David Addington on the Separation of Powers:
"We're going to push and push and push until some larger force makes us stop." (Source: Jack Goldsmith's new book, as reported in today's Washington Post.)
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Both, however, have rolled over for the better part of this Administration, allowing the Executive to roll along unchecked in any meaningful way.
Most unhappily, in the main, we have allowed the power grab to succeed with impunity.
I really must disagree with this generalization.
Overall, I think Bush and Cheney so far have succeeded in bullying through an expansion of executive power. That (and Iraq) are their entire legacy.
By violating an act of Congress under the subterfuge of secret internal memos written by loyal accolytes, then avoiding judicial review, they have established the de facto principle that the presidency really is above the law.
Talk about stupid. What goes around, comes around. There's a reason for the checks and balances, dumbasses.
I gather you also approve of efforts by the legislative and judicial branches "to push and push and push" to limit executive power in wartime until "some larger force makes [them] stop"?
So lets see, the constitution specifically grants Congress the power:
According to your theory, Congress can appropriate money to be spent on, say, the war in Vietnam but cannot appropriate money to spent by the military on anything but the war in Vietnam.
Curious theory, that.
This is a classical game-theoretic example of hunting stag (or perhaps the prisoner's dilemma, depending on your normative evaluation of the outcomes but that's hardly relevant here). So long as the executive decides to expand its power in any way possible, Congress and the Courts would be (at least institutionally) foolish not to push back as hard as possible. This situation is (perhaps) not globally optimal, but it is a Nash equilibrium.
How quaint that you can neatly divide the world into "enemy" and "not enemy" - it must make the task of understanding a complex world so much easier for you.
I wonder what Addington thinks those barriers are?
Just on the face of things it would seem better to coopt or schmooze your enemies (since that's how Addington apparently thinks of Congress) when you can, than to fight them at every turn. The Addington approach just seems counterproductive to me, as it so obviously would generate the institutional pushback we're seeing now, which could have been avoided by a little cooperation on the front end. Weird.
It's not an abandonment of power to investigate the executive if you agree with what the executive is doing and don't feel like interfering. Congress hasn't checked the president because the Democrats don't have the votes.
And the Supreme Court is currently out of session, so they are not writing new laws now either.
Except that amending FISA is hardly the type of tactical knowledge that would give "the bad guys" any advantage were they to know it. Show me a piece of legislation 1) amending FISA to come closer to the desires of the executive 2) that spells out exactly the facts of each surveillance operation, and I'll show you a piece of legislation that is too wordy and narrowly drafted, not to mention silly.
A domestic example--no-knock warrants. It's not like, when the courts and legislatures originally decided that no-knock warrants were constitutional and necessary to defeat a certain type of criminal element, they announced in judicial opinions and legislative records something like, "And it is hereby decreed that the third of these no-knock warrants shall be executed at 3 am on or around the first of the next month at the home of the local arms dealer."
It doesn't seem to puzzle Goldsmith much. See the quote of his I posted above. Apparently, Goldsmith believes that Addington and other significant portions of the current Executive display sociopathic tendencies, believing cooperation and compromise to be weaknesses that embolden their enemies.
I guess now that FISA has been amended, the jig is up.
One does not need to approve of such efforts if one also believes that "the legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. ...Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere..." (Fed. 48)
I don't follow you: The Post is just reporting about what they are reading in books. I trust the Post to report what the books say accurately; whether the books are accurate depends on the book.
Two primary reasons. First, I know Jack, and he is very trustworthy. Second, there were many other people in the room, and he must know that if he gets something wrong he will get skewered for it.
They didn't. There were too many witnesses, just as Comey had arranged. Instead, they had to fall back on Sopranos-lite: "We was just there to, uh, wish him well, you know?"
"We're going to push and push and push until some larger force makes us stop."?
Even mass murderers justify themselves or paint themselves in a good light when talking about their own actions.
That's not a believable thing for someone to say, that's a caricature of something he may or may not have said.
(1) What else have you read about Addington? It sounds quite plausible.
(2) Don't you find it significant that several non-crazy commenters on this thread have argued that the quotation expresses a valid, indeed proper, understanding of how the separation of powers is to work?
A question on "good faith" -- framed in the context of Addington's push-push for more power and Jack Goldsmith's reported statement on TPM Muckraker that OPM legal memos were treated as advanced pardons.
In Groh v. Ramirez, SCOTUS held that "good faith" -- albeit in the qualified0-immunity and Leon contexts -- was unavailable when an agent executes a patently unparticularized and, hence, invalid search warrant.
The majority (razor thin and now missing O'Connor) added that the standard "good faith" defense to liability/suppression was unavailable regardless of whether the magistrate signed the warrant or was aware of the defect. Groh, 540 U.S. at 561 n. 4.
So I'm wondering if the OLC memos are really advanced pardons; or -- and I'm only asking what I believe will never move past hypothetical -- whether a person who engaged in conduct that, to paraphrase Groh, patently violated a constitutional guarantee is therefore barred from asserting a defense of "good faith", which it seems to me is the flip-side of criminal intent.
I don't think Goldsmith was talking about a Fourth Amendment "good faith" concept, which generally is limited to executing defective search warrants. Instead, my guess is that this is all about the "entrapment by estoppel" defense. The basic idea is that reasonable reliance on an official statement of law, later determined to be wrong, by an official tasked with the responsibility for interpreting the statute provides a defense against criminal liability. With an OLC opinion in hand, government officials following the OLC opinion could presumably raise such a defense.
Here's a description of the doctrine from a recent 7th Circuit opinion:
If the administration attitude is, "We're going to push and push and push until some larger force makes us stop," it is hard to see how.
I think I understand the concept, but I still am interested in its boundaries, and the next questions it raises such as that I articulated above. Criminal sanctions are built into several statutes that expressly or generally apply to executive branch personnel, and one has to wonder if they are all useless as applied.
Perhaps much of the derision applied to "unelected judges" should be redirected at assistant attorneys general whom 95 percent of Americans have never heard of. In important cases they seemingly excercise unreviewable authority to "legislate" -- not even "from the bench" but from their DOJ office.
However, I have to think the doctrine is not 100 percent bulletproof. Otherwise the administration would not be spending so much effort in Congress to legalize past violations of FISA, the War Crimes Act, etc.
And not a one of them would have phrased it even remotely that way. That's what screams "Fake!" You'd notice it too if you had your skepticism on. But I've noticed that that sense fails a lot of people when they hear what they want to believe...
Pushing until someone makes you stop is EXACTLY what a zealous lawyer is *supposed* to do in advocating for a client. (Within the bounds of professional conduct.)
I have no trouble imagining a corporate lawyer using Addington's words to describe his legal strategy. (Do you also deny Karl Rove's "We will fuck him. Do you hear me? We will fuck him. We will ruin him. Like no one has ever fucked him!"?)
What's troubling in Addington's case -- troubling enough that you flatly deny the truth of the quotation -- is that we expect a little more than mere advocacy from high policymakers. We don't want them to take a one-sided view of things; we don't want them to put winning above being right.
Thank you for the response.
As an aside, I should have been more clear about the "good faith" argument. What I should have said is that just about all Section 1983 claims against individuals -- regardless of whether it's a 1st, 4th, or 5th Amendment right, must pass the hurdle of qualified immunity or, as in Groh, "good faith." And the test for "good faith" under the 4th Amendment is the same for qualified immunity under the 1st and 5th Amendments. They are two sides of the same coin.
The reason I grabbed hold of Groh is that it presented the clearest example of a government official acting in reliance on another government actor's conclusion that planned action was lawful.
To cut to the chase, whether it's called "estoppel" or "good faith" or "qualified immunity", the government actor's reliance must be reasonable.
So I think there's a case -- academic, I suspect -- that OLC opinions are not in all cases "stay our of jail" cards.
For example, if an OLC opinion approved the execution of a warrantless search of an American citizen's home to find the ingredients and components of an explosive device (all of which, I'm guessing, would by themselves be lawful to possess), do you believe such a search would be constitutional? Or that in a civil case, the agents would be immune from liability? I think Groh answers both in the negative.
But I understand the question here is whether in that circumstance, the agents could be criminally prosecuted for burglary and theft. And the agents' defense would be the OLC opinion, i.e., reasonable reliance -- or "entrapment by estoppel" -- on a the legal opinion of a person cloaked in actual authority to render that opinion. Very much like the magistrate who signed the warrants in Groh.
I see your point about estoppel. I'm just wondering how much that theory might be undermined (if at all) by the holding in Groh -- which was, after all, a qualified-immunity opinion -- that a government agent's reliance on a legal opinion that on its face is patently violative of a constitutional guarantee is unreasonable as a matter of law.