Publius SHOUTS (Part 3: Politics)

by RonK, Seattle

Unsurprisingly, impeachment fever is on the rise, but the hottest hothead bill of particulars is D.O.A. in today's Congress. Here, we take a more practical tack.

Parts 1 and 2 drew the radical originalist case for impeaching and convicting minor figures, even after they leave office, and nullifying presidential pardons.

Today's argument could tempt tomorrow's majority to rationalize great mischief, but we have the immediate problem of an imperious character in the Oval Office and a dangerous loophole in Article II.

What to do? Fire a shot across the Administration's bow. Warn them -- all of them -- that there's no safe harbor in partisan loyalty, stonewalling and Presidential pardons.

To launch this flash-bang -- and constrict a few sphincters along with that loophole -- we propose a sequence of test cases. But even a minor impeachment demands a House majority and a Senate supermajority (2/3). As a minority party, how can we hope to win?

First, choose test cases carefully. Republican office-holders must defend, delay, and ultimately vote decisively in these cases. Give them as few side-issues as possible to work with. Cut off escapes and extraneous motivations.

Find the indefensible defendant, in "pure" circumstances that conform to whichever bright line needs testing next. The ideal defendant has unquestionably committed an indisputably "high" crime, and has no trophy value or sympathetic qualities. Avoid political "high value targets" (which shift attention to issues other than the facts and the law).

That doesn't mean we'll win, but it puts our side in position to make gains every time we lose.

If we win a majority vote in the House and move a case to the Senate, fine. That's one building block in place. If not, that's fine, too. We've raised an ongoing controversy, and we've put every Republican member to the test on unfavorable ground.

Why "unfavorable"? A GOP Rep has limited options:

• Cooperate. Not likely, but conceivable, and from unexpected quarters if we find ideal test cases.
• Defend. It is to our advantage politically -- seat for seat, and cycle for cycle -- to make any Republican visibly defend the indefensible.
• Obstruct. Indirect defense -- procedural obstacles and delaying tactics -- is harder to beat, but we can make obstruction newsworthy in contrast to our "high road" issues.
• Obfuscate. Create side-issues? Cry "partisan politics"? Attack our priorities? Again, we grind away in low gear on the high road, and hold their evasions up to ridicule.
• Counterattack. If they hand us a valid test case, use it! As mentioned in a Part 2, we may get more mileage out of impeaching a Democrat than a Republican.
• Take the high road. If they choose to meet us on high ground, debating lofty principle and precedent, the Framer's intent, and the whole checks-and-balances thing, we've centered the argument right where we want it.

In every round, every tactical variation can play to our political advantage. We can make Republicans dish out pathetic arguments for non-meritorious causes, and do so throughout an election cycle, while the overarching pardon-bargain anxiety takes hold in public awareness.

The same advantage holds on "big picture" level. Again, the GOP must defend the indefensible -- a dangerous loophole that invites tyranny, conspiracy, and pardon-powered impunity.

Whenever we move these arguments, we direct public suspicion toward Bush and his team. Do they have "conspire and retire" agreements, insured by presidential pardons? If they did, how would we know? Do we have to worry about that? Can we do anything about it?

The whole protracted campaign is a nonstop civics lesson, generating a stream of news and comment suitable for both elite intellectual discourse and red meat retail politics.

This sets a theme we can use to nationalize every 2006 House race. Every seat is a vote that could help close a loophole, or leave it wide open. Give us the House, we'll at least move these cases to the Senate. Keep the status quo, and Bush gets a free ride to 2008 ... when the next crew -- Republicans or Democrats -- will enjoy the same liberties and face the same temptations.

Can we win our string of precedent-setting cases? Maybe not an the tally board. Not yet. [In practice, a minor impeachment may even require majority votes in select subcommittees, which could be stacked against us -- another constitutional bone to pick.] But still we win.

We win every time a voter asks "What's going on here? And what's supposed to be going on here?" In this arena, our side scores every time a Republican takes a stand -- either manning a defensive perimeter so wide it shelters the transparently guilty small fish, or giving ground incrementally and tightening the noose loophole.

And without a single conviction to our credit, the controversy itself keeps Bush's bit players on defense. In prospect of future precedents, future impeachments, and pardons subject to nullification, every member of the Administration must think less like an accomplice -- and more like a witness.

Comments

[emptywheel]

I say we start with Yoo and Gonzales, on torture, not domestic spying. Given the votes against torture in the House and Senate, it might at least be possible to embarrass some people for supporting Abu G publicly. And impeaching Yoo would be a great test of the "impeach after they're gone" rule.

[Kagro X]

Yoo's a good idea. Republicans might be glad to repudiate him, now that it costs the president nothing. Of course, the whole idea here is that it does cost him, but some of them are going to feel compelled to defend anyone and anything. But so much the better.

[Kagro X]

Were we aware of this:

I seem to recall that Robert Bork studied the question of prosecution versus impeachment during the Nixon Administration and concluded that the President cannot be prosecuted for arguably official duties while in office -- but that the Vice President could. In that context it's interesting that Rockefeller sent his letter to Cheney.

Short of impeachment, are the following actions possible?

* Public outcry to demand a special prosecutor to investigate this. (Gonzalez is personally involved.)
* Resulting criminal charges against those who actually implemented the illegal spying program, up to Negroponte, Rumsfeld, and Cheney.
* Civil suits against the same implementers -- although I'm not sure how someone would determine that they were spied upon, in order to establish their right to file the suit.

by Elwood Dowd on Tue Dec 20, 2005 at 06:36:19 AM EST

It's not exactly what we're contemplating, but worth keeping in mind.

[RonK, Seattle]

Note to discussants -- last week's Great Typepad Meltdown apparently resulted in the loss of many fine constructive comments attached to Publius SHOUTS, Part 2.

If anyone has stashed a copy of a pre-crash feed, please advise.

[voice from the singularity]

Can legal proceedings be pressed upon members of the executive branch after they have left office? And can these procedures be carried out by Congress and penalties conferred by Congress after people have left office? What would any of this look like, if it could happen?

[voice from the singularity]

I'll posed my questions before I read the previous threads...my apologies...ignore...ignore

[ng]

The key to impeaching/removing Bush is to either win Congress in 2006 and/or to impeach/remove him even next year (less likely). This internal spying crime of Bush can be easily used as the final straw to nail Bush if conservatives can be angered and frightened by the negative potential this internal spying precedent SHOULD have on them. Many conservatives hate big government and are afraid big government will take away their freedoms. It is only the religious B.S. from GW Bush that temporarily has them spellbound like a deer stunned by headlights and salivating at the thoughts of new moral powers through government control. However, they should be torn by this internal spying precedent as it is/could be a real threat to the freedoms they like most down the road, although many don't seem to be thinking about it like that yet.

There in a nutshell is the path to GW Bush's removal. The tactic is to first make sure everyone understands that precedent will be set if Bush gets away with this UNCHECKED internal spying precedent. Then it is a simple matter to make an analogy of what a more secular administration would be able to do to protect the nation from another Waco or Oklahoma city bombing fiasco. Namely to internally spy on any religious groups and congregations that are aligned even mildly with the folks who were behind Waco and the bombing in Oklahoma city and this would now be legal!!! Do we really believe that an unchecked Bush administration is only listening in now on international communications. How would we know and that is precisely the point of no independent checks on this administration's internal spying!!

I strongly believe that if this type of potential scenario precedent was clearly explain to everyone and especially to religious conservatives, they would turn on Bush because of this spying issue. Just as important, their congressional reps may feel the heat now to get Bush out if there was the understanding that their jobs are at stake if they do not. As much as conservatives want to feel secure from foreign threats, the idea that their own government could now legally be allowed to spy on them just because of their religious affiliations may scare them more. It is an analogy just waiting for the picking, and it will bear good anti-Bush fruit.