Rule ‘O Law

by digby

I was so excited to see that renowned conservative legal scholar Douglas Kmiec had an op-ed discussing the illegal NSA spying program in the Wapo this morning because he has so often been such an eloquent defender of the rule of law and the necessity of presidents being subject to legislative and statutory limits on their power.

For instance, in this fascinating book, Kmiec contributed an entire chapter on executive authority which he begins like this:

I am a defender of executive power. No one who has headed the office of legal counsel, designed to preserve the office of the presidency, could be otherwise. But defending the constitutional parameters of presidential power is fundamentally different from defending assertions of power inclined toward excess or abuse.

Having been impeached by the house of representatives and found in contempt by a federal judge foir misleading a federal court in a civil rights uit brought against him, President Clinton has had some difficulty with the requirements of the rule of law, Whether of not one thinks the personal behavior of the president is a fit subject for judicial and congressional scrutiny, one cannot help but be concerned about the extent to which this president is carrying out his government functions, has directed the executive beyond the boundries of lawful authority. This chapter focuses on the use of executive orders and other presidential directives, but the excesses outlined here take on greater magnitude when coupled with the president’s willingness to engage his nation in undeclared wars, circumvent the advise-and-consent functions of the Senate or employ the White House as a fund-raising prize.

It is significant that presidential power in the Constitution is cast mostly in language of duty: to “take Care that the Laws be faithfully executed.” As one presidential scholatr has written, “the duty to execute the laws “faithfully’ means that American presidents may not — whether by revocation, suspension, dispensation, inaction or otherwise — refuse to honor and enforce satutes that were enacted with their consent or over their veto. Many scholars have agreed that the Take Care Clause was meant to deny the president a suspending or dispensing power [like that exercised, before American independence, by the Stuart Kings].

…The duty of the president is to faithfully execute, not invent, the law. yes, the extent of executive power can be debated, and yes, some political scientists complacently claim that all modern presidents have pressed or exceeded the boundaries of Article II authority. Yet those sworn to “taking care” of the execution of the law must be held to a high standard.

He went on to explain that President Clinton’s use of executive orders, while numbering no greater than other modern presidents, were nonetheless a usurpation of the proper judicial and legislative functions of the government. And more importantly, they undermine our faith in the rule of law, (which is what Republicans care about most in this world.)

I could hardly wait to hear what he would say about a president ignoring the long standing the FISA act, but also the deep concerns of certain judges and the highest levels of the Justice Department (including the Attorney General) to carry out a secret spying program. Surely, compared to issuing executive orders, which has been done openly and without legal controversy by every president, this action could not “complacently” be seen as business as usual. Indeed, this would be the very definition of “inventing” the law.

How disappointing then to find that this great upholder of the “rule of law” is just another snotty partisan whore.

Ok, I’m kidding. I already knew that. And the fact is that a very large number of right wing legal scholars seem to have the unusual view that a president has committed high crimes and misdemeanors if he lies about a sexual affair but he has ultimate authority to do anything he chooses in his role as president. I find this a little bit strange.

Marty Lederman takes Kmiec’s argument apart, piece by piece in devastating fashion — and exposes it for the dishonest, nasty piece of work it is. But there should never be any doubt about guys like Kmiec. They are not scholars. They are mob lawyers.

The book I excerpted above has this blurb on the back:

The Rule of Law in the Wake of Clinton contains 15 essays by scholars, lawyers, lawmakers and cultural critics that chronicle Clinton’s utter disregard for “a nation of laws, not of men.”

University of Virginia Law Professor Lillian R. BeVier opens the book with a scholarly essay defining the rule of law and explaining why it is so important as a constraint on “the conduct of both individual citizens and those who govern them.”

Senator Fred Thompson examines China’s illegal contributions to the Clinton-Gore campaign and the abject refusal of Attorney General Janet Reno to investigate the matter, concluding that “there can be no clearer example of the undermining of the rule of law.”

ACLU President Nadine Strossen condemns, among other things, Clinton’s actions to restrict habeas corpus, his attempts to censor the Internet, and his efforts to create databases on all Americans. Clinton has worked closely with the Republican Congress to undermine the rule of law, she says, but “the Clinton administration bears the brunt of the blame for all those devastating assaults on cherished constitutional rights.”

Roger Pilon looks at Clinton’s disdain for constitutionally limited government. Repeatedly, Clinton acted “as if the Constitution were an empty vessel to be filled with his policies and programs.” In a similar vein, former Assistant Attorney General Douglas W. Kmiec examines Clinton’s efforts to promote his policies through executive orders, “often without any citation of statutory authority, thereby bypassing legislative procedure.”

Timothy Lynch, director of the Cato Project for Criminal Justice, notes that “Clinton has exhibited contempt for the very Constitution he took an oath to uphold,” as evidenced by his support for warrantless searches of public housing units, warrantless drug testing in public schools, a weakening of the right to trial by jury, and expanded property forfeiture. Clinton’s record on economic liberties is no better. James Wootton, president of the U.S. Chamber Institute for Legal Reform, examines the administration’s resistance to compensation for “regulatory takings” of private property. But when the federal government does have power to override state tort law that frustrates interstate commerce, Wootton says, Clinton refuses to use it.

Cato Senior Fellow in Constitutional Studies Robert A. Levy and Alabama Attorney General Bill Pryor focus their attention on the illegitimate wars on tobacco and guns, respectively. Both wars undermine centuries-old common law principles. Former White House Legal Counsel C. Boyden Gray looks at the administration’s war on Microsoft, which “represents nothing more than a successful hijacking of the government’s regulatory power by Microsoft’s competitors — an especially grievous abuse of the rule of law.”

Former Assistant Attorney General Theodore B. Olson chronicles how Clinton and Reno have thoroughly politicized the Justice Department.

Berkeley Law Professor John C. Yoo discusses the imperial president abroad, showing how Clinton has abused constitutional restraints on his foreign power while ceding the authority of the federal government itself to international institutions.

Finally, the book examines how and why the institutions one would normally expect to be defending the rule of law have failed. Former Justice Department attorney Daniel E. Troy, Illinois Law Professor and Cato Visiting Scholar in Constitutional Studies Ronald D. Rotunda, and author David Horowitz look, respectively, at the political parties, the bar and the legal academy, and the media and the cultural institutions, each of which not only failed but was often complicit in undermining the rule of law.

Man, it makes you want to stand upand sing “The Star Spangled Banner”, doesn’t it?

These are very serious people, the “grown-ups” who (with the exception of Nadine Strossen)wrote this devastating critique of the lawless Clinton administration and have sat by while the Bush administration, (and some of these writers personally) turned the constitution into toilet paper. I listened to them moan and screech and rend their garments for years about the Clinton administrations failure to uphold the “rule ‘o law” and how it was undermining the moral fabric of America. In fact, here’s a perfect example of their bilious phony sanctimony from the same book:

“The rule of law is no pious phrase from a civics textbook. It is what stands between us and the arbitrary exercise of power by the state. It is the safeguard of our liberties. Once, that was broadly understood in our land. If that understanding is lost, or if it becomes seriously eroded, the American deomcratic experiment and the freedom it guarantees are in jeopardy. The contribution made by this book to our understanding of those important lessons is crucial for American democracy at the dawn of the 21st century.”
–Henry J. Hyde, Chairman, House Judiciary Committee

Blah, blah, blah. Lying to cover up unauthorized presidential fellatio was a grave threat to the constitution. Impeach! But today, as the government endorses torture, indefinite imprisonment without access to a lawyer (and more that we still don’t know about) these lecturers about “honor and integrity” are writing snide and shallow op-eds in the Washington Post defending the president even when he was so insistent on his dictatorial prerogatives that he sent his henchmen to the bedside of a sick man on drugs to coerce him into signing off on illegal, unconstitutional programs.

The American conservative project is morally and intellectually bankrupt. There is nothing left but the decaying corpse of a once great political philosophy, surrounded by a bunch of vultures and jackals feeding off its fetid flesh. And Douglas Kmiec has long been one of the leading liars of the legal pack:

DOUGLAS KMIEC: Jim, I think the public has always been – I think Bruce is partly right. The public has been saying two things, however: they’ve been saying they view this President as a popular, likeable President. But they’ve also acknowledged in almost every poll that I’ve seen that they don’t accept perjury; they don’t accept abuse of office; and they recognize that President Clinton had not given any factual defense to the wrongdoing that he’s committed in office. And so they’ve – while they’ve said they didn’t want him removed, they have said they wanted a proportionate punishment placed upon him. And the constitutional proportionate punishment is for the full House of Representatives to vote an article of impeachment. Now, it’s a separate question as to whether or not that impeachment is prosecuted, and he’s convicted and removed from office. I think the public is saying they don’t want that, but I think they do want the historical statement that this President has abused his powers.

JIM LEHRER: What about Mr. Yannett’s point that these crimes – if these alleged crimes – if, in fact, they were committed by the President – were not an abuse of presidential power?

DOUGLAS KMIEC: Well, the difficulty with that is, yes, it’s true that Richard Nixon misused the FBI and the CIA in ways that as far as we know, William Clinton did not. But Richard Nixon was punishing his enemies while William Clinton was apparently allegedly lying in a judicial proceeding to have himself be exonerated from a very serious sexual harassment charge. And he was also lying in front of apparently a federal grand jury. These are things that the rule of law just simply can’t tolerate, and so I think the public is quite willing to go along with the House of Representatives and say as a matter of historical record we want it to be understood that the President is to keep his presidential oath, and the way to do that is to vote an article of impeachment whether or not he’s convicted in the Senate.

JIM LEHRER: Mr. Yannett.

BRUCE YANNETT: Well, Jim, according to a poll that I read today, two thirds of the American public not only give the President a favorable approval rating but two thirds say Congress should stop this impeachment stuff right now, and another two thirds say at most, they should censure him. And so this notion that the American public is behind the House voting an article of impeachment and then leaving it up to the Senate to do with it as it sees fit, I don’t know where Mr. Kmiec gets that from.

I do.

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