As I write this at 2:05 in the morning, there are 3 recommended diaries dealing with impeachment.
dlindorff's Congress Needs to stop Playing in Bush's Court, OPOL's Now Are YOu Going to Impeach?, and Reality Bits Back's top-rated John Dean calls for the Impeachment of Cheney. I have to this point been avoiding addressing the issue head-on, and have focused my worries elsewhere, as demonstrated in my diary of Thursday evening, Are we heading for secret trials in the US? And I am not alone in wondering what will happen in a confrontation between Congress and the Executive, how might the judiciary act.
No longer. I now fear there will be no choice but impeachment.
Impeachment is inherently a political process. As such the other branches have nothing to say, except that the Chief Justice presides over the impeachment of the president. This is a artifact of when the President and VP were elected separately, recognizing that the VP was in a position of conflict since he would succeed to the office in the event of the conviction of the president.
If I remember correctly, however, impeachment trials are now run by rules established by the Congress itself, Whoever presides - and in the case of the VP constitutionally he would preside over his own trial unless he chose to step aside (and if he didn't, he would immediately damage his own case in the eyes of the public) does not have unlimited power to make rulings, since those rulings can be overriden by vote of the Senate under current rules.
But all of this is preface.
Refusal to submit to a subpoena issued during the process of an oversight investigation leads to a vote for Contempt, but the prosecution of contempt requires the executive branch to prosecute itself, and it can refuse to do so, as has been seen during the Reagan administration. While one could try to work up the foodchain of the judicial branch, this not only takes time, it weakens the position of the Congress. I think repeated refusal of the administration to respond to subpoenas, the continued stonewalling of the oversight responsibility represents an undermining of the Constitution. And that is an impeachable offense.
I think the way to go about this is to begin an impeachment proceeding in the Judiciary committee, and pursuant to the responsibility of deciding whether or not high officials should be charged by the committee with impeachable offenses demand any and all documents and testimony which might show whether or not laws have been violated. The refusal of the administration to respond to those subpoenas is NOT a matter for referral to the Courts - the Congress is sole determinant of whether an action has risen to the level of high crimes and misdemeanors necessary for the voting of a charge of impeachment. Upon refusal of the administration to turn over those documents required to make the determination, it will have itself committed an impeachable offense, obstructing the ability of the House of Representatives to fulfill a constitutional responsibility.
At that point the Committee should vote for a charge of impeachment. One might start with the Vice President and the demand for documents in his office. If he refuses to turn them over on the grounds that he is under the authority of the President who has directed him not to, he has by that action placed himself back in the Executive branch. I would holdthe charge of impeachment in abeyance - it would not be referred to the entire House for a period of one week or thereabouts, and if the documents demanded were turned over, the Committee could withdraw the motion. Were the White House to acquiesce, it would have acknowledged that the House at least has an absolute right to any and all documents sought under the rubric of an impeachment investigation.
If the administration refuses, it would now move forward to debate and a vote in the full House. Based on the two most recent presidential impeachment proceedings, the entire game in the House as a whole is simply one of debate and up or down vote - once it comes out of Judiciary it is a formal charge and cannot be amended, although if I am wrong on this I expect Kagro X will correct me.
I think the case can be made for expediting the process for the good of the nation. We need once and for all to clarify the relationship between the branches. And the one power the Congress has that is not subject to constitutional checks and balances by the other branches is impeachment. If in fact an administration can refuse to respond, then it becomes clear we are in a dictatorship. If the administration has no power to prevent an impeachment, then it may see no choice but to respond and give over the information it has hitherto refused to the Congress.
This is tricky. In Nixon's case the Courts were still seen as neutral and as having authority, and thus once SCOTUS had voted that Nixon must turn over the tapes he had no meaningful alternative - refusal at that point would have been seen as impeachable in itself. That was in the process of criminal investigation. Of course, in Nixon's case the impeachment investigation in the judiciary committee had begun after the Saturday Night Massacre in the fall of 1973, and the response to that had forced Nixon to give up SOME documents because he was politically weakened. In the meantime an increasing number of his associates were being charged and convicted. The Court's decision on July 24, 1974 - which was 8-0 with Rehnquist recusing himself - preceded the voting out of the first article by only 3 days. The most damaging information from the tapes did not come out until AFTER all three articles of impeachment had been approved.
I fear that the administration has stacked the Courts with the idea of sustaining its position on unitary executive and the like. After all, protection of the administration seemed to be the only justification for nominating Harriet Miers, and if memory serves Alito has a previous association in support of the idea of the unitary executive. It would, in my opinion, be far more difficult for the Congress to move forward with an impeachment proceeding had they sought enforcement of subpoenas or of contempts citations and lost in the Courts.
The situation is difficult. We do not have an independent counsel prosecuting and convicting the President's men. Instead we have a politicized justice department attempting to prevent the prosecution of corrupt Republican congressmen and to misuse prosecution of Democrats for political purposes. I see no way, so long as the administration stonewalls, that we could ever get to the point where we would have sufficient information to demand an independent counsel able to get to the bottom of things - for this all we need to do is to see ultimately how ineffective Fitzgerald was compared to his predecessors. And while one can look at Jim Comey as being of the same caliber of integrity as Elliot Richardson, I think it would be hard to find anyone in the upper leadership of Justice now who could be trusted to act in the best interests of the nation - those people including the Solicitor General seem to conflate the interests of the administration and its leading personages with the interests of the nation.
I am not a lawyer. I do teach government. I do read history. And I do pay attention to politics.
To me the crisis is immediate. I am hoping that the normal process of oversight can solve some of what is wrong, but I fear that this administration believes it can bully the Congress into backing down, and if not, that it has sufficiently stacked the Courts that it will win any legal confrontation. I am not absolute in that perspective - after all, it has lost repeatedly on the matter of the prisoners and the military commissions, etc. And despite my occasional rhetorical outbursts, I am not by nature confrontational. I would hope there would be some other way of righting our country.
But here's my problem. I see no evidence that this administration is willing to be limited - by Congress or by Courts. It is perfectly prepared to try to run out the clock, and in the process destroy as much of the fabric of our society as it can - it will be not only public education and civil liberties, it will be the economic supports of the New Deal and the Great Society. It WILL use its pardon power to prevent prosecution after it leaves office, if it does leave office. And it will use every power it has to destroy records so that a subsequent administration, unable to prosecute the wrongdoing because of pardons, will also be unable to expose the depths of the corruption of our democracy.
Thus I find myself reluctantly coming to the position that the House should move in the direction of impeachment now. I am not yet absolute on this. I'd really rather focus on other things. But I find this night that I cannot.
This administration will pretend to be reasonable. And were Conyers and the committee to even begin going down this path, there is the very real possibility that the administration will be able to control the media message sufficiently to withstand and turn back the attempt, that the Democratic members in the House will blink - if so, then any possibility of restricting the abuses of this presidency will be gone. But if we do not make the attempt, as seriously as possible and as quickly as possible, we may find that we have by the passage of time also lost the ability to right the ship of state from its perilous course in the direction of tyranny.
There is an ancient aphorism, that one should not strike at the monarch unless you can kill him. It is perhaps that mindset which has shaped the unwillingness of the Congressional leadership to move in the direction of serious exploration of impeachment. It is a powerful image. But might I suggest others? Bullets do you no good unless you are willing to fire them. Your air force is useless while it stays on the ground, where it can be easily destroyed by the attacks of the enemy.
Of course, all of the images involve violence and destruction. Unfortunately, so does acquiescence in the abuses of this administration. I realize that may be unfair - some members of Congress are attempting to do a great deal to rein in this administration. I have applauded those efforts.
Perhaps what we need is a meaningful warning shot. Perhaps serious debate on an article of impeachment because of the refusal to allow the Congress to fulfill its role might spark the kinds of public discussion we need.
I am well aware that the Gingrich Congress debased the impeachment process by its misapplication against Clinton. I am equally aware of the risks of even starting down the path with which I have wrestled in this very inchoate and unfocused essay. But I reluctantly come to the following conclusion:
If impeachment is off the table, so is democracy.
The Congress are the representatives of the American people. If they are restricted in acting on our behalf, then it is our liberties, our democracy, that they can no longer protect.
Understand that in posting this I am putting myself at risk - some might argue that in offering the positions in this essay I am disqualifying myself from being able to honestly and fairly teach about government. I acknowledge that, but I spoke out on the issue of impeachment in the 1990's while I also taught government. I am unwilling to be intellectually dishonest.
The issue is the restoring the balance of power between the branches. Checks and balances is what I am supposed to teach, and I cannot teach it honestly if it no longer exists.
Those are my troubled - and troubling - thoughts, written over 90 minutes when I should have been asleep.
I am now interested in hearing any response or reactions from others.
And I will finish with the statement I made a short while ago:
If impeachment is off the table, so is democracy.
Peace.