Balkinization: The Constitutional Crisis Within

The Constitutional Crisis Within

Marty Lederman

After the White House Counsel and Chief of Staff had tried to shake down the sedated and ailing Attorney General in his hospital bed.

After those two officials did not so much as acknowledge the presence of the Acting Attorney General and the head of OLC, standing there in the hospital room.

After the President nevertheless overruled the AG and Acting AG and decided to plunge ahead with an unlawful program on the mere say-so of the Vice President's unorthodox view of the Constitution.

After all that -- what might the mood have been in the halls of the Justice Department, among the very conservative Bush loyalists who had just been railroaded because they had insisted upon some fidelity to the Rule of Law?

Solemn. And stunned. And prepared to do something virtually unprecedented in our Nation's history -- something that would make the Saturday Night Massacre seem like a tea party.

According to a new article by Michael Isikoff and Evan Thomas (which nicely summarizes all that we've learned so far):

"This was a showdown," says a former senior Justice Department official who was there. "Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were." A different source estimated that as many as 30 top DOJ officials would have resigned.

And remember: These were anything but civil libertarians or closet Democrats. They are not officials who were standing on ceremony. They were officials zealously devoted to the prosecution of the war against Al Qaeda, and willing to stretch the law quite considerably to give the President the tools he thought he needed: "This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line." (On the constitutional question of whether it's acceptable to even go "up to the line," see here.) To their great credit, these officials insisted that the line not be crossed -- and in order to make sure that it wasn't, they were willing to take a stand by doing something that would have not only blown the lid on the President's secret surveillance program, but that likely would have precipiated a constitutional crisis, and threatened the Bush Presidency itself, in the middle of an armed conflict when the public had no inkling whatsoever that any of this was occurring.

Is there anything remotely like it in U.S. history?

This is not your everyday occurrence. As I've been trying to emphasize, this internal DOJ showdown -- and, more broadly, the role of the Vice President's office in pushing a constitutional vision so extreme that the entire upper echelon of the Ashcroft Justice Department was ready to resign over it -- is a very big deal, what you might fairly call a huge story.

Indeed, other than the tragedy of Iraq (which, not coincidentally, is also the result of the President permitting the government to be controlled by a small coterie of like-minded extremists who were committed to ignoring all professional and expert perspectives inconsistent with their world view), this is probably the most important story of Bush Administration.

And there is a ton of information that we do not yet know about this story. Yet there appears to be very little interest in the story from the mainstream press. In part, this is a result of the fact that there is far, far too much focus on Alberto Gonzales in current press and congressional investigations. Just as he was merely a rubber stamp for Rove, et al. in the U.S. Attorney and related scandals, so, too, in these much more significant constitutional crises, he is "merely" an apparatchik, a hired gun of sorts. The real action here has always been in the Vice President's Office -- and on the intrigung question of why the President has repeatedly allowed the Vice President's idiosyncratic views to determine state policy -- and that's where the smoke and fire will be if and when the media and Congress ever get to the bottom of it.

Posted 1:50 PM by Marty Lederman [link]

Comments:

Your link to Newsweek goes to an unrelated Sports article.

# posted by

humblelawstudent : 2:49 PM

Of course it was a crisis. Nearly every course of action and inaction by this Administration has been critical, from Katrina's inaction to the Iraqi Invasion and occupation. Something, somewhere suggests we've been so inundated with crisis after crisis, lawlessness after lawlessness, inertia after inertia, we just shrug, and ask, "so?" "American Idol is on."

# posted by

Anonymous : 3:18 PM

Until now I have generally agreed with Sandy's position that impeachment is not a good move for this administration's faults, but at this point impeachment is needed to make it clear to this president and future presidents that there are limits on his behavior.

gyl

# posted by

Gary Y Larsen : 3:33 PM

Well, the problem with impeaching the Vice President is that he would preside over his own trial in the Senate!

# posted by

Marty Lederman : 3:40 PM

Kudos for pointing out how unusual all this was (amazing that it's necessary to do so).

That said, don't you think that Comey, Mueller, et al have gotten too much (way too much, imho) credit for just threatening to resign? Basically, they lost this fight: as you note, the president disregarded their--i.e., the conventional-- interpretation of the law, siding with Gonzales and Card. And that happened even after the stink that Comey made.

How is it courageous for him--and anyone else of authority at DOJ--to stay on under these conditions?

It's true that their concerns appear to have been assuaged. But my understanding is that that didn't happen for at least a couple weeks. So what were they doing sticking it out?

From what I can tell, Comey was courageous when his temper ran hot and backed down after he had time to think it over.

Am I missing something?

# posted by

Jonah B. Gelbach : 3:55 PM

"Well, the problem with impeaching the Vice President is that he would preside over his own trial in the Senate!

"# posted by Marty Lederman : 3:40 PM"

Though he wouldn't notice it, we should recognize that that would be a conflict of interest. He would be required to recuse himself.

Otherwise: the serial constitutional crises began when the SC intervened in the 2000 election to stop the counting of votes before Bushit lost his inconsequential lead, and usurped the exclusive authority of _CONGRESS_ to resolve election disputes.

See for precedent the election "tie" between Jefferson and Burr.

# posted by

JNagarya : 4:00 PM

I think it's apparent that the need for a constitutional amendment that would provide a legal basis for an impeachment based on maladministration is no longer necessary for Articles of Impeachment to be offered against Bush and Cheney. There is now a cognizable claim that they have indeed committed "high crimes and misdemeanors."

# posted by

Rich : 5:34 PM

...and on the intrigung question of why the President has repeatedly allowed the Vice President's idiosyncratic views to determine state policy

Because the sovereign reigns but does not rule...

# posted by

Davis X. Machina : 5:52 PM

The DeLay-led Rethuglicans of 1998 cheapened impeachment by using their House majority to vote Articles of Impeachment based on unsubstantial allegations, just because they could. The impeachment of President Clinton was rightly seen as an attempt by the party that had lost two elections to unseat a chief executive whom they could not defeat at the ballot box. That charade showed that a frivolous impeachment is harmful to the country and left a bad taste in the mouth. [Pun fully intended]

The unfortunate upshot of that blowjob brouhaha is that the public does not now regard impeachment as anything other than a partisan sideshow.

Article I, § 3 of the Constitution states that "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[.]" Impeachment therefore does not become moot when the impeached official leaves office at the expiration of his term--he may still be disqualified from holding office in the future.

If the next Congress has the necessary testicular fortitude, it should consider whether Bush and/or Cheney should be impeached, and tried in 2009, under circumstances where a disgruntled party is not merely trying to circumvent the election results.

# posted by

John in Nashville : 6:11 PM

In the case of an impeachment trial in the Senate, wouldn't Robert Byrd as president pro tempore preside?

# posted by

Janie : 6:34 PM

"based on unsubstantial allegations,"

Sheesh. I've heard people claim that the charges didn't rise to the level of an impeachable offense, but this is the first time I've heard somebody claim that they were "unsubtantial allegations".

# posted by

Brett : 8:14 PM

Marty,
Why would Cheney preside over his own trial? Wouldn't that be a conflict of interest? Also, during a Presidential impeachment, doesn't the Chief Justice of the Supreme Court preside? Why wouldn't Roberts preside over Cheney's trial?

# posted by

Jimmy the Saint : 9:34 PM

The problem is that an impeachment would drag out too long. By the time it got to the Senate, we'd be into 2009. And then Republicans would run on a strategy that Democrats are just playing politics (right or wrong, Dems shouldn't play into this argument).

Dems need to concentrate on a veto-proof majority in Congress, and getting someone at the top not afraid of cleaning up.

# posted by

Fred : 9:36 PM

My fellow Balkinization blogger Michael Stokes Paulsen, for a book that Bill Eskridge and I co-edited, Constitutional Stupidities, Constitutional Tragedies (NYU Press, 1998), picked the presumptive fact that the VP would preside over his own impeachment trial as the stupidest feature of the Constitution. Yes, there is an obvious conflict of interest, but the Constitution seems clear that the VP is indeed President of the Senate and its says nothing about a recusal should he be the person being impeached. And, after all, the President of the Senate presides over the Electoral College vote count, which meant that Richard Nixon presided in 1961 and Al Gore in 2001. Even more to the point, Bruce Ackerman argues, with good evidence, that Thomas Jefferson played somewhat fast and loose with the Georgia electoral vote, which arguably had failed to follow some legal technicalities in registering the actual vote, in 1801, probably the most important election in our history inasmuch as it is the first time in the US (and, for that matter, in the entire world) that an opposition party peacefully displaced the ruling elites following an election.

Dick Cheney is quite literally shameless (as well as shameful), and there is no reason to believe that he would do the honorable thing and recuse himself, especially if, as suggested in an earlier posting, the trial would be presided over by Robert Byrd, the current President pro Tem of the Senate. Dare I say that this is just another deficiency of the Constitution?

# posted by

Sandy Levinson : 10:21 PM

"Dick Cheney is quite literally shameless (as well as shameful), and there is no reason to believe that he would do the honorable thing and recuse himself, especially if, as suggested in an earlier posting, the trial would be presided over by Robert Byrd, the current President pro Tem of the Senate. Dare I say that this is just another deficiency of the Constitution?"

That is all the more reason to defer any Senate trial of an impeachment until 2009. As my earlier post indicated, the controversy would not be moot because Cheney (or Bush, or Gonzales, who is also subject to impeachment) can still be disqualified from holding office in the future. Moreover, delaying investigation by the House until Gonzales leaves his present position would have the salutary effect of eliminating the possibility of Gonzales stonewalling the investigation. His successor would have litlle motive (or at most a lesser motive) to stonewall.

# posted by

John in Nashville : 10:54 PM

JNagarya,

Just as a point of clarification: Jefferson and Burr was a tie over electoral votes and the constitutional path was clear--the House was to resolve the matter.

Bush/Gore was a conflict a step before that: a conflict over who would win the electoral votes in Florida.

I bring this up not to start any kind of fight about 2000 one way or another, but to note the difference with the Jefferson/Bush situation.

# posted by

Steven Taylor : 11:42 PM

Ackerman's argument is that it was bsolutely crucial to count Georgia's electoral votes for Jefferson-Burr, because otherwise there would be no candidates who had received a majority of the electoral vote, and the House would therefore have been able to choose the next president from among the top FIVE candidates. By counting Georgia's votes, Jefferson and Burr both achieved majority status, so that the House was forced to choose only between them. Ackerman makes a good argument that Charles Coatesworth Pinckney, Adams'partner on the Federalist ticket, might have emerged as the winner if the House (which, recall, was a lame-duck Federalist outfit) had been able to choose among the top five. In any event, that possibility was foreclosed because of what Ackerman describes as Jefferson's self-interested ruling as to the validity of the Georgia documents.

# posted by

Sandy Levinson : 11:56 PM

The House votes to impeach. The Senate becomes the jury at the trial presided over by the Chief Justice.

# posted by

Claessens1 : 11:59 PM

The House votes to impeach. The Senate becomes the jury at the trial presided over by the Chief Justice.

That's for the trial of the President. The Constitution is silent regarding who is to preside over the Senate when the VP is tried.

Ackerman's argument is that it was bsolutely crucial to count Georgia's electoral votes for Jefferson-Burr, because otherwise there would be no candidates who had received a majority of the electoral vote, and the House would therefore have been able to choose the next president from among the top FIVE candidates.

For those interested, Ackerman's discussion of the issue can be found here.

# posted by

Mark Field : 12:31 AM

vdcqoau"Just as a point of clarification: Jefferson and Burr was a tie over electoral votes and the constitutional path was clear--the House was to resolve the matter.

"Bush/Gore was a conflict a step before that: a conflict over who would win the electoral votes in Florida.

"I bring this up not to start any kind of fight about 2000 one way or another, but to note the difference with the Jefferson/Bush situation.

"# posted by Steven Taylor : 11:42 PM"

All well and good. The constitutional path was equally clear: the Congress has sole authority to decide the issue.

Who won the electoral votes in FL was deliberately obfuscated, only in part by Bushit's rush to the SC (after being first to FL courts, and Fed. Dist. Ct.; so we know to whom his theory of "tort reform" doesn't apply). Were he the actual winner, and he were certain of it, the Repbulican-controlled Congress would have found in his favor.

A finer point: the so-called "drop dead date" was a fiction, a lie, for at least two reasons: Nixon won in HI, and that slate was sent to Congress; JFK requested recounts, and it swung it the other way, and that slate was sent to Congress. Congress accepted that slate without problem. Nixon then said publicly he wouldn't contest the election, but he actually did, in some 16 states, up to 1/20/61.

In 2000, several western states submitted their slates to Congress after the so-called "drop dead date" -- and those slates were accepted without question.

Most disturbing to me, after the fact, was the academic exercise over the issue -- law professors publicly debating the merits of _Bush v. Gore_, instead of penetrating that lawless smokescreen and going directly to the Constitution on the point. Ego and public notice over rule of law.

# posted by

JNagarya : 4:10 AM

"That's for the trial of the President. The Constitution is silent regarding who is to preside over the Senate when the VP is tried.

"# posted by Mark Field : 12:31 AM"

What are the precedents for other characters -- uh, I mean, for civil [even if they weren't quite]officers other than the president?

# posted by

JNagarya : 4:14 AM

What are the precedents for other characters -- uh, I mean, for civil [even if they weren't quite]officers other than the president?

I don't know about all the other impeachments, but I do know that VP Aaron Burr presided over the trial of Samuel Chase.

# posted by

Mark Field : 1:41 PM

The case of "Nixon v. U.S." (no not that Nixon) held impeachments as purely a political question, not for the courts to intervene.

Three justices, including Bill Richardson's ideal justice (per one of the Democratic "debates") Byron White, thought basic due process rules did apply. Thus, there could be some scenario where removal by the Senate was a violation and judicial review appropriate.

John Orth in his book on due process (blurb from one Sandy Levinson on back) noted that trying one's own case was a basic violation of due process from time immemorial.

Yes, only the President is mentioned. But, the Due Process Clause came later. And, I think it a violation of due process for the v.p. to preside over his/her own trial.

Any text beforehand cannot be interpreted to override later amendments. One cannot be enslaved to help try impeachments etc. or have no redress since the Senate has "sole" power over them. etc.

This is an unnecessary "stupidity" , I think. Of course, Cheney or anyone can simply ignore such things. He supports torture after all. But, that doesn't make it constitutional, necessarily.

# posted by

Joe : 2:28 PM

I think a decent argument can be made that you don't even need the 5A to do this.

Many thought it wasn't necessary, since the federal gov't was one of limited powers, including being required to follow things like due process, which was not limited to criminal trials.

The argument made is the special designation for the President suggests the VP is different. But, this is not necessarily so. It could have been used as a means of particular security ... after all in cases of the President, the V.P. would arguably still preside, so it wasn't the person himself trying his own case.

But, the VP was pretty closely united, so this would be problematic. Likewise, the Chief Justice would supply special neutrality to the whole affair, particularly important given the office involved.

Also, the VP was seen as a specials sort of legislative officer too (Jefferson saw himself as such). I doubt normal practice was for legislative officers to preside over their own trials.

[And, originally, the v.p. was seen as separate from the President in various ways, John Calhoun suggesting the independent v.p. was still around in some fashion in the 19th century as well. See also the 12A. So, clarification seemed useful.]

There are unsaid assumptions in the Constitution, even if they require a bit of interpretation of a rough sort to apply.

I think this one such case. See also McCulloch v. Maryland ... this is a constitution we are expounding, a brief document for which every specific application will not be expressly spelled out.

Someone might have evidence that says otherwise, but I think many framers expected this was one such case ... the idea that the v.p. would preside over his own impeachment would be so ridiculous (and improper) that they didn't have to spell it out.

But, I think the 5A cements the deal ... even if not judicially enforceable [who would have standing?], the Senate has an obligation to follow its precepts, including by not allowing the vp to try his own case since said authority is lacking.

# posted by

Joe : 3:03 PM

At least similar is the question whether a person could constitutionally pardon him- or herself. I recall in the last year or so seeing in passing a case in a southern state in which a governor, being investigated for corruption via his subordinates, pardoning not only them but also themselves. I've not seen anything subsequent re. the outcome.

In view of the conception of the pardon power being absolute -- irreversible by either of the other branches -- could a president pardon himself? If so, why did Nixon (who arguably had a greater knowledge of, and even respect for, rule of law than does Bushit) not do so?

Would it be Constitutional for Bushit to pardon himself (or even Cheney)? I think not, but then I often make the mistake of substituting ethical requirements for the "nicities" of law. :]

# posted by

JNagarya : 7:37 PM

Yet there appears to be very little interest in the story from the mainstream press

the c.c.c.p. (complicit coprorate controlled press) took over long ago

# posted by

tofubo : 10:07 PM