Scott Horton, who writes the excellent blog "No Comment", wrote this week about Attorney General Mukasey, stating that "the "mentality of courtiers has reappeared" and that this time "they’re offering that crown up to a new King George." Horton goes on to compare Mukasey's statements to the Senate (in which he could not say whether waterboarding was torture) to the writings of Lewis Carroll. He goes on to describe the real purpose of Mukasey's pedifoggery in defense of his client:
But there was never any doubt as to the purpose of Mukasey’s maneuvers. He was keen on maintaining the Justice Department’s formal advice sanctioning torture techniques actually used. His opinion was, after all, the only thing that stood between Dick Cheney and a war crimes indictment.
I love his description of the struggle that accompanied two competing views of the rule, or ruler, of law:
"Much of the constitutional struggle that engulfed the English-speaking world in the seventeenth century revolved around two fairly simple phrases. One was “no man is above the law,” and the other “the king can do no wrong.” Each of these expressions reflected a fundamentally different notion of the rule of law, and they could not be reconciled. The banner of Parliament and Commonwealth stood for the idea that all were bound and beholden to the law, and the decapitation of the sovereign Charles Stuart following his trial and conviction for high crimes was pursued to give vivid witness to that principle. But no sooner was the restoration in place, than the monarchical concept of a king above the law was resurrected. The idea of a king violating the law was a nonsense, they said, because the king was the law. Post-Restoration Britain found a series of legal fictions to address the problem of misconduct by the state, but in concept this often turned on the notion that the king commanded compliance with the law so that unlawful conduct could not be the king’s. The American Revolutionaries, however, took up once more the notions of the Civil War. For them the king was a tyrant, his offending conduct a violation of the natural law. And the notion that the “king can do no wrong” was an insufferable falsehood. Tom Paine put this most powerfully when he wrote these lines in Common Sense."
He goes on to quote these lines from Paine's Common Sense, which I didn't think I'd read but found familiar:
But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.
Now, as the House is rumored to have approved telecom immunity, as Obama's advisor has, unlike Obama, come out in favor of it, and as most people still see the issue as Bush described it, as preventing trial lawyers from being able to sue so-called patriotic (but plainly not law-abiding) telecom companies from suing for violations of FISA, I thought of a case I read in law school.
First, the back story, as described on PBS's Frontline website:
Sonya Singleton was convicted of money laundering and conspiring to distribute cocaine. A panel of this court reversed that conviction on the ground the prosecuting attorney violated 18 U.S.C. § 201(c)(2) when he offered leniency to a co-defendant in exchange for truthful testimony. The panel held the testimony of the co-defendant should have been suppressed and that the failure to do so was not harmless error.
Ms. Singleton, who was convicted largely on the testimony of a "snitch" who received a downward departure, and thus leniency, for testifying agains her, successfully (at least at first) argued that the government violated its own statute in offering the snitch leniency for what it termed favorable testimony. The statue said:
Whoever... directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial . . . before any court . . . shall be fined under this title or imprisoned for not more than two years, or both.
The three-judge Court of Appeals panel found that the government violated this statute and found that the trial court's refusal to suppress the testimony of the snitch was erroneous. Later, in an en banc review, the entire panel reversed, reinstating her conviction.
Watch, though, the way the Court, much like A.G. Mukasey, twists and tortures language in order to arrive where it wants to arrive:
Viewing the statute on its face, it is apparent the dispute revolves about the word "whoever." ... As correctly argued by Ms. Singleton, "whoever" is a broad term which by its ordinary definition would exclude no one. Indeed, if one were to take the word at face value, defendant's argument becomes colorable, at least. However, the defendant's approach, while facially logical, ignores a crucial point that must be considered in any attempt to apply the statute to the issues of this case. She argues the breadth of the word "'whoever' includes within its scope the assistant United States attorney who offered Douglas something of value in exchange for his testimony."
In other words, Ms. Singleton argues that in America the law is king. But times have changed...
The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government's perspective of the case. Indeed, the prosecutor's function is far more significant... Indeed, a federal court cannot even assert jurisdiction over a criminal case unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant. Therefore, the government's sovereign authority to prosecute and conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants.
All pigs are equal, but some pigs are more equal than others.
Put into proper context, then, the defendant's argument is: in a criminal prosecution, the word "whoever" in the statute includes within its scope the United States acting in its sovereign capacity. Extending that premise to its logical conclusion, the defendant implies Congress must have intended to subject the United States to the provisions of section 201(c)(2), and, consequently, like any other violator, to criminal prosecution. Reduced to this logical conclusion, the basic argument of the defendant is patently absurd.
How dare you point out the Emperor's nakedness, little girl! Thank god we can read English better than you. And, there's more than a language we inherited from the nation we broke away from. Unbeknownst to most of you, the law doesn't apply to the King:
There is even a more fundamental reason for arriving at the same conclusion, however. Although Congress may, by legislative act, add to or redefine the meaning of any word, it did not do so in the passage of section 201(c)(2). Therefore, we must presume it intended to employ the common meaning of the word. The word "whoever" connotes a being. See Webster's Third New International Dictionary 2611 (1993) (defining "whoever" as "whatever person: any person"). The United States is an inanimate entity, not a being. The word "whatever" is used commonly to refer to an inanimate object. Therefore, construing "whoever" to include the government is semantically anomalous. Looking beyond definitions, though, there are rules of statutory construction that will lead to the same conclusion.
Statutes of general purport do not apply to the United States unless Congress makes the application clear and indisputable. In The Dollar Savings Bank v. United States, 86 U.S. 227, 22 L. Ed. 80 (1873), the Court instructed:
It is a familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words. The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not him in the least, if they may tend to restrain or diminish any of his rights and interests. . . . The rule thus settled respecting the British Crown is equally applicable to this government, and it has been applied frequently in the different States, and practically in the Federal courts. It may be considered as settled that so much of the royal prerogatives as belonged to the King in his capacity of parens patriae, or universal trustee, enters as much into our political state as it does into the principles of the British constitution.
Next, the Court claims that, in the foregoing "logic" it "ha[s] already established the absurdity in trying to apply section 201(c)(2) to the sovereign's prosecutorial powers."
Has it? And that stuff about the law being king in America? Well, let's just say we've moved beyond "Common Sense" and the King is back.