Another view on censure and contempt

by Kagro X

Censure, as many of you know, is not my preferred method for dealing with the legal and constitutional violations of the Bush "administration." But I do think that for Senator Russ Feingold to have reintroduced the idea after having been left standing virtually alone when he last proposed it, is an act of considerable courage.

As a Senator, of course, Feingold is simply not empowered to introduce articles of impeachment, so in terms of direct action, censure is probably about the best that can be expected. Rep. Robert Wexler, on the other hand, who introduced his own resolution of censure in the House, does not have that excuse. And while he surely has a whole raft of reasons to prefer censure over impeachment, none of them are that his hands are tied by the terms of the Constitution.

The advantage of censure -- if it is an advantage -- is that it doesn't face the hurdle of having to garner a 2/3 supermajority in the Senate in order to pass. On the flip side, neither does ordering a large pepperoni pizza with extra cheese. And both pose about the same threat to the White House.

Still, there may be good reason to go on record, both with censure and with contempt charges.

In the now-famous Youngstown case, which has been cited at the heart of the recent court rebukes to some of the Bush "administration's" excesses, there is this additional nugget of dicta:

Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the president by §1 of Article II.

I take that to be an acknowledgment by Justice Frankfurter that even bullshit claims like Bush's can become part of the accepted range of presidential powers if they're exercised -- as Bush's violations certainly have been -- with the full knowledge of Congress, and to this point, unquestioned by them.

While impeachment is the correct response here, it needs to be considered that the failure to issue any response at all might end up turning Bush's extraordinary claims into part of the "gloss" on presidential power. Similarly on the issue of contempt, the correct response is inherent contempt and not statutory contempt. But in the absence of the will to proceed with the preferred responses, there's actually an argument to be made for these "half measures."

It's frequently said by others that an impeachment that doesn't result in a conviction might do the same thing as (or worse) than doing nothing at all, but I think that's highly debatable. An impeachment, even when it fails to garner a 2/3 vote to convict in the Senate, is still a pretty clear "questioning" of these exercises. Facing trial before the Senate (and possibly escaping by the skin of one's teeth) is no small matter. Likewise, spinning the vote of something in the neighborhood of half of the membership of Congress for a negative on the continuance in office of the architect of the policy into an affirmative ratification of his wanton lawbreaking is no mere trifle. The same would go for a majority vote on contempt of Congress that the corrupt brass at the "Justice" Department ordered not be prosecuted. Not that we shouldn't expect the president's apologists to attempt either one or both, of course. But the assumption that that public relations battle too would be lost, I think concedes too much, and is as much a defeatist's position as simply giving up entirely.

Comments

[the third man]

fair enough, but what if the censure vote fails, say 70-30, or worse as happened during Russ' previous resolution? Then the courts could argue that the issue was raised legislatively and deemed not to conflict with existing law.

I think the continuing investigations, backed by enforced subpoena power, is the most effective method. Once the evidence of wrong doing is fully documented then the deal is sealed.

If censure comes for a vote, I fear that it will not have sufficient time and scope to make a good case.

[Kagro X]

I don't think censure moves to a vote before the continuance of the investigations. Its introduction doesn't assume its immediate consideration.

[Dismayed]

centure also doesn't attract any media punch, nor does it give any investigative powers. Centuring at the very end of his term to take some of the gloss from otherwise unanswered absurdity might be a good idea, but it seems like a bad move to me at the moment.

[Kagro X]

I'm thinking this is something they'll hold in reserve for late in the session, if nothing else pans out. No official word, though.

[CW]

What we need is an action that will open up hearings that will demonstrate to the American people what this Administration is all about. Unfortunately there are so MANY crimes, and there is so MUCH subterfuge that the average American thinks it's just some whining Democrats wanting the Republicans to 'play fair'.

Of course, since the MSM is doing nothing to expose this Administration, it is a tough uphill battle. The Dems in Congress MUST be firm and tough on these issues. Censure is a good start. Impeachment is even better. Unfortunately this Administration has stacked the deck and has been so arrogant about its crimes that it will take drastic, dramatic action to bring the crimes to light, stop the damage to our democracy, and hold them responsible for their actions.

This is the difficult course that our Congresspeople MUST embark on to save the democracy. They must not worry about their personal political futures - them MUST get the truth exposed.

[Mimikatz]

The way things are going, by the time censure actually gets to a vote, it will be seen as the "safety valve" for impeachment and many Repubs will vote for it to avoid looking like the total tools that they are.

I say go for what you can. Censure Bush/Cheney in the Senate and begin to impeach Gonzo in the House.

[Dismayed]

Works for me, Mimi. I think that's exactly where we need to start. And now. Both measures to vote by the first week in August.

[Neil]

I'd like to order both, a large pepperoni pizza with extra cheese and mmm-peach mint.

Do you want a censure with with that? Sure, why not.

Imagine a filibuster on that topic ... that lasts for a week.

[Neil]

It's frequently said by others that an impeachment that doesn't result in a conviction might do the same thing as (or worse) than doing nothing at all, but I think that's highly debatable.

I think its debatable too and I think its the fear talking. If Bush and Cheney are not guilty or found not guilty by the Senate then I'd be the first apologize. But seriously, the debate about the constitutionality of Bush and Cheney's assumed powers is the only way the authority can be rolled back. Frankfurter's gloss is what The Nation's John Nichols referred to the president's tool box of power. Kargo X, John Nochols, Justice Frankfurter... everyone recognizes the threat. What measures have a chance of winning the day?

[bmaz]

I am certainly one of the impeachment drum beaters in these parts, but I don't demand that it be necessarily of Bush and/or Cheney. I would be happy if the investigation opened on Gonzales and was allowed to go where it lead. but when you talk about a "toolbox", we desperately need the enhanced powers available in the impeachment toolbox. I'll also note just because you open the investigation does not mean that articles of impeachment have to be voted out nor trial had by the Senate. I fully believe that is where the facts indeed take us, but the process is in a way every bit, if not more, important. I do not fear failing to obtain a conviction; I fear not having the moral fortitude and love of our Constitution to even try to protect it through the process it contains for just this scenario. If now is not the time for the impeachment process to at least be initiated, then exactly what situation would it take?

[Jelperman]

Censure is a bigger joke than Dean Wormer's "double secret probation" in Animal House. At least Delta House got kicked out.

[4jkb4ia]

Kagro, I think the point is that impeachment without conviction is equivalent to censure. If a token number of Republicans does not join in voting to impeach or convict, the spinning is very easy.

If impeachment becomes a prerogative-of-Congress case, Congress can spin this easily. They can say, " We wanted to work with the President when we got here. We even passed the supplemental. But the President still thinks that he can entirely get his own way." I THINK the people will be behind a case put like that.