November 06, 2007
Ashcroft Wrong On Immunity Law

See this article by former Attorney General John Ashcroft? He’s defending immunity for the telephone companies who turned over wiretap information without warrants in reliance on the government’s say-so that it was legal. Ashcroft argues that:

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company’s, to deal with the consequences if they are wrong.

Small problem: he’s wrong on the law. Companies that deal with the government in fact are not entitled to rely on promises made by government officials, and it is common for companies to lose major legal cases despite the fact that they relied on what they believed to be valid advice from government officials.

What Ashcroft wrote probably sounds like a reasonable rule to the average person: it’s not fair for a company to be penalized for doing something the government told it to do. The real rule, at least as reasonable as Ashcroft’s, is exactly the opposite. That rule is described, elaborated, and relied on in hundreds of cases, mostly government contract cases. Contrary to Ashcroft’s teaching, the rule is that businesses who deal with the government are not entitled to rely on a government official’s promises that their behavior is legal. A government official cannot make an act legal simply by erroneously telling a citizen the act is okay. The problem that these cases address is that government officials are human, and can make mistakes in interpreting laws. Or, officials can even be corrupt, or otherwise purposefully misinterpret the laws. A mistaken or corrupt government official does not have the power to make an illegal act legal.

A company that deals with the government is required to make its own, independent analysis of whether or not the actions proposed by the government are legal, and where a government official gave wrong legal advice, the company can lose the lawsuit.

There are hundreds if not thousands of these cases out there. And, it is very common for the citizen who relies on an erroneous representation by a government official to get to get the shaft, high and hard. Here’s just one that I found in a minute on Google:

As to “actual authority,” the Supreme Court has recognized that any private party entering into a contract with the government assumes the risk of having accurately ascertained that he who purports to act for the government does in fact act within the bounds of his authority. Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947); accord CACI, Inc. v. Sec’y of the Army, 990 F.2d 1233, 1236 (Fed. Cir. 1993) (“A contractor who enters into an arrangement with an agent of the government bears the risk that the agent is acting outside the bounds of his authority, even when the agent himself was unaware of the limitations on his authority.”). ....

But even if the Secretary of the Air Force himself had said to the recruiters that they could and should promise free lifetime medical care to aid in recruitment, those promises would be a nullity because, as shown below, the pertinent regulation provided to the contrary.

And, even on fairness, the rule that the letter of the law governs – and not the flawed interpretation of a government official – has much to recommend it. One of the rationales for this rule is that “The People” passed the laws, and it is the people’s law that governs, not the imperfect officials who may mistakenly interpret the law. It is not fair to force the people to abide by the perhaps twisted and erroneous interpretation of their laws by the imperfect individuals who hold office temporarily. It is not the people’s fault that their laws were misinterpreted by an official, and it is not fair to penalize the people for the mistakes of public servants. Remember the old saw about ours being a government of laws, not men? This is exactly what is meant: actions aren’t made lawful by the president’s saying they are lawful; actions are lawful if they are within the law.

One corollary to this legal rule: anyone who is shafted by relying on the mistaken legal interpretation of a government official usually cannot sue the government for relief because the sovereign is immune from suit, but such an injured citizen may have a legal recourse: a suit against the personal assets of the government official who made the mistake.

Just sayin’.

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Posted by Wayne Uff at November 06, 2007 12:12 AM
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Ignorance of the law is no excuse, even for a former Attorney General of the United States.

Posted by: Aitch Jay on November 6, 2007 11:02 AM

I saw that article in the Times too. I knew it had to be a phony, but I didn't know enough to prove it. Thanks for shedding some professional (I guess) light on this latest pack of lies.

Posted by: CCRyder on November 6, 2007 4:27 PM
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