Thinking about Hamdan v. Rumsfeld

The highest crime, of the “high crimes and misdemeanors” for which Congress can impeach a President, is violation of her or his Oath of Office to defend the Constitution. In this part of an ongoing conversation between Walter Dellinger of Duke University Law School, and Dahlia Lithwick, an Editor of Slate, Dr. Dellinger lays out in stark and frightening exposition “exactly how this presidency departed from
fundamental legal principles. The problem is not the president’s assertion (or that of lawyers on his behalf) that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.”

In the area where no law exists, Dellinger explains, a sitting President can exert Executive authority, as in responding to surprise attack. While Dellinger’s explanations do not need me to explain them, I want to lay a foundation based on the points of argument that apply to a particular distinction in describing events and actions as “before the fact” and “after the fact,” as they will be the foundation of further posts of mine, posts that (perhaps or probably) go far afield of Dellinger’s cogent arguments.

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