John McCain, according to some (including the Obama campaign, naturally), may be a wee inconsistent in his statements about presidential power and FISA and wiretapping and telecom immunity. Orin Kerr disagrees, citing differences between statutory and constitutional power. I’m afraid Professor Kerr’s response is far more intelligent, subtle, and nuanced than McCain deserves. For all his vaunted straight-talkiness, McCain is a politician, and does what politicians do—that is, he panders to whatever audience he’s talking to, saying as little of substance as he can as ambiguously as he can.
And let’s not forget complex legal analyses mean little in a political campaign. Most people cannot distinguish “unconstitutional” from “I don’t like it,” let alone from “in violation of statute.” If McCain and his handlers really did mean their various statements to hinge on the distinction, they certainly went out of their way not to say so.
Professor Kerr’s friend Marty Lederman writes far better than I can, so I’ll close with a quote from him:
Let’s give the McCain folks credit: they have managed to say just about everything and nothing at all — all at once! The statements really have a kabuki-like feel to them. My favorite is this quote from a McCain spokesman to Charlie Savage: “To the extent that the comments of members of our staff are misinterpreted, they shouldn’t be read into as anything otherwise.” That’s a classic. Please don’t try to parse it — life is too short.