I have never really taken the time to inquire into what Mark Kleiman does for a living. I know he’s a lefty, he’s annoying, he manages to properly puncutate most of his sentences, and seems to be of the opinion that he knows everything. Therefore, I have always more or less assumed that he was a law professor. Turns out that either I was wrong or there are some very unfortunate law students out there somewhere:
Can demanding that someone nominated for a prosecutorial post promise not to prosecute a particular group of lawbreakers, as a condition of agreeing to his appointment, charged as an obstruction of justice? Reading the statute, I don’t see why not.
Stop clutching your sides for a moment and follow me below the fold. . .
First of all, I would love to know which statute Mark Kleiman is reading that would allow him to believe that anything Cornyn is doing violates it. In point of fact, there are a number of sections of chapter 18 of the United States Code that deal with obstruction of justice; I seriously doubt if Mark Kleiman has read any of them, and if he has, if he’s done anything more sensible than start at 18 U.S.C. 1501 and read for several pages in order. The idea that obstruction of justice under any of them, however, could apply to asking certain questions of a cabinet appointee is laughable to anyone who knows where a federal courthouse is.
Second (and more importantly!) Mr. (Professor?) Kleiman is overlooking one tiny little detail. Behold the following from Art. 1, sec. 6 (or as the crazy lawyer kids like to call it, the “Speech and Debate Clause“):
They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Now, if Mark Kleiman really did read all the necessary elements of 18 U.S.C. 1501, et seq., he can surely read for himself the case law and commentary regarding exactly how broad the Speech and Debate clause is. The Reader’s Digest version, in case he’s too busy doing… whatever it is that he does… is that Cornyn (and indeed all other Congresscritters) are totally and completely immune from civil and criminal liability for anything they say during Congressional proceedings.
Now, having established very thoroughly that Mr. Kleiman has no idea what the hell he is talking about now, I have a question for him: doesn’t he feel even the slightest bit of irony using this particular line of questioning in defense of Eric Holder? I mean, really? A ridiculous obstruction of justice charge in order to shield a man who advised President Clinton to pardon a fugitive from justice (an action so risible and offensive to the justice system that even Chuck Schumer repeatedly and roundly condemned it)?
I’m guessing the answer is “No,” but I thought I’d ask.
UPDATE: I am told that overnight, Kleiman updated his post thusly:
Update A lawyer-reader says such a prosecution would be barred by the “speech & debate” clause. In principle, that just puts the ball in the Senate’s court, but of course there’s no way the Club will act against a member for a mere felony.
Kleiman has clearly forgotten the First Rule of Holes. Allow me, if I may, to posit another question to Mr. (Professor!?) Kleiman: Are you under the impression that the United States Senate has the authority to try, convict, and imprison one of its own members for obstruction of justice (made-up obstruction of justice, at that)? Because otherwise I don’t even know what “that just puts the ball in the Senate’s court” means.