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February 03, 2006


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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

&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.

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.

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.

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.

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


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.


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.

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?

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.

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.

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