MissLaura's Open Thread of this afternoon links to Digby's post that builds on this usnews.com article on Dick Cheney's refusal to turn over classified information on the ground that by dint of his role as President of the Senate he is not solely part of the Executive Branch, and thus not subject to Executive Orders. I hope that you'll read all of them.
My reaction? That's it. We can impeach and remove Cheney now. It won't take long; there's not that much in dispute. We can be done by April.
UPDATE for posterity's sake: Don't miss the story that Kagro X posted not long after this diary.
Follow my reasoning after the fold.
Preamble:
I'm known around these parts as someone who is cautious about impeachment. Part of this comes from teaching American Government to about 3000 students, explaining and defending to them the logic and beauty of the Constitution (while giving the anti-Federalists their due, of course.) Part of it may be my age; part of it may be a lot of contact with attorneys and judges and some with politicians, enough to get a sense of how they think and the valid basis for their concerns about maintaining good precedent as a linchpin of our system of government. And, as I have argued elsewhere on this site, I believe that pushing Democrats to do something that we know that they're not going to do just puts us in a position of being able to snipe at Democrats, which may make us feel good but does not solve any actual problems. I have never endorsed impeachment here before now.
What politicians think about impeachment:
I think that the questions that politicians ask in a situation such as this are:
- Is what we're doing right? That is, is it constitutionally justified? Is it necessary, which means that the precedent we set cannot be easily abused in the future, but can instead be applied to relatively narrow circumsances?
- Will this play well with the voters? Will they understand what we are doing and ascibe righteous motivations to our actions?
- Will this action been judged to be righteous by history, like the Democrats in 1974, or will we end up looking as bad as the GOP in 1998/99 or as self-serving as Benjamin Wade in 1865?
- How likely is it that we will succeed? Politicians may require more than I do on this point. I don't require a guarantee of success, but merely that the answers to the first three questions are "yes" and that those who disagree with us will therefore suffer.
Why Cheney is now impeachable:
If these reports are accurate, Cheney has asserted a legal theory that, if accepted, would put him beyond legal control. Congress can't control him (he's partly in the Executive), the President can't control him (he's partly in the Legislative), and the courts won't control him (see the Supreme Court case over his records of meeting with oil executives.) In other words, there is no remedy for his wrongful political actions.
Now I'm confident that he's wrong about his theory. But that almost doesn't matter. Even if he's right, we have the right to demand of our Vice Presidents that they don't exercise this enormous power.
On its very face, Cheney's theory provides us with only one way to control him: impeachment and removal from office. We might like to do something less than this, but he has forced Congress's hand. There's only one thing that they can do here -- and they have to do it. He has already been violating an executive order for five years; now that he has come up with this theory of why he gets to do so, the only way Congress can effectively disagree is by removing him from office. No other course is possible, by Cheney's own theory.
One book I taught from in my old class was Chris Matthews's Hardball, a slim and engaging volume that gave students in the early 90s a good sense of what politics is about. (I won't defend his recent work, of course.) I believe that this book contains the story I'm about to recall, but it could be something else. The story is about Senator Warren Magnusson being upset about something that either Johnson or Nixon was doing about Vietnam. He asked his staff for arguments to bolster the position that the Senate had to rein the President in. They brought him strong policy statements about why the Administration's policy was wrong. He discarded them as useless. What he wanted was something that would get Senators to vote his way, and the merits of the argument weren't the way to get there. Instead, the way to Senators' hearts was by focusing on the integrity of the institution. What the President had done was to encroach on the Senate's powers (it may have been war powers, or maybe power of the purse.) By framing the argument as one of improper form, rather than arguing over content, he was able to get the Senate to support a strongly anti-war position.
What Cheney has done here is to force members of Congress to decide whether they are men and women or mice. Hearings won't take long; the facts are not in dispute. Cheney's lawyers should be able to make their case before both the House Judiciary Committee and the Senate; 363 tons of Constitutional Law experts and former Vice Presidents (another moment in the sun for Walter Mondale! And would Dan Quayle like some revenge? And hello, Al Gore!) will rebut the argument until everyone can see how disgusting and wrong it is. And it doesn't matter if Cheney abandons the argument now; if he acted on it for five years, that's the only "high crime or misdemeanor" we need. If he is not impeached and removed, he could reassert this right again later. There's only one way to stop him and discredit his offensive theory. Remove him.
I think that Senators could accept that. And if they don't, let them be the ones to rewrite the civics textbooks, and face the voting public that is pretty sure that this is not how they remember government working. If it matters, I think that we will win, even with this as the sole argument of impeachment. (Now, with Cheney no longer VP, he can certainly be brought into many later investigations, but that's a separate issue.)
Why this is not being done for political advantage:
Note that I am not confident that impeaching Cheney is a good thing for our party. The ability to replace Cheney with someone more liked (i.e., almost anyone) and who might even be running in 2008 (e.g., McCain) might look pretty good to conservatives right now. That's part of why I expect that we will get 67 votes to remove (and I don't count Lieberman as a likely "aye.") So I am not proposing this for political advantage, but solely because it is right. We need to protect the Constitution. And we must not appoint anyone new to the Vice Presidency who endorses this theory, even if it means that Bush goes without a Vice President for the next two years.
Lawyers -- as most Members of Congress and their staff are -- are concerned about precedent. Allowing the precedent of Dick Cheney as his own untouchable branch of government cannot be allowed. The precedent of removing him from office for espousing and relying upon such a benighted theory is not dangerous. I call on John Conyers to begin impeachment hearings on this sole article -- which does not pre-empt the possibility of later hearings on other articles, but which may render them moot -- as soon as possible. Not because it helps our party. But because it is necessary and right.