Impeachment Myth Exploded: Investigate First? Why?

by Kagro X

Glenn Greenwald has just hit the nail on the head, and then gotten himself another hammer and smashed down square on the noggin of the one he used to hit the nail.

Now, I have to say at the outset that the argument he makes is presented with respect to the Feingold censure resolution, but I believe it applies equally to impeachment. The one objection that can still seriously be made to his rebuttal of the demand that investigation precede censure is stronger still as against impeachment -- that is, that the politics of the situation demand a "ramping-up" period -- but let me get through the myth-busting first, and we'll get to the applicability discussion afterward.

Here's the meat:

MYTH/EXCUSE NUMBER ONE: An investigation is needed before it can be known whether the President broke the law.

[...]

There are two distinct and independent issues raised by the NSA scandal:

ISSUE 1: Did the President break the law when he ordered warrantless eavesdropping on Americans?

ISSUE 2: What was the scope and extent of the President's secret eavesdropping? Did the warrantless eavesdropping include only international calls, as he claims, or purely domestic calls as well? Were only suspected Al Qaeda members eavesdropped, on as he claims, or did the eavesdropping extend beyond that? How was it determined who would be eavesdropped on? And what was done with the information?

[...]

[I]n stark contrast to Issue 2, all the facts necessary to know the answer to Issue 1 are already disclosed, are publicly available, and have been admitted by the Administration.

[...]

In defending itself, the Administration is offering only legal arguments -- not factual disputes -- as to why it had the right to eavesdrop without complying with the law (namely, that the President has inherent authority to eavesdrop even if the law prohibits it, and that Congress gave him implicit permission to eavesdropping outside of FISA when it enacted the AUMF). But the Administration is not denying -- and has never denied -- the fact that it engaged in the very warrantless eavesdropping covered by FISA.

Thus, no investigation could even conceivably shed further light on the question of whether the President broke the law. We know he did that. The sole question which Senators have to answer is what they think the consequences ought to be, if any, for a President to order eavesdropping on Americans citizens which Americans, through their Congress, prohibited by law.

An investigation cannot answer the question as to whether U.S. Senators ought to take a stand against deliberate and ongoing lawbreaking by a President. Only U.S. Senators can answer that question, and they already have all the facts that are relevant to that question already before them. Claiming that they need further "investigation" before taking a position is nothing short of an abdication of their responsibilities, an obvious tactic for avoiding the question of whether they oppose lawbreaking by the President.

Game. Over.

Anybody who tells you that sanctioning the president is inappropriate now, without an investigation, is full of it, and here's why: On the question of whether or not the president broke the law or had the "inherent authority" to break the law with his NSA surveillance program, a Congressional investigation is simply incapable of reaching a definitive conclusion.

As Glenn correctly points out, the "administration" does not dispute the facts here. They offer purely legal explanations: i.e., that the president's power in the arena of "national security" simply may not be constrained, neither by Congress nor the Constitution. No kind of Congressional investigation can possibly settle that dispute. A Constitutional amendment might do the trick. And an investigation might be a good place to decide whether or not that's necessary and/or desireable. But an investigation into the legality of the program cannot be other than fruitless. Such an investigation can (and most assuredly will) take testimony out the wazoo, and produce a 6,000 page report on its findings, but all it can possibly amount to is an overfluffed poll-taking of the Senators on the committee as to what their best guesses  (or most fervent hopes) are.

Ordinarily, of course, the courts might be able to decide this, but given the "administration's" track record of dropping cases against even "dangerous terrorists" in order to avoid scrutiny of its retarded legal theories, I doubt we'll be getting a day in court. And that doesn't even get to the question of what it means to have appointed Supreme Court Justices who made their bones peddling this bullshit.

But on the issue of whether or not there needs to be an investigation first? Not a valid excuse. The president admits the facts and offers a legal defense. An "investigation" can do no more than amass testimony in favor of or opposed to that legal theory.

Comments

[shep]

The question is: why won't the Republican Congress do its job to protect the Constitution and the rule of law?

Too partisan? Don't understand government? Don't believe in the Framer's vison of co-equal branches and checks and balances? Don't care about the rule of law (unless it's about a Democrat extramarital affair)?

[Kagro X]

Quite so. And that's a question we don't need to "concentrate on the elections" to answer. Or ask.

[Kagro X]

In fact, it's as good a question for Democrats as it is for Republicans. Put that way, should we still "concentrate on the elections" first?

[Steve]

Many of the well-intentioned folks in the blogosphere who have been pushing the "investigate first" idea don't seem to grasp the extent to which investigations have been stonewalled in the Judiciary and Intelligence Committees. It's like they think Democrats can just snap their fingers and boom, full and fair investigations happen.

[Kagro X]

True, Steve. If he weren't already in the dog house, I'd tell Feingold to put these excuse-makers on the spot by offering a resolution to censure the Republican committee chairs for the investigations the foot-draggers seem to think are so necessary. Then see who lines up to cosponsor.

And there's your answer as to the honesty of the objections being made.

[emptywheel]

I think this is an issue that demonstrates the cognitive limits of the pundit class most clearly. Every single media discussion I've heard about this asks whether calling for impeachment/censure is a good move politically.

No one (with the exception of Juan Williams) seems to get it's a question of our Constitution. It doesn't matter whether you win or lose an election if you don't have a Constitution to support the way of government.

[Kagro X]

The pundit class has a vested interest in seeming politically sophisticated. And seeming politically sophisticated demands appearing jaded to the issues, and answering them instead with "pragmatic" objections about who holds the majority.

"It's putting the cart before the horse," they say. "This doesn't have the votes to survive."

But there's no news in whip counts. We already know who's in Congress. The meat of the issue doesn't change based on who votes how. But who votes how can change based on discussion of the issues.

Discussing it in terms of its chances is a good way to make sure you don't have to write anything else about it. Don't working journalists usually like to perpetuate stories about catfights? Why pick one that's over your head to stomp on? Unless the real interest is in making sure it looks like nothing ever goes over your head. Which I guess is where a pundit "earns" his pay...

[Steve]

Like Clinton said, the media has a fascination with process. They love the horse-race aspect of politics, they love feeling like they're being let in on some inner secret of political strategy. That's why I'm so sick of hearing Dems talk about how the party needs a credible message on national security; it's hard enough to get your message out through this media, and if you're stupid enough to talk about the process of developing the message rather than the message itself, you bet your bottom dollar that's the story they'll run with.

[shep]

“The pundit class has a vested interest in seeming politically sophisticated. And seeming politically sophisticated demands appearing jaded to the issues, and answering them instead with "pragmatic" objections about who holds the majority.”

The pundit class is part of the elite class. They are obsessed with politics and competition for good reason. Their entire careers (and therefore, lives) are determined not by moral turpitude, providing truth or delivering social good, only success against their peers via personal networks and smart social politics.

All the more reason for Democrats to keep asking, “where are congressional Republicans?” “Don’t they care about the Constitution and the rule of law?” “Why don’t they believe in government of the people the way the Framer’s intended?”

Democrats must keep rejecting the frame of partisan politics that pundits (and many journalists) live within by offering pointed and poignant questions in response to every question, that go right back to the actual issue. It’s not censure. It’s not impeachment. It’s not elections. It’s not what Democrats are doing or saying.

It’s about Executive lawbreaking. It’s about (Republican) failure to provide useful oversight. It’s about Republican corruption and malfeasance. It’s about Republican cynicism about government itself.

[Kagro X]

That's a good point. Here we are, all scratching our heads, wondering why the party that doesn't believe in government won't oversee the government.

[shep]

We shouldn't be. Unlike the deluded or uninformed we know that the Republican movement, as currently incarnated, has two basic motives for getting Republicans elected: 1) undermine government as a check against corporate hegemony and 2) to enrich its proponents at the expense of government’s ability to provide a check against corporate hegemony.

[Arnie]

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[Paul Michael Neuman]

I thought this may interest you. This regards an impeachment resolution submitted on Friday, April 21, to the California state legislature, by Assemblymember Paul Koretz. I do apologize if the press release, below, doesn't format well when I copy this into the comment box. I'd be happy to send on the full text of the resolution draft, if that's desirable, though that's more easily managed on Monday:

FOR IMMEDIATE RELEASE Contact: Paul Michael Neuman
April 22, 2006 District Office: (310) 285-5490
paul.neuman@asm.ca.gov

California Assemblyman Paul Koretz Submits Impeachment Resolution

California State Assemblyman Paul Koretz (D-Los Angeles) submitted amendments on Friday, April 21, to Assembly Joint Resolution No. 39, calling for the impeachment of President George W. Bush and Vice President Richard Cheney. The resolution references Section 603 of Jefferson’s Manual of the Rules of the United States House of Representatives, which allows federal impeachment proceedings to be initiated by joint resolution of a state legislature.

The resolution bases the call for impeachment upon the Bush Administration intentionally misleading the Congress and the American people regarding the threat from Iraq in order to justify an unnecessary war that has cost billions of dollars and thousands of lives and casualties; exceeding constitutional authority to wage war by invading Iraq; exceeding constitutional authority by Federalizing the National Guard; conspiring to torture prisoners in violation of the “Federal Torture Act” and indicating intent to continue such actions; spying on American citizens in violation of the 1978 Foreign Agency Surveillance Act; leaking and covering up the leak of the identity of Valerie Plame Wilson, and holding American citizens without charge or trial.

Koretz submitted amendments gutting AJR No. 39, a resolution unrelated to impeachment, to the Assembly Rules Committee. The Rules Committee may take up the bill next week for referral, allowing him to formally introduce the amended resolution.

The Assemblyman hopes his resolution will help promote a public dialogue about the questionable activities and errant judgment of the President and Vice President: “At both the state and national levels, we will be paying for the Bush Administration’s illegal actions and terrible lack of judgment and competence for decades—not only in the billions of dollars wasted on the war and welfare for the rich, but in the worldwide loss of respect for America and Americans. Bush and Cheney must be impeached and removed from office before they undertake even deadlier misdeeds, such as the use of nuclear weapons. There are no bounds to their willingness to ignore the Constitution and world opinion—we can’t afford to wait for the next disaster and hope that we can survive it.”
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