Impeachment Opponents Grasping at Straws

by Kagro X

Following on the heels of Matthew Yglesias, Josh Marshall the other day wandered into the impeachment debate, rather glibly declaring it a "bad idea," but promising a more developed analysis later on.

Interestingly, after being roundly excoriated for his dismissal, Josh has thus far decided to offer that analysis only in his article in The Hill, and not at TPMCafe where it can be rebutted. I don't know that he won't be bringing it there at some later date, but it's too late now: I've got a blog.

As for the "substance" of the argument, let's take a look:

The clearest case for impeachment is one in which the president refuses to follow the law and accede to the Congress’s and the court’s oversight powers. The only solution to such a constitutional crisis would be for the Congress to remove the president from office for violating his oath and committing political high crimes.

But that’s just not the case at the moment because Congress has made little if any effort to rein him in. So impeaching him can’t make any sense because the Congress — in the constitutionally indolent hands of the Republican majority — has made no attempt to oversee the president by constitutional means.

Wow.

Wow, wow, wow.

Tell me how you'd translate that, if not this way: Impeachment isn't appropriate because nobody's warned the president yet that he was supposed to follow the law.

What about the not-so-indolent hands who crafted FISA in the first place? Wasn't it clear enough that it was meant to be the exclusive method by which this kind of surveillance was to be overseen? And wasn't it Congress who said so? Is it Josh's argument that each Congress must expressly renew its commitment to any and every statute ever passed, if they're to have any hope of impeaching a president who violates them?

And what about the not-so-indolent Senators of the 109th Congress who voted 90-9 to prohibit the use of torture, in backing the McCain amendment, only to have the president attempt to nullify it with a "signing statement?" Is there something in the Constitution that requires McCain to issue a "double dog dare" before being allowed to decide that the president is refusing to follow the law and accede to the Congress' oversight powers? Does McCain have to catch Bush red-handed, waterboarding some poor soul? Or can Bush's public declaration that he doesn't have to listen to Congress count as refusing to accede?

Swing and a miss from Marshall, as far as I'm concerned. Considering that Yglesias based his opposition to impeachment on Harold Meyerson's piece, which actually resorted to the "President Cheney" scare, the pundit set has really failed to impress with their insight.

Comments

[freepatriot]

Josh Marshall logic:

congress should not do its job and impeach george bush because congress has failed to do its job regarding oversight up till now

brillian

not

[DemFromCT]

there's only one article against impeachment and that's that the country doesn't want it. Impeachment for and by the 1/3 of dems is a bad idea (presumably the 1/3 of Rs don't and the 1/3 of indies look on it with distaste).

However, the above is not set in stone. If the case is made prior to impeachment proceedings, those numbers change. Now, with some education, is 55% majority for impeachment good enough? Or does that just ruin the ability of the next president to actually govern?

That's an interesting question.

[Jon]

Wow! I'm surprised at Josh's article. It is a poorly-reasoned argument against Impeachment. I believe that he makes the same mistake that the Republicans did with Clinton. Impeachment is not a political tool or weapon. The Republicans used their majority status in the House to push through Impeachment, wielding it as a purely political tool to weaken and possibly drive from office a duly elected President who still had the support of a majority of the American people. For them, the power of Impeachment became nothing more than a political weapon to beat up on a President with whom they disagreed politically and philosophically. They cheapened the power of Impeachment in the process. Instead of it being the ultimate power and means at Congress's disposal to bring an unruly and errant Executive to account, it transmutated into little more than a political ploy and tool, a political WMD. The American people saw through this political charade. The public realized that the Republicans were misusing and abusing the ultimate of Constitutionally-provided powers to beat up on a President that they could not defeat at the ballot box. Republicans suffered a backlash for using Impeachment to settle political scores. I suspect that a Censure motion would have been judged by the American people to have been more appropriate.

Yes, the process of Impeachment is a political process. However, its power is derived from the Constitution and its purpose is to bring to heel an out-of-control Executive. It is not a political ploy or tool or weapon, but instead, it is a Constitutionally-provided means to bring the Executive branch back into balance with the other two co-equal branches of government. I believe that Josh Marshall and others are making the mistake of conflating the political process of Impeachment with the Republican transmutation of Impeachment into a political tool and weapon during the Clinton Impeachment.

With respect to Josh's point that Impeachment will be available later, should Democrats win control of at least one chamber and they do their job of oversight and the President continues to break the law, does that mean that a President can break the law and then say I broke the law, “ me bad” and Congress moves on because the President admitted he broke the law so no investigation is needed and because he said he wouldn't do it again then no oversight is needed? That sounds like a "Get Out of Impeachment" free card; the President could disregard law after law but as long as he only did it once for each law then it's O.K., as long as he doesn't continue to violate the same laws. I doubt that this is what the founders had in mind and I doubt that the American people would agree.

What I find most troubling about Josh's article is the idea that Impeachment is a political act that can be hauled out against the President if the Democrats win control of at least one of the chambers. This implies to me that Democrats on Capitol Hill may be looking at Impeachment in much the same way that Republicans viewed it when they wielded it against President Clinton - as a political weapon. I believe that this cheapens the power of Impeachment and that it coarsens the political discourse. Impeachment was not meant by the framers of the Constitution to be political punishment or political payback, it was provided to Congress as a means of bringing back into balance the co-equal branches of government, it is the ultimate means of bringing the Executive power to heel, it is a final check-and-balance on the power of the Executive.

I believe that Senator Feingold is exactly right on the issue of Censure. Censure is clearly appropriate. It calls the Executive branch out for its violations of the Law and/or Constitution and/or for its abuses of power It also can serve to put the Executive branch on notice that if it continues to misuse and/or abuse its powers in violation of the Law and/or the Constitution then the Congress will have no other recourse than to use its last and most powerful means of bringing the errant Executive branch to heel. Censure is the mechanism whereby an errant Executive branch is held accountable and is put on notice. Impeachment is the remedy to force the Executive branch into compliance and thereby back into its Constitutionally-appropriate balance with the other two co-equal branches of government.

Congress can have investigations until the cows come home but that doesn't mean that Censure can't be brought to the table as the President has admitted to not following the law with respect to the NSA spying. What we do not know is how extensive it is. If Republicans control the investigations, they can continue their stalling technique. If the Democrats should regain control of one chamber, there is no guarantee that the Executive branch will comply with any investigation into the NSA spying program(s). This is a fundamental flaw in the argument that nothing can be done until investigations are held.

[CKR]

Impeachment isn't appropriate because nobody's warned the president yet that he was supposed to follow the law.

Didn't he take an oath to uphold the Constitution? Isn't that enough?

[janinsanfran]

Impeachment is the only remedy that reasserts the rule of law. If disdainful violation of the Constitution stands, the rule of law is dead. Changing the players won't accomplish the goal of recovering lawful limits. Constitutional constraints would be just as dead if Dems were in power, unless challenged now.

[joejoejoe]

Prosecutors let criminals get reduced penalties all the time if it serves the larger interests of justice. The big fish here isn't the President, it's GOP policies.

I interpreted Josh as saying that impeachment doesn't serve the interests of government - better for Dems to do the job of oversignt and indict the GOP policies than to indict President Bush. Bagging one man isn't worth much if the policies live on.

[Kagro X]

We're in our third go-round with these same GOP policies, during none of which have we bagged any men. We've fought the policies twice, and the men never.

Yet here we are, third time. If the suggestion is to use the same approach, I'm afraid I'm going to have to raise an objection.

I don't think it's nearly as memorable and meaningful a rebuke with the electorate at large to indict policies as it would be to single out names to tie to those indictments. The policies must, of course, be rejected. But I think it's been amply demonstrated that it's a lot easier to rehabilitate bad policy than it is to rehabilitate bad actors.

You can't punish a policy. But show people that you're punishing a bad actor, and not only can it stick, it indicts the policies right along with him.

We didn't even get to impeachment with Nixon (and in hindsight, we probably shouldn't have accepted his resignation as a bar to it), but for years, the idea that someone would engage in "Nixonian" tactics was utter poison. Even today, the biggest hits the Bush "administration" takes are those in which they're compared to Nixon -- i.e., "worse than Watergate."

Putting a man in the dock makes this "policy fight" something every American can understand and take interest in.

[Mimikatz]

Jon makes a good point about conflating the use of Impeachment as a political weapon and its use in the constitutional sense as a check on an out-of-control executive. The latter is legitimate.

Another mistake people seem to be making is a strategic one--the groundwork has to be laid for an attack on the GOP's policies and for holding individuals accountable before the election. The public has to have some inkling that the Bush Admin will be held accountable if the Dems get at least one House of Congress (and it is probably necessary for us to get at least one House. The GOP needs to be on clear notice too.

Saying the process of impeachment needs to be started now (in the sense of raising the issue and having resolutions passed in states and counties) means saying that the process has to be put on the table, not that it has any chance of being finished. Maybe Bush will have second thought, have a change of heart, sack Rumsfeld and his minions, bring in some reasonable conservatives. Likely not. But how else do the Dems hold Bush to account in Josh's terms except by talking censure, if not impeachment? We wait for clueless Frist, gutless Spector and the mendacious Pat Roberts to do it?

Get real.

[Libby Sosume]

This president must be impeached, for one reason: To warn all future presidents not try to follow this president's example.

The timing and execution of impeachment is another matter.

First, the Democrats need to retake the Congress.

Second, Cheney must be forced out (resignation or impeachment).

Third, any Cheney successor must agree not to run for president in 2008 or Congress will not ratify the appointment.

Then...we impeach the mofo!

(In my wet dreams.)

[Patriot Daily]

I would refer Josh to clear, unequivocal impeachment precedent for each of the 3 presidential impeachment proceedings: Once the violation of law is communicated to Congress, duty to commence impeachment proceedings triggered. The method of communication has varied, but was not relevant to triggering the process: Johnson notified the Congress, the media notified congress about Nixon, and the Starr Report notified Congress about Clinton. Indeed, Johnson is quite similar to Bush‘s TV announcement notification to Congress that he violated the law:

When the violation of law by the President is clear, such as when a President takes an action contrary to Congressional laws, even if that law is ultimately held by the US Supreme Court to be unconstitutional, Congress’ duty of an impeachment inquiry may be triggered by the President informing Congress of his action which violated the law. President Andrew Johnson was impeached for overt obstruction of Congress in facts similar to President Bush’s violation of FISA. In the case of President Andrew Johnson, Congress passed a law called the “Tenure of Office Act” over President Johnson’s veto. This law removed the President’s power to remove Cabinet members at will, requiring members to remain in office until a successor was appointed and confirmed by the Senate. President Johnson notified Congress that he had removed and replaced the Secretary of War, which violated the Tenure of Office Act. Three days after the Secretary’s removal, Congress responded by commencing impeachment against President Johnson for intentionally violating the Tenure of Office Act.

Extract from this link:
http://www.patriotdaily.com/bm/blog/bushs-getoutofimpeachment.shtml

[Jane]

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