Misdemeanor Impeachments and the Unitary Executive

These were my contributions to an Open University thread at The New Republic .

I have always preferred the position that the phrase "high crimes and misdemeanors" is meant to cover the entire waterfront.

Impeachment over a misdemeanor is a ridiculously low bar. If the word "misdemeanor" is not taken literally, but meant simply as a contrast to "high crimes", then the bar for impeachment is lower still. It may consistent with the view that the Framers did not want the Exeuctive to be comfortable with power.

Or argue this way. As a thought experiment. A low bar for impeachment would be especially warranted if you conceded that there was such a thing as a "unitary executive" or that the Constitution was vague enough to allow you to cobble together a "unitary executive".

If the branches are co-equal, and there is a "unitary executive," the only way to re-establish equilibrium among braches of government is through "misdemeanor impeachment."

So that Lewis Libby's conviction, even it were commuted or pardoned, is in and of itself at least a misdemeanor attributable to the "unitary Vice President" and grounds to impeach the Vice President.

For example, abuses of the FSA, if any were found, or at Gitmo or Abu Gharib, or even in the procurement process in either Gulf, would be a misdemeanor attributable to the "unitary President" and, in and of itself, and impeachable offense against Bush.

Looking at impeachment only for "high crimes" does not get you where you really want to be. It may not be keeping with the notion that the Framers intended the Legislature to be the Article I branch -- the first among equals.

The bottom line is that if there is enough revulsion over behavior that 2/3 of the Senate wants someone removed from office, there is always a misdemeanor out there that they can find as grounds for impeachment.

And I think that's right.

If a Democrat is elected to the Executive in the face of a ultra Republican Congress (or vice versa), then the whole process ought to grind to a halt.

After all it is a democracy, and the voters have some responsibility to elect reasonable people to represent them.

If the voters place extreme people in power who cannot compromise with each other, and therefore, nothing can get done, you have no choice but to assume that the voters want that.

We may be at that point right now.

Then, we can have another election and try to past the impasse

Save The Planet

Tonight, we will be hosting a Party for the Planet, which is being sponsored by www.moveon.org and www.algore.com , among others. The parties are being held in conjunction with the Live Earth concerts that are going on around the world.

Al Gore's message, his video request, is at

Al Gore's video request is here

and in a less visual form at www.algore.com .

Part of the pledge commitment that he asks us to make is to pass the message on to at least 5 people, so I appreciate your letting me pass this on to you.

In its behavior regarding global warming, the Bush Administration is making Republicans of us all --

--- The government is the problem, here. We are going to have to try to do it ourselves for a while.

"What they cannot take by an election, neither can they take it by war"

From Abraham Lincoln’s Message to Congress, July 4, 1861 talking about Fort Sumter and its aftermath. (I believe that the reference to “Washington” is to George Washington and neither to the city nor to the government that lives there.)

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It forces us to ask: "Is there, in all republics, this inherent and fatal weakness?" "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?"

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This is essentially a people's contest. On the side of the Union it is a struggle for maintaining in the world that form and substance of government whose leading object is to elevate the condition of men -- to lift artificial weights from all shoulders; to clear the paths of laudable pursuit for all; to afford all an unfettered start and a fair chance in the race of life. … (T)his is the leading object of the Government for whose existence we contend.

I am most happy to believe that the plain people understand and appreciate this.

It is worthy of note that while in this, the Government's hour of trial, large numbers of those in the Army and Navy who have been favored with the offices have resigned and proved false to the hand which had pampered them, not one common soldier or common sailor deserted his flag, .. To the last man, so far as known, they have successfully resisted the traitorous efforts of those whose commands but an hour before they obeyed as absolute law. This is the patriotic instinct of plain people. They understand, without an argument, that the destroying the Government which was made by Washington means no good to them.

Our popular Government has often been called an experiment.

Two points in it our people have already settled -- the successful establishing and the successful administering of it.

One still remains -- its successful maintenance against a formidable internal attempt to overthrow it. It is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by war; teaching all the folly of being the beginners of a war.

Happy 4th of July, Scooter Libby

In every instance where there was a sworn statement, the Administration conceded that Valerie Plame was a spy, and that leaking her name would be a crime for the purposes of the relevant statutes.

Rush Limbaugh, Fred Thompson, and others not sworn under oath, have said otherwise. But it appears that they don't have their facts straight.

The fact that Richard Armitage leaked Valerie Plame's name was a side-show farce coincidence. Just because someone leaked first doesn't end the matter of who leaked best, or whose leak broke the law.

Scooter Libby appears to have successfully obstructed justice. That was the reason why the special prosecutor was unable to find an underlying crime.

Therefore, Scooter Libby is smarter than Richard Nixon, Bill Clinton and Martha Stewart, to name just three people who tried to obstruct justice, but who weren't smart enough to do it successfully.

Anyone who says that there was no underlying crime does not really know what they are talking about.

I am linking to something I wrote in March , because I am finally seeing this in some of the writing today, and I hate being called a copy-cat:

The Republican-run CIA complained to the Republican-run Justice Department that someone leaked the name of a spy.

The Bush appointed Republican Attorney General recused himself.

The Bush appointed Republican deputy Attorney General appointed a Republican special prosectuor

A political appointee of a Republican Vice President lied in front of the grand jury sworn in by the Republican special prosecutor.

A Republican 3-judge panel allowed the Republican special prosecutor to expand the scope of the investigation to allow for the indictment.

A Republican judge presided over the case and passed sentence.

The Lewis Libby affair has ABSOLUTELY NOTHING to do with Democrats, and our elected Democratic officials need to be careful about getting themselves too close to the fire.

L'Affaire Libby is the same Republican vs Republican fight that lead to the firing of the U.S. Attorneys.

It is the difference between a conservative approach to the rule of law, which (and I am sorry to be so partisan) is currently exemplified by people like John Ashcroft, John McCain, the judge in the Lewis Libby case, and the appeals court judges who refused to create new law in the Terry Schiavo case, on the one hand, and the royalist approach to the rule of law, as exemplified by Bush, Cheney, Alberto Gonzalez, Pat Robertson, and Antonin Scalia.

One swing vote to watch in this Republican fight is Supreme Court Justice Samuel Alito.

Democrats are, of course, free to offer alternative visions to what constitutes liberty and justice for all.