Friday, January 05, 2007

On Impeachment...

First, I want to observe that impeachment is a political process garbed in judicial guise to grant it some gravitas. It's not a judicial process, and the penalty for being convicted on an impeachment charge (in the USA) is limited to removal from office and, possibly, permanently being barred from holding any post for the federal goverment.

Most of the legal rules don't necessarily apply. There's no impact on potential judicial actions on the same subjects; a judge, official--or president--impeached and convicted and removed from office can be tried on criminal charges and civil charges associated with the same matters. There's no claim of double jeopardy because of impeachment.

Impeachment is serious; it's intended to be.

It's not exclusively limited to actions that are crimes. Remember, it's a political process, not a judicial one. Crimes are certainly grounds--potentially--for impeachment. But the Founders considered impeachment at some length, and the words chosen were intentional. Impeachment is certainly justified and called for in the event of bribery and treason--those are explicitly called out. But it's also called for in the event of "other high crimes and misdemeanors."

Misdemeanors does not here refer to the sorts of minor crimes that are usually described as misdemeanors. And "other high crimes" is intentionally vague. The intent was to establish the extreme gravity of impeachment--it should be used for things that seriously damage, injure and imperil the nation and/or threaten good government. But it is intentional that those crimes are not listed in detail; the measure of what "other high crimes" includes is left to the House to determine, at such time as it needs to decide, for the case at hand. Misdemeanors refers generally to behavior grossly and seriously inconsistent with the post; it permits Congress to decide that the good of the nation requires someone to be removed from office, even if they have not actually committed a crime.

And so it should be. No office, no post in a republic should be secure and without possibility of removal, should one commit significant crimes or simply be grossly incompetent. Election and appointment do not confer the right to holding that post no matter what one does or says. They confer the privilege of holding that post, so long as it is deemed reasonable to keep one in that post.

And so... to the (obvious) case at hand.

Should President Bush and Vice President Cheney be impeached?

Actually, that's not the object of this. I happen to be of the opinion that both should be, and that both deserve to be convicted, removed and barred from office.

But I'd like to talk about the how--and why--of process.

There are a good number of people who want them impeached and gone, yesterday. I even sympathize. But it's important to step back and look at how, and why. If one is intent on impeachment, then one really does--or should--believe that the individual being impeached should be convicted; impeachment should not be trivialized as a stage on which to try to injure someone.

If one sincerely believes that, then it's crucial to do it right. This is a political process, and because of the nature of politics, the chance to do things over is--usually--exceedingly rare. The victors seize their spoils, spin things and race off. In addition, and particularly in the impeachment of a senior official, it's a process which the nation pays attention to--which makes it political all over again. Even in the event that someone deserves, in the public's mind, to be impeached, failing to convict is going to tend to protect him (or her) from a future impeachment effort. Though it's not a judicial process, there's a deeply rooted sense that double jeopardy isn't fair or just. So while it might be legal (and it would be), it's not going to sit well with the public to try to do so.

To do it right means... not rushing. Aggravating as that may be, it means taking the time to collect the evidence, complete the investigations, and to make certain that the case and evidence are well understood by those who will vote on it--the senators--and by the public (so that senators understand the public's opinion... remeber, this is a political process, not a judicial one. The opinions of the public should matter, and senators should take into account the political will of the nation and their states).

Because there will be only one chance to do it, so it must be done right.

There's nothing to say that investigations have to take many months. Delays need not be brooked--and should not be.

Should impeachment be attempted, and fail because it was hurried and the waters muddied, or because too many senators were willing to vote on party lines, feeling that they would not be punished -- or not punished hard enough -- by their constituents, the results would be disaster. We'd end up with a presidency which felt that it had been "cleared" of charges by acquittal, that this was a new mandate, and that its actions had been affirmed and supported by the refusal of the Senate to convict. It would feel empowered to continue its excessed, abuses and even to extend them.

It's important that abuses and excesses not be granted authority and the power of precedent because of the urgency felt to impeach. If they're serious enough to justify impeachment, then it's serious enough to take the time to do it right.

The people currently would support impeachment. But it's only a majority, not a supermajority. We all know that the politics of the nation are not as extremely polarized as is sometimes depicted; "Red" states and "Blue" states are not nearly as monochromatic as the media and conversation would suggest. Still, the shades of purple range widely. Impeachment will require that the case is made, presented and laid before the people of the various states so that a solid majority in enough states support impeachment. Their senators need to know that their states really do expect them to vote to convict. And there needs to be that supermajority. Over a third of the Republican senators in the current Senate would have to agree and vote for conviction (assuming no real Democrats break rank). That's a high standard, particularly when one recognizes that there are certain senators who might vote against it "on principle" (though one would be hard pressed to identify what that principle was--other than Its OK If You Are Republican), even if their constituents wanted them to vote to convict.

I wouldn't count, for example, on Brownback or Coburn--they appear to live in a different reality than I do. Nor would I count on Chambliss, a man comfortable with the most venal politics I can think of.

But I could be wrong. Bob Barr's become a sincere critic of the current GOP.

Do it right. Even if it feels that there isn't time, do it right.

3 comments:

kim said...

Perhaps the "principle" is divine right of kings?

ogre said...

Ah, Kim... you gotta keep up with the hip cats. The preferred language today is not "the divine right of kings," it's "unitary executive." Not that there's any meaningful distinction between the two, in practice--except that in the latter case, God doesn't just anoint your lineage and move on, He sticks around and whispers what to do to you.

kim said...

Ah, yes, I have heard of "unitary executive". I just don't keep up very well these days....