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Who will buy my free advice?

OK, and Your Humble Blogger has not recently indulged himself in giving worthless advice to future presidents, but here is a nice bit to be distilled, kept in a bottle, and opened when the time is right.

First of all, keep in mind that your party may lose the Senate at the midterm. That’s assuming you have the Senate for the first two years, in which case make use of it to get things passed. But assume that for the second half of your (first) term, the opposition party will be in control of oversight and subpoenas and hearings and all the mechanisms of troublemaking. Also, assume that the opposition party will be controlled by crazy, vicious, partisan bastards facing primary challenges from even crazier, more vicious, more partisan bastards, and that screwing you over is the best thing they can do for their careers. It might not happen, but you plan for contingencies.

OK, now assume that your attorney general will have to resign, while the opposition party is in control of the Senate. You don’t have to assume that he will be forced out in disgrace. He could be hit by a bus. He could be shot by a crazy person. He could be directly assumed to heaven by a golden chariot. You’d still have to get a new one confirmed.

Now, the advice. When you are deciding on policies, if at any point you are considering embarking on a policy that—let’s call it policy A—a policy that will, if the Senate finds out about it, come up in a hearing with confirmation hinging on the question Is policy A legal?, then reject that policy. If the nominee is put in a position where he has to either state that policy A is legal and be rejected, or state that it is illegal and expose you and your staff to prosecution, then you have made a serious error. If any newspaper prints that “Fear of opening the door to criminal or civil liability for [policy A], whether in an American court or in courts overseas, appeared to loom large” in the confirmation process, then you have made a serious error.

This is independent of Policy A being a bad and useless policy, which Our Only President’s policies are. This is also independent of the actual legality or illegality of the matter. Your Humble Blogger was struck by the Schroedinger’s Cat sense in the New York Times that waterboarding is neither legal nor illegal yet, that the President was not liable, nor was he free from liability, whilst the nominee dithers. And, of course, that is how the legal system works; actions are legal or illegal when they have been found by a court to be in violation of a law, and before then they are not anything. Which does let anybody off the hook. No, the point is that having your buddy tell you that Policy A really is legal, if you look at it right does not mean that it’s legal. And the real point is that when you become President of the United States of America, you should hold yourself to a standard of can those bastards nail me for this, because they will.

Tolerabimus quod tolerare debemus,


Well, and there are multiple layers of courts as well as multiple layers of jurisdictions (state, federal, foreign, international). So even the apparently simple notion that a court can rule that a particular act is legal or illegal at a particular time does not actually provide any certainty as to how another court may in the future rule on that same case, let alone once new laws are passed, new precedents set, new legal theories advanced, and a new similar act is tried in court.

But before things are ruled on by a court, most acts do have a status of legal or illegal, and people are presumed to know which acts are illegal. That's how you can be held responsible for assisting in an illegal act, or covering up an illegal act. I'm not making a distinction between legal terms of art and common usage. Being able to determine beforehand which acts are illegal is a manifest necessity of a society based on law.

The tap dance that nominees do, claiming that they need specific facts of an actual case before they can evaluate a question of legality, is absurd. Laws and policies are general, and are part of a framework into which we try to fit particular situations. The only way we can understand that framework, pass new laws, create new policies, and know how we can avoid acting illegally is by first understanding and evaluating questions of legality in general terms and in hypothetical cases. Nominees pretend that the framework is content-free, when in fact the framework is far more meaningful than any specific case ever can be. And the framework must hang together, or we will surely all hang separately.

people are presumed to know which acts are illegal

Sure, but whether that knowledge is correct is a matter eventually decided by the courts. It's a problem of indeterminacy--think of it as balls and strikes. The batter has to act on his judgement and his expectation, and is held responsible for the later judgement of the umpire. In fact whether the pitch is a ball or a strike is not a matter of whether it is in the strike zone but whether the umpire calls it a ball or a strike; the batter has to act on his knowledge of that umpire's zone. There is no pitch that is inherently a ball or inherently a strike, as can be proved with reference to the rule book.

To extend the analogy to your point about hypotheticals, an umpire must be able to answer hypothetical questions about a ball on the knees or a ball on the letters, or he won't be able to call a game.

Now, my advice is to throw strikes, and if you ask whether the ump has a wide zone or a narrow zone, I will tell you to throw strikes because the ump hates you, but if you throw them down the middle of the plate, he can't do shit. Which means if you want to pitch at that letter, you'd better be bringing heat.


Sure, but whether that knowledge is correct is a matter eventually decided by the courts.

Not in any specific way, no. The chances that a court will decide whether something you did was legal or illegal is insanely tiny. The courts do not rule on most actions or interactions. I've had 1000 conversations with people who were not my immediate family in the past year. Did I threaten, extort, violate a trade secret, commit fraud, violate a copyright, or break some other law during any of those conversations? Not a single one of those conversations was tested in a court, nor should it be. I've engaged in 1000 commercial transactions in the past year. Did I break some law in the course of any of those transactions? Again, not a single one was tested in a court, nor should it be.

The balls and strikes analogy is cute, but completely off base. We call our own legals and illegals in the normal course of events. Very occasionally we disagree enough to ask a cop or an IRS agent or a lawyer or some other person to call a legal or illegal. The percentage of legals and illegals called by a court is similar to the percentage of balls and strikes called by the commissioner of baseball.


I've attempted several times to respond to your comment, the attempts sounding more or less confrontational, but none of them sounded persuasive. I am coming to think that your disagreement stems not from my being insufficiently clear about my position, but from an actual disagreement.

Which seems odd to me, because I think we are describing similar experiences of the world. So. I see three categories of actions: Those formally found to be legal, those formally found to be illegal, and those which are undetermined. The category of undetermined actions is of course the largest, and within that category, there are items easier and more difficult to label provisionally legal or illegal, but those labels are all provisional and subject to test in court, and therefore the actions in this category belong together. I'm guessing that you see five categories: formally legal, formally illegal, informally legal, informally illegal, and tricky. If so, we're really talking about a hierarchy here, where I am very uncomfortable with the idea that your first two categories have clear boundaries and your last three do not, while I am reasonably comfortable with the idea that my three categories have clear boundaries, while admitting that the third, largest category, in order to be useful, has to have internal boundaries which are fuzzy.

I have other concerns with the five-category formulation, but I think that's enough of that.


I don't know, it seems to me that Michael's position is that an act is known to be illegal only when it has been ruled as such by a jury and stamped as such by a judge, the officer of the state.

V's position, on the other hand, seems to be that there are laws and that there are things done that have defied these laws, and whether these things done are found out and prosecuted, and so forth, is irrelevant, since they are Against the Law.

Seems like I read a quote somewhere (and I thought it was on this blog) about Quantum Legality, where an act is simultaneously legal and illegal, and the box isn't opened and its status revealed until a jury makes its decision. It may have been a comment somewhere else (or even here) about something else entirely, I forget.

Anyhow, it seems to me, to muddy the waters, that there is also a cultural and historical component to it. Slavery is currently illegal in the US, but it was not 200 years ago. Similarly, there are cases (for instance) from the Prohibition era, where speakeasy operators were arrested. Nobody's going to arrest a bar owner just for owning a bar, these days.

V's free advice, I think, is reasonably good advice to a state leader: don't do anything illegal ("be careful of the eagle in the middle of your back," as the poet Manson once sang), and you won't be surprised with prosecution.

One thing I think Our Only Administration is doing is trying to force a change of interpretation of the laws regarding the Separation of Powers in favor of the Executive, and I think they are doing this quite openly (if clumsily). I only fear that it may work, at which point I may have to move to a nation with a strong republic, rather than a dictatorship.

If there are any left.


Well, and the reason quantum legality comes into it is that my advice is not just don't do anything illegal but don't do anything that you would hate to have to publically defend the legality of. As you say, Our Only President appears to be taking the position that certain kinds of activities are legal, but he doesn't want to defend them in court or in front of Congress. There's a limit to how long that works.

I hope.


We tend to look for legal precedent wherever we can find it. For instance, when this new interwebz thing came into being, Congress had to recognize that commerce would be part of that. The precedent they cited for sales tax purposes was the law that applied to mail order and phone order sales, and how sales tax was handled for interstate orders. It wasn't perfect, but it worked.

V said to me: I am coming to think that your disagreement stems not from my being insufficiently clear about my position, but from an actual disagreement.

Yes, and I'm sorry (and surprised) that my specific disagreement was not clear to you or Matt. Neither of your summaries of my position sounds to me anything like what I believe my position is. I'll try to be clearer.

To backtrack, I completely disagree with this sentence in your original post:

And, of course, that is how the legal system works; actions are legal or illegal when they have been found by a court to be in violation of a law, and before then they are not anything.

My position: That is NOT how the legal system works. Actions ARE legal or illegal before a court has ruled on them. We cannot otherwise function as a society governed by law.

V, you said to me:

I'm guessing that you see five categories: formally legal, formally illegal, informally legal, informally illegal, and tricky.

My response: No. I see only two categories: legal and illegal. I may concede a marginal third category of tricky, such as some fair use copyright cases (where the courts are utterly inconsistent, the rules are opaque, and reasonable people disagree). You mention a formal/informal distinction, by which I assume you mean whether or not a court has ruled. You clearly see this formal/informal distinction as important, because you described it as a necessary condition to being able to categorize an action as legal or illegal at all. Three of the points I was trying to make were that (1) I don't think the formal/informal distinction is useful in determining legality, because most actions are never ruled on; (2) I don't think the formal/informal distinction is significant in determining legality, because there are so many courts that a ruling hardly ever provides any sort of certainty or finality; (3) I don't think the formal/informal distinction is relevant to categorizing actions as legal or illegal. Because I reject the formal/informal distinction (claiming it is not useful, not significant, and not relevant), I do not agree with the five categories you ascribe to me.

Matt, you said:

it seems to me that Michael's position is that an act is known to be illegal only when it has been ruled as such by a jury and stamped as such by a judge, the officer of the state.

That is not my position. That appears to be consistent with V's position, but I disagree with it. I believe that we can, should, and do know that various acts are illegal without a court ruling.

I am NOT saying that everyone will agree on whether a given act is legal or illegal. But most people will agree for most acts. I am NOT saying that a court ruling is meaningless -- a court ruling will supersede our individual judgments about whether a particular act or type of act is legal or illegal, just as a higher court ruling will supersede a lower court ruling. As far as I understand your position, V, I don't think we're describing the same experience of the world at all. But I could be misunderstanding your position as much as you're misunderstanding mine, in which case I should give up trying to explain my position here.

Well, and I certainly did misunderstand your position, and we are even further apart on this than I thought we were. To me, and this is how we started, to describe all acts as legal or illegal, based on—what?—comparison between the text of the law and the action, outside of a court, in the head of an individual, is fundamentally opposed to how a legal system works. My understanding is that (a) I am responsible for attempting to predict what would be found legal or illegal by a court of law, and that (2) if a court of law disagrees with me, my bad judgment means nothing whatsoever.

I'll also add that I could, if it would be helpful, come up with two or three dozen actions which are I can't consider either clearly legal or clearly illegal just off the top of my head.


I went on at some length to try to clarify my position, because I believe that these are vitally important questions to our society and our way of life. However, what I attempted to speak to was not your main point, Gentle Blogger, which was advice to an administration to keep its nose clean because political opponents play hardball. That is good advice, and I wish that Our Only Congress would more often earn the sobriquet "those bastards" for their deeds rather than for their party membership.

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