Balkinization: 723 days of Dick Cheney

Comments:

Prof. Levinson:

The idea of serving his country or his party by resigning, which in retrospect would clearly have been the best option once it was clear that he did indeed commit perjury by any common-sense definition...

Beg pardon to disagree with you, but "common-sense" definition doesn't count. It's the legal definition that counts if you want to take legal action, and it's not in the least obvious that any alleged lies were "material" (in the Kungys sense), not to mention perjury requres the affiant to believe that what he's saying is false (rather than just being misleading or evasive; see Beckstrom).

Not to mention that perjury is far more common than the Republicans pretended it was. In many civil cases, what the two parties swear in testimony is mutually irreconcilable and one or the other is wrong; the answer is to let the jury determine who's not being truthful and let the punishment be they lose the case.

There were many reasons to exclude the questionable testimony in the Jones case, and in the the end, that's what Judge Wright did.

As such, it's hard to make the case that it was "material", much less that these peripheral facts dug up in a extrajudicial attempt to embarass Clinton, using the power of the judiciary, deserve a perjury prosecution on such facts. Letting the law be used for such an onvious political purpose demeans the law.

Cheers,

# posted by

Anonymous : 1:53 AM

Does the US constitution permit of a referendum to endorse the moving of articles of impeachment?

# posted by

AlanDownunder : 3:20 AM

Why would impeaching and removing Messrs. Bush and Cheney an "unconstitutional coup"? Doesn't that depend entirely upon how culpable they were in initiating and conducting the war in Iraq? If both Messrs. Bush and Cheney aided and abetted Osama Bin Laden in blowing up the Sears Tower in Chicago, would impeaching and removing them from office be unconstitutional? Would it be "dreadful public policy"? Clearly, treasonous acts by presidents and vice-president warrant impeachment and removal from office. I'm not insisting that Messrs. Bush and Cheney are guilty of treason, but if lying to Americans about the reasons for invading Iraq qualifies as a high crime, impeachment and removal from office may be constitutionally required. And if it is constitutionally required, then it is not obvious that it isn't perfectly respectable public policy. Certainly, there are circumstances in which a president and vice-president should be impeached and removed from office even if that means handing the presidency to the opposing party. So why are these not such circumstances?

# posted by

Robert Justin Lipkin : 6:03 AM

Does the US constitution permit of a referendum to endorse the moving of articles of impeachment?

No, but House rules do permit individual state legislatures to request that the House impeach. Such resolutions are pending in several states.

Why would impeaching and removing Messrs. Bush and Cheney an "unconstitutional coup"? Doesn't that depend entirely upon how culpable they were in initiating and conducting the war in Iraq?

From a strictly legal point of view, you're right. But surely Prof. Levinson has a point that there would be the appearance of impropriety in a joint impeachment by a Democratic Congress, with the result that Nancy Pelosi would become President. Given the innately political nature of impeachment, it would be hard to generate the political support necessary, regardless of the legal merits, if the general public perceived the motives as crassly political. Caesar's wife, and all that.

# posted by

Mark Field : 10:46 AM

My thanks to Mark Field for clarifying what I meant about "unconstitutional coup": It is the change in party control of the presidency without an election, most definitely NOT the impeachment(s) under discussion.

We can argue for an eternity whether Bill Clinton's conduct met the technical criteria for "high crimes and misdemeanors." My current piece in the Nation, hyperlinked in Jack's most recent posting, argues that one of the defects of the Constitution is precisely its forcing us to conduct a legalistic discussion about such matters instead of asking more cogent questions about fitness, whether based on demonstrated judgment or, as in Clinton's case, on character, to continue in office. It may well be the case that Bush violated the law with the NSA suveillances. But, frankly, that is only the tip of the iceberg as to what scares many of us about the fact that he still has 723 days before exiting. And if he had generally exhibited restraint and wisdom in using his powers, I suspect that many of us would cut him some slack on the NSA. To bounce him solely because of the NSA is a bit like convicting Al Capone of tax evasion. It did the trick, and Al was definitely guilty, but no one believes that it was the impetus behind the federal prosecution or the reason that many people were relieved when Al went off to Alcatraz.

# posted by

Sandy Levinson : 12:16 PM

Professor Levinson:

Dowd sometimes overwrites, but here I think she is spot on.

"Sometimes overwrites?" The woman is a monument to the kind of hysterical ad hominem exaggeration used routinely by kindergraten children on the playground.

Let us take a look at the section of Dowd's screed which you quoted:

Dick Durbin went to the floor of the Senate on Thursday night to denounce the vice president as “delusional.”

It was shocking, and Senator Durbin should be ashamed of himself.

Delusional is far too mild a word to describe Dick Cheney. Delusional doesn’t begin to capture the profound, transcendental one-flew-over daftness of the man.

Has anyone in the history of the United States ever been so singularly wrong and misguided about such phenomenally important events and continued to insist he’s right in the face of overwhelming evidence to the contrary?

Color me underwhelmed by Dowd's "reasoned argument."

When stripped of the ten dollar words, all Dowd has really said is that: "Cheney is not merely insane, he is really really really insane. No one in history has been more insane than Cheney. How can Cheney think he is right when all my friends think he is wrong, wrong, wrong." Imagine a child stomping her little feet to emphasize the points and you have about summed up Dowd in all her glory.

Professor, imagine further if you asked a student to analyze Bowers v. Harwick for an exam and she wrote in return: "Bowers in not just a bad decision, but it is a really really bad decision. No decision in history was worse than Bowers. How can anyone think that Bowers is a good decision when there is overwhelming evidence (which I will not bother to offer) that Bowers is a really, really bad decision." You would be committing educational malpractice if you declined to give this juvenile rant a failing grade. How, then, can you post Dowd's similarly juvenile rant as proof of anything except for her own immaturity?

Since you raised the subject, but declined to address it in your post, let us take a look at the Durbin namecalling which set Dowd off into her rant.

On CNN, Wolf Blitzer attempted to sandbag Cheney with a question along the lines of: "Everyone thinks that Iraq is a blunder and a disaster, how do you respond to this criticism?

Cheney responded along the lines of: "I do not accept your premise of failure, we have enjoyed and will continue enormous successes in Iraq."

Then Durbin chimes in:

"To have Vice President Cheney suggest that we have had a series of enormous successes in Iraq is delusional," Durbin said. "I don't understand how he can continue to say those things while the president calls them 'slow failure'."

Color me underwhelmed once again.

In the Dowdian mode, all Durbin said was: Cheney is insane because the President has a different opinion."

You will notice that neither Dowd or Durbin actually address the issue of whether we have in fact enjoyed previous success in Iraq. Rather, we are simply treated to the partisan name calling which substitutes for reasoning far too often on that side of the aisle.

Professor Balkin engaged in this sort of ad hominem attack in his post below entitled "Dick Cheney = Baghdad Bob." In response, I posted the evidence that we have in fact successfully accomplished all of our prewar objectives and failed at none. If you and Professor Balkin disagree, then offer your proof. Just please do not offer Durbin and Dowd's name calling as a substitute for that proof.

# posted by

Bart DePalma : 12:40 PM

There seems to be some sort of strawman here to make some sort of larger point. Thus, reference is made to Clinton (and in SL's Nation piece, FDR).

Yeah, quite often technically there is a reason to impeach even if logically, it would make little sense to do so. This would happen no matter how we remove presidents. Chunks of law -- w/o prosecutorial discretion -- would fall to the wayside under that logic.

SL doesn't care for basing things on 'legalistic' points, but 'no contest' decisions can turn on little things too. The thing that broke the camel's back. Take Nixon. What ultimately was too much, which led to his resignation? Was the 'smoking gun' really the basic sin? Or, just something that symbolically underlined it?

Finally, why in the heck is it suggested that the NSA violation would be what the impeachment would solely be based on? Speaking in theory, no sorry, there would be various things. A list of violations.

This includes things that might not be technically against 'the law' ... looking at various articles of impeachment, some counts simply were not solely breaches of the law. 'High crimes and misdemeanors' can be more nuanced. For instance, one framer spoke about lying [misleading] to the Senate to get them to consent to a treaty ... or a war. Is that a crime? No, we are talking more 'political' violations.

I'm sorry. Like late night talk show hosts, this emphasis on his 'gross incompetence' really lets him off the hook, ironically enough. This blog, e.g., had reams on torture and the like. But, hey, the only thing that would stick would be NSA warrants. Sure.

The Constitution really doesn't require this 'legalistic' business. The test bottomline is to determine if the violations are serious enough to warrant the judgment of the necessary majority. The defense obviously will appeal to some high test, but we need not listen to them.

As to political impropriety. Well, sure. If the people don't think it's legitimate, no matter what test we use, it will be seen as a de facto coup. That's fair, as far as it goes. But, if the people do see a problem, even if the Congress is of another party ... Likewise, Pelosi and Byrd can simply refuse to take the job, so the next in line would be, as it should be, the top Cabinet person.

# posted by

Joe : 1:19 PM

Use of wisdom and restrain in the NSA matter would have ended the problem a long time ago ... including following the law or asking Congress to add further authorization.

It's sorta an if a cow had wings it could fly issue. But, if a more competent and wise leader still did many of the things he did, and it's quite possible, more 'slack' might have been given. But, it would have been too much all the same.

# posted by

Joe : 1:26 PM

We should distinguish between two kinds of situations: (1) impeachment, removal, and power to the opposing party in circumstances where the "crimes" of the impeachees clearly warrant impeachment and removal, a change of party, and where the only public outcry heard is "right on!" (with the impeachment, etc.), and (2) impeachment, removal, power to the opposing party, in more ambiguous circumstances concerning culpability. In neither case is there a constitutional violation or the creation necessarily of dreadful public policy. That might occur only in (3) the president’s conduct was immoral, but clearly not impeachable, though a vocal, but small, minority wants impeachment. Indeed, the only question is whether we are in (1) or (2). That, in my view, is what the conversation should be about. For what it's worth, in my view, I can't take seriously the judgment that we are not in (1).

Finally, constitutionally speaking, impeachment is conceptually linked to removal. But I'm not sure that using impeachment as a self-standing provision—knowing you don’t have the votes for removal—in order to clearly set the historical record straight about a president’s egregious unconstitutional, immoral, and dastardly conduct is somehow disingenuous or illustrative of some sort of bad faith. But again, in my view, one's judgment in this matter depends upon whether one thinks we're in (1) or (2).

# posted by

Robert Justin Lipkin : 1:52 PM

Since the Presidential Succession Act is statutory, couldn't the Congress simply pass another statute saying that, in the case of impeachment and removal, a special election takes place, say, three months after removal or conviction under the current Constitutional framework? The current constitution creates the impeachment framework, but is largely silent on what happens after.

Also, I don't think Cheney is lying or delusional when he claims that "we" have been enormously successful in Iraq, etc. The problem, of course, is that "we" isn't the country or humanity or anything like it. Whether it's his colleagues from big business, his gang of messianic ideologues or, for example, the Saudi royal family, they have been incredibly successful in Iraq and elsewhere. War is a racket!

# posted by

Anonymous : 3:04 PM

I'm counting down the remaining 723 days of Sandy endlessly whining about Bush being President. Ok, ok, I get it: You don't like the dude. Can we talk about something else?

# posted by

Brett : 3:29 PM

In response to 'whining' we get the idea that said 'whining' is based on 'dislike' of the guy. Actually, it is based on substantive if open to dispute deep problems with the guy. Sorta different.

The fact some ... tediously ... don't get this, notwithstanding.

Re the response to my query, if that is the case, the claim made is that Bush still acted 'legally' in a constitutional sense. Given that, is that the only thing 'admitted' to that fits the constitutional test?

I don't really think so. But, if that is the reason, it's again a strawman. Is the fact something is disputed by the alleged malefactors here proof the charge is confusingly 'legalistic' or whatever?

# posted by

Joe : 4:12 PM

If the determinative issue to trigger impeachment (short of high crimes and misdemeanors) had been "fitness for office" or maladministration, I think Clinton's public statement that he "did not have sex with that woman, Ms. Lewinsky" was considerably more implicative of that definition than the alleged instance(s) of perjury in a civil case, because it was a more serious breach of the public trust than being caught in a perjury trap by a partisan prosecutor hellbent on preserving his "conservative" bona fides.

# posted by

Anonymous : 5:24 PM

Mr. Clinton's civil perjury would probably have been forgiven in short order if he had fessed up to the American people and apologized. However, this arrogant man thought he could outsmart the criminal prosecutor and perjured himself a second time before a criminal grand jury.

It is for this second felon perjury that Mr. Clinton should have been impeached, convicted and sent to prison just like several dozen others who were serving time then for "lying about sex" under oath before the federal courts. This was not a mistake, it was a premeditated and calculated felony crime.

Moreover, Mr. Clinton was serving as the nation's chief law enforcement officer, thus, had a higher, not lesser, duty to obey the law than your run of the mill civil plaintiff attempting a fraud on the court to pocket a money judgment.

Until we actually send one of our felon presidents like Nixon or Clinton to prison, future Presidents of low moral character will do the same thing confident that they are above the law. Ford's pardon of Nixon and the Senate's refusal to convict Clinton make a travesty of the idea that we are all equal under the law. In reality, the criminal law is meant for my middle class and poor clients, not for the politically connected.

# posted by

Bart DePalma : 8:48 PM

While you Dems are fantasizing about impeaching Mr. Bush for "maladministration" in our nation's war with Islamic fascism, you may want to pause and consider the foreign policy cluelessness of those of his critics who would replace him in 2008.

One questioner asked Clinton if her track record showed she could stand up to "evil men" around the world.

"The question is, we face a lot of dangers in the world and, in the gentleman's words, we face a lot of evil men and what in my background equips me to deal with evil and bad men," Clinton said. She paused to gaze while the audience interrupted with about 30 seconds of laughter and applause.

Meeting later with reporters, she was pressed repeatedly to explain what she meant. She insisted it was a simple joke.

"I thought I was funny," Clinton said. "You guys keep telling me to lighten up, be funny. I get a little funny and now I'm being psychoanalyzed."

She told reporters that evil men included al-Qaida leader Osama bin Laden, who remains at large. "Isn't it about time we get serious about that?" she said.

During the town hall meeting, she tried to make clear that she thinks she would be a chief executive with enough fortitude to confront any danger facing the country.

"I believe that a lot in my background and a lot in my public life shows the character and toughness that is required to be president," Clinton said. "It also shows that I want to get back to bringing the world around to support us again."

http://news.yahoo.com/s/ap/20070128/
ap_on_el_pr/clinton2008_13

Mrs. Clinton, being liked by other countries because you refuse to use this nation's military will not stop the next 9/11 any more than it stopped the first 9/11 and all the terrorist attacks which preceded it. One would think that the closest advisor to the previous President would have learned that lesson.

# posted by

Bart DePalma : 8:58 PM

Prof. Levinson:

My current piece in the Nation, hyperlinked in Jack's most recent posting, argues that one of the defects of the Constitution is precisely its forcing us to conduct a legalistic discussion about such matters instead of asking more cogent questions about fitness, whether based on demonstrated judgment or, as in Clinton's case, on character, to continue in office.

But I'm not sure that it does require such a "legalistic" rationale. There was a white paper floating around in the first year of Clinton's presidency claiming that impeachment was justified on whatever grounds that Congress saw fit, and that "maladministration" or incompetence was considered to be potentially such by even some of the drafters. Seeing as that was some 14 years ago, I don't have the reference (and the web wasn't quite what it was now), so I don't have a cite, but that's what the "CDS" people of the time had cooked up. But politically, such an attempt might redound less to the satisfaction of the impeachers (witness 1998, e.g.), and the early calls for Clinton's impeachment were ignored by the mainstream Republicans until they got what they thought was a "legal" peg to hang their hat on, at which time they thought they could argue that the "rule of law" demanded an impeachment, and make it look less that partisan. Of course, most people have a better sense of the "role of law" than the Republicans had of the "rule of law" (even if the Republicans cut a few legal corners to insist that there was some kind of crime by misrepresentng the state of perjury law), and their effort still failed, and would have been quite unpopular had they succeeded.

In the end, there are no rules for impeachment: It is what Congress says it is, and there's no judiciary to appeal to. The only court for such is the court of public opinion (and in the end, that was in part what saved Clinton's neck).

Perhaps we do need some better rules.

Cheers,

# posted by

Anonymous : 10:52 PM

"Bart" DePalma says:

"Sometimes overwrites?" The woman is a monument to the kind of hysterical ad hominem exaggeration used routinely by kindergraten children on the playground.

"Bart"'s an expert. ;-)

Seriously, Google "Bart" and "treason" on this blog or Greenwald's blog and you'll see what I mean.

Cheers,

# posted by

Anonymous : 10:57 PM

"Bart" DePalma says:

[Dowd]: Has anyone in the history of the United States ever been so singularly wrong and misguided about such phenomenally important events and continued to insist he’s right in the face of overwhelming evidence to the contrary?

["Bart"]: Color me underwhelmed by Dowd's "reasoned argument."

Here ya go, just for starters....

Then there's Cheney's sh*te about the Prague Atta crapola....

If there ever was anyone that ought to be drummed out of office for criminal incompetence and medaciousness, it's Cheney.

Cheers,

# posted by

Anonymous : 11:01 PM

"Bart" DePalma says:

You will notice that neither Dowd or Durbin actually address the issue of whether we have in fact enjoyed previous success in Iraq. Rather, we are simply treated to the partisan name calling which substitutes for reasoning far too often on that side of the aisle.

Oh, yeah, we've had stellar success in Iraq (despite Dubya's recent gloominess and unusual candour). Hell, they even had a name for it ... ummm, waiddaminnit, it'll come to me ... ahh ... yeah, that's it: "Catastrophic success"!

And that's why we're now forced to send anther 20K troops for more of the same....

Cheers,

# posted by

Anonymous : 11:05 PM

"Bart" DePalma just doesn't pay attention:

Mr. Clinton's civil perjury would probably have been forgiven in short order if he had fessed up to the American people and apologized. However, this arrogant man thought he could outsmart the criminal prosecutor and perjured himself a second time before a criminal grand jury.

It is for this second felon perjury that Mr. Clinton should have been impeached, convicted and sent to prison just like several dozen others who were serving time then for "lying about sex" under oath before the federal courts. This was not a mistake, it was a premeditated and calculated felony crime.

The second "perjury" article didn't even get the Republicans to sign on; it failed in the House.

I'd note that "Bart" here, after complaining so long and so mightily about the "ad hominem" of Dowd and the lack of specifics, slings around the "perjury! perjury!" cowflop with nary a supporting argument (and even against the weight of undisuted events such as the failure of even the impeachment on the second "perjury" article). Do I hear some hypocrisy?

Moreover, Mr. Clinton was serving as the nation's chief law enforcement officer, thus, had a higher, not lesser, duty to obey the law than your run of the mill civil plaintiff attempting a fraud on the court to pocket a money judgment.

Yeah, that was the Republican "story line" at the time, JIC they didn't have enough to convict "by the rules". Of course, for Dubya, he's instead given a pass by "Bart" for ignoring the law.... IOKIYAR, you know.

In reality, the criminal law is meant for my middle class and poor clients, not for the politically connected.

Methinks "Bart"'s making excuses for failure. Hey, "Bart", if it's the high roller drunks that get the breaks, you ought to try get some of them to defend. Might even get paid some more (if you start winning, that is).

"Bart" inhabits a different reality:

Mrs. Clinton, being liked by other countries because you refuse to use this nation's military will not stop the next 9/11 any more than it stopped the first 9/11...

A). Clinton voted for the AUMFs.

B). Dubya was preznit on September 11th, 2001.

Cheers,

# posted by

Anonymous : 11:23 PM

As one female former member of Congress in office during the Nixon Watergate scandal stated on a Democracy Now! broadcast about a month ago (I'm sorry I can't recall her name presently), impeachment is essentially a political action, not a legal one. Congress, as she saw it, is entitled to impeach a president (or VP) for whatever reason it deems warranted. If the public is behind it (as about half of the American people would be now in favor of impeachment of Bush and Cheney as per polls), the case is so much stronger and more politically tenable.

For a take on a Cheney in a more humorous vein, I recommend this recent clip of Jon Stewart from Comedy Central's The Daily Show.

# posted by

Terry Hildebrand : 11:49 PM

Arne is basically describing the "Gerald Ford" position re the proposed impeachment of William O. Douglas, that an impeachable offense is whatever Congress says it is (including wearing the wrong-colored tie with one's suit, presumably). That didn't fly in 1971; moreover, for better and, possibly, for worse, every defender of Clinton emphasized that it took a genuine "high crime and misdemeanor" to bounce a president, and there was learned discussion whether perjury in a private law suit counted.

Had Andrew Ross not been what JFK called a "profile in courage" and instead voted to convict the egregious Andrew Johnson, then we might have established a sensible procedure for getting rid of an incompetent president. But, alas, he didn't, and instead future generations of Americans were taught that it would have been a terrible thing if Johnson had been the "victim" of a "politically motivated" impeachment.

Given my general position on constitutional interpretation, I certainly don't want to argue, as a theoretical matter, that the Impeachment Clause might not be open to the latitudinarian interpretations suggested by some of the contributors to this thread. However, pragmatically, they undoubtedly strike most neutral observers, assuming there are such things, as either "off the wall" or simply politically driven examples of Bush hatred. Ironically, it Bill Clinton and his 1998 defenders, at least indirectly, have made it next to impossible to make what appears to be a "disinterested" argument in favor of Bush's impeachment.

# posted by

Sandy Levinson : 12:39 AM

An interesting link via TPM on the pernicious secrecy of Dick Cheney.

# posted by

Anonymous : 2:57 AM

Yeah, Joe, I do get it: Sandy so dislikes Bush, that he regards the fact that the Constitution allows him to remain in office until the next Presidential election as a constitutional crisis. And never mind that Congress already has the power to remove him any time they actually develop a consensus in favor of doing so.

I'm just saying, I'm looking forward to when Bush leaves office, at which point I expect Sandy will find other things to talk about again. If he was talking like this after '94, or continues in this vein after 2008, I will conceed that it's not just about Bush. It would still be repetative, though.

If he wants this to go someplace, he's really go to make a case that's separate from his obvious feelings concerning Bush.

Re: Clinton and his perjury. The key point concerning his perjury, and the subsequent well orchestrated efforts by his administration to obstruct justice, is not that he lied in court to defeat the application of a law he himself signed with some pomp.

It's that the revealed, almost successful, efforts to obstruct justice threw all the OTHER scandals into a new light, raising the reasonable suspicion that at least some were merely cases where the Clinton justice obstruction machine was marginally more successful.

It would have been a different matter in an administration without so many serious scandals that just petered out into fled witnesses and missing evidence...

# posted by

Brett : 7:23 AM

Sandy: You say that we are ill served by our present Constitution. I would say instead that we are ill served by the governmental structure we now have, that has developed partly from the original Constitution, but not entirely. The important point is that we cannot solve our problems by changing the Constitution: we must first change the governmental structure. The Consitution follows, it does not precede, such changes. For more visit by blog.

GYL

# posted by

Anonymous : 2:19 PM

Brett:

Re: Clinton and his perjury. The key point concerning his perjury, and the subsequent well orchestrated efforts by his administration to obstruct justice, is not that he lied in court to defeat the application of a law he himself signed with some pomp.

Another RW "echo chamber" lie. Let me say it plain: That's a lie. A canard. A misstatement of truth. There is no such law that was "applica[ble]" to the Jones testimony that Clinton signed that he was trying to defeat.

Cheers,

# posted by

Anonymous : 3:39 PM

Prof. Levinson:

Arne is basically describing the "Gerald Ford" position re the proposed impeachment of William O. Douglas, that an impeachable offense is whatever Congress says it is (including wearing the wrong-colored tie with one's suit, presumably). That didn't fly in 1971; moreover, for better and, possibly, for worse, every defender of Clinton emphasized that it took a genuine "high crime and misdemeanor" to bounce a president, and there was learned discussion whether perjury in a private law suit counted.

Not exactly. I was just pointing out the realities of the law (or absence thereof) WRT the threshold and/or necessary conditions for impeachment and conviction. I think I also pointed out that various political and pragmatic considerations do impose constraints on what the practical threshold is for impeachment. Just as the Supreme Court can rule entirely contrary to any reasonable interpretation of law and can't be gainsaid, so may Congress in impeachment. The remedy lies elsewhere. Congress and the courts are composed of people with (hopefully) their own conscience to go home to at night (although Dubya v. Gore becomes hard to explain under such an assumption), and political realities make any drastic deviations unlikely in that the consequences may not be worth the result.

In fact, the whole Constitution is based on the presumption (pretty much good, but sometimes suspect) that it will be implemented by people of good will. I pointed out in ConLaw class that the president is quite capable of making his own interpretation of the Constitution and acting on his, rather than the court's, view. Prof. Choper allowed that fact, but said that it was rather a subject for a different class (I suspect perhaps PoliSci) and moved on....

What happens when people stray too much from our (pretty much) "common understanding" is in fact beyond the scope of legal interpretation and theory and must be addressed through other mechanisms (Thomas Jefferson's off-the-cuff remarks come to mind)....

Cheers,

# posted by

Anonymous : 3:53 PM

I actually agree with almost everything that Arne wrote in his last post. The question is not what "the Constitution means" in some completely abstract semantic sense, but, rather, what is "warrentedly assertible," as a pragmatic reality, in our present legal culture. If 80% of the public agreed that Bush is a "disaster," and if Republicans saw him as the equivalent of Herbert Hoover in terms of their electoral future, then we might have the conditions for either rigorous enforcement of arguably "criminal" conduct or acceptance of the proposition that gross maladministration is sufficient. But we aren't close to that situation yet, as I presume is generally agreed to be the case.

# posted by

Sandy Levinson : 4:02 PM

brett:

It's that the revealed, almost successful, efforts to obstruct justice threw all the OTHER scandals into a new light, raising the reasonable suspicion that at least some were merely cases where the Clinton justice obstruction machine was marginally more successful.

Oh, I dunno. I suspect that when the truth comes out about the 57 people that Clinton had murdered, we'll all rue the day we didn't string him up on a lamp-post right there and then, eh?

Just a reminder: That the Republicans chose to impeach Clinton on a legally untenable "perjury/OOJ" charge after six years and $60M of our tax money is just a sign that there was no "there' there, and that the best the Republicans could hope for was to drive Clinton out (or his popularity) down with a sex scandal done using the enormous power of the U.S. gummint to go sniffing panties. They thought, hell, sex scandals sell, but they were wrong....

Busted. Starr wrapped up all the alleged scandals except the Lewinsky manufactured scandal with not so much as a howjadoo, and hoped that the Lewinsky stuff would distract the people from his failure in all the other areas to find a single thing of note.

Cheers,

# posted by

Anonymous : 4:03 PM

# posted by

Sandy Levinson : 4:03 PM

Prof. Levinson:

I think we're on the same page. Can we shoot for 70% with only slight loss of "legitimacy"? ;-)

Cheers,

# posted by

Anonymous : 4:25 PM

I said:

What happens when people stray too much from our (pretty much) "common understanding" is in fact beyond the scope of legal interpretation and theory and must be addressed through other mechanisms...

Another somewhat off-topic comment here: In fact, in the end, our present theories of legal interpretation are hardly codified into law, and such "traditional" ideas as "plain language", "original intent", and even "stare decisis" are just (more or less) commonly held notions of how best to run an orderly gummint. They are practical tools and constraints, and as such subject to revision and replacement should alternitive views take the upper hand (as, IIRC, Bork had insinuated ... he was correct in a theoretical sense; his downfall is that people thought his ideas ridiculous....).

Cheers,

# posted by

Anonymous : 4:36 PM

Arne, just to be clear, are you asserting that Clinton didn't sign a law declaring past sexual conduct to be relevant in sexual harrasment cases, or are you merely claiming that it didn't apply to his own case?

In any event, I'm scarcely going to defend Republican behavior during the impeachment. They never should have begun the process if they were so dirty that they could be blackmailed into taking a dive that way.

# posted by

Brett : 5:12 PM

"Brett" has drunk the Kool-Aid:

Arne, just to be clear, are you asserting that Clinton didn't sign a law declaring past sexual conduct to be relevant in sexual harrasment cases, or are you merely claiming that it didn't apply to his own case?

Sadly, enough, even Wikipedia got freeped:

"Irony of Rule 415

"Part of the trial consisted of the introduction of evidence surrounding Monica Lewinsky. Historically, evidence of prior sexual offenses was not admissible in Civil Court. However, Federal Rules of Evidence, Rule 415, allowed evidence 'of similar acts of sexual harassment and eschewal in civil cases concerning sexual assault or child molestation.' Thus, the evidence regarding Ms. Lewinsky was admissible. The irony is that it was President Clinton who signed FRE 415 into law in 1994, as part of the 'Violent Crime Control and Law Enforcement Act.'"

This is simply not true. The Federal Rules generally prohibit introduction of evidence of other crimes to prove behaviour "in conformity therewith" (see FRE Rule 404(b)). This changed in 1995. The 1995 amendments added Rule 415, which provides:

"(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules."

"[S]exual assault" and "child molestation" are defined in the FRE Rules 413 and 414.

Neither of these cases applied to Clinton's conduct with Lewinsky here, and the RW foamer brigades were just trying to blow smoke in making such a claim. In addition, there was no claim of criminal sexual assault made by Paula Jones as a predicate for her civil claim.

In any event, I'm scarcely going to defend Republican behavior during the impeachment. They never should have begun the process if they were so dirty that they could be blackmailed into taking a dive that way.

The Republicans were "blackmailed" into "takng a dive"?!?!? OIC. "Brett" is waaaaayyyy out in Freeperville/ClownHall terririty.... Nevermind.

Cheers,

# posted by

Anonymous : 6:29 PM

At this point, Arne, I have to observe that you're being willfully blind.

White House Aide George Stephanopoulos going public with the Ellen Romesch strategy.

Larry Flynt publicly asking for dirt on Republican leaders.

Livingston being taken out by dirt being revealed about him, and the subsequent change in Republican leadership impeachment strategy.

You might not want to connect the dots, but I've got no reason to avoid drawing the obvious conclusion.

BTW, thanks for the legal clarification. Clinton may have committed perjury, but evidently it wasn't ironic perjury.

# posted by

Brett : 8:10 PM

Brett:

At this point, Arne, I have to observe that you're being willfully blind.

White House Aide George Stephanopoulos going public with the Ellen Romesch strategy.

Larry Flynt publicly asking for dirt on Republican leaders.

Livingston being taken out by dirt being revealed about him, and the subsequent change in Republican leadership impeachment strategy.

You might not want to connect the dots, but I've got no reason to avoid drawing the obvious conclusion.

What "obvious conclusion"? That every Republican with the exception of a few that still had a shred of cnscience left voted for impeachment and conviction? That, as far as we know, none of those voting against conviction were hypocritical adulterers (if not worse)? If it was "blackmail" (which it wasn't), it sure didn't work....

Say, are you admitting here that the Republican impeachment was a crock? Thank goodness for small favours....

As for Livingston (and Gingrich), kind of hard to "blackmail" somebody for something they didn't do.... But it is easy to point out that they're partisan hypocrites. You know, like "Bastard" Burton, "Homewrecker" Hyde, "Lashes" Livingston, "Whipped-cream Boobies" Barr, "Knobby" Newt, etc.... Hell, we could make a TV series out of the exploits of the Republican party rather than the one-night made-for-TV movie about Clinton....

BTW, thanks for the legal clarification. Clinton may have committed perjury, but evidently it wasn't ironic perjury.

Thanks for the admission you're a Kool-Aid drinker. Rather than someone who bothers to read plain English and check out whther what they're saying makes any sense. You know, someone who repeats clap-trap they're told as truth (because it fits their preconceived notions) without bothering to check out if it is in fact even plausibly true ... particularly when the actual law is only a Google away. Your apology is accepted ... oh, wait....

Cheers,

# posted by

Anonymous : 8:46 PM

Correction. I said:

Beg pardon to disagree with you, but "common-sense" definition doesn't count. It's the legal definition that counts if you want to take legal action, and it's not in the least obvious that any alleged lies were "material" (in the Kungys sense), not to mention perjury requres the affiant to believe that what he's saying is false (rather than just being misleading or evasive; see Beckstrom).

"Beckstrom" should have been "Bronston". More specifically, Bronston stands for the proposition that it is not the legal duty of the person testifying to answer "the truth, the whole truth, and nothing but the truth." That's ingrained in people's minds through "telly law", but from a legal perspective, there is no such duty. Bronston says that it is the responsibility of the questioner to refine the questions if they are not sure what the answers mean; the person answering need only make true statements (or more specifically, satatements they believe to be true ... even if misleading or evasive), and they don't have to help the questioner out if the questioner is confused or muddle-headed.

This applies most famously to the Clinton statement: "it depends on what the meaning of 'is' is." Here, in fact, Clinton was helping the questioners rather than being misleading; he could have answered truthfully that there "is" no relationship ... as by that time whatever relationship he'd had with Lewinsky was over. That would have been a legally permissible answer, and the ineptness of the questioners might have gone unnoted. Instead, Clinton clued them in to the fact they were very confused abotu verb tense. Yet Clinton got pilloried for that, rather than the bumbling Republicans.

Cheers,

# posted by

Anonymous : 9:02 PM

"As for Livingston (and Gingrich), kind of hard to "blackmail" somebody for something they didn't do...."

On that point, I couldn't agree more.

# posted by

Brett : 6:56 AM

Brett said:

[Arne]: "As for Livingston (and Gingrich), kind of hard to "blackmail" somebody for something they didn't do...."

On that point, I couldn't agree more.

So, Dr. Watson, what do you make of the dog's barking?

On a less poetic note, I'm rather mystified at Gingrich's and Livingston's actions. Did they really think that resigning themselves would make it more palatable to impeach Clinton? If so, brave of them to take a bullet (which may have been inevitable anyway), but neither of them actually was particularly contrite about their supposed lapses, and why they thought that showing themselves to be hypocrites and sleazebags ought to justify sacking a president for political reasons is somewhat beyond me (a bit of a reverse tu quoque, a "me too" type argument, which really doesn't even have the power of the fallacious "you too"). No one forced them out of office; no one demanded they step down -- why they thought that by voluntarily stepping down themselves for their own failures, they had a right to demand that others involuntarily do the same is a mystery. They misjudged the public, who didn't see it that way, but instead just saw them as the hypocrites they were.

Cheers,

# posted by

Anonymous : 11:14 AM

Frankly, at this point we're just hijacking the thread. Suffice to say that dropping the topic doesn't mean I think you're not in denial about what was really going on. If you want to argue further, email me.

# posted by

Brett : 7:38 PM

Has anyone in the history of the United States ever been so singularly wrong and misguided about such phenomenally important events and continued to insist he’s right in the face of overwhelming evidence to the contrary?

Jefferson Davis beats Cheney hands down.

# posted by

Anonymous : 11:09 PM