February 07, 2008
A Government of Lawless Men

There has been a remarkable consistency among George W. Bush’s attorneys general in one respect. All three of them have openly argued for breaking the law and have proceeded to do so on a daily basis.

Here is Michael Mukasey, currently taking his turn as our nation’s chief law-breaking officer:

Also Thursday, Attorney General Michael Mukasey told lawmakers he will not open a criminal investigation into the CIA’s use of waterboarding on terror suspects.

House Judiciary Committee Chairman John Conyers asked Mukasey bluntly whether he was starting a criminal investigation since Hayden confirmed the use of waterboarding.

“No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then,” he said.

Mukasey said opening an investigation would send a message that Justice Department opinions are subject to change.

“Essentially it would tell people, ‘You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigations ... if the tenure of the person who wrote the opinion changes or indeed the political winds change,’” he said. “And that’s not something that I think would be appropriate and it’s not something I will do.”

This last paragraph might sound reasonable to someone unfamiliar with the law: Gee, officer, the Justice Department said it was okay. Go give them the ticket.

But under the law it is not okay at all. Mukasey’s own Justice Department will ship you off to jail if that’s the best excuse you can offer for committing a felony. And they do it every day.


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Wayne Uff explained the process for us several months ago, as former attorney general John Ashcroft’s was doing his best to let our largest telecomunications companies off the hook for the illegal wiretapping they did at George W. Bush’s request.

Uff, a retired federal prosecutor himself, makes an argument that may seem counterintuitive to the layman. It is, however, the law, and the law is what Torture Boys Ashcroft, Gonzales and Mukasey swore an oath to uphold.

In this article former Attorney General John Ashcroft defends 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 Jerome Doolittle at February 07, 2008 06:24 PM
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Comments

My earlier post referred to civil matters, not criminal ones. The telecom issue, as I understood it when I wrote the post, involved the telecoms seeking immunity from civil suits, based on earlier reassurances from government officials that the spying the telecoms were being asked to do was legal.

I'm not aware of the Justice Department shipping people off to jail on these doctrines. Generally speaking and without reference to any particular set of facts or statutes, I think it would be very hard indeed for even a skillful prosecutor to achieve a criminal conviction of a government official who acted in reliance on DOj advice.

It would also, I think, generally be quite hard for a citizen to succeed in even a civil suit against a government official, if that government official acted pursuant to DOJ advice. That is because when government officials are sued for their individual acts, the plaintiff must prove that the official knew he or she was acting outside of the scope of his employment and authority.

My point was more limited: non-government defendants, like the telecoms, are not protected from civil suit by non-government plaintiffs just because the government gave reassurances to the defendant that his/her proposed actions were lawful. The courts in such situations will make an independent determination as to whether or not the defendant's actions were lawful.

Mukasey's point is chilling, awful, and wrong in its own way, but I don't have time to unpack it now. Chilling, awful, and wrong, but different from Ashcroft's point. At least that's how I see it.

Posted by: Wayne Uff on February 8, 2008 12:16 AM

Sorry, Wayne. In the words of the master, Nixon, I misspoke. When you have the time, I hope you'll work Mukasey over at greater length.

Posted by: Jerry Doolittle on February 8, 2008 9:14 AM

As distasteful as it is to say this, the prosecution has the option of not taking a case to court or even investigating it. They also have the option of taking weak cases to court. The bar for interfering in prosecutions is pretty high, malfeasence of office.

Posted by: Chuck Butcher on February 9, 2008 12:57 AM
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