"I've got a question for you," said Collins. "Driving down the road, speed limit says 55, I'm doing 65. Have I broke the law?"This isn't the ordinary perspective of a prosecutor, who would stand up before a jury and tell them that they have proven a breach of the law if they have proven that you were going 65 in a 55. It's the perspective of a judge, even a Justice: until a court has issued its ruling, there is no fact of the matter about whether or not you are guilty of violating the law.
"You would have to ask the Highway Patrol," Lynch answered, as the chamber erupted in snickers. "He would likely write you a ticket," she added helpfully.
The dumbfounded Collins exclaimed, "I went to a small law school. We were taught the law!" He noted that he wasn't so sure about Harvard (Lynch's alma mater) though.
He repeated his question, "Did you break the law or not — 65 in a 55? My dad was a state trooper..."
"As I said before, you would get a ticket for that," Lynch answered.
"So you broke the law!" Collins exclaimed.
"You would be cited for that," Lynch offered. "That would be considered an offense."
Indeed, from this perspective, until the black robed Olympians have ruled, we cannot know what the law says -- or whether there is a law at all. The "real" law isn't the text passed by some legislature, but the set of precedents that fill out just how the law will actually be applied. Too, if the Supreme Court should rule that the law is void for some reason, the mere fact that some legislature and executive passed and signed a law means nothing whatsoever. No law has been broken if there was never a law to start with.
I think we know what Bill Clinton promised her on that plane.
UPDATE: FBI agents interviewed anonymously report that they believe there was a deal struck on that plane.
Well, probably there isn't anyone who doesn't believe it deep down. There are just some who feel obligated to deny it to soothe their own consciences about what they're going to do in November.
For a few moments, I really thought this was from an Onion article.
ReplyDeleteThis is yet another example of why ordinary people think our government officials are stupid -- and unconcerned with the constitutional roles they have chosen to fill.
ReplyDeleteA legislator might have asked a follow up with the prefatory remark: "I believe it was the intention of this body, our legislature, to make that law pretty clear. Individual circumstances are, I think, the province of juries, sometimes judges; the job of our sovereign citizens, or the judiciary, or even -- in the rare case of exercising his power to pardon -- the executive. You, however, seem to be telling me that I and my colleagues have failed. I wonder if you can point out to me the ambiguity in this law as it stands. If, as I remember and believe, it was and is the intent of this legislature to make the described act a crime, REGARDLESS OF THE INTENT of the actor, how should the current law be amended? What's not clear, here?"
Okay, what this ought to do is acknowledge that "circumstances" do play a role in life. The guy speeding thru traffic may be delivering -- or intend to deliver -- a heart to a transplant patient, or something. A guy giving secrets to international terrorists may be trying to, intending to, keep a family member, held hostage, alive. There are cases where a jury or a clemency board may be moved to sympathy. There are cases where a cop or a prosecutor or a grand jury may be so sympathetic they refuse to go the next step. It happens. But between a Legislator and a Prosecutor, if a description of a case presented such that the LAW is indicted (for being vague) rather than the perpetrator, the legislator must INSIST on restoring the notion that the law itself means something, over and above what the human beings responsible for administrating each law might whimsically infer.
...there is no fact of the matter about whether or not you are guilty of violating the law.
ReplyDeleteHere's another lawyerly parsing of that statement, even though I don't even play a lawyer on the radio. This parsing is entirely consistent with the recently stated Comey/Lynch legal theory (and from a different direction than your own).
You did violate the law. You're just not guilty of it.
Eric Hines
UPDATE: FBI agents interviewed anonymously report that they believe there was a deal struck on that plane.
ReplyDeleteAnd how many of those FBI agents have resigned over the Comey/Lynch decision?
How many career prosecutors have resigned from Main Law?
https://www.youtube.com/watch?v=z4BC4bolXZk
Eric Hines
"The "real" law isn't the text passed by some legislature, but the set of precedents that fill out just how the law will actually be applied. Too, if the Supreme Court should rule that the law is void for some reason, the mere fact that some legislature and executive passed and signed a law means nothing whatsoever. No law has been broken if there was never a law to start with."
ReplyDeleteWell isn't it worth than that- she's saying there is a law ("You would likely get a ticket for that", "That would be considered an offense"), it's just that it's whatever law enforcement or a prosecutor decide it is at any given moment- it's arbitrary and capricious. Anarchy would be better, because at least it's equal. When they're openly making anarchy the better option, we're getting into truly dangerous territory.
"worth"? Is there auto-correct in blogger now? I'm sure that's not what I typed- should be "worse".
ReplyDeleteI was on a jury once that acquitted a guy of speeding on a straight stretch of well-lit, dry six-lane highway in negligible traffic. We were given to understand that the statute actually defined speeding in terms of "excess speed for the conditions" rather than an absolute top number. I'm not even sure if that's how the law reads, but somehow the prosecutor left us with that impression, and we either ran with it or engaged in jury nullification, depending on how you look at it.
ReplyDeleteBut my attitude toward the law basically is that, if I agree with a law, my conscience is in play, and if I don't agree with it, only my fear of consequences is in play. There's a big gray area, in which I feel I should comply with a law I disagree with because I've signed up to participate in a system in such a way that I've implied to other people that they can count on me to comply even with the regulations I think are misguided. Nevertheless, the letter of the law itself doesn't mean very much to me.
I won't claim that's an admirable approach. It seems to work for me; it may not scale well. I will say that I firmly believe I can't escape a moral wrong by relying on the fact that I'm following the law.
Lynch doesn't strike me as someone who has a moral system that overrides her legal system. She just seems untethered from the whole concept of governing behavior.