Saturday, April 12, 2008

We Had Legal Opinions

Bush suggested in the interview that no one should be surprised that his senior advisers, including Vice President Cheney, would discuss details of the interrogation program. "I told the country we did that," Bush said.
"And I also told them it was legal. We had legal opinions that enabled us to do it."

George W. Bush has an MBA from Harvard. He worked in the oil and gas industry. He is, on his paternal grandfather's side, a 4th generation multi-millionaire. He is, on his paternal grandmother's side, one of the oldest families of wealth in the nation. That doesn't even take into account where Barbara Bush got all of her money from.

I go through that whole litany of George Bush's pedigree to emphasize that George Bush understands the difference between what he has -- a legal memo from John Yoo, an employee of the Department of Justice -- and what he does not have -- a legal opinion.

It is a difference that makes a difference.

I work for a law firm that never has, and never will, issue a legal opinion. We write contracts, we make phone calls, we write legal memos, and we give plenty of advice, but we do not write legal opinions. If we absolutely, positively, have to give a legal opinion in order to close a deal, we hire another law firm that is willing to give legal opinions.

Because when you render a legal opinion, the lawyer is basically guaranteeing the validity of the contract. He is guaranteeing that the oil and gas tax shelter will be deductible under the IRS Rules. He is guaranteeing that that all of the complex and contradictory rules of state and Federal securities law have been complied with, and that no one will be accused of securities fraud.

He is guaranteeing that the entire Executive Branch of the United States government can engage in a perpetual scheme to torture and pay no penalty for it.

And if the lawyer issuing the legal opinion is wrong, it is the lawyer (or rather the lawyers insurance company) that will pay the damages. If the lawyer issues too many wrong opinions, he will become uninsurable -- and will find himself out of business.

In theory, a lawyer who issues an opinion letter blessing, for example, a fraudulent mortgage-backed securities scheme, could theoretically spend time in jail. Although the legal system will not really do that to another lawyer.

A lawyer working for the Justice Department is not on the hook for the damages at Gitmo and Abu Gharib.

So -- as the President certainly knows -- you can not have an legal opinion letter on the legality of torture if you don't have a lawyer who pays some penalty -- like getting waterboarded -- if the opinion letter turns out to be wrong.

And that lawyer is certainly not going to get waterboarded if the person who requested the opinion letter has the power to pardon the lawyer.

The notion that a lawyer in a subordinate position (yes I know John Yoo had a day job, but still, he wasn't the Attorney General) could issue an invalid opinion letter and that the entire executive branch could be allowed to rely on that invalid opinion letter to implement a policy of torture has to fit some definition of "high crime and misdemeanor".

Even if it doesn't, if the Congress understood their jobs -- and how their jobs have been rendered useless by this President -- they would impeach the President just to get this point across -- that the future of checks and balances and that the future of the Constitution is more important then serving whichever lobbyist is making the Congressman rich today.

However, that entire ethic in public service, once hard to see through the mist, has now disappeared completely.

If the President did not intend to hide the entire Executive Branch behind the invalid legal opinion all along, he would not have asked for it. If the opinion --- that basically says that in foreign policy, in wartime, the President can do whatever he pleases -- was valid, Bush wouldn't have needed it.

Bush wouldn't have needed to go through a nationwide talent search to find the only prominent attorney in the entire country crazy enough to issue an opinion like that.

The President just would have done his job, secure in the knowledge that it really was his job.

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