Privilege without End

by Kieran Healy on July 20, 2007

To echo Sandy Levinson and Eric Rauchway, “Is it a constitutional crisis yet?”

{ 49 comments }

1

Steve LaBonne 07.20.07 at 3:00 pm

Well, the Constitution offers a pretty clear remedy for this sort of thing. If we actually had an opposition party they would be making plans to use it.

2

jacob 07.20.07 at 3:07 pm

Frankly, I think what we need right now is a constitutional crisis. As explained in the article Kieran linked to (and elsewhere), Congress can send its own officers out and arrest those who are refusing to testify and lock them up somewhere until they do. Would that produce a crisis? Yes. Would that stop any and all legislative business for a while? Sure. But it would also break the imperial presidency. I’m all in favor of a civil process, but if the executive branch is going to hit below the belt, no reason the legislative branch should fight with an hand tied behind its back.

3

rea 07.20.07 at 3:52 pm

There’s a long tradition in American politics of not forcing a constitutional crisis. Even Nixon backed off, after firing Archibald Cox. But if Bush really wants to test his “unitary executive” theory, I suppose we ultimatley have to tell him, to quote somebody or other, “Bring it on.”

4

Morat20 07.20.07 at 3:56 pm

Well, the Constitution offers a pretty clear remedy for this sort of thing. If we actually had an opposition party they would be making plans to use it.

Indeed. The strength of their opposition is so mighty that 49 Senatorial votes will become as 66.

I’m sick of hearing “If only the Democrats had balls they’d impeach”. No, if they had 66 votes they’d impeach. Even in their wildest dreams, I don’t see them clearing 52.

Claiming “the Constitution provides a rememdy” in this situation is like telling a naked man who is plummeting to his death that a parachute would save him. Not exactly practical advice, is it?

5

Morat20 07.20.07 at 3:57 pm

Oh, also — I sincerly doubt Bush will back down (it’s not in his character and, at this point, he has absolutely nothing to lose). Furthermore, I suspect the media will accept the spin that it is the Democrats forcing the crises.

6

Delicious Pundit 07.20.07 at 4:06 pm

Won’t happen. The Democrats can only force matters to a head if they feel like they have the people behind them, but they’ll never have the people behind them, because the people don’t care. This isn’t 1974 — there’s plenty of other things to watch on TV besides a Constitutional crisis.

Bush/Cheney are counting on the apathy and ignorance of us United Stateseans. I’m happy to be proven wrong, but otherwise I’m with The Onion: “Americans Shrug, Line Up For Fingerprinting.”

7

Steve LaBonne 07.20.07 at 4:07 pm

You’re a bit confused, Morat. The HOUSE impeaches, the Senate tries. I think the House impeachment hearings would be quite valuable politically even if conviction could not ultimately be obtained. Someone has to say enough is enough, the president is not an emperor.

8

Morat20 07.20.07 at 4:18 pm

You’re a bit confused, Morat. The HOUSE impeaches, the Senate tries. I think the House impeachment hearings would be quite valuable politically even if conviction could not ultimately be obtained. Someone has to say enough is enough, the president is not an emperor.

I’m not confused, I was merely being pretty loose with terminology because I was certain people would understand.

Which they did. Impeach Bush — so what? The Senate won’t vote to convict, everyone will assume it was a show trial, Bush has suffered the worst and goes back to doing exactly what he was doing.

Net Result: Zero. Less than zero, really, since you’ve tried the nuclear weapon of politics and nothing happened.

The House impeachment hearings wouldn’t do squat. 70% of Americans already dislike Bush. But the remaining 30% are steady Republican voters, and neither the Senate nor House Republicans will break ranks and risk alienating them.

Democratic-run impeachment proceedings will NOT change the minds of those 30%, nor will they find some vein of idealism, sympathy, understanding, or duty in the minds of Senate and House Republicans.

9

Martin Bento 07.20.07 at 4:22 pm

Although the Congress can send out the Sargent-at-Arms, the President has the Secret Service, FBI, CIA, and ultimately Pentagon at his disposal. I don’t think Congress is going to compel anything.

10

Steve LaBonne 07.20.07 at 4:26 pm

The Republicans didn’t convict Clinton, either. But they tarnished him enough to greatly reduce his usefulness to Gore in the 2000 campaign. The rest, alas, is history.

Also, Delicious is right about the frightening level of public apathy. Something needs to be done to force the press to cover the ongoing shredding of the Constitution. Leaders are supposed to shape public opinion, not passively follow it.

11

John Emerson 07.20.07 at 4:26 pm

Morat20 is just venting. The following, in particular, is just a loud defeatist assertion:

Net Result: Zero. Less than zero, really, since you’ve tried the nuclear weapon of politics and nothing happened.

The fraudulent Clinton impeachment severely damaged him.

There’s much more popular support (almost 50%) for impeachment than there is media support or political-elite support. This is not one of those cases where you can sneer at the dumb voters. (I think that a lot of elitists take demagogic media people like O’Reilly as proxies for the actual voters, whom they do not wish to interact with).

There are various things Democrats could do to put impeachment on the table and keep it there, put pressure on the Republicans, raise the profile of the issue, and publicize Bush’s illegalities, gradually leading up to actual impeachment. It’s not just a question of whether to impeach him tomorrow morning.

12

clyde mnestra 07.20.07 at 4:39 pm

The trick is to develop a case in a way that doesn’t establish bad precedent. It makes me skittish to read the Clinton precedent being cited as a good use of the authority. (I know, punctilious Democrats lose to ruthless Republicans and all that, but still.) And to react to the opening comment, that “the Constitution offers a pretty clear remedy for this sort of thing,” it’s not at all clear to me how the remedy fits, or what “this sort of thing” means. Which “high crime” or “misdemeanor” — different, in theory, from gross and venal incompetence — would be the basis for Cheney’s impeachment?

13

Steve LaBonne 07.20.07 at 4:53 pm

These people are required to swear an oath- which they have violated to uphold the constitution. Cheney’s today-I’m-a-legislator-yesterday-I-was-an-executive stonewalling is well within what the framers would have understood by HC&M. They intended impeachment precisely as a political check against executive subversion of constitutional government.

14

clyde mnestra 07.20.07 at 5:03 pm

You may be right, but I recall having the opposite point of view when Clinton was the target, and it was based on legal scholarship concerning the impeachment clause. If stonewalling and the oath are the bases, without a separate civil or criminal violation, note that the oath is so capacious — presidents are to “faithfully execute the office of President of the United States, and will to the best of [his/her] ability, preserve, protect and defend the Constitution of the United States” — that taking excessive breaks at the ranch would do the trick.

15

Steve LaBonne 07.20.07 at 5:05 pm

If you really think that’s equivalent to openly flouting the Constitution, I guess nothing I can say will convince you.

16

abb1 07.20.07 at 5:21 pm

Lawyers write articles of impeachment and they explain why what the president did were high crimes and misdemeanors. Lawyers can explain anything, it’s not hard at all. Then the congresspeople vote. They don’t vote because they are convinced by lawyers, they vote for other reasons – could be public pressure, but doesn’t have to be. They have a more important constituency: people, organizations and corporations that bankroll them.

17

clyde mnestra 07.20.07 at 5:22 pm

I don’t — though frankly, when I think about the reasons for dumping the President and Vice-President, indolence and incompetence come up much more readily than would conflicted sentiments about whether the VP is a legislator or executive. As to the original question, you will recall that President Clinton (who, in my opinion, did not deserve impeachment) resisted subpoenas on the ground of executive privilege and invoked Nixon-related precedent. See, for instance, http://query.nytimes.com/gst/fullpage.html?res=
980DE1D81639F930A25751C1A963958260&sec=&spon=&partner=permalink&exprod=
permalink. So “openly flouting” is a dangerous angle, ranch vacationing aside.

18

Steve LaBonne 07.20.07 at 5:29 pm

The stonewalling is in fact the key. Clinton handed his enemies their only weapon by not just coming clean. Note that they would never have dared to try to impeach him just for getting caught doing an intern- they needed plausible counts of things like perjury and obstruction.

19

Joel Turnipseed 07.20.07 at 5:34 pm

Hmmm… wouldn’t we need to have the Supreme Court to rule that executive privelege didn’t apply in this case, have Bush Co. continue to resist, and then impeach? Until then, this just seems like an extreme power-play by the Executive Branch: grievous, but not impeachable.

20

Steve LaBonne 07.20.07 at 5:40 pm

That would be a reasonable game plan- I’m not necessarily talking about drawing up articles of impeachment tomorrow. And the claims are getting so outlandish that even the current Court might have little choice but to strike them down.

21

Gar Lipow 07.20.07 at 6:05 pm

Actually there is a remedy. Convene and investigation and supena from the House which the Democratic party controls rather than the Senate. Enforce with Sargent at Arms using Congresses own inherent power of contempt. There is case law to support this.

22

Steve LaBonne 07.20.07 at 6:20 pm

That would work for me too. We need something beyond ineffectual talk.

23

Martin James 07.20.07 at 6:33 pm

From a strictly constitutional( as opposed to statutory law) point of view, the underlying issue, firing executive department employees on political grounds would certainly have been within the executive power. The idea of an apolitical civil service system is much more recent that the constitution.

But granting the point that removing employees based on politics is illegal and that failure to enforce the law has constitutional implications, I would still argue that the constitution is doing its job quite nicely.

The constitution helps protect the People from abuse of power by the government through the balance of power. The constitution is also structured with varying levels of terms of service to protect the people from their own changing, passionate reaction to events. After all, its not a democratic constitution.

So to some extent the People get to suffer the consequences of poor choices in choosing the executive as well they should. The judiciary can constrain some actions, as they have. The congress can constrain some actions through withholding funds or impeachment as they also have from time to time.

The constitutional idea that we the people made our executive bed and must lie in it for four years seemed to me appropriate with Clinton and still appropriate with Bush.

24

Anderson 07.20.07 at 7:12 pm

I think Congress should refer the matter to the U.S. attorney, and then impeach Gonzales if he puts the kibosh on it.

That might not fly, either; but Republicans who would never vote against Bush or Cheney, might well do so against Gonzales. It would fit the seriousness of the matter. And it would point a big finger at Gonzales’s boss.

25

Brett Bellmore 07.20.07 at 7:45 pm

Republican leaders were caught in a real bind when it came to the Clinton impeachment. There would have been Hell to pay with their base if they hadn’t acted on the Starr report, but they were too dirty to ignore Clinton’s threat to expose everyone’s dirty laundry if he went down. They tried to split the difference, impeaching Clinton, but taking a dive, by bringing the least feasible charges, and holding a farce of a trial, with a predetermined aquittal.

Got the worst of both worlds there: Republicans knew a dive when they saw it, and Democrats thought the effort had been serious, and the aquittal vindication. Both sides were mad at them.

I think Democrats are somewhat better positioned to impeach Bush, their leadership being somewhat less vulnerable to that sort of blackmail. It boils down to two questions:

Do you actually have charges, and evidence to back them up, which would strike somebody outside the Democratic base as serious?

Do you have enough votes in the Senate to be sure the trial will actually be permitted to go forward, rather than proceding directly to a vote without presentation of the evidence, as happened in Clinton’s case?

At this point I’d take the answer to the first question to be a firm “Yes!”. How do you feel about the second?

26

walt 07.20.07 at 7:57 pm

Brett, you don’t think these shenanigans with the subpoena is sufficient? It’s the early days of this particular crisis, but if the administration continues to pursue a strategy of maximal obstruction, isn’t Congress in their rights to impeach?

27

Bruce Baugh 07.20.07 at 7:59 pm

There is of course a difference between “evidence that will convince someone outside the Democratic base” and “evidence that will convince someone who asserts that the entire foundation of post-1937 federal governance is unconstitutional and that it’s undesirable to regard the health of poor children as part of the general welfare, and has fairly recently argued taht Democrats are morally prohibited from discussing impeachment seriously because they didn’t all rush to join the crusade against Clinton”. Brett can keep throwing complications in the path of any attempt to discuss the facts and their implications, and should most usefully be modeled as random noise in the system, to be filtered and worked around.

28

Brett Bellmore 07.20.07 at 8:32 pm

Walt, sure I think he’s impeachable. I’d have nailed him to the wall over this:

http://www.commondreams.org/headlines04/0312-01.htm

But it seems not to have upset Democrats much. I guess you figure defrauding Congress to get an entitlement program expanded is a case of “No harm, no foul.”

But, certainly, you could draw up a bill of charges which, if proven would justify in my opinion impeaching him.

29

Martin Bento 07.20.07 at 8:37 pm

Brett may have a point on presentation of the evidence. Conviction is not going to happen, but impeachment may still be worth going for if it forces much more material into the open and into the media. But if the Repubs can force it to an immediate vote with no real trial, then it would truly be for nought. Anyone know the details on this?

30

Martin James 07.20.07 at 8:50 pm

Brett,

Its not defrauding someone to not give them cost estimates. Congress can hire their own actuaries to give them their own independent estimates.

The actual cost of the program was even less than the original estimates. Haven’t you noticed how people quit complaining about Part D?

31

Thomas 07.20.07 at 10:20 pm

The 6 presidents since Nixon (Ford, Carter, Reagan, Bush, Clinton, and Bush) have all asserted executive privilege in the face of congressional subpoenas. To think that this commonplace assertion of a privilege is a “crisis” is to show a lack of understanding of the meaning of the word.

32

JP Stormcrow 07.20.07 at 10:42 pm

To think that this commonplace assertion of a privilege is a “crisis” is to show a lack of understanding of the meaning of the word.

1) To think that this is a “commonplace” assertion of privilege is to show a lack of understanding of the meaning of more than just a word.

2) And to think that people are calling it a crisis are based on this single event is to show an even deeper level of misunderstanding.

I’m with Glenn Greenwald on this one:

Yes, it is true that, as various Democratic statements are claiming, this theory poses a constitutional crisis since, yet again, the President declares the other two branches of government impotent and himself omnipotent. But we have had such a crisis for the last five years. We have just chosen to ignore it, to acquiesce to it, to allow it to fester.

33

Thomas 07.20.07 at 10:49 pm

I don’t doubt you share Glenn’s sentiments. But you don’t have good reason to think that “the President [has declared] the other two branches of government impotent and himself omnipotent.” The president certainly hasn’t asserted the power to require the Congress to do anything; he’s said that the Congress can’t compell him to do certain things. There is a difference between an insistence on the limits of Congressional power and the assertion of unlimited executive power. (That difference was clear enough to most people just a few years ago, and undoubtedly will be again, if there is a Democrat president.)

34

walt 07.20.07 at 11:06 pm

Thomas: And you don’t think that fact is undermining the future of the Republic? You may want to just sit there and allow the destruction of our system of government, but the rest of us aren’t so eager.

35

Thomas 07.20.07 at 11:12 pm

The fact that two co-equal branches disagree is undermining the future of the Republic? No, I don’t think that. It’s as much a feature as a bug.

36

Quo Vadis 07.20.07 at 11:38 pm

If anyone is going to pursue impeachment, they are going to have to convince an increasingly cynical American public that there is something more at stake than scoring political points and at this point Bush’s more aggressive antagonists are lugging around a lot of baggage. There has been a steady stream of “crises” over the last few years that have amounted to nothing of consequence. Even the Plame affair which dragged on for years proved to be a waste of time by any reasonably objective perspective.

If you keep up the drumbeat long enough, people tune it out.

At this late stage in the term, there is only one reason anyone would pursue impeachment against Bush – to score political points that might pay off in 2008. By the time anything could be concluded, he would be out of office and at this point he is a lame a lame duck as there has ever been. His fate as one of the worst presidents in history is sealed and his fellow travelers, the neo-cons, are dead as a political force. His impact on the 2008 election is as near zero as anyone running as a Republican can make it – he’s poison. There is not much more to be gained politically.

37

Brett Bellmore 07.21.07 at 12:42 am

“and his fellow travelers, the neo-cons, are dead as a political force.”

A technical quibble, but it addresses a really annoying fad among liberals: “Neo-conservatives”, former liberals who went over to conservatism because liberals didn’t take the threat of communism seriously enough in their opinion, were dead as a political force not long after the end of the cold war.

It’s beyond me why liberals suddenly seized on a political term with a long established meaning, to use as an essentially content free epithet. What the Hell is “neo” about Bush’s fellow travelers?

38

JP Stormcrow 07.21.07 at 12:48 am

Even the Plame affair which dragged on for years proved to be a waste of time by any reasonably objective perspective.

Yes, those annoyingly slow wheels of justice, how aggravating they are. It all should have been dropped as soon as the powerful people involved made it clear that they did not wish to cooperate. What a monumental waste of everyone’s time.

39

Shelby 07.21.07 at 1:03 am

Given recent polling numbers for Congress (Bush had 34% approval; Congress, 14%), it should be careful about attacking anyone else. And I’m far from confident that Nancy Pelosi and, even moreso, Harry Reid can plan and pull off an impeachment. Though as somebody noted upthread, the spectacle would prevent Washington from accomplishing much else for several months, which I consider a strong argument for going ahead with it.

40

Barry 07.21.07 at 1:44 am

Brett, it’s not a case of evidence which would convince people outside of the Democratic base; it’s a question of evidence which would persuade a a third of the GOP senators.

But thanks for playing; your record of dishonesty is still at 100%

41

Bruce Baugh 07.21.07 at 2:44 am

Quo Vadis, it’s not the public who are cynical and detached, it’s the pundit classes. The public at large is eager for some action and shows every sign of believing that politics is more than a parlor game. It’s the media-and-commentary establishment that doesn’t take policies or consequences seriously and regards everything in personal terms. Note that the public managed to arrive at subtantial anti-war and pro-impeachment sentiment in the face of really dedicated efforts at the contrary from the mass media; one can only wonder where the public might go if it had actual allies worth respecting in politics.

42

abb1 07.21.07 at 5:40 am

Note that the public managed to arrive at substantial anti-war and pro-impeachment sentiment in the face of really dedicated efforts at the contrary from the mass media;

But it took them years where weeks should’ve been enough and, I suspect, they acquired this righteous sentiment for mostly the wrong reasons, like higher gasoline prices. Nah, cynicism and pessimism are fully justified here.

OTOH, I don’t think the phrase “lame duck” means what #76 implies. Lame duck president whose fate as one of the worst presidents in history is sealed – that sounds like an extremely dangerous animal.

43

croatoan 07.21.07 at 9:06 pm

The fraudulent Clinton impeachment severely damaged him.

Incorrect. Clinton’s approval ratings jumped 10 points, to 73 percent, an all-time high, after he was impeached. Disapproval of the Republican party also went up 10 points. (Clinton was more than twice as popular after being impeached than Bush is now.) His 65% approval rating when he left office is the highest of any president since 1960. The Democrats also picked up seats in the 1998 midterms.

they needed plausible counts of things like perjury and obstruction

Which President Clinton was acquitted of by the Senate, and Scooter Libby was convicted of in a court of law, yet the same people who demanded Clinton’s head dismiss Libby’s crimes as no big deal.

By the way, the Paula Jones case, the source of the perjury charge against Clinton, was dismissed. Where were all the “no underlying crime” fuckers then?

44

Lord Acton 07.22.07 at 1:52 am

What this proves is the the “D”‘s need better
Presidential Candidates than they fielded in
2000 and 2004. Considering that those were
the two worst run modern Presidential campaigns,
the “D”‘s came very close to winning.

It will be a slam-dunk in ’08 with any of
H. Clinton/Obama/Edwards/Richardson. Even
Biden/Dodd/Gravel/Kucinich will have a good
shot.

I really do enjoy the way that Limey wankers
who can’t even vote are so gung-ho on booting
out the President.

Jealous that you aren’t even a second-rate
power these days?

45

Jim Johnson 07.22.07 at 3:54 am

To the best of my knowledge Pelosi et al have not yet even suggested that impeachment might someday be ‘on the table.’ The problem is that the Democrats are weenies. Sure the Republicans generally and the Administration specifically are dangerous hypocrits and very likely impeachable. But the discussion in this thread is all moot because the Dems simply will not push the matter. The problem is that the discussion here is framed in terms of branches of government and not in terms of political parties. That is what happens when you let lawyers start the conversation (and I really like Sandy Levinson).

The short answer to the question posed in the post is, ‘No, because the Democrats are weenies!”

46

Brett Bellmore 07.22.07 at 10:39 am

“they needed plausible counts of things like perjury and obstruction

Which President Clinton was acquitted of by the Senate,”

And I might actually think that vindication of a sort, if the Senate had permitted the House to present it’s case before holding the vote.

47

Avedon 07.22.07 at 12:21 pm

But it seems not to have upset Democrats much. I guess you figure defrauding Congress to get an entitlement program expanded is a case of “No harm, no foul.”

It upset Democrats much. You may recall that they were in no position to do anything about it at the time, but if you look back at the period, they did try.

The founders made it clear that a situation such as we have now is precisely what they intended impeachment for. In fact, we have several situations that impeachment was intended for. Madison, for example, was explicit about a president who used the pardon power to prevent exposure of his own administration’s crimes.

They also did not think private sexual behavior was impeachable. (And Clinton was never proven to have committed perjury, so forget that.)

Bush has committed the highest crime of all: He has violated the presumption that he will act on behalf of the country rather than just for his own political purposes. This breech of the public trust is unforgivable.

And it doesn’t matter whether the present Senate will convict; as long as impeachment proceedings for the entire cabinet are underway, there can be no pardons for any of them. Moreover, as long as they don’t actually terminate impeachment proceedings with impeachment, they can keep the hearings going as long as they like. Precipitous moves by the White House while the klieg lights are on them would be much more likely to put pressure on the Senate to convict, too.

But don’t blame the public. This is what the press is supposed to be for, and the fact that the press is trying to dose us with soporifics rather than the amphetamines the situation deserves has a lot to do with why movement is so slow. Plenty of people are trying to get the subject going.

And it’s pointless talking about how apathetic the public is unless you’ve been organizing letter-writing/phone campaigns and public protest yourself. You can print out leaflets, get people together, post lists of appropriate phone numbers, make phone calls, march, whatever, but you’re having to get past a doped-up press corps and a lot of fear and inertia, so you need to do more than argue in comment threads. Make it happen. The public supported impeachment of Nixon by an overwhelming majority, and a majority already support impeachment of Cheney. They didn’t support impeachment of Clinton. They know the difference.

48

abb1 07.22.07 at 4:02 pm

And it’s pointless talking about how apathetic the public is unless you’ve been organizing letter-writing/phone campaigns and public protest yourself.

In this sense almost everything is pointless; why single out discussions about how apathetic the public is?

49

bill in turkey 07.23.07 at 7:43 am

‘ Limey wankers…. Jealous that you aren’t even a second-rate power these days?’

I rather doubt that Kieran regrets that the British aren’t even a second-rate power (though I might be wrong on that). It’d be unusual in someone of his nationality, to say the least of it.

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