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March 26, 2007


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What "ongoing investigations" was Bush allegedly trying to "derail," with the firings, Frederick? I'm not aware of any such allegation, but am certainly open to eduaction on the subject.

You posit "executive privilege without a crime," but that can't happen in this case. The inescapable syllogism is that if the President was involved in the firings (a necessary condition for the privilege), then McNulty lied to Congress (ergo, a crime).



You seem confused. Bush can fire whichever U.S. Attorney he wants with or without cause. He can do it for political reasons because he doesn't like what cases they file or that they don't do the bidding of the RNC or if he doesn't like the way they smell. Crimeless. He is the President after all. However to fire a perfectly good U.S. attorney for political reason is politically unpalatable to the electorate, and it smacks of unjust influence over the administration of law, however legal it may be. People don't want the administration of criminal justice to be influenced by politics, that is for sure, and no politician would last long openly trying to influence how US attorneys do their Job.

And just because an exec act is legal doesn't mean it is good for the country and that Congress can't ask questions about it. So of course the Dems have Gonzales in to testify about why they were dismissed, and of course, Gonzales lies about it, like the idiot he is, and of course Rove and Miers were at the helm on this political hack job, and of course they can be questioned under oath because: 1. Bush and Cheney were not involved in these decisions; and 2. Gonzales committed a felony when he lied under oath to Congress thinking this would all go away.

These people are dumber than boxes of rocks. Time to expose the Rove machine for its corrupt awful ways. Firing U.S Attorneys for not becoming tools of political attack? Stupidest move EVER. Ok, second to invading Iraq based on a bunch of material misrepresentations.

Frederick Hamilton

Per Senator Diane Feinstein on Sunday she said the firings were used to upset ongoing federal investigations by the US Attorneys. Also claimed by Senator Schummer. I didn't say those things. Senators did. Obstruction of justice is a crime. Anyone who lies to Congress under oath has committed a crime and Congress turnis it over to the local US Attorney who by law is required to present it to a grand jury. Bush fired them and if he fired them without appropriate information and communication and without understanding of the issues for the firings, he should be impeached. If he fired them knowing that the reason was to interfere with an ongoing investigation then he committed a crime and should be impeached. Either way, Bush did the firings. Period. Were they fired to derail ongoing investigations? Don't know. Doubt it.

LAK, Rove and Miers were not at the head of this hack job. President Bush was at the head of this hack job. Rove and Miers can't fire US Attorneys. Only Bush can. It is inconceivable Rove and Miers weren't advising Bush on these firings. If a law was broken, Bush broke it.

As to Cheney, I haven't heard anyone claim involvement in the firings by Cheney.

The firings may be political unpalatable to the people. So what?

Still nill on the hill. Rove and Miers won't be testifying under oath. Seperation of powers. Executive privelege. Bush fired them. Go after Bush.

If Gonzales liet to Congress under oath, he should be tried for the crime. If convicted, the slammer. You break the law you go to jail. Especially the AG.

It is not the Rove Machine. It is the Executive Office of the President of the United States. Rove is simply an advisor to the president. I don't remember voting for Rove. I voted for Bush.


I don't remeber electing rove either, but it is apparent he is in charge and getting people fired for not cooperating with political hack jobs...

You still sound like you're proud of your vote for the worst President in our Nation's history, Frederick. You should try to rejoin reality one of these days.

Frederick Hamilton

Considering the alternatives I am still proud of my votes for Bush. Reality is developing for the 08 vote. That is going to be a real dog fight. To the victor goes 93 US Attorneys. If the Dems are capaable of producing a Clinton/Obama ticket they look unstopable. Time will tell. What would Hiliary do with the 93 US Attorneys?


They'd all resign as they all do when a new administration takes charge, just like they did for Clinton I, Just like they did for Reagan etc. It is the norm.

They wouldn't be fired for failure to administer criminal justice in a partisan way. That is for sure.

Frederick Hamilton

I think actually Clinton was the first president to sack all 93 at once. But clearly your earlier post is on the mark. All US Attorneys serve as political appointees of the president. Was there a crime and/or did President Bush do something illegal? In all likelihood no. The Democrats can huff and puff all they want. Where the executive branch seemed like the keystone kops is in their explanations to congress. I think some under oath. If they lied under oath then they will be trapped as BAC noted above in Scooter-ville. Again, fun to watch but probably much ado about nothing.

Joan A. Conway

Nancy Pelosi, Speaker of the House, struck a cord, under Constitutional Law today, when she reminded the President that he must condition himself our Constitution, and stay within his role of the Executive Branch, and not try to usurp the Legislative, and the Judicial Branches of the Constitution, which past Presidents also are quite guilty of doing.

They are so retro that they go back to the days when there was no federal government, but state government(s), and much difficulty under Interstate Commerce, and Civil Rights, without a Bill of Rights, and of course, without post-Revolution amendments.

This is why the President's Supreme Court is often called the King's Court, by Federal District Judges.

Since President John Adams tried to make last minute judicial appointments under federalism that lead to Marcy vs. Jefferson, I believe, where Jefferson failed to acknowledge their appointments, due to being delivered after Adams left office during Jefferson's administration, and Jefferson's private protest of federalism, in which the Judicial Branch under Article III, found a role with the Executive Decision.

If these political appointee(s) have suffered from some harm or injury associated with them being fired by the Attorney General, or their Plaintiff(s) or Defendant(s) have suffered harm or injury, as third parties and with collateral standing, as in need of protection, such as in cases involving corruption and false claims against municipals, then the firings may be repugnant to our constitution, and void Executive Decision(s), because of constitutional guarantees to certain statutes and fundamental rights to life, liberty, and pursuit of happiness.

But right now, Alberto Gonzales, is gaining national recognition that he has so often over his career strayed away from to serve the loyality of his beneficiary, the Bush Family.

I read the President Counselor, by Bill Minutato (sp?), and I highly recommend it. In other words, "Ferando," is making a run for public office with this publicity that the Democratics are fostering by their challenges to these firings.

If Alberto Gonzales passes muster, look out here he finally comes in his own right.

And to the benefit of the Democrats, who see it as an opportunity to inherit a Republican, with rather Democratic views in certain areas of the law, like abortion, I do believe.

Joan A. Conway

Murbury vs. Jefferson! I stand corrected, because it is still a famous case. I have relied upon it in 2005-2006 with the Seventh Circuit, for Article III standing in 05-3237, Joan A. Conway vs. the Executive Committee: Chief Judge Charles P. Kocoras, over being restrained by the District Court, and denied access to the lower court with filing requirements, when I have a right to self-protection, because the Defendant(s) have created conditions that have curtailed my civil rights.

Joan A. Conway

I still couldn't remember the case right:

Marbury Vs. Madison

"On February 11th, 1803 it came before the supreme court of the United States, that William Murbury entered into a lawsuit against James Madison, over a writ of mandamus for a commission appointed to William Marbury."(Madison v Marbury(5U.S)137(1803), 1) William Marbury was commission as a justice of the peace by former president John Adams. However when president Adams’ administration had ended and Thomas Jefferson’s had begun, Marbury’s commission was not acknowledged by the new administration.(Madison v. Marbury,1) Henceforth the law suit was entered against Thomas Jefferson’s Secretary of State, James Madison, to force him to delivery the commission to William Marbury. Representing the court in this case was Supreme Court justice, John Marshall.(Madison v. Marbury supreme Ct.,1) Through immense review of this case several questions arose. The first issue to be resolved was the question of whether or not Mr. Marbury had the right to receive the commission. The answer to this question is yes, if the commission has been signed by the president and if the seal of the United States is affixed to it by the secretary of state. However this issue is not resolved within it’s self, but instead leads another question. If it is Mr. Marbury’s right to this commission, do any solutions exist to fulfill his right? The answer to this question is yes, a writ of mandamus issued to the Secretary of State, James Madison. Yet again another question arises from this solution. Can the Supreme Court issue a writ or mandamus to the Secretary of State? The answer to this question according to the federal law is yes, due to and act passed by congress in 1789. But this law became in question by Supreme Court justice John Marshall, because of the Constitution validity of it consequences. According to the Constitution the congress hasn’t the power to pass an act which is in conflict according to an executive decision. Which means that in order to force the Secretary of State to deliver the commission would be unconstitutional and that any act passed by congress which contradicts the constitution is void. Thus in this case the adjudication passed by John Marshall supersedes the federal law. As a result William Marbury did not receive the commission, and the case is settled.(Marbury v Madison (1803) Background Explanation, 1) Though the precedents set by this case seem questionable, it’s outcome was weighed to be reasonable due to the possible consequences of an alternative outcome. Supposing that the lawsuit was granted to Mr. Marbury and that a writ of mandamus was entered against Mr. Madison there would have been several more political conflicts to arise. One of these conflicts would have pertained to the judicial power over the executive office, which was at the time filled by Thomas Jefferson, whom was a popular president, and who’s signature laid largest on the Declaration of Independence.(Marbury v Madison(5 U.S)137(1803),5)

Joan A. Conway

It is not much to do about nothing. It is a history lesson of modern importance. It is a vehicle to gain national attention. It is a political tool in a box of many worn out tools. It is to use an old wrench, because the other wrenches are too flexible.


I'm pretty sure Reagan did it too when he too over for Carter. Aad it is my uniformed understanding that it is the norm for all U.S> Attorneys to resigne/ be fired when a new aministration from a different party takes over.

Again though it wasn't otivated by a political hack job and partisan electoral politics involving corruption probes of local republicans and dems.

Joan A. Conway

Concerning the march 31, 2007, statement from GW that "Alfredo" is an "Honorable Man" and would appear before Congress, saying "that he can't remember."

From "The President's counselor, The Rise to Power of Alberto Gonzales," by bill Minutaglio.

Page 166-167, Gonzales was a good man who could be expected to vote from the bench in ways that would be solidly alighned with Bush's policies. David Souter...artistry of the law vs. self-indulgent pontification.

Page 169, "Gonzales didn't want case to set any lingering legal precedent...."

"Parental rights are not absolute - vested interest in tamping down personal injury lawsuits and consumer complaints.

At best, those groups said, Gonzales should have declined the contributions to avoid the appearance of a conflict of interest."

Page 190, Willingly corrupted his once - innocent love of hte law in ambitious, blind loyalty to the family who was promoting him."

Page 195, "Often times, I had to interpret sttutes in Texas that I felt were terrible public policy, but that is immaterial."

In regards to Alfredo's breach, "My job as a lawyer is to provide legal advice to the president of the United States, to tell him whether or not this is an option that is in fact lawful or unconstitutional."

Page 311, "I (John Hutson, former navy judge advocate genral who had become president and dean of the Franklin Pierce law Center) though long and hard about whether I wanted to testify, because unless something else came out - like a girlfriend on the side, something really crippling - he's going to be confirmed."

Alfredo is aptly nick-named, because he will not betray his loyalty to GW Bush for his own ambitions to run for office.

When asked the question, Is Alberto Gonzales' coming or going?

It is a forgone conclusion that he is "going!"

Page 312, "You told him what the endgame was supposed to be, you told him what legal outcome you were looking for...and he would figure out the way to get there, by any legal loopholes necessary?"

"The fiercely intelligent Alberto Gonzales who was slavishly addicted to the exact letter of the law - nothing more, nothing less, and never onto impose his personal ideology or viewpoints on the Constitution and the stated legal principles that guide the country?"

Specific Question: Does the president have the autority in your judgment to exercise a commander-in-chief overrides and immunize the Attorney General's oath of office, and submit the force of cunning and remove the full partiicpation of the rule of law?


I appreciate Professor Sunstein's post, but I think he makes an error in considering the "law" without taking into account the historical practices of the executive and legislative branches, and their considered legal opinions on the subject. The OLC at DoJ has opined on this subject many times through several administrations; why not consider the analysis developed there as a source of "law"?



aletheia - truth, veracity: the correct state expressed in affirmation and denial; knowledge and truth

kolakeia - flattery: keeping company for the sake of pleasure, without considering what is best; the state of socializing for pleasure in excess of what is moderate.

A flattery I deem this to be and of an ignoble sort, Polus, for to you I am now addressing myself, because it aims at pleasure without any thought of the best. An art I do not call it, but only an experience, because it is unable to explain or to give a reason of the nature of its own applications. And I do not call any irrational thing an art ; but if you dispute my words, I am prepared to argue in defence of them - Gorgias, 465a

Clarence Thomas - A Personal Attack Uncalled For

Stare decisis is one of the most well established principles in the law. Simply put, it means that courts will not overturn established precedent without an extraordinary reason to do so. It is also a doctrine not held sacred by all nine Justices. In Justice Scalia's words, Justice Thomas "doesn't believe in stare decisis, period." - American Constitution Society.

Clarence Thomas and team - Stare decisis - I don't like that!!!! - I can't be creative [this is not a direct quote].

It could be argued that Thomas provides an African American stance or vantage that has been neglected in the past due to lack of representation on the bench. This position is implied by so and so.... in her article: just another brother on the bench - sadly no longer available on the web - at least not easily...

Yet by walking away from stare decisis, Thomas' unlike his peers is forced to invent his own legal standard exactly as if he had no peers. This is quite a load and likewise truly peerless, consider his 1-8 dissent in Hamdi vs Rumsfeld. Here, Thomas argued essentially for indefinite quarantine of US citizens by the US government and with no rights, recourse, or remedies, providing certain criteria had been met. Though the overall argument had other details - nothing more really need be said - this is simply horror in the form of an intellectual, judicial precious moment. That the argument can be made is understood - the things we can do with words, Austin. That it shouldn't be made is rather the point at hand.

Simply put: the argument is difficult to make in this case simply and unequivocally, because this is the constitutional intent, regardless of what a woodchuck on acid might speak to the contrary when confronted with Hyperion. Moreover case history doesn't deteriorate over time like plutonium, for example, and even the oldest ruling can be used if shown to be relevant to the matter at hand. In the same vein the best normative approaches are best because they generate tools that can be applied (see Plato’s On Justice). Since these approaches aren't new, stare decisis thus functions in this way as a kind of barometer, regarding this very difficulty, though not exclusively so.

Some might say that to walk away from the tools of a trade is likely either arrogance or ignorance. Stare decisis seen in this light is ultimately the simplest of tools simply used for rewarding its own employment (the minimum context for normative departures for example) and conversely in neglect for initiating a certain kind of punishment via chagrin (see Plato’s Euthyphro). Thus, while Thomas' opinions do accrue case history as constitutionally intended, this artifact consequence (Plato’s Symposium) as shown above is something he himself neglects to honor is his personal style, effort, and/or whatever his unique jurisprudence can in the end be and to the detriment of his own arguments. The reader ends up thinking: ignorant, arrogant, or otherwise, perhaps Thomas is arguing positions that are not supportable by any reasonable jurisprudence. In other words, they're just not right even if they are called conservative, because they create an absurd distance from the living body of case law (Plato’s Craytlus).

This last in Thomas' case must beg a final question: where did I put my superior Catholic hand:

Answer: as the late Father Leo Sweeney of Loyola University Thomism creed might remind, this hand is recognizable ironically in deed by enslavement to stare decisis as the minimum touchstone for any grander conceptual effort, which it likewise compels with even greater vigor in exaltation, the exceptions being made in areas not likely part of constitutional law but needed theologically from a Thomist standpoint reductio ad absurdum instead to explain the gift of being able to work with the constitution at all (see Plato On Virtue for more statement on relevant context).

That some of these ideas do resonate with Thomas is in the end both his boon and bane. Yet for the former, this endorsement requires the whole enchilada along established lines (something Thomas does otherwise quite well) or it risks entering into the bizarre even vengeful regardless how packaged. Unfortunately, that Thomas is in fact currently in this beyond the pale realm is argued for at a professional level of legal acumen at the American Constitution Society. Therefore, that Thomas's body of work is conservative but "not right" is ultimately attested to just so by his neglect of stare decisis.

Ironically, the obligation enforced by adherence to this standard in turn would both weaken the distancing that currently characterizes Thomas' personal assault and then bring it home again both more forcefully, elegantly, and to the best of his ability. All of this is however likely wishful thinking, but as Father Sweeney did to his students, so it must be done unto Thomas:

"Why, Socrates," said Agathon. "You must think I have nothing but theater audiences on my mind! So you suppose I don't realize that, if you're intelligent, you find a few sensible men much more frightening than a senseless crowd?" - Symposium 194b

Finally, the above goes root regarding stare decisis if Prof Anita Hill's ancient charge is considered again clinically and perhaps coldly. If her words against Thomas were true, then they may now be seen as perhaps as particularly revealing, because the final result yet again bears out a very old observation - where a doctor benefits from exposure to illnesses, which he himself overcomes, a judge does not benefit from knowing first hand the ways of evil people -

Therefore, a good judge must not be a young person but an old one, who has learned late in life what injustice is like and who has become aware of it not as something at home in his own soul, but as something alien and present in others, someone who, after a long time, has recognized that injustice is bad by nature, not from his own experience of it, but through knowledge - Republic (408e, 409b)

For this reason alone, Thomas's famous repechage - "is this a high tech lynching?" though colorful and even potent is sadly off target, because it misses the underlying issue; it was the qualities required to be a good judge were being impugned, not the qualities of a man, a man of some color, or a man of some historical package. That the snake keeps biting is both its tantalization and its poison. The former points forever at stare decisis (this is subtle and serves in protection of the quality judge as opposed to the poet) and ultimately to the failure of the senate at the hearing. The latter arises at least theoretically from the pain of not being able to get past, mitigate, or reconcile this nagging if one doesn’t in fact measure up. Thus is the soul addressed:

Yet it really is a disgrace to the soul in each of us that it plainly doesn’t’ know what in it constitutes goodness and badness for it, whereas what constitutes goodness and badness for the body, and for other things, is something it has already considered – Minos, 321d

Reaffirming the quote above from the Republic, imagine the difficulty for any judge if the latter more clearly understood delineations concerning the body are somehow botched – this isn’t grist for Jewish humor – Borat is a cunt - that Thomas has flatterers can be expected; this is Plato's Gorgias. That they don’t cover his current bill; i.e., his own speciousness or ineptitude in thought whatever his good intent is also Gorgias and the point of this essay - stare decisis: Clarence Thomas gets this low tech lashing because he is not yet a slave.


I've got to apologize - I thought this thread was about Clarence Thomas. I really don't know anything about law. My main point in the end can be summarized in one sentence: the absence of work on a topic with caveats is its own body of evidence regarding the suitable for that topics consideration - I'm incredibly conservative as I imagine most of you are as well. Feel free to delete my posts.


Many thanks for providing this - THIS post is a great example of the value this blog can serve by providing expert context of today's pressing legal problems to help educate public discussion (rather than trying to yank it by its ears as Prof Stone's posts do).

This is why Prof Sunstein is worthy reading and professor Stone rarely is, although the two probably come down on the same side 90 percent of the time

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