Category Archives: Law

Powers And Duties

Does the president have a “duty” to put forth a nominee? Does the Senate have a “duty” to consider him or her? No.

I’ve been meaning to write about this but, as noted there, “shall” does not necessary mean that it is a mandatory act, and there is no time limit on it. The president has the power to nominate, and the Senate has the power to advise and consent, but it is not incumbent upon either to do so. The Framers intent was not to insure that appointees were appointed, but that it not be done unilaterally by a single branch. In their desire to limit government powers, they made appointments, as with much else, difficult, and I doubt they’d be displeased by either the “Biden rule” or the current Republican stance.

The only real duties that either branch has are to “establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” It is ultimately up to the people to decide if they are doing so, and to rectify the situation if not.

If the president chooses not to nominate, he will be judged in the next election. If the Senate advises and consents by advising the president that they will not consent, they too will be judged in the next election, or at least a third of them will be (as it happens, the Republicans have 24 seats at risk in the fall). But the Senate is doing nothing unconstitutional in deciding to let the people decide.

[Update a while later]

Welp, Kasich said today that he might nominate Garland. So we have that going for us. #RINO

Hillary Doesn’t Just Have An Email Problem

She has an NSA problem:

Now, over two months later, I can confirm that the contents of Sid Blumenthal’s June 8, 2011, email to Hillary Clinton, sent to her personal, unclassified account, were indeed based on highly sensitive NSA information. The agency investigated this compromise and determined that Mr. Blumenthal’s highly detailed account of Sudanese goings-on, including the retelling of high-level conversations in that country, was indeed derived from NSA intelligence.

Specifically, this information was illegally lifted from four different NSA reports, all of them classified “Top Secret / Special Intelligence.” Worse, at least one of those reports was issued under the GAMMA compartment, which is an NSA handling caveat that is applied to extraordinarily sensitive information (for instance, decrypted conversations between top foreign leadership, as this was). GAMMA is properly viewed as a SIGINT Special Access Program, or SAP, several of which from the CIA Ms. Clinton compromised in another series of her “unclassified” emails.

Currently serving NSA officials have told me they have no doubt that Mr. Blumenthal’s information came from their reports. “It’s word-for-word, verbatim copying,” one of them explained. “In one case, an entire paragraph was lifted from an NSA report” that was classified Top Secret / Special Intelligence.

How Mr. Blumenthal got his hands on this information is the key question, and there’s no firm answer yet. The fact that he was able to take four separate highly classified NSA reports—none of which he was supposed to have any access to—and pass the details of them to Hillary Clinton via email only hours after NSA released them in Top Secret / Special Intelligence channels indicates something highly unusual, as well as illegal, was going on.

You don’t say.