Re: Rock bottom

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Sometimes the haters are just comically funny, as in the article TorgoX points to by Sidney Bluemnthal (former Clinton advisor ... surprise!).

The thesis of the article, and the reason TorgoX linked to it, is regarding some supposed Bush violations of the Constitution.

Blumenthal lists three examples. All of them are incorrect.

First, he says, Bush is threatening to prosecute the NY Times for printing a story. Funny thing is, that this never happened. Gonzalez was asked if they would be prosecuted, and he said that is a possibility, given the language of the statutes. That's hardly a threat; indeed, Gonzalez explicitly said he would say no more than that it was legally permissable, which is a plainly true statement.

Nothing in the First Amendment has ever been construed by the Court to give journalists blanket right to publish anything they want to, without legal consequence, and there are many laws on the books that hold journalists liable for certain statements. The most well-known example is libel, and the most Constitutionally prominent is treason. Indeed, courts themselves put legally binding gag orders on journalists.

This is hardly a Constitutional crisis: Congress made the law, and the law says what Gonzalez says it says. If the Congress doesn't like it, they can change it, and if the Court finds it to be unconstitutional (which they've not yet done, in almost 100 years), they can do so. The executive branch, which only prosecutes under the law, is the least of the three responsible for this law, and to blame Bush for it is just incredibly daft.

But it gets better. Blumenthal says that the if Cheney refuses to honor a subpoena to testify in the Libby trial, that this would be some sort of Constitutional crisis. The problem is that the elected executives -- that would be Bush and Cheney -- are not outside the law, or above it, but regardless cannot be forced to be involved in a criminal proceeding.

This is longstanding principle that everyone agrees with, including Blumenthal who, recognizing this principle, argued that Paula Jones should not be allowed to sue President Clinton. He lost that argument, since the principle is regarding criminal, not civil, proceedings.

Worse, Blumenthal actually asserted executive privilege for himself when Kenneth Starr subpoenaed him as a witness. So to Blumenthal, it is a "Constitutional crisis" if the Vice President refuses a subpoena in a criminal trial, but not when a mere Presidential advisor refuses a subopeona in an executive-branch grand jury.

Pull the other one.

Even without Blumenthal's 180 on this issue, it would not be a crisis of any sort: you can't enforce a subpoena against the President or Vice President. The subpoena itself, not the rejection of it, is the real violation of separation of powers.

Again, this does not amount to being above the law (especially since, in this case, Cheney is not a target of anything, but is being called merely as a witness). If there is a real charge against a President or Vice President, the proper place for it is in the Congress, not in the courtroom.

Lastly, Blumenthal completely invents a "crisis" by gleefully imagining that if the Democrats take control of the Congress, that Bush would break the law by refusing oversight. He incorrectly implies that this is a partisan issue only occurring when Democrats are in power; the fact is that Democrats can now, even in the minority, request documents, and those requests are almost always honored.

That a request is made, however, does not imply it should be granted, as his single example makes clear: the Supreme Court refused to find that Cheney should be required to hand over the documents. The case is not over, but it is unlikely they will change their minds. Blumenthal would have you believe that the Congress, not the Court, decides when there is a Constitutional crisis.

So Blumenthal gives three examples of a "Constitutioanl crisis." All are false, and one actually damns Blumenthal and Clinton a lot more than Cheney or Bush.

I just hope Blumenthal never gave Clinton legal advice; if so, that would explain a lot.

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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