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Warrantless Wiretapping is a Crime

Senator Pat Leahy sent subpoenas to the Whitehouse asking for documents about the warrantless wiretapping program. The president said Leahy will not get them because of “executive privilege.” So what else is new? Plenty. A prominent lawyer tells how to get the documents because warrantless wiretapping is a federal crime.

The prominent lawyer is Jonathan Turley:

But last night on MSNBC’s Countdown, George Washington University law professor Jonathan Turley claimed that Congress may be able to “get around the executive privilege in court” by saying “we are investigating a potential crime.” Turley said this was possible because warrantless wiretapping is “a federal crime” that “the president has ordered hundreds of people do.”

Pretty simple. And as the article further states, investigating a crime takes preference over "executive privilege":

As Columbia University law professor Michael Dorf points out, the Supreme Court ruled in United States v. Nixon that, “where the President asserts only a generalized need for confidentiality, [executive privilege] must yield to the interests of the government and defendants in a criminal prosecution.”

Senator Leahy has a good case. Wiretapping Americans without a warrant is a federal crime. It is believed that "the president has ordered hundreds of people" to commit this crime. Congress is investigating this possible crime. Congress needs Whitehouse documents for this purpose. "Executive privilege" is overruled.

Bush will probably continue stonewalling. In this situation, Senator Leahy should pursue the case in court.

Nobody is above the law.

Posted by Paul Siegel at June 28, 2007 4:34 PM
Comment #224338

You do realize this is going to end up at SCOTUS, and we can probably guess how that will turn out…

Posted by: Woody Mena at June 28, 2007 8:40 PM
Comment #224342

In the worst case scenario for Bush, what would actually happen if the Supreme Court ruled that Bush’s interpretation of his presidential authorities under Article II was completely incorrect and unconstitutional? Would it mean that he was guilty of a “crime” for his error and subject him to criminal prosecution?

Or how about this:

If the Supreme Court rules that the Democrats are overstepping their Consitutional authority by issuing subpoenas of the president over this matter, are Democrats in Congress suddenly guilty of a crime and subject to criminal charges?

Hell no. That’s just not how the system works.

When the Supreme Court ruled that having an abortion was a woman’s constitutional right, all those who had believed differently (or still believe differently), or who had ever denied women abortions, weren’t all of a sudden hauled into court and shipped off to jail.

Jonathan Turley’s opinion that Congress can just cancel executive privilge by claiming that they’re “investigating a crime” even though there are no courts or prosecuters also looking into those alleged “crimes” is a load of bull.

Watergate, Whitewater, etc. all involved crimes that were investigated by the judicial branch of government—thus it was possible to void executive privilege, and even then it wasn’t easy. What Turley is proposing is that if Congress disagrees with a policy of the executive branch, they can just call it a crime, thus criminalizing political disagreements. The very idea is ridiculous. And it’s made even ridiculous by the fact that while Congress is looking into alleged “crimes” here, they’re also working on and debating legislation to affirm the president’s authority to carry out those same activities.

Posted by: Loyal Opposition at June 28, 2007 9:21 PM
Comment #224350

All this depends on an Attorney General practicing the law of the land rather than proving his loyalty to his dictator.

Posted by: john trevisani at June 28, 2007 9:48 PM
Comment #224351

Because canning whistleblowers is BS.

This administration is doing the same thing that was going on in the 60’s and keeping it classified.

It’s bull.

At least nuclear missiles in cuba was a legitimate issue.

All we get is a trillion+ bill for Iraq with zero progress. (yes it’s already over a trillion because of estimated medical bills for FIFTY THOUSAND wounded American soldiers)

Posted by: jrjr at June 28, 2007 9:50 PM
Comment #224358


Whether or not something is a crime isn’t just a matter of opinion or interpretation. Bush can’t gun someone down in broad daylight and say “I thought that was one of my presidential powers”… I don’t know whether Leahy is right or wrong, but the law is the law.

Posted by: Woody Mena at June 28, 2007 10:35 PM
Comment #224360

Bush can’t gun someone down in broad daylight and say “I thought that was one of my presidential powers”…

Why not? Cheney did… ;-)

Posted by: TheTraveler at June 28, 2007 10:52 PM
Comment #224367

Woody, the law is the law, but what the law IS always requires interpretation. That’s why we have the judiciary branch of government.


Whether or not something is a crime isn’t just a matter of opinion or interpretation. Bush can’t gun someone down in broad daylight and say “I thought that was one of my presidential powers”

Totally wrong. Bush is the head of the Executive Branch of the United States Government, and people are gunned down in broad daylight every single day of the year under his authority. Whether those pulling the trigger are soldiers in Afghanistan or Iraq, or cops in Los Angeles, New York, or any other American city, you have to use—oh, a little “interpretation”—to decide whether you’re seeing cold-blooded murder or enforcement of the law. And the same goes for wire-tapping. Interpretation matters.

I don’t know whether Leahy is right or wrong, but the law is the law.

Excellent! I don’t know if Bush is right either! I’m glad we see this the same way. But if the courts eventually say that Leahy is the one who is wrong here, do you agree that he should be investigated, tried, expelled from Congress and sent to prison? And if not, why? Seems like you’d want the hammer to fall on Leahy’s head very hard for making an incorrect interpretation of the law—that is unless you have one standard for Democrats and another one for Republicans.

Posted by: Loyal Opposition at June 29, 2007 12:09 AM
Comment #224370


Wait a minute. Maybe I read the news wrong, but didn’t the subpoenas that Bush is refusing to comply with by claiming privilege pertain to the firing of the prosecutors, and not the wiretapping program?

Just a clarification. No doubt he will assert the same thing in response to the wiretapping subpoenas.


You’re making silly arguments. Leahy is not alleged to have violated any criminal law, even if one were to argue that he did abuse the investigatory powers of the Congress, which seems like a stretch. However, violating FISA procedures for obtaining a warrant *IS* a federal crime, and there’s really no serious factual question about whether or not the Bush administration violated it. That is to say, even they aren’t denying that they ignored FISA. They could argue that they have some special privilege or that the situation has some special quality that makes it OK for them to violate FISA, and that’s probably what they’ll do, but I don’t think they’re really saying that they didn’t ignore FISA’s rules.

Moreover, your abortion example is equally ill-founded. Denying a woman an abortion is not a crime, unless criminalized by federal or state law. Abridging someone’s rights is frequently not a criminal offense in the absence of a law making it so, even if said abridgment can be challenged in court to make it cease.

Posted by: Yossarian at June 29, 2007 1:06 AM
Comment #224371
You’re making silly arguments. Leahy is not alleged to have violated any criminal law, even if one were to argue that he did abuse the investigatory powers of the Congress, which seems like a stretch.

You’re right—Leahy isn’t alleged to have violated any criminal laws. He’s the one doing the alleging against those who disagree with him. The only reason he hasn’t been alleged to be a lawbreaker is that his opponents in this debate aren’t taking that particular debating tactic with him. And that’s ALL it is—a debating tactic.

Posted by: Loyal Opposition at June 29, 2007 1:53 AM
Comment #224372

Yeah,you are getting silly. Your usual points make more sense even if often wrong. Is the strain of defending the undefendable getting to you?
With that viewpoint Ken Starr should be in prison along with Newt and company.

Posted by: BillS at June 29, 2007 2:07 AM
Comment #224384

Warrantless Wiretapping is a federal crime and a breach of the constitution that he is sworn to uphold. Bush has admitted to some form of it, claming, dubiously according to most legal scholars, that it’s part of his CINC authority.

The investigation into this is necessary. This is a legitimate concern. This is the president claiming that one part of the consitution gives him the ability to ignore another that contains no special provision for such exercise of power.

This is the president admitting to acts which may very well have been violations of federal law. The real disturbing thing here is that many Republicans like yourself find so easy to take every serious issue and claim that all the concern we have over it is just tactics in a debate. The Republicans have sunk themselves so deeply into the partisan politics, that many no longer register when a concern transcends party politics.

Posted by: Stephen Daugherty at June 29, 2007 8:14 AM
Comment #224386


You are really being obtuse here. If you don’t like that example, try another: Bush can’t rape a woman in broad daylight and say “I thought that was one of my presidential powers”.

There is no way you can argue that Leahy and Bush are interchangeable. Sending someone a subpeona is not a criminal act no matter how you spin it.

Posted by: Woody Mena at June 29, 2007 8:45 AM
Comment #224396

There has never been an administration like this one that totally disregards the law.

Posted by: Max at June 29, 2007 10:23 AM
Comment #224405


From the WaPo article yesterday:

“Lawmakers said their aim is to understand and reconstruct the administration’s internal debate about the program’s legality, an aim White House officials have resisted.”

What you and this lawyer are suggesting is that the Congress has to have access to the President’s advice and legal opinions on warrantless wiretapping so that they can use that advice to determine if a crime was committed.

This is a pretty big stretch.

Luckily we have a process to settle such arguments between branches of Government. It will be interesting to see how it all washes out.

Posted by: George in SC at June 29, 2007 11:33 AM
Comment #224443

George in SC-
What did the president know and when did he know it?

Posted by: Stephen Daugherty at June 29, 2007 4:25 PM
Comment #224477

“Leahy is not alleged to have violated any criminal law, even if one were to argue that he did abuse the investigatory powers of the Congress, which seems like a stretch.”
Posted by: Yossarian at June 29, 2007 01:06 AM

Funny, I thought in the case of the flying imams many libs were saying that the embarrassment of being falsely accused and the obvious violation of civil rights perpetrated by fear-stricken American passengers was grounds for at least civil prosecution if not criminal prosecution upon those who caused the imams so much grief and harrassment. Perhaps, if the Supreme Court, or any court for that matter, rules in Bush’s favor, several Democrats could be liable for civil rights prosecution and perhaps, even criminal prosecutions of their own for violating the rights of the President of the United States with false accusations of criminal behavior? It sounds to me like the Democrats are “imaming” the President because of their own bigotry and hatred for him. Just a thought!


Posted by: JD at June 30, 2007 1:38 AM
Comment #224503

Yossarian and Stephen Daugherty, excellent posts. As a result, there is really nothing left for me to add to what you’ve written.

“There has never been an administration like this one that totally disregards the law.”

So true, and it has horribly undermined this country in numerous ways. We need to make sure there is never another administration like them at the helm of our government.

LO, you’ve been claiming that you’re very much against the way this administration has conducted themselves while in office, yet time and again in these threads I see you attempting to thread rhetorical needles and scrape excuses together. Why is this?

Posted by: Adrienne at June 30, 2007 5:07 PM
Comment #224562

Paul Siegel- The Inherent Contempt Power, found in

Congressional Oversight Manual, from Congressional

Research says the Senate or Congress can have (A)

U.S. Attorney [not] the Attorney General, have an

individual brought before either body by the

Sargent-At-Arms an Tried at the Bar of the Body

an be sent to prison. Since The Capital Police an

Sargent-At-Arms can not go in to The White House,

We might see a long waiting period before we

saw any inside show their face. I believe those

folks would comply with the Subpoena shortly after
some of the others started their stay in prison.

By the way, those people in prison can only be

held for the duration of the term of which ever

branch of Government sent them there.

Posted by: -DAVID- at July 1, 2007 6:59 PM
Comment #224625

Here is a link to the article that you are talking about dave. Thats the best news yet. Thanks for posting a light at the end of the tunnel for us.

Posted by: midnight0000 at July 3, 2007 2:23 AM
Comment #225107

“A federal appeals court ruled in May that the Washington state Democrat should not have given reporters access to the tape-recorded telephone call of Republican leaders discussing the House ethics case against former House Speaker Newt Gingrich, R-Ga.
McDermott’s offense was especially egregious since he was a senior member of the House ethics committee, the U.S. Circuit Court of Appeals for the District of Columbia said in a 5-4 ruling.
The congressman called the ruling an infringement of his free speech rights.”
(News release regarding the defense of Rep. Jim McDermott releasing illegally recorded tapes of Newt Gingrich’s private phone calls)

When Bush wiretaps to prevent future terror attacks Dems call that an abuse of power. When a Democrat is “convicted” of releasing illegally wire-tapped phone conversations of Republicans, Democrats claim it is a violation of his rights to free speech.
Go figure?


Posted by: JD at July 6, 2007 8:46 PM
Comment #225281

JD- I think Bush should have changed the Constitution before committing felonies against
Americans a few years ago when this pampas, ass
decided on his own volition, that he was above
the law. There is a 72hr. time frame extended even
before they had to get a warrant for phone taps.
No matter what you or anyone else says, Millions
of regular Americans should be subjected to this
illegally, out of hand maneuver.

Posted by: -DAVID- at July 8, 2007 4:53 AM
Comment #225282

—————-should not be subjected to- Sorry.^^—

Posted by: -DAVID- at July 8, 2007 5:00 AM
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