by Kagro X
(New record for categories, perhaps?)
Just wanted to drop you all a note to let you know I didn't jump out the window after Nancy Pelosi's "pledge" to Lesley Stahl last weekend on 60 Minutes.
I think the "impeachment's a bad election theme" analysis has been pretty well played out, by this point. And let's face it, that kind of Kindergarten analysis isn't what you come to TNH for, is it?
Of course not.
So let's try some first grade stuff. Then we'll get to the waterboarding.
OK, well, maybe the first grade stuff is the one-off round of argument that centers on the "Well, Pelosi could have said something different" line of thinking. Slightly more advanced, perhaps, would be the question of whether it bodes well or ill that a journalist can so easily extract a pledge of Constitutional import from the would-be Speaker of the House.
The Kindergarten answer, of course, is that she just said what needed saying, and that there's been no impact on the likelihood of impeachment. Here, though, the analysis splits down the middle, with one group (A.M. Kindergarteners?) claiming that the "likelihood of impeachment" is and always has been nil, and the other (P.M.?) saying that there's always the "changed circumstances" excuse for reviving the possibility of impeachment as investigations reveal its necessity.
(Before I lose anyone, I should point out that this is not to say that people who hold such views are incapable of anything but "Kindergarten" level analysis. Just that such analysis, by itself, isn't going very deep into the situation. I think we can agree on that.)
Now, I can't claim to be able to give anyone a graduate-level seminar in impeachment here, but let's take the opportunity to advance the ball a little farther. What are the electoral/political implications of Pelosi's pledge? And what are the political/governmental implications? And when are we going to get an explanation of the inclusion of waterboarding in the title of this piece?
First, the electoral/political: Pelosi's pledge, even before she was cornered into using that term, has been standard campaign fodder for Congressional Democrats all over the country. Broadcasting it on 60 Minutes, though, takes things to a new level. The intent, of course, was to deflate the GOP campaign talking point that Democrats have a "secret plan" to impeach. And, just as obviously, that aspect of the play failed, and was doomed to failure from the beginning. Since when do Republican talking points depend on logic and facts? And in this case, there are even legions of Democrats who think she is, at the very least, essentially fudging.
But the upshot of making a pledge on national TV is that it prompts local media to take the promises of their local Democratic Reps. that they, too, won't be seeking impeachment as a similar pledge. Which means that if "circumstances change," we now have not just the Speaker, but dozens if not hundreds of Democratic incumbents facing reelection as "flip-floppers."
That raises the stakes of impeachment considerably, in my view. I think I've been in the minority among impeachment supporters and sympathizers in that I've advocated impeachment as a line-drawing exercise that's important even if we think that a partisan head count in the Senate is all that's necessary to conclude that there would never be 2/3 support for conviction. The argument here is that Bush's transgressions need, at minimum, to be defined as impeachable. The worry, of course, is that the failure to convict will be seen as a vindication of Bush's policies. That's not actually true, but it's a highly nuanced position, which usually means it's one that'll be very difficult, if not impossible, to get the public at-large to absorb. But at bottom, the message here is that if you pull stunts like the Bush "administration" has, you will have to take your chances with the Senate, and your dirty laundry will be aired live on C-SPAN2, possibly for weeks on end. The message of not impeaching -- whatever the reason for it may be -- might well be: your secrets are safe with us.
But while the political/governmental value of the line-drawing exercise is easier to understand, the electoral/political value is more questionable. Add to that the fact that you'll also have dozens of incumbent Dems facing "flip-flopping" charges, and it becomes even harder to justify than ever. Ordinarily, the charge of "flip-flopping," as against the magnitude of Bush's high crimes and misdemeanors, is pretty weak cheese. And I certainly wouldn't want to be the Republican pinning his election hopes to that charge after Bush had become the first president ever removed from office. But with the "vindication" argument tucked securely under my arm? I'd go for it in a second.
Next, the political/governmental: While Pelosi appears to have ruled out impeachment, she has also been quoted recently as saying that among the most important fruits of victory in November would be “subpoena power.”
Pelosi was asked what was most important about regaining majority status. "Subpoena power," she said.
And no one doubts that that'll be a great thing to have. Well, almost no one.
The very next line after that "subpoena power" quote is this:
The power to investigate has the potential to create the biggest waves in public opinion.
Indeed, it is almost universally anticipated among Democrats, of whatever opinion on impeachment, that that power will at long last force the "administration" to accept vigorous Congressional oversight, and compel its officials to answer for their actions under oath.
And Congressional committees, in their investigative capacity, do indeed have the power to issue subpoenas compelling witnesses to testify before them. That, of course, is widely known, and allows Democrats to promise their constituents some measure of accountability, even if they’re forced to foreswear impeachment on the campaign trail.
But those of you who've read the above-linked post know that Congressional subpoenas are served by the U.S. Marshals Service, a division of the Department of Justice, by virtue of which, of course, they are an arm of the executive branch. Recalling the extent and reach of the Bush administration’s theory of the “unitary executive,” one can immediately see the problem looming: upon whose authority will the Marshals Service act? Will they serve the subpoenas issued by Congress against officials of the “unitary executive?” Or can they be ordered not to, perhaps even by the targets of the subpoenas themselves?
Further, assuming proper service of the subpoenas, by what authority are witnesses compelled to appear and/or testify? The power behind the Congressional subpoena is, of course, the threat of charges of contempt of Congress. But again, the contempt power depends on the acquiescence of the executive. Contempt of Congress is prosecuted at the discretion of the U.S. Attorney for the District of Columbia. Another potential conflict, and a glaring one at that. In short, it is by no means clear that subpoena power is an effective weapon in a showdown between the legislative and executive branches when the issue at stake, ultimately, is an executive claim of the “inherent power” to ignore the legislature.
Ultimately, then, the subpoena power Pelosi promises depends on Congress’ ability to enforce that power. With this administration, that means carrying a big stick. And not just any stick, but one capable of delivering a blow sharp and clear enough to cut through the stonewalling that investigators will doubtless encounter, not to mention the legal obfuscation the administration’s apologists will continue to inject into the public discourse, in an effort to sell the notion that there’s a “genuine dispute” about the state of the law – both the substantive law that’s at the heart of the investigations, and the procedural and Constitutional law that determines who’s answerable to whom.
Can anyone guess what stick that is?
Hint: it was "pledged" away last Sunday night.
Finally, an explanation of the waterboarding mention. Let me set this up in the reverse order it was laid out here:
Republican Sens. John Warner of Virginia, John McCain of Arizona and Lindsey Graham of South Carolina have said that a law Bush signed last month prohibits water-boarding. The three are the sponsors of the Military Commissions Act, which authorized the administration to continue its interrogations of enemy combatants.
Vice President Dick Cheney has confirmed that U.S. interrogators subjected captured senior al-Qaida suspects to a controversial interrogation technique called "water-boarding," which creates a sensation of drowning.
Cheney indicated that the Bush administration doesn't regard water-boarding as torture and allows the CIA to use it. "It's a no-brainer for me," Cheney said at one point in an interview.
Ah, I see. And do we think they will regard "subpoena power" as compelling? How about "contempt of Congress?" I'm thinking maybe not.
These three Senators, you'll all recall, were "holdouts" against the MCA, and "personally negotiated" agreements on the language with the White House, ultimately "satisfying" themselves that the law prohibited waterboarding.
Cheney, without even so much as a signing statement, simply says it doesn't.
This is how this "administration" honors its commitments to Republican legislators.
How will they honor the prerogatives of Democrats? And more to the point, in a world where impeachment is "off the table," why would they?