There have been dark warnings for some since a stolen election, a Reichstag Fire and an enabling act, the very same authorization for use of military force that Bush stood upon has he once again waved the bloody shirt of 9/11. Now, however, they are about to become the subtext for a long drama, one that, for the first time, places George W. Bush in the crosshairs of legal jeopardy.
Bush is now in play.
[Yes, another cheap commercial plug for my Katrina String Quartet CD. One movement will soon by on the excellent Katrina songs site - which is loaded with musical tributes to the city that is at the root of American music...]
The domestic spying revelations are everywhere, and rightfully so. It is one step closer to the "Gestapo Line", that invisible division between American's believing that Bush is dealing with an extraordinary crisis. and believing that there has been an unconstitutional usurpation of our liberties. But to convince them, it requires two important perceptions be established. The first is a long train of abuses and failures, which, added together, erode Bush's credulability in the eyes of the American public.
The second is a single example which is so vivid that even the most dedicated of right wing apologists cannot get it out of their eyes. An example that stands starkly beyond the range of acceptability. At that point, we will have crossed the Gestapo Line, and suddenly comparisons to the the most wicked regimes of the past will no longer seem specious, hyperbolic or fatuous excess, but dark warnings.
There are three parts to this reality, the first is the obvious: that there is a moral case, not merely for ending Bush's ability to damage America, her reputation and her people, but for branding his reign as one of illegal excess that is not to be repeated. The second, flowing from the first, is the political case for ending Bush's power and position. As more people realize that no President has been given more power and achieved fewer results, that his tenure in the White House has been the most corrupt since Warren G Harding's, that he has created a government which is vast, loose and out of control - the pressure to send a signal, to ourselves and to the world will grow. This political case includes the already visible signs of public support for impeachment - currently at 32%, nearly what it was for Clinton at the very height of the trial in the Senate.
The final piece is, of course, a legal case, that is, a way to get from here to there. The there is not merely impeachment, since conviction in the Senate is a virtual impossibility as long as that august body is a billionaires' boys club, but the criminal prosecution of the Chief Executive of the United States of America. Bush can be brought to trial, and brought to trial before he has been removed.
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There are those who would argue that the impeachment clause provides immunity:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
But this is, at best, tenous. If read as a grant of immunity, it would say that anyone subject to impeachment has such an immunity. Instead, the logical way to read it is the reverse - namely that impeachment is not a bill of attainder, and still leaves the individual removed subject to normal civil and criminal charges. The only actual immunity granted in the constitution is to the members of the legislative branch.
They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
But the President is not a member, and even though the Vice-President is the President of the Senate, he is not a Senator. This leaves it to the doctrine of immunity, but there is no law, nor any court case which grants blanket immunity from criminal prosecution to the President.
Instead the controlling decisions here are US v Nixon, Fitzgerald v Nixon, and Jones v Clinton. These decisions define the boundaries of immunity as it exists now, and set the stage for an inevitable court case, should those boundaries be pushed in the days to come. It is dangerous territory, such a naked removal of immunity will lead, inevitably, to Republican abuse, as they abused the special prosecutor law, the removal of civil immunity that Jones v Clinton provided, and then impeachment itself. However, they will abuse anything, because that is in the nature of the corrupt and criminal organization which the Republican Party is now, and which its voters, by wide margins, support.
The question of the law is where the line for criminal immunity would be draw. In the case of civil immunity, Fitzgerald draws a very broad line: the absolute immunity from civil prosecution of the President personally extends "to the very perimeter of his authority". This makes sense, we do not want the country held hostage to the legal departments of powerful interests. However, it does not extend one foot beyond that perimter. As Jones v Clinton makes clear, private actions, or actions not for the powers granted by the Constitution and the Law to the Executive, are not protected.
Criminal immunity might be ruled to extend further than civil immunity, but that is a matter of law for a court to decide and a court may not decided it without a case brought before it. In otherwords, there is no current constitutional or legal bar to beginning criminal prosecution of a sitting President, or criminal prosecution which might implicate the President. In fact, in US v Nixon, it was established that a President might well be the target of a subpeona, which carries with it penalties for non-compliance.
In short, while the President might be ruled to be immune, he has not been ruled to be immune. Nixon was named as an "unindicted co-conspirator", which means that a Grand Jury has the power to target the President, even if it chose, at that time, not to use it. Which means that the next legal question is "who could have legal standing to bring a criminal charge against George W. Bush?"
The answer of course is Fitzgerald, whose mandate to investigate is extremely broad. He has within the range of investigating the Plame affair "plenary" powers. This means that he has the prosecute any crime which he uncovers in the course of the investigation, even if originally unrelated to the specifications of the original charge.
With the indictment of Libby, and the possible indictment of Rove, Fitzgerald has turned a corner to investigate the crimes behind the crime. Since he already asserts that Libby lied to the FBI and the grand jury, and he will possibly say the same thing about Rove, the question is whether there was not only the crime of obstructing justice, but whether this crime was committed in the furtherance of another crime or conspiracy to commit a crime. Was lying the "overt act" which establishes a conspiracy in the meaning of the law?
This means that Fitzgerald has not only the legal authority, but the duty, to discern whether prosecutable crimes were being furthered by the crime of obstruction of justice. This is how prosecution of criminal organizations begins, a small crime is discovered, instead of leading to an act of passion or desperation, it leads to another crime, which in turn leads to others. To pull a criminal organization apart warp and woof, one often starts by pulling on the loose thread.
Rove and Libby are both members of the executive staff, but Rove, in particular, is also a member of the executive's political apparatus. If information was flowing from Rove to the press, was it also flowing from Rove to other parts of the political apparatus? If so, this information is not covered by any grant of civil or possible grant of criminal immunity. The president as candidate is not, ever, acting within the shield of the office, but as a private citizen.
This means that Fitzgerald has every reason to want to know where Rove was getting his information, where Libby was getting his information. Having demonstrated in at least one case that there was a pattern of activity to not only leak classified information, but to conceal it as they were doing so, there is probable cause to ask whether this was done in other cases as well, with other information.
This leads in two directions. The first is from the White House Iraq Group - an organization which, since it has no constittuional or legal standing is open to Fitzgerald's unlimited prosecutorial authority to investigate, if necessary obtaining court orders to pry loose its secrets. The other direction is raised by the admission by a Cato institute member that Jack Abramoff paid him for writing op-eds.
What does a bribery scandal at Cato have to do with Plamegate, and domestic spying? A great deal.
What Fitzgerald needs to issue court orders is "probable cause" to believe he would find something. Domestic spying, until it is shown to be illegal by a court order, is not investigatable. That is, someone with standing has to challenge it - a person who was spied upon, or Congress demanding an investigation. However, the information that it produced, legally or not, is within Fitzgerald's field of investigation. The question is "is there any probable cause to believe that the information generated by domestic spying was, at any time, used for any purpose which is not within the executive branch's authority under the law and the constitution?" In short, did anything, ever, at any time, by any person, end up being used for any purpose which is not within the "perimeter" of executive authority?
Abramoff is key because there is no ambiguity about his role, he is strictly a member of the political apparatus. If he received, paid others to disseminate, or acted as an accessory to the dissemination of classified material, it is, ipso facto proof that domestic spying was not strictly an executive function, and therefore open to investigation, court orders, and prosecution, both civil and criminal.
Take an analogy to Watergate, the key to blowing the case up was that individuals engaged in illegal acts were being paid by the political apparatus, being directed from within the executive branch by executive officers. This tied people who had civil immunity, and perhaps criminal immunity under executive privilege, to acts which did not have that immunity. In US v Nixon the court granted that the executive had broad privilege to conduct business without scrutiny, but not unlimited privilege, and specifically, if a court issued sub peonas, the executive would have to comply.
The question in the present case is similar. Within the executive branch it is very difficult to exercise oversight without congress, or without an overt ill to complain about. That is, until someone knows they have been injured, and can show probable cause that the injury flows from the deliberate acts of the executive branch, there is no case. Even in cases such as a recent incident when a student requested a copy of the official Beijing version of Mao's "Little Red Book" and was visited by federal agents, which clearly fall outside the pale of acceptable behavior by the executive branch, it is difficult to show harm. So long as Big Brother is just watching you, there is little you can do about it.
But if any of the domestic spying information was passed beyond the executive branch, then it changes the question completely. Then who ever is directing this, regardless of which office they did it from and on which letterhead they did it on, is not acting within the sphere of immunity. It has been repeatedly ruled that even officers acting within the law, but in a manner which violates civil rights, are not immune from civil and criminal procedings.
Since the domestic spying operation violates civil rights on its face, how to put this to the test in court? Who, in legal terms, has standing to challenge this action? Since people don't know if they have been injured, since everything is secret and will only come out under court order, it will be difficult to find someone other than Congress with the standing to do so, because of Frothingham v. Mellon individuals can only sue if there is specific individual damage, and not damage to the whole of the body politic. That is, if you feel the government is doing wrong, your only options are to agitate for impeachment, or to vote against them at the next election.
And therefore there is no one who has standing, because the harm is "abstract and widely dispersed."
Except Fitzgerald, because it is reasonable for him to inquiry as to wether any of its information became available for political purposes. From there, he can ask whether the spying itself was a criminal act.
This may seem like it is a long stretch to Bush himself. However, unlike any other case, the executive has already admitted that he ordered the action. There is no cloud of obscurity, if and when domestic spying is found to be illegal, there is no plausible deniability all the way to the top. It is true that domestic spying is an impeachable offense.
But it is also potentially a road for criminal prosecution, one which there is no constitutional bar at the present time. That means that agitating for it politically is not a dead end, because whether or not it can procede is a matter of law for the Supreme Court to decide.