Mukasey: The Law Is What The DoJ Says It Is

T

triplehorn

2,500+ Posts
Attorney General Micheal Mukasey will not investigate warrantless wiretapping of US citizens and he will not investigate torture.

Now he suggests that individuals who might have broken the law are protected from prosecution if the DoJ has opined that it was ok to break a law:

In reply to:
Click to expand...
 
This is unbelievable stuff. In more oversight with Attorney General Mike Mukasey, he refuses to answer Congressional questions about whether he was instructed not to enforce the subpoenas of Harriet Miers and Josh Bolten. Per a liveblog from marcy wheeler today: In reply to:
 
Somebody needs to roll up a copy of the Constitution and shove it where the sun don't shine. Maybe Mukasey can finally read it that way.
 
Justified reliance is well established legal doctrine.

To make it simple for you, an example:

There is a city law that says speeds on residential roads cannot exceed 30 mph. A city worker puts up a sign on a residential road that says the speed limit is 35 mph in the mistaken belief that the road is not a "residential road." You travel at 35 mph and are ticketed for speeding. Your defense is justified reliance; you relied on the sign that say you could travel at 35 mph. First, you shouldn't be prosecuted for speeding. Second, you should be acquitted for speeding.

It is pretty simple and is akin to ex post fact laws. But to the regularly scheduled program . . .
 
Washpark is right -- justified reliance goes to the element of intent, essentially.

If you look at it in the extreme, it's there so that, for example, the gov't can't "trick you" into breaking the law, and then prosecute you when you follow the government's isntructions. See the 35 mph vs 30 mph example above -- it would be wrong as **** for the gov't to post a 35 mph sign, and then pull you over saying "A-HA! This is REALLY a residential street, with a 30 mph speed limit. Here's your ticket."

It's not that the law is what the gov't says it is -- it's that the doctrine of justified reliance says that a citizen is entitled to rely on the gov'ts representation of what the law allows -- to do otherwise would allow for duplicity by the gov't. And I think we can all agree that we aren't in favor of such shitbaggery, and we damned well know that plenty of gov't entities (including the present admin in DC) might engage in such shitbaggery if given the chance.
 
Justified Reliance can protect the foot soldiers. I'm sure paper shredders, delete keys, magic markers, etc. will protect superiors.

I guess we should be happy that this admitted law-breaking has stopped (if it has). However, it appears executive oversight becoming just about as effective as NCAA enforcement. Pray we don't elect a tandem with fewer scruples than Bush/Cheney.
 
the good news is I think all three remaining candidates (R and D) will put an immediate stop to all of this.
 
tropheus - if you're talking about not using torture or warrantless wiretapping, based on statements by all three, I think you are correct.

When it comes to potential for abuse of our system of justice, I think it gets murkier

re washpark:
In reply to:
Click to expand...
 
Ag - The United States military justice system has prosecuted waterboarding as a form of torture since the Spanish-American war.

“I don’t know what’s involved in the techniques. If waterboarding is torture, torture is not constitutional.” - Micheal Mukasey


.
 
Stateside (in Texas)
§ 8.03. MISTAKE OF LAW. (a) It is no defense to
prosecution that the actor was ignorant of the provisions of any law after the law has taken effect.
(b) It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon:
(1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or
(2) a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.
(c) Although an actor's mistake of law may constitute a defense to the offense charged, he may nevertheless be convicted of a lesser included offense of which he would be guilty if the law were as he believed.

For some reason I can't find the equivalent federal statute or rule. What I note is that it has to be reliance on an entity charged with interpreting the law. That would seem to preclude "signing statements"
 
Justified Reliance is a defense for breaking the law, ignorance is not. Somewhere along the way someone assumed that simulated drowning didn't qualify as torture, and then told someone else it was ok. The person he told can use justified reliance, the person who made the assumption, however, broke the law and is liable for their actions. If that decision was made within the CIA, the NSA or the executive office that person is no less responsible.
 
mia - I was wondering about the legal exposure for those who write an opinion that others use to justify illegal acts. I could be wrong, but I don't think it's illegal to give bad advice. If that's the case, it becomes a well encapsulated free pass to break the law for all involved.

.
 
torture is not black and white, it IS on a spectrum with being nice offering candy, warm blankets and cable TV on the far end of the no torture at all spectrum and 007 ball breaking and Vietkong bone breaking on the other end. I say this, but understand, the Bush Admin drew the nice so much farther toward the 007/Vietkong side that it appears to be black and white. Also keep in mind that torture is my number one reason why GWB is a terrible, terrible president. I have no tolerance for the issue but do recognize its not black and white.
 
Waterboarding is black and white. You either do it or you don't. It's not a function of what volume of water or how many times you repeat it. Waterboarding has been prosecuted as torture under the US military justice system for a long time.
 
A superior officer giving an order to a subordinate is not "bad advice", its an order. The subordinate can argue justifiable reliance, the superior can not... unless ordered by his superior... all the way until the AG's office. Lawyer's don't give "advice" they give counsel and are required by law to be correct.

If I told you that because a jewelry store left its doors open after hours, you aren't breaking and entering, so you are allowed to go in and take everything not nailed down... that is bad advice based on ignorance of the law... and it is not a defense.
 
bigN - Congressman Wexler, whose interactions with AG Mukasey regarding enforcing Congressional subpoenas of White House officials I excerpted in the second post on page 1, has this to say today, with a call to action: In reply to:
 
You're talking about subpoenas regarding the use of presidential pardon power. From what I understand, it's a different animal. The authority of a president to offer clemency it's absolute. Under those circumstances, there's not much leverage to dermand to know 'what was he thinking about'.

It's an entirely different matter to obstruct investigation into potential abuses of power and manipulation of our federal prosecutors for political gain.

.
 
mia1994,

In your hypothetical are you representing the government or me in your capacity as an attorney? If you are representing the government (e.g. the DA) are you contending that you can prosecute me for taking the jewelry?
 
triple,

In BOTH cases they are citing executive privilege to tell Congress to shove it with their subpeonas...

So, Wexler's assertion is false.

In both cases, the DOJ has stated that the executive branch has the authority to assert EP w/regard to the subpeonas...

I think the executive branch was correct in BOTH cases...Congress sometimes gets a little ego with respect to how much power they have...be it a Republican or Democratic Congress...
 
Ag, the difference is the president can't exert executive privilege to hide potential abuses of power, and certainly not criminal activity. The precedent for the latter is established.

.
 
You must log in or register to reply here.

Weekly Prediction Contest

* Predict TEXAS-KENTUCKY *
Sat, Nov 23 • 2:30 PM on ABC

Recent Threads

Prediction Results Threads

2024 Schedules

Back
Top