As the left wing of the dems implode, one mantra d’jour seems to be that Bush broke the law with the wiretaps and that he should therefore be impeached. Let’s see of I can set the record straight on how these things really work. Numerous attorneys have looked at this and concluded that Bush was operating within his authority based on the legislation passed after 9/11 and the powers granted to the executive branch by Article II of the Constitution (forget FISA, it is irrelevent to this discussion). While it is nice from the perspective of watch guarding our civil rights that they had an army of lawyers look into whether the actions were legal, there is another purpose for such an extensive legal review that is not ever discussed in the MSM. That is that their conclusion (that the taps are permitted under law) is an opinion of counsel that mitigates against any allegation that he broke the law. Opinions of counsel are routinely used in the business world for this very reason. If I, as a business person, engage in activities that exceed the bounds permitted by law, but proceed because in my own opinion I am legal, then I have no defense (ignorance of the law is no excuse…). On the other hand, if my lawyer, who is an officer of the court, tells me that I am OK, then I have a legitimate defense. While avoiding the debate of whether or not the taps were legal (I believe they were), my point is that if the issue is heard by the Supreme Court and they decide the taps were not legal, it will not be a decision that Bush broke the law, but rather an interpretation of what the laws mean that runs counter to the NSA, White House, and DOJ lawyer’s. If he were then to proceed in a manner inconsistent with that decision, then there would be a criminal issue.

Another point that seems to have been lost in the discussion is that Congress does not have the power to pass a law that usurps the powers given to the Executive Branch under the Constitution. The upshot of this distinction is that even if it is found by a court that the administration’s activities fall outside legislation passed by Congress, the relevant question becomes whether the legislation was lawful in the first place. If this plays out in the Supreme Court, as I suspect it eventually will, my gut feel is that this secondary question will be part and parcel of the arguments.

See, watching Judge Judy does have its benefits. I would be interested in comments from any readers who are lawyers or judges.

Radar