The Glittering Eye On Impeachment
By Justin Gardner | Related entries in The War On TerrorismSome good points by Dave Schuler:
The reality is that impeachable offenses are defined circularly: they are precisely what the House of Representatives finds that they are. Under current circumstances it seems pretty unlikely that the House will find what the President has done (whatever that is) will rise to the level of an impeachable offense.Perhaps the better question is should the authorization be an impeachable offense? If what the President did was a violation of the law and the law was constitutional and the President knew what he did was a violation of a constitutional law, then it probably should be but that’s an awful lot of if’s and those if’s are, apparently, not completely clear.
If I were a sitting Congressman I think that I might hesitate before going too far down this road. The courts might find that Congress was acting unconstitutionally by arrogating to itself power that the Constitution does not give to Congress. And that, in turn, might be a felony which is a constitutional basis for the removal of a sitting Congressman.
And then a point about partisan politics…
One thing is clear: partisan discord should not be allowed to become a grounds for impeachment whatever water has flowed under the bridge.
Indeed.
But as I take a moment to consider…as well intentioned as Dave’s last point is, how can that ever be determined? The voices calling Bush’s actions dubious are coming from both sides. So I think the whole “partisan politics” argument is pretty much moot at this point, no matter how many of the Daily Kosers are crying foul.
And let’s not forget, it was Bush who chose to go around existing wiretap laws. Also, doesn’t publicly stating that the Constitution gives him absolute authority to do whatever he pleases to protect this country seems inherently contrary to why the Constitution was written in the first place? I thought the point of that document was to make sure that the President DOESN’T have that type of authority and must first go to the representative body that was elected by the states.
Anyway, food for thought.
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December 24th, 2005 at 8:48 pm
Both Cass Sunstein (who literally wrote the book on constitutional law) and Richard Posner have characterized the Administration’s case on the wiretapes as “strong”. That would appear to refute those who have called the Administration’s position “absurd on its face”. If two of our most eminent legal scholars don’t agree with that notion, it means that, at the very least, there’s room for doubt.
Impeachment is always a political act. That’s the nature of our system. And the political environment does not favor Bush’s impeachment. Unless a Republican-led movement in that direction can be engineered (which seems to me extremely unlikely) the loudest voices calling for it will be Democrats. Were Democrats successful in removing Bush under these circumstances they would own the next terrorist attack. I think the Democratic leadership is far more likely to bide its time and wait for 2008 than to take that risk.
December 24th, 2005 at 11:05 pm
There’s definitely room for doubt I agree. And that’s why Bush saying that the Constitution gives him the ultimate authority makes me cringe. It just doesn’t seem right. I mean, does it seem like the framers would have given that type of authority to the President, especially given they were declaring their freedom from a monarchy. In the end, though, isn’t interpreting the Constitution like interpreting the bible? Can’t you read into it what you like?
I understand your points about impeachment, and that’s exactly why I said an possible impeachment couldn’t be a partisan act. That’s what I responded to, this notion of partisan politics, which I don’t think applies here. Logically it couldn’t be since Dems don’t have the votes, even if their voices are the loudest. I agree it’s a political act, but not a partisan one.
Lastly, I just have to ask…own the next terrorist attack? I’m sorry Dave, but you’re going to have to justify that one to me since they’ve had virtually no power the past 5 years and would have to bring forth articles of impeachment in a bi-partisan fashion. Those two things don’t jive. And furthermore, how can the Dems own the next terrorist attack when they haven’t set the policies and agenda in the WOT?
Answers Dave! I need answers!!! ;-)
December 27th, 2005 at 9:34 am
As I’ve mentioned before, impeachment is probably a non-starter in the absence of a court ruling that the administration’s domestic surveillance policies are unconstitutional. It does become a more significant possibility with such a ruling to back it up, especially one affirmed by the Supreme Court, although the odds are still against it for reasons already given.
December 28th, 2005 at 4:02 pm
Justin,
“There’s definitely room for doubt I agree. And that’s why Bush saying that the Constitution gives him the ultimate authority makes me cringe. It just doesn’t seem right. I mean, does it seem like the framers would have given that type of authority to the President, especially given they were declaring their freedom from a monarchy. In the end, though, isn’t interpreting the Constitution like interpreting the bible? Can’t you read into it what you like?”
Yes it does, because we have elections every 4 years and we can vote him out if he doesn’t do what we want him to…. How can you say that the Constitution doesn’t give him these powers and then turn around and explain what Presidents in past wars have done??? Look at history… Look at what Lincoln did during war, look at what Roosevelt did during war – he actually ordered the ‘taking into custody of over 100,000 American Citizens’ without any charges and had them locked up until the end of the war to ‘prevent’ any possible espionage. That far outweighs what Bush has done here….. Lincoln had opposition legislators ordered under arrest and had one guy from Ohio deported to the South for being an agitator…. He had reporters locked up for agitating, he had 9 Maryland state legislators arrested and held until a vote could take place to prevent Maryland from succeeding from the Union. All of this is so much more than what Bush has done – it amazes me that people still question this.
Clinton cited the same privileges and then tried to expand them to include non foreign intelligence activities like warrantless searches of public housing recipients in high crime neighborhoods…. this is much more than what Bush is doing….
When it comes to Foreign policy and collection of foreign intelligence whether it is in wartime or peace time – the President has sole authority over it. It was made that way for a reason, but even more so during war – you’re lucky if you can get 10 people to agree to a specific course of action let alone 550. That is also why the President is the Commander in Chief and the Congress is not the Commanders in Chief.
December 29th, 2005 at 3:37 pm
I completely agree with this. I doubt it’s going to happen either, and I frankly don’t think he should be impeached. But I do think we should know whether or not our legal system should determine whether or not the President does have this authority, and to your point debsay, that should explain it all.
But to this point.
Well, 550 people don’t have to agree on it. You simply have to have a majority. But the AUMF was overwhemingly (was it unanimously) passed through both the House and the Senate. So yes, we can agree and that’s the system our founding fathers outlined.