Should The Attorney General Enforce Laws He Thinks Are Unconstitutional?(My Title)

The Tallahassee Democrat ^ | June 5, 2002 | Nancy Cook Lauer

[FreeTally]

Candidates divided on defense of laws

By Nancy Cook Lauer

DEMOCRAT CAPITOL BUREAU CHIEF

Whether the attorney general should defend laws he thinks are unconstitutional and how involved he should be in ensuring the independence of the judiciary were top issues Tuesday night in a debate among candidates for Florida's top legal post.

More than 200 people - mostly attorneys - turned out to hear the debate among four of the six candidates for attorney general sponsored by the Tallahassee Bar Association and the Capital City Bar Presidents' Council.

The office is left wide open by the pending retirement of term-limited Bob Butterworth, the Democrat who's held that position for 16 years. Butterworth is the only Democrat on the Cabinet, and Democrats are passionate about keeping the post in the party. All three Democratic candidates showed up for the debate: Buddy Dyer, D-Orlando, Tallahassee Mayor Scott Maddox and Deputy Attorney General George Sheldon.

Two of the Republicans - Education Commissioner Charlie Crist, the apparent front-runner, and Sen. Locke Burt, R-Ormond Beach - pleaded scheduling conflicts and did not attend. Republican Tom Warner, a former lawmaker and now the state solicitor general, held the banner for his party.

"My name is Tom Warner, and apparently I'm the only Republican candidate for attorney general," Warner quipped in his introduction.

Warner found himself frequently at odds with his Democratic opponents, especially when it came to whether the attorney general should defend laws he thinks are unconstitutional. Sheldon and Dyer were strong advocates for the attorney general defending the constitution first and the Legislature second.

"The specter of the attorney general of this state deciding which law they like and which laws they don't like - that's something we can't have in this state," Warner said. "If the attorney general can't defend the law, the attorney general has to step down."

Sheldon pointed out that Butterworth has declined to defend the state against issues he thinks are unconstitutional - the "Choose Life" license plate is an example - but also has defended the state on other issues that he personally may not have agreed with.

"It is not an issue as to whether the attorney general likes or doesn't like the law," Sheldon said. "If a law on its face is legally unconstitutional, the attorney general of Florida is sworn to defend the constitution."

Maddox summed up the dilemma this way: "I think the bigger question is whether or not we have an independent judiciary. ... As long as we have a strong, independent judiciary in this state, the constitution will be defended, and that's where the real battle lies."

(Note: Typical Scot Maddox not addressing the issue)

Dyer agreed, saying "there is absolutely nothing more fundamental to an independent judiciary." He also said the judicial branch had been under attack by the Legislature over the past few years.

"I think the attorney general is the highest elected legal official and has a responsibility to be an advocate," Dyer said.

The candidates also fielded questions about the civil rights of victims, the 2000 presidential election, whether they would keep the current staff in the Attorney General's Office and what their first target might be for investigation.

Contact Capitol Bureau Chief Nancy Cook Lauer at (850) 222-6729 or nlauer@taldem.com.

[BeAChooser]

The AG's first duty is to the law and not his or her legal judgment? Should the AG substitute his or her legal judgment for that of the legislature and courts? No. Open contempt by an elected or appointed offical for our system of laws would invite chaos.

Then I take it you agree with me that Ashcroft should investigate and prosecute the many crimes committed by the Clinton administration the last 9 years.

[tpaine]

I agree with you that a jury, as part of the Judicial process and branch, can, and should consider jury nullification as a proper act in extreme cases.
If they were twelve people serving on an Executive branch committee, board or regulatory body and the issue was settled by properly adopted Law they would then, however, be violating their oath of office.

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Lots of qualifing words there KC. -- Who is to decide what's an 'extreme case'? -- And your second 'point' is totally over my head. - Please explain.

[BeAChooser]

If the AG may arbitrarily decide which laws are or are not unconstitutional, which ones he feels he should enforce, which ones he should not, then any citizen may also decide arbitrarily which laws are or are not unconstitutional, which ones he should obey and which ones he should not.

Then I assume you agree with me that Ashcroft should investigate and prosecute the many crimes of the Clinton administration and democRATS the last nine years?

[ArneFufkin]

How do you know what the Justice Department is, or isn't, investigating? They don't exactly announce their criminal investigtions before indictment.

I'll call Chertkoff and see if I can get you into the next JD Criminal Division staff meeting.

[BeAChooser]

FWIW, the AG is the legal agent of the Executive branch -- the job of which is to faithfully execute the laws and responsibilities of government. To do otherwise would result in what you said -- by picking and choosing, AG would usurp the powers of the legislative branch.

So then I gather you also agree with my contention that Ashcroft should investigate and prosecute the crimes of the Clintons and their many associates the last 9 years.

[BeAChooser]

The first time the citizenry allowed a violation of the USCon and were appeased with a "We know what's best for you," was the first day this started on the slippery slope we now find ourselves on ... not good.

That needed repeating!

[BeAChooser]

How do you know what the Justice Department is, or isn't, investigating? They don't exactly announce their criminal investigtions before indictment.

Because it has been more than a year and you can't point to even ONE indication that they have or are. Potentially HUNDREDS of witnesses and targets would need to be questioned ... many of them hostile ones who would lawyer up at the first sign of an investigation ... who would have their lawyers out there talking to the liberal media and friends in Congress to get the investigation stopped. But that hasn't happened, has it? Some of those witnesses are friendly to "our" cause, like Tripp and Janowski, and by now it strains credibility to think that at least one of them wouldn't have let slip that "something" was up. But that hasn't happened, has it? Furthermore, any HONEST investigation of these serious matters would require the subpoena of many THOUSANDS of documents as well as searches of computers. Do you really expect us to believe that has been going on and the media hasn't gotten wind of it ... that not one of the people subpoened has gone public to cry foul? If so, I have a bridge to sell you.

No ... I think you are just using the same delay delay delay deny deny deny tactics that the Clinton's used to avoid calls for investigation. Now why would someone who claims to be a conservative want to avoid an investigation of serious crimes by democRATS?

[ArneFufkin]

We're fighting a war, dumb ass.

[tpaine]

Dumb ass excuse, fufkin.

[Miss Marple]

You will do better not to engage BAC in any debate. He is fixated on dragging the Clintons before the courts, especially over Ron Brown, and any logical argument about why this is not being done falls on deaf ears.

He has already placed you on the dreaded list of "Move-on types" and discounted your opinion. Howlin and I are on the list, you know.

I get put on lots of lists, Arne. I am making a collection of them.

By the way, here is my new logo, courtesy of rintense:

[Protagoras]

We're fighting a war, dumb ass.

Hmmm,,I didn't notice a declaration by congress. It must be one of those "war but not really a wars" that we have been fighting unconstitutionally for so long.

[KC Burke]

I guess I should have said that the concurance of twelve makes it an extreme necessity or the well held position of less than twelve makes it a hung jury.

First off, read my #30 to Texaggie79 wherein I discuss duties of branches and office holders versus private citizens. I do not agree that each and any public official of any branch can fail to do their sworn duty and always have refuge of saying it was their own personal interpretation of the Constitution that allowed them that discretion. I agree that rather than enforce an improper law, whether it be improper under the Constitution or under matters of higher law, and official may resign and thereby hold the correct ground.

To me, jury nullification for constitutional reasons is allowable as the duties of a juror call for Adjudication in the larger sense. Likewise, executive branch duties of an AG do not allow for willful failure to fairly and evenly execute the laws, even for matters of conscience or personal interpretations of the constitution. The remedy in that case is recusal or resignation.

[KC Burke]

I guess my second point you refer to is best explained by restating it:
If they were twelve people serving on an Executive branch committee, board or regulatory body and the issue was settled by properly adopted Law they would then, however, be violating their oath of office.

I am contrasting a jury of twelve (serving for the Judiciary function) with an Executive office or board of twelve (or any number). To have equality under the law; to have the absence of arbitrary power or arbitrary application of power, the executive official or board must enforce all law evenly and without recourse to personal feelings or opinion. Likewise, to have fair judgement under the Law and constitution the accused must have a Judge or Jury free to judge them under the Whole law, which also includes the Constitutions of the State and Nation.

[Dog Gone]

LOL! Love it!

[faintpraise]

It's up to the judiciary to decide whether laws are constitutional. The Attorney General should enforce the law. He's not the appropriate authority to determine whether laws are constitutional. If he can't in good conscience enforce laws he thinks are unconstitutional then he should resign.

[BeAChooser]

We're fighting a war, dumb ass.

What? Can't come up with even ONE thing to show the Clinton era crimes are or ever were investigated? Not ONE?

And now you want to hide behind the WOT? What about the 8 months prior to the start of that war? Was Ashcroft too busy to even START an investigation of ANY matter? And if the WOT was so all consuming, how come the DOJ still had the resources AFTER 9/11 to try and stop voter approved assisted suicide, voter approved medical marijuana and focus on pornography. Surely those matters aren't HALF as serious (i.e., threatening to this nation) as some of the crimes the Clintons and their friends are credibly alleged to have done ... like election tampering, blackmail of Republicans and Congress, selling secrets and access to restricted techonology to potential enemies and murder of high ranking government employees? Why instead of providing facts to back up your INITIAL CLAIM that these matters were or are being investigated, do you have to resort to name calling? And if we are not fighting this war to protect our system of government that has made this country great, what are we fighting to defend? Is it just lives and buildings?

[ArneFufkin]

Look at BeAChooser's second paragraph in his post #47 to me. That's an unwinnable case!!! It's going to take hundreds of witnesses, and thousands of subponeaed documents, and scores of lawyers .... YEAH, that's ONE that jumps off the page at me as a "bluebird". These folks are entirely into pyrrhic victories ... it's a disturbing romanticism of some bygone virtue that never existed. Washington lived to be an old man, Nathan Hale had a good quote and died young. They're nihilists from a safe distance ... "FALL ON YOUR SWORD (so I can watch)". Nutzos.

[ArneFufkin]

Oh, the short bus is here!

[ArneFufkin]

My INITIAL CLAIM was that YOU have no freaking idea whether they are investigating wrongdoing from the past Administration or not. I admit I have no insights, and I still say that you have no clue either. And ... that's my final answer, Regis.

[William Tell]

coloradan said: "Only the jailer has the duty to do what he is ordered to do - "

I disagree. Even the jailer may find himself the last resort. Just as anyone who dares to stand up for what is right may be punished by the system, he runs a risk. But he has a part to play, as do we all.