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I have recently become enamored of the last subclause of the first clause in Section 2 of Article 2 of the Constitution, especially the last five words:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

We are now entering a period where the most pressing question regarding investigations of Bush Administration scandals will be whether "loyal Bushies" will invoke their version of omerta and refuse to divulge the truth about what has happened.  It becomes easier to clam up if one believes that, down the line, one will be pardoned.

Impeachment takes away the prospect of a pardon.  It's time to impose that limitation on Karl Rove.

Update/note: as you'll see in the comments, some smart people say that this is impossible, both because Rove is not a "civil officer" and based on a different reading of the Constitutional provision.  So take this with a grain of salt, even though I'm not convinced I'm wrong, or at least that it's not worth trying!

As many (I think Kagro X was the first) have pointed out here, Alberto Gonzales is impeachable, a notion that has now filtered into elite opinion via a NYT Op-ed by Frank Bowman, regarding the impeachment of Alberto Gonzales.  Article II, section 4, describes the impeachment power thusly:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Does this apply to Karl Rove?  The short answer is that so far as I can tell (without all of my legal research tools available) it might, and that in any event it's reasonable to press the case to find out.  (I'll happily defer to anyone who has definitive evidence to the contrary.)  Here's the long answer.

Rove holds a high position in the federal government, as Deputy Chief of Staff to President George W. Bush.  For fans of the West Wing, he is George W. Bush's Josh Lyman.  True, he is a political appointee, not a cabinet appointee.  Does he qualify as a "civil Officer of the Unites States"?

The term "Civil Officer" -- as distinct from a "military officer" -- is not defined as such in the Constitution, but its content is implied in Article 2, section 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The position of Deputy White House Chief of Staff is provided for by law; Congress allows the President alone to make this appointment.  The distinction to be made is apparently between a civil officer versus an employee (see Burnap v. United States, 252 U.S. 512) or contractor (see State v. Boone, 132 N.C. 1108, 44 S.E. 595 (1903)) on the one hand, and an elected official on the other.  You can treat the next blockquote as a footnote and skip it unless you're interested.

We infer the latter from the case of the first person ever impeached by the U.S. Government, Senator William Blount.  Blount, a U.S. Senator from Tennessee, allegedly became embroiled in a conspiracy to wrest Florida and the Louisiana Territory from Spain on behalf of Great Britain, an act violating several federal laws.  Blount was impeached in 1797 and formally expelled from the Senate for "having been guilty of high misdemeanor, entirely inconsistent with his public trust and duty as a senator."  In a somewhat backwards exercise, formal articles of impeachment were adopted in 1798; a year later, the Senate decided that it had not jurisdiction to try him, on two grounds: (1) he was not then a member of the Senate and, even as a member, he had not been a civil officer of the United States within the meaning of the constitution and therefore.

I'll give fair time to the other position: there's an argument that Rove can't be impeached because a member of the President's "personal staff" is not a Civil Officer; I'm not sure where that comes from (though I can certainly believe that some court somewhere has said so), but if it's so, I'd argue that Rove should be judged by his behavior and not his title.  I can see this leading to a question of whether Rove's actions, if he is not actually a Civil Officer, as having been illegal; personally, I'm happy to see him put in that sort of a dilemma.

So, if Karl Rove is a Civil Officer, I think he can be impeached.  Is there grounds for impeachment?  Sure.  Recently, Josh Marshall pointed us to fresh evidence of Rove's involvement in a meeting that looks a lot like obstruction of justice.  I'm not going to belabor the point of whether there's a sufficient predicate for Rove's investigation, impeachment, or conviction.  To me, that's not the interesting part.

But what, you may ask, if Rove resigns first?  Can he still be impeached?  Well, there's reason to think the answer is "yes."  For one thing, the Constitution clearly assigns a separate disability to impeachment besides mere removal from office; to me, that implies that Congress can pursue it.  (Kagro X gives some good background here and here and here and, hell, just read the comments in this search.)  I think KX is right here.

So what happens if we impeach Rove and take away his right to a pardon?  I think that Rove is more Oliver North -- rolling over to save his ass -- than Gordon Liddy offering to be assassinated on the corner of Nixon's choosing.  That can get us to Bush.  Even if it doesn't, the prospect of Rove's doing so would open up a lot of mouths, from people who have been taking orders from Rove.

And, of course, if Congress impeached people broadly -- Gonzales, Goodling, etc. -- for their involvement in this, the likelihood of someone spilling the beans increases exponentially.

Now, this is usually the juncture where I remind people that I'm an impeachment skeptic.  Why am I unconcerned about setting Congress loose on what might realistically be dozens of people?  Isn't this craziness?

I don't think so.  First, they've earned it.  Second, in this instance, unlike that of the impeachment of a President, I am not worried about possibly setting a bad precedent.  In fact, I think this is a good precedent.  Pardons for political chicanery are far too available, so far as I'm concerned.  (What the hell is Eliot Abrams still doing in our government?)  I am perfectly willing for Democrats under a Republican Congress know that, if they transgress, they cannot be pardoned.  It will probably make them better and more careful in what they do.  And so, being willing to accept tit for tat, I am willing to declare it "impeachment season" on all Republicans who have been involved in subverting the Constitution.

Frankly, I think that this is what the Republicans would do in our shoes.  So, let's see how it goes.  (Or shoot me down -- but please have your evidence in hand if you argue that he can't be impeached.  Remember, lots of things that we thought were true of our federal government are turning out not to necessarily be true.)

Originally posted to Major Danby on Tue May 08, 2007 at 07:43 PM PDT.


Impeach Rove?

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