CNN's Ticker

CNN is putting out the idea that Hillary Clinton might put her husband, Bill, on the Supreme Court.

What an interesting news flash to come out on the day of the Iowa Caucuses! Was this something that leaked from the Clinton campaign? Was it something Hillary said? Has Bill dropped some hints to CNN?

Uh, no. It's a "prediction" by conservative law professor Doug Kmiec, who worked for Reagan and Bush 41 in the OLC. You remember Kmiec... He penned a lackluster defense of the Bush administration after James Comey testified about the shenanigans in John Ashcroft's hospital room. During the Clinton years, of course, Kmiec was the champion of the "rule of law" and intense critic of executive abuse of power.

In short, Kmiec has no insight of value on Hillary's intentions. Certainly not enough for CNN to front page his "prediction." Absolutely not enough value to make this a top news item on Caucus Day.

I guess they didn't have enough stupid predictions to fill the airwaves and internets.

UPDATE: This didn't even register in my brain when I read it:

Kmiec worked in the Reagan and Bush 41 White Houses as a top lawyer, but said he has no personal or political "disdain" for Bill Clinton.

Disdain? What a joke. Trash reporting. Maybe they should have indicated in the article somewhere that the dean of Pepperdine Law School -- that is Kmiec's boss -- is Ken Starr. Actually, they shouldn't have printed this crap at all.

Shameful reporting.

UPDATE II: It's 6:50 pm ET and Wolf Blitzer just pushed this story, too -- without even mentioning Kmiec by name.

Kmiec responds to Lederman

Marty Lederman did a superior job of responding to Doug Kmiec, so DB should probably just sit back and wait for his response to Kmiec's response.

But I'll just chime in with a couple things. First, Kmiec writes with considerably more respect for Lederman and his readers than he does for the readers of the Washington Post (and therefore, the public at large). Had his op-ed been written with a similar tone, it would have elicited a less abrasive response from some bloggers, myself not least.

However, Kmiec is still unpersuasive. In fact, he doesn't really address the substance of Lederman's points. I'll wisely let Marty deal with all that. But I will note that he didn't address the things that bothered me (not that I have any reason to believe he read my post), namely that the comparison of the threat of resignations was compared to the Saturday Night Massacre, not the actual break-in at Watergate.

My other complaint, which had nothing to do with the legal aspects that Lederman addressed, was that Kmiec began his piece by stating that Nixon's demise was somehow different, as it the result of playing politics. But then he ended his op-ed by implying that Bush is also playing politics (and to that end, should be doing it better).

My only response to the substance of Kmiec's reply that will likely be addressed by Lederman is in regards to this paragraph:

Instrumentally, were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection. Were the "exclusivity" language in FISA as absolute as Marty's reference to the criminal liability under section 1809 implies, mere tinkering with a program that, until recently, was not operating with a FISA warrant or some other as yet publicly unidentified approval or order of the FISA court, would not be capable of obviating the legitimate statutory concerns.

It still doesn't. This is precisely the point that Lederman and so many other bloggers were making: What on earth could they have been doing that didn't sit well with this DOJ?

The fact that this program was eventually made acceptable to Comey, Ashcroft & Co. does nothing to legitimize the view that some minimal violation of FISA was appropriate. As Bruce Fein has warned, let's not make Comey and Ashcroft into heroes just for demonstrating that they do, indeed, have some limits.

Clarifying Kmiec

After publishing my last post on Doug Kmiec's lacking op-ed, DB called it a night. Waking up, refreshed, it now occurs to me that Kmiec did in fact mean what I thought he meant by this:

Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.

"Seeking a revival of diminished executive authority" reads, of course, like Kmiec is arguing that Bush wants to return to some period in which the president was relatively weak.

I decided last night this was a typo of sorts because it is just so ridiculous. After sleeping, I realize that this is, if not a typo, then just an extrememly poorly-phrased sentence. I think Kmiec means this:

Bush administration officials are often portrayed as seeking [to revive a currently] diminished executive authority.

Note, of course, that even this correction doesn't lend any aid to his overall argument, since (as I wrote last night) he begins his column by claiming Comey, Ashcroft & Co.'s threats to resign aren't like the Saturday Night Massacre because Nixon's situation involved politics. But then, Kmiec ends his column by conceding that Bush is playing politics (and should be doing a better job, at that).

On a related note, I see that Marty Lederman also wrote about Kmiec (and, naturally, did a much finer job than I). Marty was also confused by this paragraph, including the second, completely ambiguous sentence:

At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.

Marty, as I did, takes issue with "every time." But he also took this sentence to mean that Kmiec was calling Comey and Ashcroft's actions "futile and ethically dubious maneuvers" and that they didn't understand executive power.

I thought, and still think, he meant that Gonzales and Card were engaging in these futile and ethically dubious maneuvers, while Comey and Ashcroft's contributions were frivolous threats of resignation. I'm not sure whom he was indicting with the charge of lack of understanding. Probably all of them.

In any event, a truly awful op-ed.

UPDATE: I'm not sure why there's no Haloscan comment link for this post. Maybe it has something to do with the fact that I saved it briefly before publishing. I've never done that before. In any event, please use this link for any comments.

Kmiec on Comey, pure nonsense

Liz Cheney was apparently not available to obfuscate on behalf of the administration, so the Washington Post today features an op-ed, "Testimony in a Teacup," by Douglas W. Kmiec.

The writer, a professor of constitutional law at Pepperdine University, was assistant attorney general and head of the Office of Legal Counsel to Presidents Ronald Reagan and George H.W. Bush.

He's certainly got the credentials, but his case is quite unpersuasive. In his defense, it is easy to be distracted by the spectacular views at Pepperdine.

James Comey's Senate testimony on Tuesday was staggeringly histrionic. It has, as Sen. Arlen Specter suggested, the dramatic flair of the Saturday Night Massacre. Presidential emissaries seeking the signature of a critically ill man only to be headed off at the hospital room door by a Jimmy Stewart-like hero defending the law over the pursuit of power. Frank Capra, call your office.

There are several problems with this scene. First, the comparison to Watergate is wholly inapt. Watergate involved a real crime -- breaking and entering, with a phenomenally stupid coverup that also fit the definition of criminal obstruction. And the underlying motivation for Richard Nixon's demise was raw politics. Comey's tale lacks crime and this venal political intrigue.

Breaking and entering is a "real crime," unlike something that was so egregious even people who were OK with violating FISA couldn't sign off on it. No political intrigue? If this story lacks political intrigue (Why would Kmiec use the word "venal" to describe the Saturday Night Massacre?), I would hate to be around when such a story pops up.

Also, Kmiec is following in Lindsay Graham's footsteps by implying that Nixon was simply trying to cover up the break-in. You may remember Graham trying to impeach the credibility of John Dean at the Censure hearings:

Senator Graham. Did he cover up a crime that he knew to be a crime?

Mr. Dean. He covered it up for--

Chairman Specter. Senator Graham, let him answer the question.

Mr. Dean. He covered it up for national security reasons.

Senator Graham. Give me a break.

Mr. Dean. I am serious.

Senator Graham. He covered it up to save his hide.

Mr. Dean. No, sir. You are showing you don't know that subject very well.

Senator Graham. What is the national security reason to allow a President to break into a political opponent's office?

Mr. Dean. The cover-up didn't really concern itself with--

Senator Graham. What enemy are we fighting when you break into the other side's office?

Mr. Dean. Senator, if you will let me answer, I will give you some information you might be able to use.

Senator Graham. Yes, please.

Mr. Dean. He covered it up not because of what had happened at the Watergate, where I think he would have cut the reelection Committee loose. He kept them covered up because of what had happened while they were at the White House, which was the break-in into Daniel Ellsberg's psychiatrist's office. And that, he believed, was a national security activity."

And nobody resigned over the break-in. It was because of the way Nixon abused the DOJ in order to get the results he wanted, rather than the results he was getting. Sound familiar?

A few paragraphs later, Kmiec writes:

Even if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had "broken the law."

I'm sorry, but every other wartime president has not pursued the ability to collect digital information on limitless amounts of American citizens (if that's even the upper boundary of their scheme). Plus, the majority of wartime presidents served prior to the enactment of FISA. No others have deliberately violated it, as far as we know. And it's hard to imagine any president, past or future, offering as bogus a justification for doing so as Bush's suggestion that the AUMF somehow repealed FISA.

Comey might not have been willing to say that Bush broke the law (despite his alleged "histrionics"), but what conclusion can you draw otherwise? FISA explicitly stated that the president could not wiretap domestically without a warrant. If the DOJ says he also lacked any constitutional authority to get around that, then he broke the law.

Kmiec goes on and on like this. Towards the end he writes that "Comey was equally mistaken to think that withholding his signature had to be the final act -- when that is necessarily the president's call."

How could anybody conclude that Comey's problems with the entire scenario stemmed from an idea that he had the final say? Absurd.

Finally, Kmiec writes this:

Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.

When has this administration ever -- EVER -- been portrayed as seeking to revive diminished authority?? That has to be simply a mistake by Kmiec. Nobody could make that argument outside the Bizzaro Universe.

But assume he was trying to say the opposite, that the Bush administration seeks to restore what they believe is a proper, more expansive authority. Doesn't the fact that this entire episode stems from that objective validate the idea Kmiec is trying to shoot down? The Bush administration could have gone to a completely compliant Congress and asked for more authority at any time. They actually turned down Sen. DeWine 's offer to expand their authority. They chose instead to exercise authority not granted by Congress just because they wanted to prove they had the political muscle to do it.

"And the underlying motivation for Richard Nixon's demise was raw politics," Kmiec wrote up top, differentiating Nixon from Bush. Now he concludes his column by suggesting that the Bush administration does have political aims in all of this? (Again, if you assume he's not writing from Bizzaro Universe.)

And what made the Saturday Night Massacre -- and this episode -- so intriguing is that people don't resign "every time" there is a disagreement. That's the kind of argument a teenager would make. As Glenn Greenwald put it in this excellent radio show yesterday, "the entire top level of the law enforcement apparatus of our country was going to resign in protest" over this.

If that's happening every time there's a disagreement in this administration, we're in even worse shape with Bush at the helm than anybody could even imagine. It's bad enough that it even happened once.