a constitutional crisis; the authority of the Congress over the
executive is only a gentlemen's agreement to begin with. If the executive
wants to get hard-nosed about it before the Court, they can tell Congress to
go **** up a rope and the Supreme Court, particularly this Court, may agree.
That would serve no one's interests.

The Founders left a lot of loose ends regarding these relationships, not the
least of which was a complete lack of a mechanism for resolving the
constitutionality of laws, and another of which was how the branches were
supposed to get along. It works on tradition and acceptance of precedent.
Nobody wants to push that too far. Prosecuting appointed executive officials
like Scooter Libby is one thing. Prosecuting elected officials is something
else.

The Spiro Agnew case, I think, was telling. Nobody could dispute his
criminality; Nixon didn't put up a fight. But the cases Curly is talking
about are really disagreements between the branches (or potential
disagreements) about what constitutes criminality. I can't think of where
that's been tested against elected officials in a criminal case. I don't
think it has been. Congress's remedy is impeachment, as they threatened
against Nixon, Clinton, etc.


I'll be very interested in the Obama administrations appointments at
Justice.
You should be too. We all should.

I'm more interested in what happens with the Supreme Court. And I don't want
to see a constitutional crisis. We'd all suffer from it.


I'll allow that there are big issues to be dealt with that overshadow
these things in the minds of most Americans.
Any initiative won't come out of the White House. That doesn't mean the
Congress has to sit on their collective hands breathing a sigh of relief
that we've just dodged a bullet. We really haven't. We've taken a hit and
absorbed the impact. That's different.

I'm cautious about your position on prosecuting top elected officials in the
executive branch. I recognize your point about being a nation of laws, but
prosecuting them would raise a bigger issue, which is how the three branches
of government are related in terms of authority. They get along because
Thomas Jefferson, in the Marbury case, decided they had to get along by
reasonable agreement. As it works now we have a uniquely effective balance
of powers. Create a big constitutional dust-up, and that could open the
gates of hell.

--
Ed Huntress