On the Necessity of Impeachment -- Part II

by Kagro X

Part I of this series laid some historical groundwork for the necessity of impeachment. That is, I argued that our prior failures to carry the impeachment process to its conclusion after Watergate and even to initiate it for the identified and acknowledged bad actors in Iran-Contra left us powerless and the impeachment power toothless.

It is also my belief that those failures were seized upon by resurgent Republicans in the Clinton impeachment, who must have known that their efforts -- at least by the time it reached the critical stages -- were ultimately doomed, were pursued nonethless because they would weaken the Democratic presidential nominee in 2000 (even then known most likely to be Gore) and possibly with an eye toward weakening and discrediting the very process of impeachment itself.

Discrediting impeachment would itself serve a dual purpose: 1) to partially erase the shame of Watergate, and; 2) to make it possible to dismiss future impeachments (of Republican presidents) as just "more of the same partisan tit-for-tat."

It may not necessarily be the case that the Republicans behind the Clinton impeachment anticipated either the George W. Bush presidency in particular, or even the likelihood that his during that presidency, he would find himself facing the prospect of impeachment, as I once argued.

But if anything, the events of the months that have passed since I first made that argument have convinced me that certain Republicans did indeed have an eye on using the next GOP presidency to attempt to reestablish a pre-Watergate understanding of the executive's place in the constitutional order. And that would necessarily include some variants of the very activities -- or at least some of the very same justifications for other activities -- that got the first boss in hot water. That is, it wouldn't necessarily have to be illegal surveillance that would be at the center of this intentionally-provoked controversy. What would be important to the people behind this is that whatever the activity was, it would be defended as being within the prerogative of the presidency, whether the grounds be national security, executive privilege, or some new formulation of the same old thing.

But for the sake of argument, let's stick with the example of surveillance -- just as the bad actors themselves have opted to do. Why would they undertake such a thing, especially given their special history with being on the wrong side of the law on this issue? Isn't it now "settled law" (and I use that phrase intentionally, to remind everyone of the recent Supreme Court confirmation hearings) that neither national security nor executive privilege protected Nixon's warrantless surveillance and his secretiveness about it?

Well, yes and no. Yes, the courts held that Nixon was not entitled to executive privilege under the circumstances. And yes, Congress enacted all sorts of reforms that made particular activities in which Nixon had engaged plainly illegal. But also no, in the sense that under slightly different circumstances (and they're always slightly different, from case to case) a not-completely implausible constitutional argument might be made that the distinctions entitle these new activities to different or special consideration. And whether those slightly different circumstances be the technologies used to conduct the surveillance, or the "state of war" under which it was conducted matters not. Just so long as there be some not-completely implausible argument that can be put forth to justify it.

Getting back to the original question, though: Why test this again? Well, because the reality of hardball in the judicial system is that rights are all theoretical. You don't really have them until you can prove it in court. And by the same token, neither are there any prohibitions you have to obey, until the prosecution can prove you have to. And as an added bonus, if you never get caught, you never have to worry about either one.

That reality is absolutely critical to understanding what's going on here.

"But wait," you may be saying to yourself. "That's not really true. I mean, murder is murder, and if you're caught and they can prove you did it, you're cooked, right?" Well, maybe. For just a simple illustration, what if they can prove you did it, but you can prove self-defense?

"Well, then, it's not murder," you say.

Precisely so. But we decide whether or not it was a murder based on what? Your story about why you did what you did, and nothing more.

So, is warrantless surveillance illegal or not? Well, not if you believe that the president has "inherent powers as commander-in-chief." That would answer the entire question.

"But there are no unwritten 'inherent powers,' or at least none that would simply justify warrantless surveillance on the president's say-so," you may object.

"Says you," answers Alberto Gonzales.

And you think he's nuts for saying so. But the problem is that you're still working under the old (albeit commonly understood) constitutional order, whereas Gonzales is proposing a new one. One under which there are such "inherent powers."

And that's when it hits you: If five Supreme Court Justices side with Gonzales, everything you knew (or thought you knew) about the Constitution is wrong. By which I mean, it now is wrong. It wasn't wrong yesterday, but now it is.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
                                        -- Chief Justice John Marshall
                                            Marbury v. Madison

In law school (or in high school civics), we are taught that Marbury v. Madison was the case that established the doctrine of judicial review, which we are told means that the Supreme Court can declare laws unconstitutional. And that's all we need to know for the purposes of civics class, and really, all most lawyers need to know about it, too. Because the kind of case the neo-cons are making for their activities only makes sense to argue at the extreme margins of the law -- where you either have tons of money to throw at establishing a case against the statute (or constitutional understanding) itself, or there's so much at stake that no price is too high to pay to win.

The neo-cons, then, will very simply be committing the exact same "crime" quite intentionally, for the express purpose of marching into court to try their luck, one more time, at convincing the courts that last time, the SCOTUS simply got it wrong. And this time, they'll be appearing before their own judges. Judges who came of age and received their training under the Nixon and Reagan deputies who invented the modern incarnation of this doctrine in the first place. So, yeah, the simple explanation for what they're doing is asking for a do-over. A finding that stuff really isn't illegal if the president does it.

The following is an excerpt from an interview with former President Nixon conducted by David Frost. It aired on television on May 19, 1977.

FROST:    The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.

FROST:    These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president's approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.

FROST:    So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON:    Well, when the president does it that means that it is not illegal.

FROST:    By definition.

NIXON:    Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

FROST:    So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?

NIXON:    Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.

FROST:    Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, "It's quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation's security are lawful, but which if undertaken by private persons, are not." What, at root, did you have in mind there?

NIXON:    Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.

FROST:    But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

NIXON:    This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it's true that we didn't have the North and the South—

FROST:    But when you said, as you said when we were talking about the Huston Plan, you know, "If the president orders it, that makes it legal", as it were: Is the president in that sense—is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?

NIXON:    No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.

And this time, it's the province of Sam Alito -- Edwin "signing statement" Meese's protégé -- to say what the law is. And what would they like him to say it is? That it's not illegal if the president does it. Nixon never thought so. Does Rumsfeld? Does Cheney? Does Bush? Does Gonzales? Does Poindexter? Abrams? Negroponte? North?

Scalia? Thomas? Roberts? Alito?

Next:Why this portends a new constitutional order, and how broad the threat really is.

Comments

[Davis X. Machina]

Considering that in our lifetimes impeachement has always been a weapon levelled at Republicans -- Watergate, Iran-Contra, now George's Excellent Adventure -- it isn't hard to see why blunting the impeachment weapon would be a Republican priority.

The sheer triviality of the charges against Clinton work to diminish the seriousness of impeachment, as well as inoculate the GOP against the risk of impeachment.

The Clinton impeachment made it easy to claim than any other impeachment push was also a politically driven witchhunt over trumped up charges.

And so, at a blow, lying us into war is reduced to the same comic-opera level as the Levinsky matter.

[efr]

Bush should step down; he should resign and that's what we should be talking about. impeachment is a long and costly in terms of cost and time. we should be having a discussion on why Bush isn't resigning. How can any person of character remain in office with the record he has? He should resign and give us all relief.

[Kagro X]

Well, he should. But that wouldn't give us the relief we really need.

That leaves us with the accumulated precedent of all three rounds of Republican insanity, and no repudiation of it.

[texas dem]

Help my unsubtle mind a bit, please.

Is part of the idea here that we've already crossed a Rubicon just because Bush, acting as head of the executive branch, has claimed powers that if recognized, would replace our old constitutional order with a new one, AND, if he is not challenged and defeated specifically on this issue by either the legislature or the courts, his new constitutional paradigm stands henceforth? Sort of a "no contest" ruling in his favor?

And we're also worried that though the SCOTUS will definitely rule on these matters at some point, they may not rule the way we would hope? And that's why the legislature needs to specifically defend the constitutional order, through the only tool it has, impeachment, which at the same time both defines a specific action as in violation of the law and/or constitution (which is what we really need, and which the judiciary normally does but may not do this time) AND enforces its judgement through removal from office (which the judiciary cannot do).

If that's even right, then the next questions might be:

1) How would Anthony Kennedy rule on these subjects. Are there even cases in the pipeline. Is it better to get this to his desk as soon as possible, or do we fear his judgment and try to get the Congress to act before the Court. Or do we try to create the kind of cultural background noise (such as a loud but "unsuccessful" dialogue about impeachment) that is known to influence his judgment especially. Or would a favorable Court ruling still not carry enough weight to do the job?

2) About the "Bush wins by no contest" notion: is any kind of defeat on grounds other than the constitutional questions specifically, good enough? What if everyone just talks about the fact that he broke the law, and he loses a chamber or two of congress and becomes a lame duck? (i.e., an electoral rather than a formal constitutional rebuke) What if he'd lost in 2004 on Iraq issues? What if he loses a chamber in 2006 over issues other than law-breaking, such as healthcare/Katrina/Iraq?

As a variation on this question, what if the Executive is taken on on these grounds specifically, but suffers semi-formal Congressional/press action less than impeachment: investigations and the resignation of the AG, for instance.

3) What are the paths to re-securing the constitutional order. Are there any good "paths to victory" that don't include an impeachment push, and if not, are there any "paths to victory" that include the push but not a successful impeachment?

That's my best attempt to think about the stated case. Making life more difficult is the fact that your stated reasons and rationales may or may not be the same as your ultimate ones. I don't mean that in a bad way either, just that sometimes one can't say what it is one's really going for (such as an expected-to-be-unsuccessful impeachment push, or an "impeachment" push whose best hope is to garner some cabinet-level resignations).

I realize I might be working with the building blocks here and completely missing the architecture. I'll be interested in whatever you wind up saying about this comment.

[Davis X. Machina]

and if not, are there any "paths to victory" that include the push but not a successful impeachment?

The push, without success, is by itself, a victory. It says rules matter, law matter, process matters -- that there are limits.

[Kagro X]

Bush's claim to the powers of a "unitary executive" is not the only crossing, it's just one of many, only some of which are his direct doing. But yes, with respect to that portion of the issue, he is making a constitutional claim that either has to be refuted, or it stands.

I don't think that it's necessarily true, though, that the SCOTUS will receive these issues head-on. Or at least it's not guaranteed to happen at any time during which it might still matter. There are serious questions as to who would have standing to challenge the warrantless surveillance, for instance. All the usual suspects are scratching their heads, trying to come up with possible answers to that, but they're not sure.

It's also unknown, of course, how Kennedy would rule, but I would think he'd be disinclined just now to ratify the claims Bush is making, which does suggest that now would be a good time to get a case before the court. On the other hand, part of the urgency behind a move to impeach is that there's no guarantee that a court ruling would mean anything to this "administration." It'd be just another erroneous ruling, in their minds, subject to their chosen method of appeal: changing the judges and trying the case again.

Is there anything short of impeachment that works, here? Well, he could always change his mind and just stop. But it's not even clear that a "defeat" means anything to him. Was Bush "defeated" by McCain's torture ban? Not for long. Was Bush "defeated" when his emissaries requested that warrantless surveillance authority specifically be included in the AUMF and were rebuffed? Not for long. He just declared these Acts of Congress null and void with respect to whatever it was he wanted to do, but had been denied. The law, he said, did not mean (for him) what it said.

What do you do with a president who says that, and then says the same of the Constitution? I mean, I can't think of any reason to believe there are any limits he'd respect. Can you?

Suppose he did lose one, or even both houses of Congress. What would they do with their newfound power if impeachment were too distasteful for them? Pass new laws? So what? The old ones that his own party passed didn't mean anything to him. Why accept the new ones, from terrorist sympathizers, no less?

Under ordinary circumstances, I'd say there were alternatives to impeachment. And who knows? Something unanticipated may yet present itself. But under ordinary circumstances, a president who was rebuffed directly by the courts and Congress would most likely accept that his envisioned constitutional order could not yet come to pass, and would give up trying, and look for what successes were available at the margins. But we're not in ordinary circumstances. We have instead a president who appears to truly believe that if anyone says what he wants to do is illegal, they're just wrong and will be proven so eventually, even if it takes changing all the judges.

And ordinarily, a president who had not only lost the confidence of Congress, but had antagonized them to this extent would feel chastened, and would begin to worry about the rest of his agenda. But Bush doesn't really have anything else, and I'm not convinced he'd give a damn if he never passed another initiative for the rest of his days.

The only thing short of impeachment that might work for him would be the resignation of literally everyone in the administration, leaving him with no one to execute policy but himself. I was going to say that perhaps the refusal of Congress to appropriate any money whatsoever for the executive departments might work, but I suspect that Bush would find "inherent powers" to spend, in furtherance of "national security."

There may be some value to an unsuccessful impeachment effort, though to this point I have not considered it, except insofar as it might build even more pressure for impeachment if the effort fails along clearly partisan lines. But in terms of changing the direction of this particular president, no, I don't see much value to a failed effort.

[Steve]

There is no way Bush's argument on the NSA issue has a chance before the current Supreme Court. At the very best, he could lose 6-3.

But as Kagro says, you can't just wiggle your nose and have the Supreme Court review the issue.

[Kagro X]

And that's a huge part of the problem, right there.

It's probably exactly right that he'd lose 6-3. And his message to you is still the same as it was yesterday: Prove it, bitches. Because until you do, I'm tapping your phones. And maybe even after then, too.

[Kagro X]

One of my younger brothers was a big baseball player right through his college years and even a little beyond.

When he was about 10, he played on a team in a very competitive league. And the coach of their team was enormously successful in putting together championship seasons. His methods were a real eye-opener for me.

He made no attempt to teach these kids fundamentals. It was too late for that, he reasoned. Besides, concentrating on fundamentals is for teams that want to be mediocre.

If you were sitting on second base for this guy's team, and the batter hit a one-hopper to shallow left field, this coach would send you charging hard into third. "The reality," he'd tell his players, "is that a ten year-old has less than a 25% chance of making that stop, and then making that throw to third. And the third baseman, with you charging full-speed at him, probably has less than a one-in-ten chance of making the catch and the tag -- if the throw is even near him."

They regularly trounced everyone in the league, and of course, went on to become champions again.

By all rights, every one of those kids should have been tagged out at third, but they challenged the other team to perform perfectly, because they knew they couldn't. They knew they were rarely, if ever, going to be up to it.

[texas dem]

And if the other team is Democrats, how can you blame 'em for picking that strategy?

Your earlier comment was very interesting. I'm ignorant but it does sound like he can't be restrained by statute, particularly if he specifically asked for this authority to be explicit in the AUMF and was rejected. I hadn't heard that point clearly made before and it sounds big to me. But the core of the unitary executive notion is that the executive can't be restrained by statute, so since that's the very thing being contested, you're right that attacking with statutes won't work.

Other and less contested avenues of arbitration might work though. For instance, it does seem like large-scale political defeat ought to be able to restrain him -- loss of elections, denunciations from members of Congress of his own party, investigations, forced high-level resignations -- the kinds of thing that make clear that folks just don't agree with you, and they feel aggressive about it. In that environment impeachment of course becomes an option, but maybe just an option; the same results might realistically be achieved by intense broad-based opposition without formal impeachment proceedings. Now, having a segment of the body politic call for impeachment might help that process along. All those "I-word" articles in the tradpress have been helpful. But I can imagine this issue being resolved without the House scheduling a vote on articles of impeachment. (Although the left wing of Pelosi's caucus will need to have at least toyed with the notion publically before it's all over.)

One great thing about impeachment is you can start bringing up everything awful that's ever been done and impeaching for all of them. Once one definite impeachable offense exists, a lot of other things suddenly look impeachable too. My secret anger has long been the cynical failure to kill Zarqawi before the war. I've never understood why Bush didn't pay a price for that. But once you get the I-word on the table you get to have talk show folks debating all the other things that might be impeachable. That would be great.

I hear what you're saying on the Courts ruling obliquely and not soon enough. Although, if Kennedy deals them a defeat on a related matter that's broadly couched, he could probably reveal the inclination of the Court, which would matter if it was in conjuction with opposition from many other quarters.

It seems like if you work all corners of the field, you could leave the president isolated and twisting in the wind. Get Hagel to say something, then cycle that through the press. Then get Shays to say something, and cycle that. Then get a Democratic legislature to pass a statement. Get the editorial boards active. Then go to McCain. Maybe a case like Hamdan tips everyone off to the Court's thinking. Then get Biden Bayh Warner Edwards to say something, each of which will be news. Then let Feingold haul AGAG on the stand for lying during his confirmation hearings. Then get a Western Libertarian legislature to pass something. Etc. By the end of it, a regular old political defeat has been inflicted. If a majority of the various political stakeholders really think this is crap, they ought to be able to overpower even the Executive. They still wouldn't have technically made Bush stop -- the NSA would still be tapping phones -- but they'd be making him bleed. As long as there was no end in sight, he'd eventually have to stop himself.

The center has to become convinced of the threat though.

That's something of a perfect storm scenario, although impeachment's not easy either, and the prerequisites are about the same. I'll be reading this series with great interest. Thanks for it and your comments.

[John Casper]

Kagro X, I am not going to take issue with anything you say about impeachment. I would offer, however, that an intermediary step, which would help gather momentum for impeachment is for us to "persuade" the Dems and the media to quit calling Iraq a "War." Everytime there's a story about the Iraq WAR, it reinforces WH talking points. It's an OCCUPATION. "Support our Troops; End the Iraq OCCUPATION."
OT, back in October during indictment week, I was hopeful that the Rethugs would see impeachment as a chance to "scapegoat" Bush and the WH with high oil prices and the Iraq Occupation so they preserve control of both houses and insert someone else as an incumbent going into 08. Obviously I have been wrong. Especially looking at the possibility of losing the WH in 08, I keep hoping Rethugs will start questioning how much they really want a strong executive branch.

[Kagro X]

And if the other team is Democrats, how can you blame 'em for picking that strategy?

I couldn't. Was there anything normative in my story? There wasn't supposed to be. It's rational behavior, and something to be expected from those who see an opportunity to win the game and close the door behind them, cementing the win forever.

Changing the constitutional order is not something Democrats don't engage in. The order we live under now is their doing. Which is why Republicans want to change it.

The problem I have with most alternative containment strategies that don't include impeachment is that while they may leave the target politically weakened or chastised, it doesn't offer the othe long-term comforts of impeachment: ineligibility for future office, and for presidential pardons.

Now, I also think that there's something very different about the way Republicans challenge what Mark Tushnet calls "pre-constitutional understandings" -- a term which I would say translates roughly to discrete pieces of an existing constitutional order. That is, things which are generally understood to be constitutionally true or valid, sometimes because the particular problem we're facing has never come up before.

We're getting into what should be Part III here, though. So rather than get too far into examples of pre-constitutional understandings and challenges to them, I'll simply say that while what the Republicans are engaged in is rational behavior insofar as such challenges are legitimate political strategies, part of what makes their behavior such an attractive option for them is that there are no penalties for going about these challenges in ways that specifically demand breaking the law in order to challenge it. I think that's a quantum difference between the way Republicans challenge constitutional understandings and the way Democrats do.

[emptywheel]

Kagro (or anyone else)

There WAS one example where SCOTUS required DOJ to take some action and they have instead stalled. I'm fairly certain it's a habeus action for Gitmo. What are the details? I'm obviously fuzzy on it, but it's a great example of where Bush simply ignored the court. So it's not clear a SCOTUS ruling will do us any good.

Will impeachment? Insofar as pushing the legislature into taking a stand one way or another, perhaps. I just read the Gore MLK Day speech, and he pointed out that we no longer pass individual budget bills, we omnibus them, and as a result, Congress has basically given up the power of the pocketbook. So even if the legislature opposed Bush, would it make a difference?

So that's that, we've seen the executive ignore the judiciary. We've seen the executive neutralize the strongest power of the legislature.

I honestly think we need to at least begin THINKING about the other options. Is there a chance in hell we could get the press doing its job again, any time soon? Is there a chance the military will reassert its important expert role, so that we just don't go on military adventures?

Is there a chance we can organize mass action that would force a change? Frankly, I think the majority of the country is so depoliticized, I can only imagine really mass action in case of something more personal, like gas and food prices. So how do we tie obscene oil profits to constitutional overreach?

Kagro, one more thing I'd love to have you consider. The stories about Cheney and Addington say they're trying to return the power of the executive, as if Nixon lived in a golden age of executive power. That assumes the executive has been basically giving it away ever since. But that's not right: there were some limits placed on executive power, but the executive has ALREADY acquired new powers since Nixon. So I'd love to see you do a consideration of whether or not the claim that Cheney is trying to RETURN executive power or whether he is just using that as an excuse to grab for more?

[&y]

Kagro X: I was going to say that perhaps the refusal of Congress to appropriate any money whatsoever for the executive departments might work, but I suspect that Bush would find "inherent powers" to spend, in furtherance of "national security."

I asked Greenwald about this as a hypothetical a few weeks ago. Glenn never bothered with my question, but I think Bush would probably end up arguing that any congressional attempt to "cut him off" and stop paying the executive branch's bills would be unconstitutional. I was sorta-half-kidding, but it's happened often enough these past few years that one week's headlines in The Onion are the next week's headlines in The News.

Here's how it would work. Among Glenn's tidy summaries of the 42-page DoJ white paper:

Anything which stands in the way of George Bush’s powers -- which "impedes" or "interferes" with those powers -- is now, according to the Department of Justice, unconstitutional.

So if Congress were to exercise the mythical "Power of the Purse" that I learned of back in school (in quainter times), it would impede or interfere with Bush's efforts to protect Americans from terrorists. That would be enough for Bush to set aside the will of Congress and raise whatever money he needed himself (perhaps by selling weapons to our enemies--just to cite a completely random example).

Come to think of it, I don't know why Congress even bothers debating Bush's occasional (if frequent) demands for another multi-billion-dollar GWOT supplementals. If the House and Senate lost their minds temporarily--and one of these appropriations bills failed to pass--Bush would consider it his duty to get the money somehow.

[Kagro X]

&y -- yeah, that about sums it up.

emptywheel -- At this point, I don't know if I know the history of executive power intimately enough to be able to evaluate Cheney's claims. But it seems plain that his assertions regarding what powers the executive has are speculative and subject to challenge. It's also clear that until such a challenge succeeds, there's no reason for him to operate as if his interpretation is in question or even questionable. Further, it seems clear that even a successful challenge may not be enough to stop him.

[bboop]

I've been reviewing the recent correspondance between Fitz and Libby's attorneys and have noted an unusual discovery request by the defense in Exhibit C, the Request for Asserted Brady Material - Line (H) that gets dismissed in Fitz's reply as premature and over broad. The defense requests 'info that tends to help the defense by either bolstering the defense case or impeaching POTENTAL PROSECUTION WITNESSES.....'. I'm assuming that this is a 'fishing expedition' to ferret out if the AG intends to call Cheney as a witness to verify their discussions about the Wilsons. Not too sure how much Fitz is actually revealing here about his intentions.

[jonnybutter]

it seems plain that [cheney's] assertions regarding what powers the executive has are speculative and subject to challenge.

All executive power - all power, really - is 'speculative' to some extent, no? (By that measure, the presidency is a much stronger office now than it was right after Nixon.) The difference with Cheney 'n the boyz is that they want to remove the 'to some extent'. I was not surprised to learn that, in first-term happier days, the fellows would sometimes gather in the OVP, Dick would whip out 'The Republic' and they'd all have a nice warm, er.. 'group think'. (Imagine how THAT room smelled!)

Persuing presidential impeachment is important whether it succeeds or not - although it shouldn't ever be thought of as a mere 'exercise' - because it brings us back to first principles; it insists that the grammar and syntax of our form of government make some sort of internal sense. (The idea of impeaching other officials is brilliant, BTW). Impeachment doesn't have to be a campaign trail battle cry for Dems; they can even say that presidential impeachment 'is impractical at this time' or whatever. But just as the Jacobins leading us now quietly use and/or don't completely disavow radical theories which undergird their political program, impeachment should be part of the 'floor' the Dems stand on. All they have to do is not disavow it.

Of course presidential impeachment is a 'political' (meaning arbitrary) act, but again, only to some extent, historically. Clinton and Johnson may not have been impeached for good cause, but Nixon would've been - and I'd assume that most other impeached-and-removed lower officials, like judges, have been done more/less for cause. And, besides, if all power is to some extent speculative, which is another way to say 'all power is, to an extent, simply assumed', then the Impeachment Project makes all the sense in the world. Assume it.

Sorry I have nothing to add other than fan mail. Huzzah.

[Mimikatz]

On the question whether Bush could just go ahead and spend money even though Congress refused to appropriate it--only if the Chinese agree. Remember our government floats on an ocean of debt. That debt has to constantly be rolled over--T bills, 2 year notes, 5 year notes etc. If potential lenders become concerned with our political and economic stability, they will be less inclined to lend. Interest rates go up. Recesssion.

Impeachment is going to require a consensus that the President has gone too far. That will only come if the GOP can realistically imagine a time when they might not be in power. That will require taking at least one House in November, and/or the presidency in 2008, or at least being perceived to be in a position to do so. That makes every special election critical.

Meanwhile, it is really important to lay out the problem and the issues. Getting the issue taken seriously. Talking about impeaching the AG for one is brilliant. And making Cheney so radioactive and scary that he can;t run in 1008. that is my new fear--if he lives that long he just won't be able to give it up, especially to the likes of George "when did we get a new federal reserve chief?" Allen.

[Mimikatz]

Obviously I meant so Cheney can't run in 2008, although with his feudal mindset maybe 1008 is more his time period.

[emptywheel]

jonnybutter

Did they really read Republic? My one regret from teaching that book is that I didn't make its baseless authoritarianism more obvious, and instead tried to get students to discover that for themselves.

Mimikatz

Did he really not know we had a new federal reserve chief? Gosh, and I even like to think I keep up with his stupidities.

[jonnybutter]

Did they really read Republic?

I have no idea where I read that story - it's a few years old. But, whatever it was, I think I filed it away into the 'plausable' file in my head because it wasn't an opposition piece, as I recall, but rather more like bragging - a fluff piece on the VP. And if it's true, of course they read Plato through post-modernist, Straussian eyes to boot.

Here's a link on the comedy stylings of Bernanke and Allen. Allen didn't even recognize the name:

When asked for his opinion on Bernanke's nomination, all Sen. George Allen (R-VA) could muster was the response, "For what?"

"Told that Mr. Bernanke was up for the Fed chairman's job, Mr. Allen hedged a little, said he had not been focused on it, and wondered aloud when the hearings would be. Told that the Senate Banking Committee hearings had concluded in November, the senator responded: 'You mean I missed them all? I paid no attention to them.'"

We wouldn't want Senator Allen to squander his precious 'focus', would we?

[Kagro X]

Impeachment is going to require a consensus that the President has gone too far. That will only come if the GOP can realistically imagine a time when they might not be in power. That will require taking at least one House in November, and/or the presidency in 2008, or at least being perceived to be in a position to do so. That makes every special election critical.

Mimikatz, it's of course exactly true that impeachment is going to require a consensus that things have gone too far, and that it will only come if the GOP can realistically imagine a time when they might not be in power.

But of course, we are talking about Congressional Republicans, who are a different species. They don't draw their power from Bush. They draw it from their constituencies. And they can well imagine a time when they remain in power, but Bush does not. What they can't imagine is a time when Bush becomes a liability serious enough to threaten their own reelections, but they decide to keep him, anyway.

How many Democratic votes were there to oust Tom DeLay? Zero, of course. Democrats were outnumbered in the Republican Conference 232-0, but they still won the vote.

Congresscritters are still all about self-preservation. Which makes them among the best in the world at throwing people overboard when the going gets rough.

What we need to do is make the going rougher.

[texas dem]

Kagro: As a minor clarification, I wasn't projecting anything normative onto the baseball analogy or onto you for offering it. I like the analogy and read it the same way you do: that strategy is a rational, and even a brilliant, choice to make.

Unfortunately, the only way to beat it is for Democrats to suddenly pull their act together during gameplay, or to wait for the cheney crew to make a big unforced error. Plame was an unforced error. Katrina was an unforced error. Social Security may be the only instance of Democrats suddenly and unexpectedly inflicting damage through better gameplay. If only we had the confidence to do on Iraq what we did on SocSec.