“I refute it thus”

James Boswell wrote this famous entry entitled “Refutation of Bishop Berkeley” in his blog — all right, maybe not a blog, being published in 1791 and all, but at least a log — on Samuel Johnson:

After we came out of the church, we stood talking for some time together of Bishop Berkeley’s ingenious sophistry to prove the nonexistence of matter, and that every thing in the universe is merely ideal. I observed, that though we are satisfied his doctrine is not true, it is impossible to refute it. I never shall forget the alacrity with which Johnson answered, striking his foot with mighty force against a large stone, till he rebounded from it — “I refute it thus.”

You’ll see where this is going after the jump.

ek hornbeck has beaten me to the punch in compiling these brain-jarring items from Josh Marshall’s joint into one diary.  I had come here to do much the same.  But when I read them, I was also thinking of Johnson’s response to Berkeley.

How do we respond to an Attorney General who asserts that the President can do whatever he wants to do, so long as his hand-picked Justice Department lawyer signs off on it, without violating the law?  How do you respond to someone who asserts that someone who acts on such spurious advice of counsel cannot ever be brought to justice?


When they are out of office, with a Democratic Attorney General running the Department of Justice, you produce a document saying what is plainly evident: that our entire system of government, standing in opposition to despotism, depends on this assertion not being true.

And you put all the people who facilitated this breack of justice in different rooms and squeeze the truth out of them about how it happened and who knew it was wrong and what should have happened instead.  (Evidently, you can even waterboard them now to get at the truth, though I don’t recommend it.)  And you take that truth, and using time-honored legal investigatory techniques, you use it to get more truth.  And you identify all of their violations of the criminal law and the Constitution.

And then you prosecute them for their crimes, using well-established principles that say that you can’t hide behind such assertions of privilege.

And you convict them.  And you jail them.

And then you peer through the bars of the cell holding them.  And you say: “Remember your theory that the President and his appointees could be punished for breaking the law so long as his own appointed lawyers said that it was OK?”

And then you kick the bar of the cell so hard that it rings.  And you say:

“I refute it thus.”


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  1. that someone as smart, and with as decent a reputation, among lawyers across the political spectrum, as Michael Mukasey could say the amazing things that he has been saying.  I have three theories.

    (1) He really is as bad as everyone said he was.  I know that this will be the popular response here.  All I can say to that is that I can show you tons of very liberal New York lawyers who didn’t love him, but have to be shocked out of their minds at this stuff coming out of him.

    (2) David Addington is a vampire/zombie/pod-person and has sucked his soul/eaten his brains/replaced him with a replicant.  Technically, I guess that that’s three theories.

    (3) He’s decided to be Jesus.  By that I mean that he has agreed to take upon himself all of the sins of the Bush Administration.  He’ll make their arguments for them exactly as they want them to be made, watch those arguments get crushed in the future along with his once-golden reputation, and then he and that reputation will die for their sins in order to save the rest of us.

    I know, I know: (3) is too optimistic.  I’m going with (2).

    • Edger on February 8, 2008 at 14:25

    A democratic president and another democratic congressional majority will be the answer to all the problems.

    As soon as they are handed both of those on a silver platter they’ll immediately do all things they’ve had the power to do since November 2006. Ahem.

    Don’t worry. Be happy. Pay no attention to the man behind the curtain, Dorothy.

    • brobin on February 8, 2008 at 21:32

    and a side order of (3), the part where he knows their arguments will get crushed in the future, but with this addition.  He believes that the next President will like being the Unitary Executive so much, that no real investigations, trials and jail time will ever be doled out to the Bush administration.

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