Verbosities

Instapundit.com -

Orin Kerr comments:

In my view, Kmiec is plainly right that nothing in Comey's testimony suggests anything like another Watergate. Consider how little we know about the facts. We don't know what the program was that Comey and Ashcroft wouldn't authorize, or why they wouldn't authorize it. And as far as I can tell, there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty...

I'm legitimately looking for help on making this work in my head, because I can't seem to agree with what he's saying here. Glenn Reynolds, however, is a law professor, so for this to be posted as truth without comment strikes me as an endorsement.

Here's what we know:

1) This surrounds warrantless wiretapping with at least one end of the conversation residing in the United States. This has been covered for 30 years by FISA law.

2) The President claims Article II authority to be unencumbered by the law while performing his "Commander-in-Chief" duties. It is irrelevant to this question whether or not that claim is legitimate or constitutional.

3) Warrantless wiretapping has occurred. This has been acknowledged by the administration directly.

Regardless of whether or not the President believes a law applies to him while carrying out these duties, he had to know he was violating a "known legal duty" here, correct? It is his belief he is justified in doing so, but that does not mean that the legal duty does not exist. It just means he claims an exemption due to his inherent Article II powers, right?

If it was intentional to wiretap without warrants, and if it was intentional to apply Article II justification to the program to circumvent FISA, it was therefore intentional to circumvent the FISA courts, whose warrants are required by law, right?

Whether you think the Article II justification is appropriate or not, whether you think that warrantless wiretapping is an honest program only targeting terrorists or not, where am I not making a connection between "intentionally violated a known legal duty" and what the President chose to do in this situation?

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