Mukasey’s Paradox

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

28 thoughts on “Mukasey’s Paradox”

  1. Where’s JT?

    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.”

  2. 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)

  3. Dear Michael,

    I wanted to thank you for your clarification and for your kind words. I appreciated them both!

  4. 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.

  5. completely unreliable was, of course, HMS Pinafore. 🙁

    (slaps head)


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