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Law Professor To O'Reilly: "I Believe the President Committed a Federal Crime ... That Crime Was Premeditated" But It Won't Rise to an "Impeachable Offense"

Reported by Marie Therese - December 20, 2005

Last night on The O'Reilly Factor, Bill's guests were Paul Rothstein, Law Professor at Georgetown University and Jonathan Turley, Law Professor at George Washington University. The interview was a detour through the Land of Let's Pretend as both men - whom O'Reilly called "brilliant" - reasoned that George Bush will be neither prosecuted nor impeached.

O'REILLY: President Bush under fire for allowing the National Security Agency [NSA] to eavesdrop to monitor some overseas calls without a warrant. Mr. Bush defended the action today, saying split-second access to possible terror calls is vital.


PRESIDENT BUSH, Press Conference, 12-19-05: "We've got to be fast on our feet. Quick to detect and prevent. [snip] Is it legal to do so? I am - you know, I swore to uphold the laws. Do I have the legal authority to do this? And the answer is - absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution as well as the authorization of force by the United States Congress."


O'REILLY: Professor Rothstein, we'll begin with you. You agree with the President?

ROTHSTEIN: Well, it's a very close, but the President is not entirely off the wall on this. There is some support for what he's saying. The Constitution in the granting clause of Article 2 that grants him quote "the Executive Power of the United States" and it doesn't put a limitation on that and then grants him the power to be Commander-in-Chief. These clauses, under a long line of decisions, incorporate a power to do the things that are necessary to safeguard this country from foreign attack and to conduct foreign and international relations. And added to that is an authorization that arguably, at least - and the Constitution is arguable only, too - arguable, at least, gives him the power, the authorization, that Congress gave him to do what was necessary to prevent another 9/11.

O'REILLY: OK. Why wouldn't the President, though - he could, he could do the eavesdropping and then inform the judge and the court that's been set up under the 1978 act that he's doing it. He's got 72 hours. Why doesn't he just do that? And that would eliminate any kind of blow back, which is what he's getting now.

ROTHSTEIN: Well, Bill, probably for two reasons. One is it required speedier action than that court could give and, also, in that court there has to be a stronger link of the American that's being listened in on who's making these overseas calls or receiving these overseas calls, a closer link - they have to be closely linked to some foreign threat, some foreign power.

O'REILLY (interrupts, overtalks last 5 words): Yeah, but all, all he has to do - the NSA is gonna listen in anyways when they hear the code words but all the Bush administration would have to do, Professor, is tell the court that's set up for this - to give these warrants - that they did it. They have 72 hours to do it and I don't understand why the Bush administration doesn't want to do that. Do you?

ROTHSTEIN: Well, they, they needed quick action. Now let me just say one other thing. The genius of our system is that whatever the law says about the President having this power, Presidents don't really get to exercise the maximum limits of their power because there are political constraints and I think that's what gonna set in here. It's what the people in the Congress say.

O'REILLY (interrupts, overtalks last 7 words): Oh, certainly they're going to grandstand politically about this. Professor Turley, how do you see it?

TURLEY: Well, I, I have to disagree with my good friend, Paul. I don't consider this a close case at all. I think that this operation was based upon a federal crime. Under federal law, there's only two ways in order for the President to engage in the surveillance of citizens in this way. They can get a Title 3 warrant, which is the traditional electronic surveillance warrant in criminal cases, or they can get a so-called FISA [Foreign Intelligence Surveillance Act] warrant from the secret court. But it is a crime for someone, acting under the color of law, to order surveillance - or to conduct surveillance - unless you've gone to a judge under one of those two schemes.

O'REILLY (looks at his notes): Isn't it true, though, if there was a declaration of war under the War Powers Act, the President has the power to do this?

TURLEY: No. I don't think it is. I - it doesn't ...

O'REILLY (interrupts): You're putting it in the criminal realm and he's putting it in - it's not a crime. It's an act of war. We're fighting a war on terror - undeclared war, unfortunately - I think he should have declared war. But he's saying, look, Congress directly gave me the authority to defend the United States. This is part of a military action. He made that quite clear. Remember, you're saying it's criminal. He's saying it's military.

TURLEY: You know, I gotta tell you, Bill, that dog won't hunt for the President. It, it - that is a, a rationale that's been rejected by federal courts. Nothing in that declaration - in that resolution - said that he could suspend federal law. That is the type of thing that Congress has to do and they did not. It doesn't give me any great joy, but I believe the President committed a federal crime.

O'REILLY (under his breath): I don't know ...

TURLEY: I think that crime was premeditated.

ROTHSTEIN: Jonathan and Bill, let me just throw in something.


ROTHSTEIN: I was in Congress, working in Congress, at the time the wiretapping laws were passed and they make a special reservation that any constitutional power the President has shall be preserved and that these statutes relating to wiretapping do not mean to infringe on that and that was - that's also been said in a big court - a Supreme Court case, too.

O'REILLY: Alright. We're not gonna solve the case here, no matter how brilliant you two gentlemen are - and you are. That's why I have you on the program. Do you believe that - I know there are going to be hearings - I think there should be hearings to clarify this for the American people but I don't believe President Bush is gonna be prosecuted. I think it's gonna go away pretty quickly. Professor Turley, what do you think is gonna happen?

TURLEY: Well, I don't know what's gonna happen. I'm pretty clear in my own mind that this was a federal crime and that the President has conceded that he took a direct role in it. Now, federal crimes can be impeachable offenses. I Don't think it's gonna rise to that ...

O'REILLY (under his breath) Nah. I don't think so.

TURLEY: ... but I've got to tell you, I think that this is a legitimate question. A President cannot order crimes that even some NSA lawyers said they would not go along with.

O'REILLY: Alright, what do you think, Professor Rothstein? Wrap it up.

ROTHSTEIN: I think that's too absolutist a position. I think there should be hearings. I think the way a question like this should be settled is based upon the will of the people and the will of Congress. In other words, it's those political constraints built into our Constitution that ultimately govern ...

O'REILLY (interrupts, overtalks last 7 words): You don't see a prosecut ...

ROTHSTEIN: ... and it's not gonna be governed by the law.

O'REILLY: You don't see a prosecution of President Bush on this, do you?

ROTHSTEIN: I do, I do not. I see a hearing. He will hear what the people - what is politically popular and unpopular - and he and his party will bend to that and that's the way these presidential power things have been settled in the past ...

COMMENT: Bill Clinton's POPULARITY at the time of his impeachment was over 60%, yet a rabid band of Republican ideologues spent $50 million of our money and rammed through 4 articles of impeachment in opposition to the will of the people. So, tell me again what a "brilliant" lawyer this guy is?

O'REILLY: Alright.

ROTHSTEIN: ... not by the law.

O'REILLY: OK, gentlemen. Very interesting. We appreciate it.


Now. let me get this straight. Lying to Congress about having sex with a woman IS an impeachable offense, but committing a federal crime by subverting the constitution and engaging in covert spying on unsuspecting American citizens IS NOT an impeachable offense?

And these two guys are LAW PROFESSORS at prestigious universities? Gimme a break!

As for George Bush, Dick Cheney and Condoleezza "I"m not a lawyer [but I'm gonna need one soon]" Rice, not only should they be impeached, they ought to spend some time in the slammer!

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