Senator Feingold's diary here today, on why he does not advocate impeachment, touched off another firestorm between the passionate, often lucid pro-impeachment majority and the more patient, seemingly pragmatic anti-impeachment minority.
While I myself am definitely a member of the first camp, my opinion here is offered to both groups for the purpose of finding common ground. Our topic shall be the consequences of pursuing the impeachment of George W. Bush and Dick Cheney should the vote in the Senate to convict not prevail. More specifically, I will deal with the notion that failing to convict Bush and Cheney will result in some sort of precedent vindicating their views of Executive power and authority.
Until recently, I, like many of those who find themselves opposed to impeachment, was worried about the consequences of failing to convict. For this reason, I was an advocate of what I term the "softly, softly" strategy of moving toward the impeachment of Bush by escalating the nature of the Constitutional crisis and exposing ever more evidence of Bush's crimes until even the Republicans in the Senate would have no choice but to convict.
These Senators were necessary, in my mind, before impeachment could be realistically considered, for if they were not at least open to the idea, impeachment would be spun as partisan and the vote to convict would likely not succeed. I worried that a failure to convict would establish some sort of precedent for future Presidents, that they could then regard themselves as free to pursue the same sort of abuses and overreaches that Bush has committed. They would reason, since he was not convicted, then I shall not be convicted. As important as impeachment is, it could not be so important as to risk that circumstance.
But my friends, this worry is as vacuous as the worry over Iraq's WMDs. Impeachment proceedings do not establish legal precedent. I'm sure our lawyer and Congressional scholars will be able to back me up here. Had Congress convicted Johnson over his violation of the Tenure of Office Act, that conviction would have no relevance to the subsequent ruling by the Supreme Court that that Act was unconstitutional. And since, as Gerald Ford sagely observed, impeachment can be over whatever the House wishes it to be. The President need not even have violated any laws to be impeached.
But no one I know of is silly enough to believe that failure to convict will establish some sort of formal legal precedent. Rather, the worry is that it will establish a more informal precedent, that the people will accept the ruling of the Senate as being definitive on the matter of Bush's transgressions. Here, I feel that a bit of reflection on the nature of precedents is required in order to dispel this worry.
A precedent is established when a situation is encountered where none of our previous rules and habits are sufficient to successfully navigate that situation. A new way of acting is required, and when one is hit upon which succeeds, that new way of acting has met the first condition required to be a precedent.
There is a second condition that must be met before our new way of acting becomes precedent. This condition is that the situation which required the generation of the new way of acting be encountered again, and our new way of acting be tried out again. Once it has been tried twice, and succeeded both times, then the original situation becomes precedent. In order to fully grasp the significance of this way of acting, long experience with it is needed. This allows us to modify our rules and ways of acting in order to accommodate the ever-changing and expanding flux of experience.
In other words, it takes time to understand what our acting in a certain situation means for the future. And the most important time for understanding the meaning of our actions is the immediate aftermath. From here we move away from the realm of legal, psychological and philosophical fact and into the realm of speculation. When nearly half the country supports impeaching Bush and nearly three fifths supports impeaching Cheney, should the House begin hearings into whether they should be impeached we can safely expect those numbers to rise. When we factor in the evidence that most observers agree would be revealed from such hearings, that expectation is bolstered.
No one here expects impeachment hearings in the House to proceed quickly. Politically, it would be advantageous to drag them out somewhat. This is also advantageous from a rule-of-law point of view, as more time allows more evidence to be accrued. Likewise, the debate and hearings in the Senate would not be expected to proceed with great swiftness. Should it be even possible to schedule a conviction vote before the next election, and should that vote fail, would it be wise to predict that the voters, who would have already been whipped into much greater levels of animosity toward Bush's authoritarianism and Republican compliance, would allow that precedent to stand?
You see, the desired precedent, that no President should rule as Bush has ruled, will still stand, even despite a failure to convict, because should that vote fail, the party responsible for that failure will suffer horrific defeat in the next election. The lesson to Congress will be clear, and should President Hillary, or President Obama, or President Edwards or even President Gore decide to pursue their agenda with Bush's techniques, that new Congress will succeed where this current Congress can not.