Thursday, February 07, 2008

Nixon re-redux: "When the preznit's consigliere says it's OK..."

New twist on Nixon's famous line: "Well, when the president does it that means that it is not illegal."

(looks like a new twist on this one every week from the maladministration)

We now add "delegation of irresponsibility". Thanks to Emptywheel, liveblogging the AG Mukasey hearings in Congress, we have this transcript (apparently very rough and approximate; I'll update as soon as I get a good copy):
Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.

MM: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.

Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.

MM: Immunity connoted culpability.

Delahunt: This is brand new legal theory.

MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.

Delahunt: Let's concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.

MM: If you're talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn't. But yes, that bars the person who relied on that opinion from being investigated.

Delahunt: I find that a new legal doctrine. The law is the law.

MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.

Delahunt: Is there a legal precedent.

MM: There is practical consideration.

[apparently MM, again]: I can't cite you a case.
What this "legal doctrine" boils down to is that any opinion by OLC, even if wrong, is an absolute bar to investigation and prosecution. IOW, "when the preznit's consigliere says it's OK, that means that it is not illegal...." Kind of an amalgam of Nixon's first formulation, and the Nürnberg defence.

FWIW, "reliance" is generally a defence in civil proceedings; despite AG Mukasey pretending it works here, he's just plain wrong.

I explain this here (et seq.). Another money quote is this:
There is no such thing as an "advice of counsel" defense. United States v. Benson, supra, 941 F.2d at 614; Markowski v. SEC, 34 F.3d 99, 104-05 (2d Cir. 1994); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 576 (10th Cir. 1984); United States v. Civella, 666 F.2d 1122, 1126 (8th Cir. 1981); United States v. Conforte, 624 F.2d 869, 876 (9th Cir. 1980).


ThinkProgress weighs in.

Update 2:

TPM Muckracker has more:

Rep. Bill Delahunt (D-MA) wanted some clarity during his questioning. Was the attorney general really saying that anyone who acted pursuant to a Justice Department legal opinion was "insulated from criminal liability?"

Mukasey wanted to say it more carefully. "I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion."

But even if that opinion was "inaccurate," Delahunt wondered, and that behavior really did violate the U.S. criminal code, you're saying that someone who relied on it would effectively have "immunity from any culpability?"

"Justified reliance," Mukasey answered, "could not be the subject of a prosecution." Simple as that. "Immunity connotes culpability,” he added, so it wasn't immunity, exactly, but the effect was the same.

Delahunt (much like Sen. Joe Biden (D-DE) in the last hearing) proclaimed himself baffled. This was a "new legal doctrine" for him. He'd thought "the law is the law." What if there was a mistake? he wanted to know. What happened then?

That made no difference, Mukasey said. If a later legal opinion came to a different conclusion about whether something was lawful, the person who relied on the earlier, erroneous interpretation was still protected.

Delahunt, still baffled, wanted to know if there was a "legal precedent" for this view of the Office of Legal Counsel's power.

Mukasey replied that it was a "practical consideration."

When Delahunt asked again, Mukasey admitted, "I can't sit here and cite a case."

Update: As I said earlier, it's worth recalling former OLC chief Jack Goldsmith's comments that the OLC has the power to dispense "advance pardons."


At 11:03 AM, Blogger Cocktailhag said...

The novel legal theories fall like rain, don't they? Given a sufficiently credulous media, I guess anything is possible.

At 5:13 PM, Blogger William A. Jacobson said...

For a contrary view of the law on the advice of counsel defense, see


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