Balkinization, A.O.: 1; NYT: 0

Marty Lederman over at Balkinization goes through the same analysis of the U.S. Attorney firings that we did a few days back, and reaches the same conclusions as we do re the way the 18 U.S.C. 1505 charge would be brought. That’s small change, really, but it’s a heckuva intro.

More importantly, Lederman gives the next step in the analysis, that is, right, so assuming anything wrong was done, then what? Up front, there’s very little case law on this topic, re whether the Executive can invoke Executive Privilege to refuse to answer questions Congress puts to it pursuant to subpoena.

You’ll recall that here at A.O. we discussed that crimes under both sections 1505 and 1512 must be “corrupt.” Lederman follows the path to a significant and interesting observation:

What gives me pause about the prospect of violations of sections 1505 and 1512, however, is that presumably Karl Rove, Harriet Miers, et al., were serving as agents of the President. And the decision whether to prosecute a federal case under current law is ultimately the responsibility of the President himself. Can the President (or those acting on his behalf) “corruptly” influence decisions over which he himself has the ultimate authority? That seems like an odd notion (and would certainly be a novel

application of the corrupt influence statutes), but I don’t know enough about these criminal statutes to say for certain.

(emphasis added). So, not only would the President be ultimately in charge of prosecuting any violations of the law in this whole hoopla, he was, in fact, ultimately in charge of any ongoing investigations and prosecutions that those U.S. Attorneys were involved in as well. POTUS’ authority and responsibility for those proceedings would seem to mean that he couldn’t corruptly influence them, wouldn’t it? It’s not as if he’s reaching down into another branch of government, which would intrude on separation of powers… At least this is one way to view the mess.

Lederman leaves it in as vague a state as I’m about to, and knowing no more than I did yesterday (and none of you really do, c’mon, admit it), I bid you,


Lime out.



Filed under Law, Politics

2 responses to “Balkinization, A.O.: 1; NYT: 0

  1. Scott de B.

    Isn’t this just a reformulation of Nixon’s statement, “if the President does it, it’s not illegal.”?

  2. No, it’s more of a “if the President does it, and he’s allowed to do it, then it’s OK”. More precisely, the crime itself requires that the action be “corrupt.” Case law is tenuous with regard to what “corrupt” means.

    Given the standard of proof–that a defendant be proved, with regard to each and every elment of the crime, guilty “beyond a reasonable doubt,” then with regard to this imprecise element, it might be that arguments such as those listed could lead to an acquittal.

    That is, assuming it even gets that far.

    With our original “Much ado” analysis in mind, see the Washington Post’s Krauthammer’s article on the subject.

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