The Mukasey Paradox


Jonathan Turley meshes Attorney General Michael Mukasey's positions on torture (it isn't illegal if the president's legal advisers say it isn't) and his refusal to entertain contempt charges against Harriet Miers and Josh Bolton (it isn't illegal if the president orders it) to come up with Mukasey's 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.

The predictable result is an unchecked executive. Turley finds the logic "beautiful." I'd probably use some other adjectives.

Thanks to Jonathan Blanks for the tip.

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  1. Am I first?!?! Should I provide a relevant comment or a quality link?

    No comment.

    Lupe Fiasco with Matthew Santos

    Lyrics are on the right side (click “more” under “About This Video”).

  2. alarming, depressing, unforgivable.
    /other adjectives

  3. circular logic is wonderful. In the end, you’re right back where you started.

  4. Mukasey is just another sycophntic toady. If GWB makesd an appointment who turns out not to be a bootlicker, they resign out of disgust or are fired.

    Only 322 days to go.

  5. makesd —> makes

    Manual dexterity is not my strong suit.

  6. Isn’t this more of a doubled-down appeal to authority than a paradox?


  7. I think this is more like Andrew Jackson’s paradox:

    Congress had made their decision, now let them enforce it.

  8. Can anyone explain how torture is legal. all fifty states have laws against assault and battery.

    If the CIA were to torture prisoners in Los Angeles, California, the agents involved are subject to arrest by the LAPD and prosecution by the L.A. County District Attorney.

  9. Michael Ejercito, that actually raises fascinating issues of law. Federal statutes make it difficult or sometimes impossible to bring a federal officer before a state court to answer for crimes committed while acting under color of federal authority. These laws go back to the days of revenuers and moonshiners, when federal agents who broke up moonshining operations would sometimes be hauled before hostile state courts. Congress passed laws to protect federal agents. I seem to remember that these laws might have come into play when Idaho considered criminal charges against the federal agents who killed Randy Weaver’s wife and son–maybe somebody else remembers more clearly.

  10. Michael E.,

    If it worked like that, jailing people in federal prison would violate state kidnapping laws.

  11. jdb,

    IIRC, there was nothing preventing murder charges in the Weaver case, but the DA decided not to ask for them. That might have only been the case because the Rules of Engagement were violated so he wasnt under federal protection anymore. Its been too long to remember.

  12. According to wikipedia:

    Lon Tomohisa Horiuchi (born 9 June 1954), is a 1976 West Point graduate and U.S. FBI sniper who was charged with manslaughter following the shootings during the Ruby Ridge standoff. The charge was dismissed and Horiuchi was later deployed during the Waco Siege.

  13. Ooops, more info left out of above:

    In 1997, Boundary County, Idaho Prosecutor Denise Woodbury, with the help of special prosecutor Stephen Yagman, charged Horiuchi in state court with involuntary manslaughter. Horiuchi successfully petitioned to remove the case to federal court,[4] where the case was dismissed by U.S. District Judge Edward Lodge on May 14, 1998, who cited the supremacy clause of the Constitution which grants immunity to federal officers acting in the scope of their employment.[citation needed]

    The decision to dismiss the charges was reversed by an en banc panel of the Ninth Circuit, which held that enough uncertainty about the facts of the case existed for Horiuchi to stand trial on state manslaughter charges.[5] Ultimately, the then-sitting Boundary County Prosecutor, Brett Benson, who had defeated Woodbury in the 2000 election, decided to drop the charges because he felt it was unlikely the state could prove the case and too much time had passed. Yagman, the special prosecutor, responded that he “could not disagree more with this decision than I do.” [5]

    The 9th Circuit granted Boundary County’s motion to dismiss the case against Horiuchi on September 14, 2001.[6]

  14. He has refused his Assent to Laws, the most wholesome and necessary for the public good.

    He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.

    Two of the “injuries and usurpations” for which a King was declared a tyrant and independence thus declared. I’m not ready for revolution, but I’m good with impeachment. 322 you say? Sigh.

  15. Hooray! A legally supported, presidentially approved circle-jerk. Of course they’d call it “beautiful”, and I’m sure they use more words than that when they get in their little pow-wow.

    The mental picture even disgusts me.

  16. God I hate these fuckers.

    I know that this is neither a funny nor useful comment.


  17. “””If it worked like that, jailing people in federal prison would violate state kidnapping laws.”””

    Not sure if that analogy is valid. Michael’s point is that the federal agents are breaking state laws. If someone is jailed as part of due process, it’s usually legal. The state isn’t violating it’s own kidnapping laws by jailing you in a valid circumstance. Neither are the feds. You’re comparing something illegal with something legal.

    I guess it depends if torture is a duty of the CIA. If not, then they are not acting under the color of federal duty. Being a federal officer does not automatically give you immunity from state laws. Well Mukasey would probably disagree with me.

    Mukasey is one of the pigs in George Orwell’s Animal Farm.

  18. 322 you say? Sigh.

    Indeed. You can bet the farm that the next Emperor President won’t suddenly halt this accretion of power.

  19. this is part of a well-established and very serious trend which is, to say the least, still not receiving adequate coverage.

  20. uhm…

    “Why does Reason hate America?”

    I just havent heard anyone say that in a while.

    See, the constitution isnt a suicide pact.
    Bad men.
    The decider.
    Protect Americans.
    Ticking time bombs.
    Only the guilty have reason to fear.
    To defend our freedoms, we sometimes need to sacrifice freedoms.


    It’s amazing how well some of this stuff works when you start poking politicians with sticks.

  21. ederal statutes make it difficult or sometimes impossible to bring a federal officer before a state court to answer for crimes committed while acting under color of federal authority.

    The CIA has no police powers in the United States.

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