bkswrites

Posts Tagged ‘US Constitution’

Admissions test

In legal lingo, media laziness, political titles on June 9, 2017 at 4:32 am

Washington Post 6/8/17 evening edition: “In a remarkable admission, former FBI director James B. Comey testified he helped reveal details of his private conversations with President Trump because he thought doing so would spur the appointment of a special counsel to investigate the administration.”

I’ve heard the admit word used by others in reference to Comey’s testimony to the Senate Intelligence Committee, most notably, perhaps, by the attorney hired privately to speak about the testimony for Mr. Trump. I don’t wonder why Marc Kasowitz would use the word four times in a statement of 600 words (by CNN’s transcript), though I find a few of his charges overblown even by what little I know about the situation. I’ve always said, if I weren’t a writer, I’d be an attorney, because of the principle of precise use of language. But Comey is also an attorney, and when I read his prepared statement the night before his testimony, I did not see the word admit.

Of course, that’s only wise. To “admit” to something in a Senate hearing would be to self-incriminate. Isn’t that why Mike Flynn said he would “tell his story” only with a grant of immunity? But who would prosecute? Not the Senate itself. Perhaps the special prosecutor. But if Comey’s “admission” was that he provoked the appointment of the special prosecutor, that seems unlikely.

Kasowitz says he and his client will “leave it to … authorities” to determine whether Comey’s “leaks” constitute crimes. I’m certainly not qualified to make such a determination, but it appears the decision might hinge on the words classified and privileged.

Comey did use classified, but not privileged, as far as I could tell. He said that the January 6 meeting, at Trump Tower, was at the end of a routine intelligence-community briefing of a president elect. Well, the focus of the briefing on Russian interference in the election wasn’t routine. And it was to provide even more sensitive material — Comey called it “salacious” — that was more personal, for which Comey remained alone with Trump, although others knew of the material and agreed with him that the considerate thing to do was to inform Trump, and one on one.

Beyond the words salacious and personal, Comey did not disclose the content of his January 6 meeting with Trump. In his live testimony, I heard him say that he began documenting that meeting on a classified laptop because that was the resource he had brought along to the classified meeting. I have not understood that the memo remained on the classified laptop or was classified itself. And I have not heard any content I would call “salacious” unless it’s Comey’s report that, in a phone call initiated by Trump on March 30, Trump brought up “hookers.”

I’ve no idea where Kasowitz gets privileged. It could be that Trump thought he was invoking some kind of privilege by clearing the room for his conversations with Comey, but surely Kasowitz knows better. And as I understand it, any attempt to limit Comey’s disclosure under executive privilege was obviated by Trump’s firing him.

So what, in fact, did Comey “admit”? Perhaps he admitted to being a well-trained attorney, and a man who is accustomed to being responsible and accountable for his own career and oath to uphold and defend the Constitution, and admitted to finding himself with a man who is accustomed to either having someone at his elbow to create the record, or having his very presence dominate the interchange, unquestioned. I’m afraid there’s a lot more admitting yet to come, and not, probably, from John Comey.

I think I’d be more comfortable with some acknowledging, which doesn’t carry near the implication of culpability.

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Too Definite an Article?

In legal lingo, significant insignificancies on January 25, 2013 at 9:11 pm

I can’t say that it’s an error, and I’m afraid I don’t even have a direct quote to include. But I’m afraid that from the first moment I heard about the ruling of a federal appeals court on President Obama’s recess appointments last year to the National Labor Relations Board, I was intrigued by the report that part of their ruling of unconstitutional action hinged on the presence of “the” rather than “a” or any less definite word in Article II, Section 2 (Powers and Duties of the President), Clause 3, which empowers the president to fill executive-branch vacancies “during the Recess of the Senate.”

I guess, among other things, we will find out exactly how much care we think the Framers of the Constitution took with the very smallest words. Or maybe we’ll find out how willing we are in the 21st century to be bound by the conditions of early-19th-century America.

It may well be that the definite article appears in II.2.3 only because, at the time it was written, there was only one Recess in the Senate’s work year. The Senators could not fly back and forth between D.C. and their states to hear their constituents one day, vote on an executive appointment the next. Neither could they, as in 2012, send in one or two of their number every day or so during the (same) idle period to bang a gavel and declare that the Senate was not recessed, but in session. But let’s not go further here into the possibly political motivations of the 2012 Senators, individually or collectively. Let’s likewise leave to the politicians and the Supreme Court the questions of the implications of this ruling for President Obama’s other appointment during this particular recess — which he repeated for Senate confirmation yesterday — or for the work done by the five appointees during their possibly unconstitutional tenure.

There are more linguistic nits to be picked in this case, too: Does “Vacancies that may happen during the Recess” mean only vacancies that begin during the recess, or any vacancy that takes the executive out of action? But then, none of the five 2012 appointments was to a post mentioned in the Constitution or remotely contemplated by the Framers.

One of the talked-about expressions from President Obama’s inaugural address a couple of days earlier is his differentiation of “absolutism” and “principle.” I suspect we’ll hear more of those differences as this ruling is mulled, dealt with, and probably appealed. It’s definitely worthy of our consideration.

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