Mark Kleiman Continues to Disregard the First Rule of Holes [UPDATED]

Earlier, I smacked Mark Kleiman around for this ridiculous post in which he suggested that Sen. Cornyn could possibly be liable for obstruction of justice for saying he’d vote against Eric Holder for AG. Kleiman has apparently responded in an update (which was too cowardly to link to my original post exposing his ignorance) in which he claims:

First, he says he doesn’t know what I do for a living, but seems to think I’m some sort of law professor. I guess his Google must be broken.

Second, he doubts that putting political pressure on a prosecutor to drop a case counts as obstruction of justice. 18 U.S.C. 1503 penalizes anyone who:

by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice

Let’s see: Telling someone “I’ll keep you from being confirmed unless you promise not to prosecute” sounds a lot like a “threatening communication.” And clearly Cornyn’s intent is to “obstruct or impede the due administration of justice.”

More below. . .

Two things: first, I’m well aware of how to use Google. I just don’t care enough in Kleiman’s case to do it. I’ve been informed via email that Kleiman is some sort of professor of public policy, which really reinforces the basic point that Kleiman should quit while he is not too far behind.

Second, Kleiman seems to have a basic misunderstanding about the way the law is practiced. You cannot simply read a statute, decide that a given conduct might arguably fall within your interpretation of the statute, and then declare that a person has broken that statute. There are these things called “precedents” which shed light on the meaning of the words in the statute, so that prosecutors do not get to engage in the sort of tomfoolery that Kleiman is attempting here. You see, it is fairly obvious from the entire context of 18 U.S.C. 1503 that this section deals with the obstruction of ongoing judicial proceedings (or at the very least the adminsitration of justice). Now, it is entirely true that some obtuse fool like Kleiman could come along and lift one sentence out of the section and determine that someone ought to be prosecuted for it. Fortunately, the Courts have decisively cut off such shoddy reading of the statute, and declared that 18 U.S.C. 1503 applies exclusively to ongoing judicial proceedings. See, e.g., United States v. Neal, 951 F.2d 530 (5th Cir. 1992); United States v. Metcalf, 435 F.2d 754 (9th. Cir 1970) (See there? I helpfully cited a court Kleiman recognizes); United States v. Macari, 453 F.3d 926 (7th. Cir 2006) cert denied 127 S.Ct. 688, 166 L.Ed.2d 518.  In other words, there is no possible way that Cornyn could be prosecuted for obstruction of justice for suggesting that Holder should *not begin prosecuting a certain (as yet unidentified) class of people*.

I will also give Kleiman a free hint; there are also decisions elucidating what constitutes a “threatening letter or communication” under the statute, and they shed quite a bit of light on whether Cornyn telling Eric Holder that he won’t vote for his confirmation qualifies. I have work to do today, so I’m not going to waste my time doing it for Kleiman; I’m sure he has a faculty research assistant and a Lexis ID, if he is inclined to make himself actually informed concerning this matter, rather than just an uninformed blowhard who throws out baseless criminal charges against people he doesn’t like. I won’t hold my breath waiting for the results of his research.

One other thing that deserves to be mentioned: Kleiman chides me for “not challenging the basic point of [his] post.” The basic point of his post was that Cornyn’s actions constituted (or might constitute) obstruction of justice, and I think I addressed that pretty squarely. However, I will now address the new and revised basic point of his post, which is that “a Senator who uses the confirmation process to protect lawbreakers from prosecution violates his oath of office.” This, of course, is poppycock, and as a bonus assumes facts not in evidence. As a matter of routine practice during the confirmations of Attorneys General, Senators pontificate over classes of individuals who might or might not arguably be guilty of breaking some law. For instance, I believe that every AG since Reno has been questioned about how they would handle a situation like Waco, Ashcroft was questioned extensively about his aggresion with respect to enforcing abortion laws on the books, Gonzales was questioned about prosecutions under the Patriot Act. This is, in other words, standard political fare. But now since Mark Kleiman doesn’t like it, it’s apparently a Federal crime. Ladies and gentlemen, the Reality Based Community!

I note with interest that Kleiman did not deign to address himself to *my* point that raising this argument in defense of a man who advised President Clinton to pardon a fugitive from justice is a little… ironic, to say the least.

 UPDATE (Dan McLaughlin):  So, let me see if I understand Kleiman’s point correctly.  His theory is that threatening to act, or to withhold action, in the United States Congress in order to extract a pledge from a member of the Executive Branch with law enforcement responsibilities to take, or refrain from taking, a specific action in regard to a specific criminal case, constitutes obstruction of justice.  OK, Leon has explained a subset of the reasons why this is insane, but let’s take Kleiman at his word that this is his belief about what the law provides.

How would Kleiman then respond to a blog post that argued that Congressional Democrats should “hold[] up criminal justice outlays” or delay a “Supreme Court nomination” in order to extract “an ironclad pledge” from the President of the United States not to pardon a specific individual defendant who was, at that time, under indictment by the Justice Department then under the ultimate supervision of the President?  I would think, based on Kleiman’s reasoning, that he would conclude that the blog post in question was an incitement to obstruction of justice.

Funny thing though, Kleiman didn’t seem to consider that a problem when he wrote the post in question.

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