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June 24, 2007

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von -- thanks or linking to this. Its the first time I've ever felt that I could see how Reynolds got his job. ;)

I get the impression that all along, Cheney's legal positions have not really been serious. More of the sort "I can tell you anything I want and you can't do anything about it."

This is just more of the same. "You can't do a thing about it, so there."

If they can't get him for this one, he'll have proved his point.

It's nice to see that Reynolds still can't write an article without lying about Bill Clinton, though.

a couple of people in comments at the only Volokh post about this made the same point - and managed to do it without bringing Clinton into it. but i guess that's the Value-Add you get with Reynolds.

PS: why does your comment form suddenly think http://cleek.lunarpages.net/blogs/ is an "invalid URL" ? it's been valid here for the past three years.

Was there a lie in there? If so, pointing it out would be...well, it'd help your point out a bit.

It might be useful to actually look at what Clinton filed concerning the Paula Jones suit here. The point made by reynolds is buried in FN8.

Which is to say, just to be more explicit, that stating that Clinton claimed to be an active service member in order to stall the suit is the same as saying that Bush invaded Iraq because of oil.

LJ: I had forgotten that one. Reynolds: "It's reminiscent, as one of Capt. Ed's commenters notes, of the Clinton Administration's effort to stall Paula Jones' lawsuit by claiming that as Commander-in-Chief the President is a serving member of the military."

From LJ's link: "There are numerous instances where civil plaintiffs are required to accept the temporary postponement of litigation so institutional or public interests can be protected. For example, the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. Sections 501-25 (1988 & Supp. V 1993), provides that civil claims by or against military personnel are to tolled and stayed while they are on active duty./8 Such relief is deemed necessary to enable members of the Armed Forces "to devote their entire energy to the defense needs of the Nation." 50 U.S.C. app. Section 510 (1988). President Clinton here thus seeks relief similar to that to which he may be entitled as Commander-In-Chief of the Armed Forces, and which is routinely available to service members under his command."

So Clinton is arguing that there are cases, for instance the armed services, in which people get to have litigation postponed because it would not serve the public interest for them to be distracted from their duties, and that Clinton seeks a similar sort of relief. That's not what Reynolds says at all.

I suppose that I, too, might request similar relief from lawsuits.

But yes, one of these things is not entirely like the other.

And thanks, LJ, for providing the link. The rehashing of that whole history isn't something I tend to consider using much of my free time doing.

Now, back to the garden for a while. I've got zipper cream peas and okra to plant, and the remains of the tomato plants to clear out. Not in that order, of course.

Later on, we've got some asparagus beans to harvest; I've got them covering two 3'x6' trellises. Never had asparagus beans; they're about two feet long and slender, but I have no idea how they actually taste. I'll find out at dinner.

Last night's dinner was ratatouille made mostly from harvested vegetables. Cinnamon basil made it a very aromatic and highly tasty dish.

not buying it. i will agree that the VP is different than other wings of the executive branch, but that's not necessarily the same as him saying he's not part of the executive branch, or that he is a netherworld straddling both sides of the fence. I mean, the prez is a distinct part of the ex branch, but that doesn't mean he's outside of it.

slarti's gloating has induced me to head to the farmers' market.

You can gloat right back; you're probably still early into tomato season, where you are.

Early - very small, young, tender - sweet corn here, along with a few tomatoes (for which a ridiculous line appeared) and, remarkably, pea shoots. The latter, known in Cantonese as "dai mu," are among the tastiest of all known greens, except no one outside of China appears to know about them.

And, of course, my clever wife, from whom all the above info is taken. You won't catch me getting up early on Saturday morning!

We only recently discovered those, doc, and we've been exploring authentic-ish Chinese cuisine for years.

Fortunately, there's a couple of Asian grocery stores around here that carry the stuff, along with those little dwarf bok choy that I like so much.

PS: why does your comment form suddenly think http://cleek.lunarpages.net/blogs/ is an "invalid URL" ? it's been valid here for the past three years.

Hmmm. No idea whatsoever, Cleek. (It's not by intention.) Hopefully it's a temporary glitch.

my tomatoes are stil forming, some of them in containers in the back yard, others in my Urban Garden plot, along with sweet potatoes, eggplants, and cantaloupes. Alas, something ate the little pea and bean plants ;(

Fortunately, there's a couple of Asian grocery stores around here that carry the stuff, along with those little dwarf bok choy that I like so much.

First time ever, one of the stands at our local farmer's market is carrying those little bok choy. [Actually, first time ever anyone's carrying any bok choy.] I think I'm gonna put it in a Thai curry, but I might just stir-fry them up separately.

To the post, btw: how is it possible that the entire country of the United States got this issue wrong for over 200 years until the truth was revealed by Cheney et al? This seems... improbable to me.

Reynolds: "It's reminiscent, as one of Capt. Ed's commenters notes, of the Clinton Administration's effort to stall Paula Jones' lawsuit by claiming that as Commander-in-Chief the President is a serving member of the military."

This analogy is not only inapposite, it is silly. If for no other reason that the military is an entity within the executive branch.

The position of vice president is provided for in Article II of the Constitution, which provides for the executive branch. That he is given something to do (presiding over the senate, and given a vote to break ties) while waiting for the president to die or otherwise be removed from office, does not mean that he is not an entity within the executive branch.

Re; Anarch at 1:47. Surely hilzoy can find some pithy Latin phrase, a la "Tertium Non Datur," for this wizardry.

There seems to be a lot of Cheney in the chatter lately, and not just from the usual sources: this business about Cheney and his Fourth Branch of government and now this bit in the Wapo (via Drum) about Cheney's access to communication between the President and his advisers.

Could one of his colleagues be out to get 'im?

No, Cap'n Ed is right, in a way.

Both arguments represent a question which is plainly amenable to legislation as being primarily constitutional in nature.

The Clinton petition was requesting a blanket deferral of civil proceedings against presidents. That would clearly be okay constitutionally, if only there were a law affording the President similar deferrals to those afforded to servicemembers (and bankruptcy petitioners, and criminal defendants, as the petition points out). But that's no reason to treat it as a constitutional requirement, and the bottom line in Jones is that POTUS isn't sheltered from civil suits by the constitution.

This is where the similarity to Cheney's position comes in. Per Jones, POTUS can (like anyone else) be protected by legislation. The court lobbed the issue right at congress, which was exactly correct.

If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation. As petitioner notes in his brief, Congress has enacted more than one statute providing for the deferral of civil litigation to accommodate important public interests.

Similarly, Cheney would be arguing that Art. I Sec. 3 provides a constitutional basis for exempting OVP from certain executive obligations. That's way sillier than anything Clinton offered in Jones, and equally susceptible to being rendered moot the moment some statute actually addresses the question.

So let us fervently hope for some traction for Rahm Emanuel's amendment to defund the OVP. Or how about a law stating that (since the Veep is president of the Senate) OVP has to make its records available to the Secretary of the Senate for archiving, with any exceptions -- such as claims of executive privilege -- documented in writing?

Now that would make an interesting separation-of-powers case, and it's comparatively safe. In the process of overturning it the courts would have to firmly establish OVP as "within" the exec (which is okay -- Congress holds the pursestrings). And even if it were written narrowly enough to survive, such a law could still discourage some of the chicanery that's emerged from OVPs in recent decades by impeding their ability to function as a locus of "plausible deniability".

Granted, the Clinton White House offered some classic moments in uproariously weaselly hairsplitting, and the suggestion that the CinC "may be entitled to [relief similar to that which is routinely available to service members under his command]" is one of them. But I'll take weasels over sociopaths any day.

Mmmm, pea shoots....

Reynolds was simply declining to defend the indefensible in this one case in order to continue the pretense that he's not really a conservative - because if he was, he'd be defending Cheney, right?

Thanks for the link, radish. They got it wrong, but imo the SC often underestimates the costs (monetary and otherwise) of litigation. It was interesting to see, though, that JFK actually did claim immunity based on his C-in-C role under the Act. And that claim was rejected.

"Its the first time I've ever felt that I could see how Reynolds got his job"

Talk about the soft bigotry of low expectations. An article with only one tu quoque constitutes great work product from Prof. Reynolds.

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