The Founders Had an Idea for Handling Alberto Gonzales

New York Times: By Adam Cohen

The founders did not want impeachment to be undertaken so casually that, in James Madison’s words, the president and other officers effectively served at the “pleasure of the Senate.” But they also did not want to limit it to a few specific offenses. The phrase “other high crimes and misdemeanors” was intended to give Congress leeway. Impeachment was one of the important checks and balances the founders built into the Constitution. At state ratification conventions, it was promoted as a tool for Congress to rein in any officeholder who “dares to abuse the power vested in him by the people.” Impeachment of Mr. Gonzales would fit comfortably into the founders’ framework. ...

If the House began an impeachment inquiry, Mr. Gonzales would most likely resign rather than risk the unpleasantness of the hearings, and the ignominy of being removed. Congress should think of it as a constitutional tap on the shoulder, to let the attorney general know that the time has truly come for him to go. If Mr. Gonzales did resign, this Congress would most likely be more gracious than the one in 1876, which ignored Mr. Belknap’s hurried resignation and impeached him anyway.

I'm not so sure about the prediction, but with Rove on the way out, maybe W is ready to clear the deck of his present set of personnel headaches. After all, he has a wedding to plan now.

Dear Cindy: Please Don't Run

The Nation Blog: By Katha Pollitt

On July 25, Cindy Sheehan announced that since Nancy Pelosi failed to move to impeach Bush and Cheney by Sheehan's deadline two days earlier, she will run as an independent for Pelosi's seat in Congress. I have a lot of respect for Sheehan, but I hope she'll reconsider.

First of all, should impeachment really be a litmus test? Sure, it would be emotionally satisfying to haul the president before the Senate--look how much fun the Republicans had with Clinton. I understand why some of my Nation colleagues are so keen on it. But it's not going to happen--the numbers in Congress and Senate aren't there , and I don't care how many people sign petitions and call their congressperson, that is not going to change. ...But to insist that they work themselves into a lather for what is essentially a symbolic gesture with no chance of success? I don't see the point of that.

Second, Sheehan's run is futile. There's a place for outsider candidates, even longshots. ... Nancy Pelosi has been a cautious -- too cautious -- leader, and if a lefter candidate could take her seat, fine. But let me go out on a limb here: Sheehan has no chance of defeating her ... Thus, instead of showing the Democrats how strong is the threat from the left, it will show them how weak it is.

Third, and most important, Sheehan already has a crucial role in our politics: as an activist. More than any other single person, she changed the discourse about the war. She put a middle American face on the antiwar movement at a time when it was widely caricatured as a ragtag collection of hippies , Stalinists, and movie stars. She forced the media--and the country -- to acknowledge that antiwar feeling was widespread and growing and included even red staters, even military families. By her simple demand that Bush meet with her and explain why her son died, she pointed up the president's evasions and befuddlement and arrogance -- the ban on photographs of coffins, his seeming lack of concern for the deaths of soldiers, his basic refusal to engage. No matter that she sometimes seemed to be conducting her political education in public. She was a mother wrenched out of her ordinary life by tragedy -- that is a very powerful and inspiring symbolic role....

Still, the place for symbolic protest is in protest movements. Elections are about something else and are played by different rules. There, symbolic figures are mostly wasting their time, and tend to emerge smaller than they went in.

Herewith my comment, republished from The Nation site:

Katha poses a number of significant points, which I see somewhat differently. I agree that based on what we now know, successful impeachment of Bush and/or Chaney is unlikely (Gonzales may be a different case). But I disagree over what follows from that. It is unlikely that Congress--given the Senate rules and closeness of the partisan split there, as well as Bush's veto--will accomplish much in the way of an affirmative legislative agenda. (How much of Pelosi's vaunted first 100 hours shtick will actually find its way into law?). To the extent this Congress can make a contribution, it will come through checks and balances on the prospective Bush agenda (is there one?), and re-establishment of oversight on executive power. That process has begun, and has made some impact. However, the executive branch is doing all it can to frustrate the oversight process and run out the clock. It is yet to be determined how aggressive Congress will be in pursuing its subpoenas and other demands for documents and testimony, and asserting its contempt power. Litigation in the courts will be a slow process at best, and will require complex balancing judgments that may be difficult to predict. In contrast, by launching impeachment inquiries, Congress maximizes its core Constitutional interest in and ability to compel production of documents and witnesses, to investigate the manifest abuses of power in this Administration, and to dramatize, for press and public, this Administration's record of shame.

What higher purpose, or set of accomplishments, is realistically available to this Congress? What else should it be doing in preference to this? Will an impeachment inquiry set back those efforts, or more likely improve their prospects? If the objective is to end the war, or at least force Bush to move more quickly in that direction, is there a better way than this?

That is my most important difference with Katha's analysis. On Cindy Sheehan, I'm inclined to agree with Katha that she is more impressive as an activist/public symbol than as a prospective legislator or policymaker (and that it is worth underlining this distinction), and is more likely to leave the electoral arena diminished than enhanced (if, indeed, her time in the spotlight has not already passed). While I am not a special fan of how Nancy Pelosi has conducted her speakership thus far, it seems to me that a nasty dustup primary contest is unlikely to be terribly productive in either electoral or symbolic terms.

I would like to see the Dems consolidate their position as a governing party before commencing their traditional inclination to eat their own.

Posted by THE WISE BARD 08/17/2007 @ 3:16pm

Ouster By the People

washingtonpost.com: By Robert Dallek

Polls showing President Bush's approval ratings in the 20s and 30s and a New York Times survey last month reporting that people across the country are eager for an end to the current administration suggest that this nation has a problem it's going to have to live with for the next 17 months -- a failed presidency that won't reestablish its credibility with a national majority.

The political argument against Bush's continuing tenure is not frivolous. There are good reasons to see him as a failed president whose remaining time in office will be unproductive at best and destructive to the country's well-being at worst. But given the constitutional rules by which the presidency operates, there is no serious prospect of removing him from office.


A fine solution would be a Nixon-style resignation, but anyone who thinks that Bush and Vice President Cheney would give in to such a demand is dreaming. With no serious threat of impeachment looming, Bush and Cheney can afford to dismiss calls for their departure as the outcries of political extremists.

Dallek, a well-regarded Presidential historian, goes on to recommend a Constitutional amendment allowing for a recall procedure. His argument strikes me as a bit thin (and underbaked) for a change of this magnitude--and too late to deal with our current crisis. Further, if Congressional leaders are too feckless to initiate an impeachment inquiry under current circumstances, it is hard to understand why they would play the initiating role required under Dallek's proposal. But let me give him the final words:

Such an amendment would compel presidents to think about public support or government by consensus throughout their time in office, rather than as they approached reelection, particularly during a second term, when they would otherwise have no reason to fear voter repudiation.

Obviously, this proposal is not going to affect Bush's tenure. But his presidency is a troubling lesson in the malaise that can settle over the country during the lame-duck period of a stubborn chief executive. The nation should be able to remove by an orderly constitutional process any president with an unyielding commitment to failed policies and an inability to renew the country's hope.

Short of Perjury? Try Impeachment!

washingtonpost.com: By Ruth Marcus

I find myself in an unaccustomed and unexpected position: defending Attorney General Alberto Gonzales. ...

In his Senate testimony last week, Gonzales once again dissembled and misled. He was too clever by seven-eighths. He employed his signature brand of inartful dodging -- linguistic evasion, poorly executed. The brutalizing he received from senators of both parties was abundantly deserved.

But I don't think he actually lied about his March 2004 hospital encounter with then-Attorney General John Ashcroft. I certainly don't think he could be charged with -- much less convicted of -- perjury. ...

Congress deserves better than technically correct linguistic parsing. So the bipartisan fury at Gonzales is understandable. Lawmakers are in full Howard Beale mode, mad as hell at Gonzales and not wanting to take it anymore.

But perjury is a crime that demands parsing: To be convicted, the person must have "willfully" stated a "material matter which he does not believe to be true."

The Supreme Court could have been writing about Gonzales when it ruled that "the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner -- so long as the witness speaks the literal truth" -- even if the answers "were not guileless but were shrewdly calculated to evade."

Marcus dismisses calls for a special prosecutor, arguing:

Rather, lawmakers need to concentrate on determining what the administration did -- and under what claimed legal authority -- that produced the hospital room showdown. They need to satisfy themselves that the administration has since been operating within the law; to see what changes might guard against a repetition of the early, apparently unlawful activities; and to determine where the foreign intelligence wiretapping statute might need fixes.

That's where Congress's focus should be -- not on trying to incite a criminal prosecution that won't happen of an attorney general who should have been gone long ago.

It's impossible to know from this vantage (without access to classified information) whether Gonzales could be successfully prosecuted for perjury. It doesn't, and shouldn't, follow that his apparent efforts to deceive Congress (not to speak of the American people), and to frustrate its oversight role, is not deserving of impeachment. Writers for the Washington Post all too often seem caught up in their technical admiration for virtuoso examples of how the Washington game is played; perhaps it is time to just say no to BS at this level, and throw the bums out. This is not a game; people's rights--and lives--are at stake; and we rejected the divine rights of Kings, and Presidents, long ago. Perhaps it's time for another reminder, since the lesson seems to have been lost on this Administration.

The Return of Alberto: It's Your Fault, Congress

New York Times:

WASHINGTON (AP) -- Attorney General Alberto Gonzales denied Tuesday that he and former White House chief of staff Andy Card pressured then-Attorney General John Ashcroft to recertify President Bush's domestic surveillance program during a now-famous 2004 hospital visit.

Gonzales said that he and Card had been urged by congressional leaders of both parties to ensure that the terrorist surveillance program survive a looming deadline for its expiration. To do that, Gonzales said, he needed the permission of Ashcroft, then the attorney general. Ashcroft at the time was in an intensive care unit recovering from gall bladder surgery.

''We went there because we thought it was important for him to know where the congressional leadership was on this,'' Gonzales told the Senate Judiciary Committee in his first public explanation of the meeting....

Gonzales' version conflicts with that of James Comey, Ashcroft's deputy at the time. ...''I was angry,'' Comey testified in May, releasing details of the meeting for the first time. ''I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general.''

Sometimes you've got to admire this guy's balls. Putting this disgusting episode on the Congressional leadership is a master stroke of the black arts.

When do they impeach this guy?

How to fix executive privilege

Slate Magazine: By Bruce Fein

Something is rotten in the state of congressional challenges to executive privilege. The time it takes to move a challenge through the federal courts makes any potential congressional victory either stale or irrelevant. By forcing a lawsuit, the president wins politically whether or not he wins legally. If they become available only after President Bush leaves office, testimony or documents from the likes of Karl Rove, Harriet Miers, and Sara Taylor would be politically worthless. ...

How to pry open the logjam? Congress should explore two initiatives: establishing a special three-judge executive-privilege court appointed by the chief justice ... In addition, Congress should enact a statute stipulating that executive privilege should yield to congressional oversight ...

The executive-privilege reforms I'm proposing are easily constitutional. As Woodrow Wilson observed (before becoming president), the informing function of Congress is more important than its legislative mission. Sunshine through congressional oversight deters both executive lawlessness and maladministration. It alerts the citizenry to what their government is doing and allows them to adjust their political leanings accordingly. It advances government by the consent of the governed.

In contrast, executive privilege advances a low-order constitutional value: namely, candid presidential advice secured by the prospect of confidentiality in presidential communications. The privilege was concocted from trifles light as air by Chief Justice Warren Burger in United States v. Nixon. ...

The Necessary and Proper Clause of the Constitution empowers Congress to enact laws that regulate the exercise of presidential authorities, including assertions of executive privilege. In countless decisions, the Supreme Court has recognized the compelling congressional interest in investigating crimes or misconduct short of criminality in the executive branch...

Detractors of these reforms might argue that Congress already possesses the tools it needs to prevent unjustified invocations of executive privilege. The Senate can refuse to confirm presidential nominees. Congress can refuse to enact appropriations measures or other bills desired by the president. But these retaliatory tactics are overkill. They have not been and will not be employed...

Of course, if Congress were to enact one of the reforms I've proposed, President Bush would veto the bill. ...Such an override would bolster the legitimacy of the enactments by demonstrating they represented the institutional concern of Congress and not a partisan concern of the predominant congressional political party. These executive-privilege initiatives are justified because alternative approaches have proven deficient. Congressional oversight is too important to leave in its decrepit condition.

I have many differences with the particulars of Fein's analysis and proposals (which I have severely truncated in these excerpts--follow links for his full exposition). In fact, I disagree with Fein on most things, except on our shared sense that this Administration has gone way out of control, justifying much tougher Congressional action, up to and including an impeachment inquiry (I don't know whether Fein is on board with my ultimate suggestion that we declare the unprincipled principals enemy combatants and ship them one way to Gitmo). But it's nice to see serious legal analysts moving beyond rhetorical bombast (still my stage) to procedural particulars. Makes taking (legal) action more concrete and thinkable.

This makes post #1300, and enough for now. Time for a break. Soon.

Richard Nixon urges his White House staff to publicize his, er, personal warmth

Slate Magazine:By Bonnie Goldstein

On July 11, papers and recordings of President Richard Nixon that previously had been withheld by the Nixon Foundation were released online and at the Richard Nixon Presidential Library in Yorba Linda, Calif. Among these was an extraordinary piece of Nixoniana: a meandering 11-page memorandum (PDF) that Nixon sent in 1970 to his chief of staff, H.R. Haldeman, urging that White House staffers talk up what a warm human being 'RN' was. (As was his habit, in the memo Nixon refers to himself repeatedly in the third person.) Nixon complained that 'average voters' regarded RN as 'an efficient, crafty, cold, machine.' To help correct this common misconception, Nixon cited 'warm items' (Page 3) such as 'the calls that I make to people when they are sick, even though they no longer mean anything to anybody' (Page 4). 'I called some mothers and wives of men that had been killed in Vietnam,' he added, helpfully.

Because he was Nixon, he resented somewhat the social imperative that the president be courteous. '[W]e have gone far beyond any previous president … in breaking our backs to be nicey-nice to the Cabinet, staff and the Congress … around Christmastime,' Nixon groused (Page 3). 'I have treated them like dignified human beings and not like dirt under my feet" (Page 4), he continued. Connoisseurs will recognize this last as a choice illustration of Nixon's rhetorical tendency to render the thing he denies (that he treats subordinates "like dirt under my feat," that he is "a crook," that the press will "have Dick Nixon to kick around") much more vivid than the denial itself ("not," "won't").

What with W, Nixon is increasingly being invoked as, uh, not all that bad in comparison. I've caught myself nearly doing it (e.g., "in retrospect, his domestic policy wasn't as thorouhgoingly pernicious..."). The new documents from the newly liberated Gitmo-on-the-Pacific library/ spin facility may slow that down, at least pending W's impeachment inquiry.

Just caught my Tivo'd Bill Moyers'impeachment special, with conservative Bruce Fein and Madison's own John Nichols, both in fine form. Try to find it--a good time was had by all. But I have a hard time with Moyers himself playing straight man in the exercise--not very credible, and not the best use of his considerable talents.

BILL MOYERS JOURNAL | Impeachment Panel Excerpt | PBS

Coming Attractions: Bill Moyers on Talk of Impeachment

Bill Moyers Journal : Programming Note

Airdate: Friday, July 13, 2007 at 9 p.m. EDT on PBS
(Check local listings at http://www.pbs.org/moyers/journal/about/airdates.html.)

Talk of impeachment. Bill Moyers Journal explores the talk of impeachment gaining steam as a new opinion poll says nearly half of Americans favor impeachment of the president and more than half want to impeach the vice president.

In the wake of President Bush's commutation of I. Lewis 'Scooter' Libby's prison sentence, talk of impeachment is gaining steam as a new opinion poll says that nearly half of Americans favor impeachment of the president and more than half believe Vice President Cheney should be impeached. Bill Moyers gets perspective from constitutional scholar Bruce Fein, who wrote the first article of impeachment against President Bill Clinton, and The Nation's John Nichols, author of 'The Genius of Impeachment.'

Impeach the Bastards

So, yes, the President has an undoubted Constitutional power to grant pardons and commutations of sentence.

But suppose, just hypothetically, a pardon or commutation is offered as part of a conspiracy to secrete information relevant to an ongoing criminal investigation, or an investigation into actions that may provide the basis for impeachment of one or more high public officials (say, again hypothetically, a Vice President).

To get (very slightly) less hypothetical, suppose Mr. Libby's conviction rests on perjury and obstruction of justice aimed to cover up potentially impeachable actions of The Dick and/or his nominal boss, he of the initial "W". Suppose further that Mr. Libby's commitment to remaining silent was thought to be tested by his (rapidly) impending change of address. (Perhaps his wavering commitment was even communicated to persons allegedly serving in the "Executive Branch".) Finally, suppose that the commutation of Mr. Libby's "excessively severe" 30-month prison term (reduced to a somewhat less severe zero, perhaps with additional understanding that a full pardon would follow after the 2008 elections) would be understood to enhance the likelihood that Mr. Libby would not be inclined to discuss these matters further.

My understanding, as a non-specialist, is that the undoubted Constitutional authority of legislators to cast votes on matters before Congress does not in and of itself (pesky matters of the "speech or debate clause" aside, to avoid complicating matters in the purely legislative--and, of course, Vice-Presidential-- contexts) immunize such persons from investigation and conviction of bribery charges.

There remain, of course, some matters of evidence to be pursued. But isn't that what the House Judiciary Committee's investigative authority (pursuant to an impeachment inquiry) are for?

Or did I miss something in Civics class?

Impeachment Watch: forms of accountability

Powell's Chief of Staff Proposes Impeachment |From AfterDowningStreet.org:

On Thursday, May 10, 2007, Lawrence Wilkerson, speaking on National Public Radio, proposed impeaching President George W. Bush and Vice President Dick Cheney.[Wilkerson is a Retired Army Colonel, the former Chief of Staff at the State Department from 2002 to 2005 under then Secretary of State Colin Powell.]...

Wilkerson said in early comments on the show: 'This administration doesn't know how to effect accountability in my opinion.' But he did not raise the possibility of impeachment until after a member of the audience had phoned in.

The first caller who was put on the air demanded an investigation of the lies that launched the war, and asked for accountability 'all the way up.' In response to [neocon Ken] Adelman's claims that history would hold people accountable, the caller said 'I would love to have a job where, worst case scenario, my historical record is flawed.'

[Moderator] framed the question in terms of alleged limitations of the U.S. political system, and Wilkerson replied: 'Well I do think that that's a reality of our system. However, let me back up just a minute and say that I really do think that our founding fathers, Hamilton, Washington, Monroe, Madison, would all be astounded that over the course of our short history as a country, 200 plus years, we haven't used that little two to three lines in Article II of the Constitution more frequently, the impeachment clause. I do believe that they would have thought had they been asked by you or whomever at the time of the Constitutional Convention in Philadelphia 'Do you think this will be exercised?' they would have said 'Of course it will, every generation they'll have to throw some bastard out'. That's a form of accountability too. It's ultimate accountability."