Best legal discussion of Comey’s testimony

is by Marty Lederman at Balkinization. In part:

Kmiec [in Washington Post op] then attacks Senator Specter for suggesting that the hospital incident has an air of the Saturday Night Massacre about it — “the comparison to Watergate is wholly inapt,” writes Kmiec, because “Watergate involved a real crime.”

Well, this case involves a “real crime,” too — systematic violations of a very important federal statute designed to protect Americans from wiretapping by their government, 18 U.S.C. 1809. But that’s not really the central point for these purposes, because Specter’s obvious reference was simply to the remarkable parallel in that the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. Attorney General Richardson and DAG Ruckelshaus did not resign in October 1973 because they concluded there had been a “burglary for purposes of political dirty tricks,” in Kmiec’s words. The burglary was an old story. They resigned because the President insisted that they fire prosecutor Archibald Cox when Cox subpoened Nixon’s tapes. In other words, Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales.

3. Kmiec next writes that “[e]ven 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.'”

Actually, it would. The OLC conclusion was not that the President “lacked authority” in the first instance to order the surveillance — it was, instead, that a duly enacted statute, FISA, flatly prohibited the President from exercising what would otherwise be his constitutional authority — 

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Filed under Alberto Gonzales:boob or simpleton-you decide, George W. Bush: is he really THAT bad?, James Comey, Karl Rove:Bush's brain or Bush's as'hole?, US Attorneys

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