Yes, Marbury v. Madison is still the law of the land.

And unlike the FCPA Blog’s Dick Cassin , the first time I read the case, I got one thing wrong: who won.  No kidding.

But I have to say that as I read the letter and having listened to the recording of the argument, and the Judge’s request, I don’t think the letter really answers the Judge’s concern.  It’s a thoughtful letter.  I’m sure that the higher-ups at the DOJ were talking about how to handle it.  The President’s initial words were probably harsher than he meant.  Or just as harsh as he meant, with the explicit purpose of “clarifying” the remarks later.  Either way, it was one of those things that probably sounded better in his head.  Once out, I’m just surprised the Judicial Branch didn’t react more strongly.

The letter pretty much ignores the entire piece about what the President said.  It doesn’t, for example, quote the President’s words—neither the initial statement nor the clarification.  It just says “[t]he President’s remarks were fully consistent with the principles described herein.”

No response yet from the Fifth Circuit.

DOJLetterto5thCircuit

And here’s the recording (the interesting part goes from 18:00 through about 22:00):