Publius SHOUTS (Part 2: Practice)

by RonK, Seattle

Should the Constitution enable a President's "public men" to conspire to disregard the law, shield each other from justice, and rely on his last official act to absolve them of penalties? We think not, and we think the Framers said so -- emphatically. Publius SHOUTS, Part 1 advanced the following propositions:

• That "all civil Officers" can be impeached, convicted, removed and barred from future service. Noncontroversial in principle, but with boundaries untested in practice.
• That impeachment may proceed after the defendant has left office. Precedented, but reconsidered and susceptible to controversy.
• That impeachment (and conviction) nullifies a presidential pardon. Our "radical originalist" reading is that conviction in the Senate exposes the defendant to the jaws of ordinary criminal justice in spite of a pardon. The standard reading is much narrower -- merely that the President may not use a pardon to derail an impeachment.

Now, therefore, under present circumstances, and with these tools in our kit, how might we proceed?

First, we must make sure these neglected tools are in working order. Drag them out of storage, brush away centuries of cobwebs and rust, hone their cutting edges ... and "practice, practice, practice".

1. Confirm Congress's power over officials who have left office. Impeach an official from a previous administration, who has grievously betrayed the public trust.. (For practical and political reasons, our test case might select a Democrat ... perhaps even a volunteer!)

2. Confirm the scope of Article I's "all civil Officers". Impeach a Senate-confirmed appointee below cabinet rank (the current threshold of historic precedent).

3. Further confirm this scope. Impeach an official whose appointment was never subject to Senate confirmation. (Chief of Staff and National Security Advisor, for instance, are powerful officials whose appointments do not require confirmation.) This distinction might come into play in divergent readings of text and precedent.

4. Confirm the primacy of Impeachment over Pardon. Make the claim explicit in articles of impeachment: conviction renders null and void any Executive pardon of the accused. For supreme clarity, our test case might best impeach an official who has already been criminally convicted, sentenced and pardoned.

When these test cases are presented, controversy ensues. Learned scholars and jurists opine. Editorials are published, and appeals brought. This is all good -- it constructively clarifies the issues. In the end our propositions are either sustained, or they are not.

• In the affirmative, a President's web of loyal subordinates can still institute the Rule of Men while in office, but they are no longer immune from Rule of Law thereafter. This provide a remedy and a deterrent to one of the Framers' worst nightmares.
• In the negative, we are left with well-defined loopholes to close, and we take the next step.

5. Amend the Constitution to explicitly confirm our reading of Alexander (Publius) Hamilton's emphatic shout: "EXCEPT IN CASES OF IMPEACHMENT".

"But we are the minority", you may object, "and an Amendment requires a 2/3 vote of both houses of Congress, plus 3/4 of the states".

Intelligent readers. Remarkable readers! We'll take up this problem and other political dynamics in Part 3.

Comments

[DemFromCT]

Well, I wuz gonna say... but i guess i have to wait until part 3.

[RonK, Seattle]

A note of interest on immunity, impunity and Rule of Law (in context of torture, rendition, etc.), from Sen. Lindsey Graham on this morning's Meet The Press:

SEN. GRAHAM: ... if we start allowing American political figures to waive the law, grant immunity or create exemptions ... what stops the next country from doing the same thing to our own people? ...

MR. RUSSERT: Is the administration asking for immunity for events that may have occurred?

SEN. GRAHAM: ... There's a philosophical difference here. I don't want to divulge. ...

MR. RUSSERT: The president would still have the right of pardon?

SEN. GRAHAM: The president can pardon anybody that he believes is unjustly accused. But we can't let the president, the attorney general or any political figure waive the law, be bigger than the law ...

[Gotham Image]

The President can pardon anyone for any reason.

The Libby case was forshadowed by the fact that Libby was introduced to the USA, in a public way, as Mark Rich's lawyer.

Recall the Rich pardon?

Good post - stop over at GI

[RonK, Seattle]

On plain reading, the President can pardon anyone (innocent, guilty, living, dead or fictional). The House can impeach anyone (likewise), and the Senate can convict anyone so impeached. (The House ... shall have the sole [i.e., unreviewable] Power of Impeachment ... The Senate shall have the sole Power to try all Impeachments.)

But the questions at hand are:
What is the effect -- if any -- of a pardon on the status of an individual convicted under a Bill of Impeachment?

What did the Framers intend?

And what -- if anything -- ought we do to resolve potentially critical misinterpretations or oversights?

[Kagro X]

Is there anything to do but get rolling? I can't think of any testing methods outside of fire.

[RonK, Seattle]

Kagro -- The floor is open to nominations for "crash test dummy" in any of the test case categories. The guiltier the better, to avoid issues of culpability or sympathy confounding the procedural acid test.

There's plenty of scope for supporting research, argument and counter-argument. For instance, from the Senate history of the Belknap case: "Years later, the Senate finally decided that it made little sense to devote its time and energies to removing from office officials who had already removed themselves." Interesting history and germane precedent -- in what form? Details? And we've only scratched the surface of Framers' jottings and British precedents ... some of which may be equivocal.

And this initiative has to be grounded in strategic political context, for the sake of recognizing the unachievable and achieving the achievable -- directly if possible, and indirectly if necessary.

[DeWitt Grey]

A rather obvious test should be forthcoming shortly, namely, I. Lewis ("Scooter") Libby, who has resigned his government post.

The President will probably follow his father's precedent in pardoning Libby if he is convicted (a political controversy, recognition of long and otherwise unblemished public service, blah, blah).

A Democratic majority in Congress could then impeach and convict Libby in order to avoid the Elliott Abrams precedent, in other words, to disqualify him from ever again holding and enjoying "any Office of honor, Trust or Profit under the United States" (which by the way strongly suggests that impeachment need not be limited to officials confirmed by Congress).

There would probably be a large hue and cry from the Mighty Wurlitzer about how "divisive" and "partisan" such a proceeding would be (as the MSM will conveniently overlook the serious damage to national security, to recruitment of intelligence officers to undertake clandestine service, and the obstruction of justice by a lawyer and senior official in the Office of the Vice President), so it would be in that politically poisonous context that one would attempt to override the pardon and to reinstate the verdict against him.

On the other hand, if Libby is found guilty of the serious crimes with which he has been charged and is then pardoned with no more extenuating circumstances than the flimsy ones noted above, I think it would be hard to find a better test case.

[RonK, Seattle]

DeWitt -- Yes, very much to the point, but maybe not the first in line. We can best draw the procedural precedents by acting on defendants almost nobody will defend.

It takes 2/3 to convict, so the case must be unequivocally damning.

A Libby impeachment today would be seen as a proxy attack on Bush/Cheney, and would likely be met with "circle the wagons" defense. Later in the game, maybe not so much. ... but you'd still have partisan cavils commingled with the procedural cavils. And Libby's criminal case -- plus appeals -- will likely still be in progress when Bush leaves office.

[BTW, the semantics of "Officers" are more heavily loaded than most folks imagine. Topic for extended discussion in its own right.]

Anyway, this leads us nicely into the next installment.

[Kagro X]

Well, he's not necessarily first in line, but since we're testing theory, we could impeach Elliott Abrams from his prior posting. He was convicted there. In an honest world, impeaching a convict would be non-controversial. The only thing making it controversial at all, and only among Republicans, is the pardon he already received.

[Kagro X]

In fact, the only argument against impeachment -- besides the notion we're testing -- would be the "come on, let's let bygones be bygones."

[jim p]

Just as an aside, given the case being made for the implications of impeachment, would an impeached retired official lose an honor like, oh, Medal of Honor? Just wondering.

Didn't notice if anyone's seen Citizen Spooks paper on this topic from earlier this year: http://citizenspook.blogspot.com/2005/09/treasongate-new-constitutional.html

"TREASONGATE: A NEW CONSTITUTIONAL DISCOVERY:Pardons May Be Voided For Criminal Prosecutions Flowing From "Cases of Impeachment"
The Constitution Voids Presidential Pardons For Criminal Convictions Or Indictments Flowing From "Cases of Impeachment" Where The Senate Has Voted To Convict."

Reading his other articles, he's pretty much out in heavy-conspiracy-land, but he sure talks like he knows his legal stuff. Enough to convince this layman.

[RonK, Seattle]

jim p -- Thanks for that lead on "Citizen Spook". Interesting take, probably an overly tendentious reading of the explicit text, but I'll give it further attention.

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