Mukasey’s Paradox;
On further review, his manipulations on torture and contempt are a beautiful, twisted thing.
The recent decisions of Atty. Gen. Michael B. Mukasey to block any prosecution of Bush administration officials for contempt and to block any criminal investigation of torture led to a chorus of criticism. Many view the decisions as raw examples of political manipulation of the legal process and overt cronyism. I must confess that I was one of those crying foul until I suddenly realized that there was something profound, even beautiful, in Mukasey’s action.
In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers.
Such a perfect paradox is no easy task. Most attempts fall apart because of some element of logical consistency. The closest example to Mukasey’s Paradox is the Grandfather Paradox: If you go back in time and kill your grandfather before he meets your grandmother, you would not be conceived and therefore you could not go back to kill your grandfather. That one can play real tricks with your head.
Mukasey’s Paradox appears designed to play tricks with Congress. Its origins date back to Mukasey’s confirmation hearings, when he first denied knowing what waterboarding was and then (when it was defined for him) refused to recognize it as torture. In fact, it is not only a crime under U.S. law, it is a well-defined war crime under international law.
The problem for Mukasey was that if he admitted waterboarding was a crime, then it was a crime that had been authorized by the president of the United States — an admission that would trigger calls for both a criminal investigation and impeachment. Mukasey’s confirmation was facing imminent defeat over his refusal to answer the question when Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) suddenly rescued him, guaranteeing that he would not have to answer it.
Once in office, Mukasey still had the nasty problem of a secret torture program that was now hiding in plain view. Asked to order a criminal investigation of the program, Mukasey refused. His rationale left many lawyers gasping: Any torture that occurred was done on the advice of counsel and therefore, while they may have been wrong, it could not have been a crime for CIA interrogators or, presumably, the president. If this sounds ludicrous, it is. Under that logic, any president can simply surround himself with extremist or collusive lawyers and instantly decriminalize any crime.
However, this is only half of Mukasey’s Paradox. The other half occurred last week when Mukasey refused to allow contempt charges against White House Chief of Staff Josh Bolten and former White House counsel Harriet E. Miers to be given to a grand jury. Bolten and Miers stand accused of contempt in refusing to testify before Congress in its investigation of the firings of several U.S. attorneys in 2006. Mukasey wrote to House Speaker Nancy Pelosi that their refusal to testify could not be a crime because the president ordered them not to testify under executive privilege.
Under this logic, no official can be prosecuted for contempt as long as a president ordered them to commit the contempt — even if the president’s assertion of privilege is clearly invalid or incomplete. In this case, many experts have expressed skepticism that all or any of President Bush’s assertions of privilege in this case would be upheld.
When Mukasey blocked the contempt cases, many legal experts were filled with rage. But I came to see his rationales as objects of beauty rather than scorn. When one combines the two decisions, they fit neatly into Mukasey’s Paradox. Mukasey was saying that lawyers could not be charged criminally because the president ordered them to commit the act — and that the president could not be charged criminally because lawyers told him he could do it.
Now some have pointed to other paradoxes in Mukasey’s tenure. There is, for instance, the “paradox” that his confirmation was saved by Democrats — who thereby allowed the president to avoid a confrontation on torture. There is the “paradox” of Mukasey insisting that courts should not investigate the Justice Department’s failure to preserve the CIA torture tapes because the Justice Department should be allowed to investigate its own failure to previously investigate.
Yet these are not real paradoxes — they’re merely political ironies. A paradox is a statement that seems true but yields a contradiction or a dual truth. When reduced to its purest form, Mukasey’s Paradox is that government officials cannot violate the law — but that because executive privilege is also a law, it’s sometimes necessary to violate the law in order to uphold the law.
Mukasey’s Paradox will now join other paradoxes such as Zeno’s Paradox. Indeed, members of Congress already use a variation of Zeno’s Paradox to explain their lack of action on civil liberties, torture and Iraq. They seem to be always working toward “change” without actual change occurring. The answer is found in Zeno’s Paradox: You will never reach Point B from Point A as you must always get halfway there, and half of the half, and half of that half, and so on.
Mukasey’s Paradox, if adopted, will result in administration officials being effectively beyond the reach of the law. Yet there is always hope.
Consider that Mukasey took an oath under which he swore to uphold the laws of this country — even if the violator is the president of the United States or his aides. That oath means that all laws must be upheld without exception. Except, according to his interpretation, that executive power is a form of constitutional law that creates exceptions to the enforcement of laws.
But there’s something known as the Exception Paradox, which goes as follows: If there is an exception to every rule, then every rule must have at least one exception, including the rule that there must be an exception to every rule. Thus, perhaps this is a rule without exception, and the president cannot order criminal acts.
But that brings us back to Mukasey’s Paradox. Even if there is no exception to the president ordering crimes, there is no crime because the president ordered it. Perfection.
Los Angeles Times: March 4, 2008
BYLINE: Jonathan Turley
And therefore they all skate through until the end of this national nightmare called the Bush administration?
Indeed, though there is the Nihilist Paradox: If truth does not exist, the statement “truth does not exist” is a truth, thereby proving itself wrong.
I find it interesting that the flag of the fascist regeme The Italian Regency of Carnaro depicts an Ouroborus, a snake eating its own tail. Mukasey’s logic depicts similar traits.
My first post went into hyperspace!
But, Kudos, Bravo, Splendid! Huzzah to Professor Jonathan Turley for this essay. Hopefully we could see it or a close variant in the NYT or WaPo!!
Also “Mukasey’s Fork” might be apt description as well after the infamous “Morton’s Fork” of English tax collection history.
This same “paradox” is at work in the telecom immunity deal. I would like to know if there is any legal strategy citizens may pursue when the executive branch commits crimes and the congress will not hold them accountable.
Jill
While I always enjoy reading JT’s colums, I have to admit to missing the “beauty” of Mukasey’s Paradox. Twisted, definitely, that I agree with. But I cannot say it’s “beautiful,” and not just because I’m not a law professional.
The fact that this Attorney General cannot and will not admit to the people that this President has broken the law and SHOULD face a criminal inquiry and impeachment makes it clear to me that he was never an Attorney General for the American citizens. It appears that he has only been acting as a defense attorney for the President. Sounds like a serious conflict of interest to me.
The closest known Paradox to fit Mukasey’s stance is the Barber Paradox.
Perhaps Mukasey’s position is that the Department of Justice, being a member of the Executive Branch, can never investigate and prosecute the Executive Branch. It would be self-referential and paradoxical! Recall Bertrand Russell’s Barber Paradox and rephrase it to see why this is so:
“The Dept of Justice is that agency which investigates everyone in the government except those who investigate themselves.
Does the DOJ investigate themselves or not?”
A paradox, if they do, they don’t, if they don’t they do, so obviously it is legally and logically impossible for the DOJ to ever be culpable of anything!
And by a simple extension of the logic: the Executive Branch is immune also since it the proper class which the DOJ is an element!
So Mukasey cannot lose, it is a logical impossibility for him to investigate the Executive!
In fact, this means that an independent investigator is the only possible solution to the logic of this paradox. Mukasey, being logically forbidden to do much of anything including DEFENDING the administration (i.e. the same logic applies to the DOJ defending the Executive) is free to go boating, or fly kites or whatever, to occupy his time.
I appreciate the saliency of the point made about the Democrats and the ‘political ironies’ of their vote for Mukasey. The Democrats lack of motion as JT points explains is truly astounding.
What’s even more astounding is the constitutional irony that is playing out: what happens when the key actors in the Constitutional framework fail to uphold their duties and oaths under the Constitution?
The article by Mr. Turley is fascinating to read as an exercise, and the comments are also interesting as a reflection of deep thinking going on among the citizenry. However, academic thought only goes so far, and Mukasey’s words and actions are united with those of the Bush cabal in furtherance of the destruction of the USA as we know it. An all-powerful presidency with a somnambulant executive branch in tow is totally unacceptable to average Americans, and an armed insurrection is the likely outcome. The redistribution of wealth fostered by the Bush Administration and the rampant corruption which permeates the entire federal government have put the nation on an inexorable path to two classes, 1% wealthy and 99% poverty stricken. The lower majority will only stand for it so long, and that time limit is rapidly approaching. The state of the economy coupled with the collapse of reason and freedom at the hands of our political leaders will not be tolerated much longer. Such political expediency and cronyism as Schumer and Feinstein approving the Mukasey nomination is an example of exactly what our federal government should not be doing. Things must change, and change is inevitable, but will it be for good or bad? A similar set of circumstances, sort of, led to the collapse of The Roman Empire. We Americans owe it to ourselves to recapture our nation; like it says in the Declaration of Independence, “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security”. Perhaps now is that time?
“Indeed, though there is the Nihilist Paradox: If truth does not exist, the statement “truth does not exist” is a truth, thereby proving itself wrong.”
The funny thing about Nihilists lay in their self-contradictions; i.e. claiming to ‘know’ that knowledge is impossible while writing sentences and paragraphs distinguishing certain values above others–else the sentences wouldn’t make any sense.
That aside, it appears that Mukasey’s Paradox relies on the contradiction of our republican form of government for its existence.
Truth; the non-Nihilist variety:
“What is truth? The nominal definition of truth,
that it is the agreement of knowledge with its object, is
assumed as granted….” Immanuel Kant, Critique of Pure Reason
And, I could be wrong, but I think the ‘object’ of our republican form of government is the contradiction of Tyranny; either the Montesquieu or Locke variety.
For Locke, tyranny exists “When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.” — J. Locke 2nd Treatise
And how does that translate into Latin per Mukasey’s Paradox? It’s always fun to scan through a master list of legal maxims to learn Latin:
In propria causa nemo judex. No one can be judge in his own cause.
Consentientes et agentes pari poena plectentur. Those consenting and those perpetrating are embraced in the same punishment.
Idem agens et patiens esse non potest. One cannot be agent and patient (i.e. one that is acted upon), in the same matter.
Regards,
Bob
In the military if your superior gives you an illegal order you are supposed to refuse to follow it and promptly arrest the person who gave it.
Recently I saw Albie Sachs, a justice on the Consititutional Court of South Africa speak at the University of Chicago law school. He said something close to the following :
“To imagine any power of the president bound by the Bill of Rights is simply unimaginable in our country. We spent too much time struggling for an enforcable Bill of Rights. To even entertain the possibility would make you fail the very first test in the very test in law school. It’s simply unimaginable.”
It shouldn’t be a hard concept.
Mukasey’s song: “When I Was A Lad”
“When I was a lad, I served a term
as office boy to an Attorney’s firm.
I cleaned the windows and I swept the floor,
And I polished up the handle on the big front door…
[chorus]
Yes, he polished up the handle on the big front door!
I polished up the handle at their say
And now I am the AG of the DOJ!
[chorus]
He polished up the handle at their say and now he is the AG of the DOJ!
When torture came round at my hearings long,
I carefully said I could see no wrong,
I gainsayed this and couldn’t remember that
And Leahy couldn’t see where I was at!
[chorus]
No, Leahy couldn’t see where he was at!
I hemmed and hawed as best I may
Then they made me the AG of the DOJ!
[chorus]
He hemmed and hawes ss best he may,
And now he is the AG of the DOJ!
When my turn came to prosecute,
I found the whole issue very moot,
I can’t find crime where orders exist
And sprung on the House that little twist!
[chorus]
He sprung on the House that little twist!
I sprung that twist so deftly they say
I’m sure as AG of the DOJ I’ll stay!
[chorus]
He sprung that twist so deftly we say!
We’re sure to see him longer at the DOJ!
So all young attorneys new to law,
Heed faithfully my noble saw,
If Boss you have and he says Leap!
Forget the books, and your job you’ll keep!
And if you leap so faithfully,
Then you too will become the USAG!
[chorus]
Protect your Boss and you will be
a perfect model of our beloved AG!
No rights reserved, feel free to adjust the meter!
Oh, for younger readers not acquainted with Gilbert & Sullivan (or even Lerner & Loew for that matter), I am cribbing from Pirates of Penzance.
“The life of the law is not logic; it is experience.”
-Justice Oliver Wendell Holmes
oh, and one more thing: here’s my favorite paradox:
“This statement is false.”
Michael, I’m not certain if I’m reading you correctly. Here’s part of an interview of Albie Sachs by Nthabiseng Mabuza:
NB: Have any controversies risen from the public regarding any issues in the Constitution?
Another early controversial issue dealt with the holding of South Africa’s first democratic local government elections. We said that Parliament could not give authority to the President to lay down all the rules and regulations; that Parliament itself had to do that. So we declared the President’s Proclamation invalid. President Mandela accepted with very good grace saying that he had to be the first to show respect for the law and the Constitution.
This seems to contradict your quote.
More importantly, our Founders clearly set out to limit Executive power.
Crap. Enormously crucial typo screwed up the entire comment… should be “To imagine any power of the president *NOT* bound by the Bill of Rights is simply unimaginable in our country
But nice job fishing out that quote, Jill.
It seems to me the Bill of Rights have a remarkable lacuna – penalties. All the laws that apply to the rest of us have consequences if broken, from jaywalking fines all the way up to capital offenses. When the government breaks the law, the citizens’ recourse seems to be fettered by the lack of explicit consequences in the form of penalties.
I thought that at least in the case of the fourth amendment the FISA laws had addressed this urgent need. Moreover, they made it clear that the law did apply to the highest level of government. No more could a president echo Nixon’s infamous, “If the president does it it’s not illegal.”
I guess I was wrong about that. Apparently I was wrong about the whole ‘government of laws, not men’ thing too.
completely unreliable memory..it was, of course, HMS Pinafore.
(slaps head)
DW
DW:
It was still a brilliant effort regardless of the title.
DW, It’s got a beat, you can dance to it
- I give a 95!
Not to worry Michael, in context your Sachs post was still clear
-to me, anyway.
I’m pouting over JT’s Mukasey Paradox. I still liken the situation to ‘the chicken or the egg’ with the Oath of Office being the most important factor weighing.
Before Bush was formally entrusted with the executive power which eventually enabled him to torpedo and then scuttle the ‘USS’ Constitution, he first took an oath to keep it afloat, if you will.
In that regard, he betrayed the American people, and I know we, the governed, never consented to that. Our long standing system of checks and balances tells me that Bush has gone far beyond the established, logical, or rational basis intended for executive privilege.
Executive privilege is not the law that trumps all other laws, in my view. And it was never meant to be a “Get Out of Jail Free” card.
Dear Michael,
I wanted to thank you for your clarification and for your kind words. I appreciated them both!
Patty C and JT,
Why thank you both. I feared it had sunk without a ripple! I do regret the line where I put in too many syllables (I was composing on the fly and didn’t work it out properly).
The relevant line would better read “I’m sure as AG I’ll safely stay!”
Too bad the WhiffnPoofs aren’t still around to build a review around Pinafore with modern characters!
DW (who sings Gilbert & Sullivan in the shower oft-times)
Where’s JT?
http://www.boston.com/news/nation/washington/articles/2008/06/24/judge_challenges_bushs_immunity_claim/
Judge challenges Bush’s immunity claim
Privilege asserted for top advisers
By James Rowley
Bloomberg / June 24, 2008
“A US judge voiced doubts yesterday about President Bush’s assertion that his top advisers are completely immune from being forced to testify before a House panel investigating the firing of federal prosecutors.
US District Judge John Bates repeatedly challenged an administration lawyer to cite legal justification for the refusal of former White House counsel Harriet Miers and Chief of Staff Joshua Bolten to obey subpoenas to appear before the House Judiciary Committee.
The panel in Washington sought testimony and documents from Miers about whether White House aides orchestrated the nine dismissals for improper political motivations, such as to spur prosecution of Democrats or protect Republicans.
Bolten was subpoenaed to produce documents.
“There is no case that supports the absolute immunity proposition that you have before the court,” Bates told Carl Nichols, the principal deputy associate attorney general. Cases cited by the government “seem to support something less than an absolute immunity,” the judge said.
Bush has asserted executive privilege in refusing to allow top aides, including his former political strategist Karl Rove, to testify before Congress about the US attorney dismissals.
The House went to court in March for an order to force Miers and Bolten to appear before the committee after the Justice Department refused to criminally prosecute them for contempt of Congress.
Irvin B. Nathan, the House’s general counsel, argued that Miers was required to at least appear before the committee and invoke Bush’s executive-privilege claim on a question-by-question basis. That would give the committee – and possibly the courts – the ability to weigh the panel’s need for information against Bush’s confidentiality claims, he said.
The case may be the biggest test of a presidential assertion of executive privilege since President Nixon refused to turn over tapes of recorded Oval Office conversations to a federal grand jury investigating Watergate.
The Supreme Court in that case recognized a qualified privilege that was overcome by the grand jury’s need for information about a criminal investigation that could influence decisions about whether to prosecute government officials for crimes.
“You would transform it, would you not, into an absolute privilege” by top aides to refuse to answer questions from Congress, Bates asked Nichols. Such an assertion would leave Congress and the courts unable to address the merits of the privilege claim, the judge said.
During a three-hour argument, Bates also suggested that he might order more negotiations between Congress and the White House over the production of documents after Nichols conceded the Bush administration was only asserting a “qualified privilege” to turn over documents.
A more detailed description of the types of documents Bush sought to withhold from Congress “would be very helpful to the kind of accommodation process” that would avoid a court fight, the judge said.
In February, the House voted 222-30 to hold Bolten and Miers in criminal contempt of Congress for ignoring subpoenas to cooperate with the Judiciary Committee’s investigation of the dismissals.
A month later, the House filed a civil suit to enforce the subpoena after Attorney General Michael B. Mukasey refused to seek criminal prosecutions for the failure of Bolten and Miers to obey the subpoenas.
Noting that any decision is likely to be appealed, Bates said the subpoenas would expire when a new Congress takes office in January, when there would also be a new president.”