Baseball Crank
Covering the Front and Back Pages of the Newspaper
April 8, 2009
POLITICS: Sovereign What?

The lawyers here will find this endlessly amusing. Yes, to Olbermann, Turley and Greenwald, a foundational legal concept that's been black-letter law for the entire duration of American jurisprudence, and is recognized in just about every jurisdiction on the planet, is somehow a novel and frightening expansion of executive power. Olbermann at least is not a lawyer, but how the other two passed the bar exam escapes me.

Posted by Baseball Crank at 7:33 PM | Politics 2009 • | War 2007-14 | Comments (14) | TrackBack (0)

Oh Crank, I never thought it'd come to this, but apparently it has: me attacking Obama and you defending him.

Anyhow, all I want to say is that you don't get it. I don't think you ever have, and this tells me you never will.

It's not about what the government can do, it's what the government should do. Alas . . .

Posted by: Mike at April 8, 2009 9:06 PM

Mike - As always, both can and should are relevant questions. And I would note that the overwhelming bulk of the criticism of the TSP has been about "can" (whether it was legal), not "should" (whether we ought to be doing it), and public support for it on the latter ground has never been seriously in doubt.

As to the assertion of sovereign immunity, yes, they should be doing that. Indeed, if DOJ did not assert sovereign immunity where it was available, it would literally be commiting malpractice as well as failing to take care that the law be faithfully executed as Article II requires.

Posted by: Crank at April 8, 2009 10:22 PM

Well I will say this to both sides-hats off to everyone who has been consistent with their position regardless of who was President.

Crank-as you know law professors are some of the most clueless and intellectually dishonest people you will ever meet. I remember taking Con Law and one of my friends was questioning the Professor about his various interesting theories about the subject that day, he got flustered and after class spoke with her about disrupting the class with her questions. BTW-the class topic-Freedom of Speech.

PS- this ass clown was responsible for drafting major parts of the South African Constitution and bloviated endlessly in various articles about suppression of political opposition.-you can't make this crap up.

Posted by: dch at April 8, 2009 10:25 PM

Yeah, thank God we didn't elect a former law professor president. Oh, wait...

Posted by: Crank at April 8, 2009 10:27 PM


I read only Greenwald's posts and updates, so perhaps Olbermann and Turley went further, but he criticizes not the doctrine of sovereign immunity, but its assertion in the circumstances of this case.

It seems to me his argument is that the Bush DOJ did not claim sovereign immunity in prior cases and, therefore, the Obama DOJ is making the claim in a new set of cases. I have no idea the merits of whether it is a legitimate assertion here, but can't resist noting that under your logic the Bush DOJ committed malpractice for not asserting it. With Fredo Gonzalez and Mukasey as AG's, malpractice is to be expected.

Oh, one other thing, in response to the law professor crack. Bush and Cheney show that MBAs and CEOs should be disqualified from the executive branch as well.

Posted by: Magrooder at April 9, 2009 10:03 AM

I'm on board, Mac. No lawyers, MBAs, CEOs allowed; let's add Yankee and Patriot fans as well.

Posted by: dave at April 9, 2009 10:12 AM

Note also this quote from Greenwald:

"As EFF's Kevin Bankston put it:

This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can *never* be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.

Since EFF's lawsuit is the first to sue for actual damages under FISA and the Wiretap Act, it's arguable whether this immunity argument applied to any of the previous lawsuits."

Note two things about this: Greenwald emphasizes the word never in the EFF lawyer's quote, and of course that is wrong. The government can be liable for wilfull disclosure according to the argument.

Also, note that he mentions this is the first to sue for actual damages, and he should also mention punitive damages. In other words, taxpayer money is at stake here.

That's an important distinction, don't you think? It's one thing to waive sovereign immunity, or at least not raise the argument, for prior lawsuits that, for example, merely sought to enjoin the wiretapping activity.

But someone wants money from this - taxpayer money. Even if they didn't make the argument before, can you really blame the DOJ for raising it now?

Posted by: MVH at April 9, 2009 11:09 AM

Ignore my first point in my last post - the EFF said never be sued for -spying- only, which is true. There would have to be disclosure.

Posted by: MVH at April 9, 2009 11:12 AM

Make that: the EFF lawyer said the government...

God, stick a fork in me. I'm ready for the long weekend.

Posted by: MVH at April 9, 2009 11:21 AM

Crank, are you going to have the integrity to call out your Red State colleague for implying that Levi Johnson has an incestual relationship with his sister?

Posted by: Mike at April 9, 2009 11:54 AM

Patriot fans?! It can nawt be denied that Tommy Brady and his babe/wife should be the 1st freaking couple of these United States. Belichik would be the entire cabinet and this country would be on the way to recovery within 1 hour! There is no denying this!

Posted by: jim at April 9, 2009 12:30 PM


You may be right about the distinction between claims for money damages and injunctive relief. The point I was trying to make was that I thought Crank's "malpractice" line was a little off-base. DOJ lawyers are (supposed) to assert claims or defenses or not based on standards more stringent than those applicable to private lawyers. As is obvious from the news lately, they don't always adhere to these obligations. There could be any number of reasons not to assert sovereign immunity in a given matter.

Posted by: Magrooder at April 9, 2009 2:41 PM

Jim, nobody denies this. Evah.

Posted by: spongeworthy at April 9, 2009 5:25 PM

Re: Obama and the torture cover-up.
Impeach the motherfu**** already.

Posted by: Berto at April 9, 2009 9:07 PM
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