Thursday, November 30, 2006

From the culturekitchen blog:

Pondering impeachment

Submitted by Michael Bouldin on 29 November 2006 - 11:55am.
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The constitution provides for the removal from office of the President and Vice-President for what it terms 'treason, bribery, or other high crimes and misdemeanors'. As does so much else in our constitutional system, the idea of impeachment derives from English law. Despite their illegitimacy, impeachment and removal are therefore the legal avenue (of several available) that seems most apt for dealing with George Bush and Dick Cheney.

In judicial terms, impeachment is comparable to an indictment; at the Federal level, a simple majority of the House of Representatives is required to vote out Articles of Impeachment. These are then presented to the United States Senate, presided over by the Chief Justice, where a super-majority of two thirds is required for conviction and removal.

Notably, The Federalist Papers make clear that impeachment is a political, as opposed to a judicial, process.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

A cursory glance at the subject suggests that it's not a bad idea to untangle the judicial and political strings intertwined in the impeachment discussion.

The judicial case is reasonably clear at first glance: both Bush and Cheney regularly flaunt their breaking of established law, such as the FISA statute. They knowingly presented false evidence to the United States Congress as it was debating the authorization to use force against Iraq. They authorized the breaking of U.S. law in detainee interrogations, most notably at Abu Ghraib and Guantanamo Bay. They claim discretion to suspend the writ of Habeas Corpus. All of these acts, and others, stem from a theory of law embraced by this administration known as the unitary executive. The theory holds that the executive branch, under the Constitution, is free to act without restraints which the legislative and judicial branches may seek to impose. It's worth noting that there is little in either U.S. or UK precedent that would establish the unitary executive theory as valid; Charles II lost his head on a scaffold in an earlier iteration of this argument. Parallels can be seen in Lenin's dictum that the Communist Party's dictatorship over the Russian people rests "directly on force, not limited by anything, not restricted by any laws, nor any absolute rules."

Arguably, adherence to this theory – and acting on it – is enough to consider the case for impeachment, given that it is fundamentally inimical to the established forms of American governance. Many Americans probably haven't yet grasped how fundamentally radical this so-called administration is, or how much the bootlickery of the departing 109th Congress has masked this radicalism. In terms of our system of common law, the last six years have established precedents that should frighten us; post-Bush, future legitimate, elected Presidents can point to his tenure when they're inclined to disregard duly enacted laws. It is this precedent that needs to be addressed above all, and while impeachment is one vehicle to do so, there are others that might accomplish the same result.

The political case is far more murky.

As a practical matter, impeachment and removal can't be partisan; this is strongly implied by the aborted proceedings against Nixon and the trial of President Clinton. The Federalist No. 65, quoted above, agrees:

The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. [Emphasis added]

The estimable Bob Fertik – would that the country had more patriots like him – addresses the partisan issue in a recent diary on DKos, arguing that republicans may come to view impeachment and removal with much friendlier eyes if Bush continues to be the gravedigger of his own party.

Realistically, there are two routes to creating a climate favorable to impeachment:

  • One, a series of investigations likely to produce overwhelming evidence of high crimes and misdemeanors, most likely somewhere in the nexus of Iraq, intelligence and energy policy, or
  • Two, a confrontation between the executive and legislative branches over the former's claim to unchecked executive privilege.

    Under the first scenario, various committees of the House would uncover evidence of, say, pre-9/11 plans to divide up Iraq's oil resources, or evidence that the administration purposefully and knowingly lied to Congress prior to the Use-of-force resolution in 2002, or perhaps evidence that the domestic surveillance program targeted Democrats for wiretaps; the second, which should be considered likely under the unitary executive theory, could result from, for example, a subpoena issued to the White House that it in turn would reject. Under both scenarios, Congressional republicans would come under withering public pressure to drop their support of Messrs 33% and 18%, respectively.

    There is also the question of who would replace either Bush or Cheney, or both. A case can be made that their removal would result in the elevation of a republican unblemished by their actions, which would not accrue to our partisan benefit. Another would have Nancy Pelosi in the Oval Office (which would likely be distasteful to the bevy of Democratic Presidential contenders). Gerald Ford's experience suggests that a new republican President would be damaged goods going into 2008; other than that, there's not really a roadmap to electoral fallout. Conversely, it's worth pointing out that the failure to impeach Reagan over Iran-Contra gave Reaganism a new lease on life; and look where that brought us.

    I would argue for a pragmatic approach to the question of impeachment; if it is primarily a political process, and it is, it appears that this process hasn't really begun yet. The activists who have been pushing the subject have been very effectively shut out for the last six years. It's also worth considering that impeachment would accomplish two goals, both of which can be arrived at in other ways: one is punishment of Bush and Cheney for what they admit are crimes (such as illegal wiretapping; they maintain they have a right to break laws), the other is establishing the legal precedent that future Presidents (again, legitimate holders of the office) are bound by laws. Punishment could, for example, be achieved through the domestic or international criminal justice system, the main hurdle coming immediately to mind being the question of standing to file a suit; while the legal precedent could be nullified via a constitutional amendment, an Act of Congress, or a Supreme Court decision. Certainly, if the next President is a Democrat, these avenues will be open and populated heavily by republicans.

    The important thing for Democrats to remember now is this: we hold power, and thus all the cards we need to hold. We can move forward at our discretion and pleasure. Impeachment could very well be a part of the way forward, and odds are strong that the Bush White House could prove arrogant and obstinate enough to lend a helping hand. Time will tell.



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