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Professor Tribe Points To "Those With Constitutional Blood On Their Hands"

A federal district court this week ruled what has been evident for some time now -- that the President of the U.S. has been systematically breaking th

A federal district court this week ruled what has been evident for some time now -- that the President of the U.S. has been systematically breaking the law without any valid defense, and ruled further that his administration has been violating the constitutional rights of Americans. In response, most of the media and the "legal experts" they consult have been far more interested in pretentiously demeaning the quality of the Judge's written opinion -- as though what matters is to have law professors snidely grade the Judge's work -- than they are interested in the grave constitutional crisis our country faces as a result of a lawless presidency.

Harvard Law Professor and constitutional scholar Laurence Tribe has written a superb e-mail to New York Times reporter Adam Liptak (in response to Liptak's front-page Times story which focused not on the decision itself or what it means for the country, but instead, on the supposed consensus of "experts" that the opinion lacked "scholarly depth" and used language that was too strident and disrespectful in condemning the President). While Professor Tribe makes clear that he shares many of the technical, legalistic criticisms of the court's written opinion, he eloquently points out that compared to the radical law-breaking of the Bush administration -- which the court correctly ruled is without any legal justification whatsoever -- such criticisms are petty and even inconsequential. As Tribe notes: "while her reasoning is bound not to be embraced, her bottom line [that the President broke the law and violated Americans' constitutional rights] is very likely to survive appellate review" (emphasis added).

I have been objecting for the last three days to this obsessive and patronizing focus on the alleged "lack of scholarship" of the Judge's opinion. Such petty critiques serve only to obscure the real dangers posed by a law-breaking president and to enhance the egos and bloated self-satisfaction of these harping law professors, editorialists and pundits who appear palpably indifferent to systematic presidential criminality. Professor Tribe makes this point perfectly:

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But it's those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

Those who are chattering endlessly about the lack of "complexity" of the court's reasoning are obscuring the fact (in many cases quite deliberately) that the court's legal conclusions, which will be the only relevant issue on appeal, are completely -- and. in the most significant instances, indisputably -- correct. As Professor Tribe puts it:

When a presidential program that wouldn't have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program's critics have in fact engineered a statutory "fix" that amounts to little more than a whitewash in the offing -- when all these things are true, it's not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.

Most of these same "experts" and editorialists have stood by meekly and with a corrupt ambivalence while this administration implements radical theories of executive power which vest in the President the power, literally, to break the law. Yet now that a federal judge has courageously and correctly ruled that this administration is engaged in systematic law-breaking that not even the "war on terrorism" justifies, these same tepid, open-minded experts have suddenly found something to be excited about, as they eagerly parade themselves, showing everyone how smart and serious they are by scoffing at the Judge's writing abilities. As I document here, and as Professor Tribe suggests, there is every reason to believe that it is these self-styled experts who lack serious scholarship with many of their misguided and ill-informed criticisms of the court's decision.

But even if there are legalistic flaws in how the court defended its legal findings -- and most, including me, have acknowledged that there are -- the fact that we have a President who breaks the law at will because his administration has adopted the theory that he has the power to do so is surely of far greater importance. Only those with profoundly skewed priorities, or those seeking to find ways to defend the President's law-breaking, would view that as a close call.

As Professor Tribe notes in the conclusion of his letter, the administration's conduct here, as well as the legal positions it took in this case, "betray[] contemptuous disregard for law and a willingness to grasp at legal straws in order to mask a naked assertion of boundless power." Once the media's obsession with grading Judge Taylor's paper fades away, perhaps we can take note of those self-evidently profound dangers posed by an administration which (as the court correctly observed) believes the President is vested with the powers of a monarch.

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