Balkinization  

Tuesday, May 01, 2007

"In the name of God, go" continued.

Sandy Levinson

For some reason, I am on the email list of Richard Viguerie, a leading movement conservatives. As you can imagine, I was especially interested in his most recent missive. It suggests, among other things, that there exist a rising number of conservatives who realize that George W. Bush is not at all a "conservative" in any traditional (and what other sense is there for a conservative?) sense:

Richard Viguerie on Alberto Gonzales: “Resign or be Impeached—and
Republicans Must Take the Lead”

“If Attorney General Alberto Gonzales continues to refuse to resign, it’s time for Congress to impeach him—and Republicans must take the lead,” says conservative activist Richard A. Viguerie.

As the man who pioneered political direct mail, Viguerie has been called “the Funding Father” of the conservative movement. He is the author of Conservatives Betrayed: How George W. Bush and Other Big Government Republicans Hijacked the Conservative Cause (Bonus Books, 2006).

“No other choice is available,” says Viguerie. “Gonzales has refused to resign so far, despite demands from Republican Senators and Representatives that he do so. And President Bush has erected a wall around the White House, shutting out reality, giving his long-time political crony unconditional support. If his boss won’t fire
him, and Gonzales refuses to leave voluntarily, he must be made to leave
involuntarily.”

“And the Republicans in Congress must take that next step,” Viguerie adds. “President Bush already is a lame duck with the lowest public support since Richard Nixon, so in a sense he has nothing more to lose. What should scare Republicans, however, is that once again Bush seems willing to bring the entire Republican Party to destruction with him. The Republicans have already lost the House and the Senate. If they want to have any chance of retaining the White House or making gains in Congress in 2008, they must break decisively with this politically suicidal president.”

Impeachment of a Cabinet member is authorized by the Constitution. Charges of impeachment must be passed in the House, and then the official is tried by the Senate. A president cannot grant a reprieve or pardon for impeachment. If impeached, the official is removed from office and is disqualified to hold and enjoy any other federal office.

Grounds for impeachment, under Article 2, Section 4 of the Constitution, are “treason, bribery, or other high crimes and misdemeanors.” (“Misdemeanors” is a constitutional term that does not have the current meaning of an offense less serious than a felony, according to the American Bar Association.) What constitutes impeachable “high crimes”? Dean John D. Feerick of Fordham University School of Law, in an article published in 1984, said:

“Most authorities agree—and the precedents are in accord—that an impeachable offense is not limited to conduct which is indictable. Conduct that undermines the integrity of a public office or is in disregard of constitutional duties or involves abuse of power is generally regarded as grounds for impeachment. Since impeachment is a
drastic sanction, the misconduct must be substantial and serious.”

[Levinson's insertion: Unfortunately, Dean Ferrick's argument might have been rendered "inoperative" as a result of the successful attempt of Bill Clinton's supporters to argue that nothing he did, whether lying to his Cabinet and procuring their help in covering up his misconduct by vouching for him, or giving arguably perjurious responses to depositions or the grand jury, constituted the kind of "high kind and misdemeanor" justifying impeachment. "Saving Clinton" from the Republicans (and, therefore, not getting Al Gore as the incumbent President running for re-election might have truly been a Pyrrhic victory, and not only in terms of short run party advantage).]

“Gonzales’s misconduct certainly meets those standards,” says Viguerie. “I stand with my colleagues in the American Freedom Agenda [a new conservative civil liberties organization, see www.americanfreedomagenda.org] when we declared:


♦ “Mr. Gonzales has presided over an unprecedented crippling of the
Constitution’s time-honored checks and balances.


♦ “He has brought the rule of law into disrepute, and debased honesty as the
coin of the realm.


♦ “He has engendered the suspicion that partisan politics trumps evenhanded law
enforcement in the Department of Justice.


♦ “He has embraced legal theories that could be employed by a successor to
obliterate the conservative philosophy of individual liberty and limited
government celebrated by the Founding Fathers.


♦ “In short, Attorney General Gonzales has proven an unsuitable steward of the
law…”

Viguerie specifically warned Republicans: “Don’t expect
much cooperation from Democrats in your call for the impeachment of
Gonzales. He serves a useful purpose for them politically, and they don’t
want him out of office no matter how much they complain publicly. They want
him to remain as Attorney General as a shining example of Republican
incompetence and corruption, so they can use him as a campaign issues that keeps
on giving to the Democrats. No, it is the Republicans who need to have Gonzales removed, and it is the Republicans who must take the lead in kicking him out.”

In a final note, Viguerie added: “In his testimony before the Senate last week, he said he ‘could not remember’ deeds or actions more than 70 times, including many recent events. This strains everyone’s credulity except the president’s. If nothing else, he should be removed from office for Memory Deficit Disorder. You cannot run a Justice Department with well over 100,000 employees when your mind supposedly is that
blank.”



Comments:

George Will, this past Sunday on "This Week", compared Bush to Herbert Hoover in the likely damage he is doing to the Republican party . . . suggesting that as Hoover was blamed for not responding to the Great Depression,leaving the Republicans in the political wilderness for more than a generation, and so too with George W. Bush . . . it is conceivable that he will tarnish the reputation of the Republicans for a generation or more. So it seems Vigurie is not alone among conservatives.

This leads to the following query. Does the our current separation of powers system, by which I include the post-1968 nomination process of candidate centered primary campaigns, have a dilatory effect on leadership in Congress? We often talk about the decline in caliber of candidates for president since then. And of course, no sitting Senator has been elected president since JFK. The politicians in Congress not only are unlikely to be the next president, but are unlikely to have much influence on who becomes the next president. It has been widely noted that the opposition party rarely has a unified leadership. In this case, the minority party in a divided government of the same party as the president also does not seem to have much leadership or independence. The disjuncture of leadership from a Congressional connection may well exacerbate the collective action problem of 50 some odd Senators (in each Senate party caucus), or 200-230 some odd Representatives (in each House party caucus) from facing a leadership challenge in the face of obvious incompetence. This might explain why such indictments are coming from the likes of Vigurie and Will.

As we evaluate the efficacy of our separation of powers system, we might think about the impact of the presidency, and the presidential election process, on the development of leadership talent. For it is clearly missing in Congress.
 

I'm pretty skeptical of arguments like this coming from Vigurie and others. For one thing, they are little more than an expansion of the "no true Scotsman" logical fallacy. George Bush was proclaimed as a conservative when he ran and cheered by conservatives as one of their own when his popularity was high. They bought him, they own him.

Second, a great many conservatives never have liked AGAG. They see him as soft on immigration and abortion. Advocating his impeachment is merely an effort to eliminate someone who's "too liberal" and replace him with a "true" conservative.
 

Despite the damage that Gonzalez' continued presence at Justice does to the institution, the Administration is willing to let the damage occur, rather than to face a confirmation of Gonzalez' successor.....

Doubtless, the successor will be asked to appoint an independent prosecutor to resolve the factual issues surrounding the politization of the Justice Department. At that point, even though everyone is sick of the 'impeachment syndrome', it would be Game OVer for this Administration.

Any hope they have of running out the clock would be dashed.
 

Arguments that had been made for former President Clinton aside, and accepting as established that an American cabinet member is the kind of “officer” who properly can be impeached and tried, where is the evidence on Mr. Gonzales?

Evidence in any black letter law sense is hard to find.

Gonzales fumbles. He wriggles. He forgets. But none of these, simpliciter, is either high crime or misdemeanour.

Gonzales delegates, putting it charitably, clearly to excess, perhaps more than any predecessor. But, again, delegation simpliciter is certainly neither “high” nor crime nor constitutional magnitude misdemeanour.
But one wonders if the framers of the US constitution really would have taken such a tight and restrictive view of the “constitutional” offences, whatever they were, that they created. Albeit conscious of the separation of powers that they themselves had crafted, perhaps the drafters had something else in mind.
Maybe they had silently concluded that, that, with “some” evidence for constitutional purposes, such as, for example, cabinet level laziness, incompetence or laissez faire, inviting near universal revulsion at the performance of an officer of the administration, might be self-defining as impeachable misconduct, measured not by the provable particulars of the misconduct but by breadth of the reaction it provoked.

As this post and the reactions of conservative Republican senators to the Attorney General’s performance before them, and others, seemingly suggest, it may not be overstatement to say that his performance has been provoking something approaching a sufficient breadth of that instinctual, insitutional reaction to warrant impeachment.

A recent culture of legalism in the chase and even prosecution of high administration officers in the United States, have meant that the American mechanism of impeachment and trial, when contrasted with the elegant, if cold blooded form of executive coup de gras available for Heads of Government and their ministers in parliamentary systems, looks primitive and hamhanded.

Perhaps as the American framers conceived of the operation of their system, a wide spread and deeply felt, national, sense of repugnance, a feeling that democratic and constitutional values are being held in contempt is enough in constitutional terms to self-define conduct as “high crime and misdemeanour.”

In this context, there is cause for a sense of encouragement amongst those who have that sense of profound betrayal at the behaviours of this Attorney-General. In this case, one hopes that labels of "liberal" and "conservative," can be set aside, an alliance of the constitutionally angry and embarrassed might be found in the upper reaches of US federal politics to administer its own elegant, American-style coup de grace to this Attorney-General.

One thing is guaranteed. Standing at the front of Parliament, pointing his finger at the King, Cromwell had a far weaker legal case when he challenged, “In the Name of God, go.”
 

Viguerie's list of Gonzales' "transgressions" which he claims justify impeachment indicates that folks on both sides of the ideological spectrum are confusing policy disputes with "high crimes and misdemeanors."
 

Standing at the front of Parliament, pointing his finger at the King

This incident occurred after the execution of Charles I. Cromwell was Lord Protector and had only the "Rump" to evict.
 

I don't care who does it, Republicans or Democrats or both, but Gonzales shuld be impeached. It would also be a wake up call for Bush, a demonstration that he does nto have the final say.

gyl
 

Bart:

"Viguerie's list of Gonzales' 'transgressions' which he claims justify impeachment indicates that folks on both sides of the ideological spectrum are confusing policy disputes with 'high crimes and misdemeanors.'"

I will leave aside aside your egregiously putting the word "transgressions" in scare quotes-- clearly Gonzales has, at a mininum, blatantly lied about his involvement in the US attorney firings.

But as far as what constitutes "high crimes and misdemeanors"-- somehow it's hard to take seriously a man who claims that "torture" is hard to define (when that term is well-established and has been judicially construed for decades) but "high crimes and misdemeanors" (the ultimate nonjusticiable political question) is subject to ready definition.

"High crimes and misdemeanors" is obviously a guidepost, indicating that the House shouldn't impeach over trivial matters. At the same time, it is little more than that. If the House wants to say that lying about the use of a discretionary power, or circumstantial evidence of firing prosecutors to interfere in pending investigation for that matter, constitutes an impeachable offense, I don't see any particular reason why they cannot do so. These are certainly serious charges, and I don't have a problem saying that these would be "High Crimes", though, in the end, if a particular member of Congress wanted to vote against impeachment and say they were not, this would be plausible as well.

Similarly, authorizing conduct that is in blatant violation of the torture statute and Convention Against Torture seems to me to be perflectly plausible as a high crime or misdemeanor-- though it is actually Bush who ultimately did this; Gonzales followed his illegal orders when he should have resigned, of course.

One thing this is NOT is a mere policy dispute. A policy dispute is whether the Justice Department should emphasize obscenity prosecutions or white collar crime. This is rather different.
 

As Glenn Greenwald has pointed out, this administration is clearly attempting to put in place a system that they claim supercedes the rule of law. A clear and explicit statement of this philosophy is presented in the Wall Street Journal at
http://www.opinionjournal.com/federation/
feature/?id=110010014
by the good professor Harvey C Mansfield.

The rule of law? That's evidently become a quaint concept in these times of national crisis, when we so evidently need a Prince.
 

I don't remember the priest telling me when I went to Confession when I was a kid, "Well, Lance, it was wrong of you to disobey your mom and talk back to her like that, but since you set the table every night and do your homework and sent your aunt a birthday card, what the heck! You're a good kid. Your sins are forgiven automatically. No need for you to do any penance." 文秘 心脑血管 糖尿病 高血压 高血脂 冠心病 心律失常 心肌病 心肌炎 中风 偏瘫 低血糖 And maybe it's happened a few times and I haven't heard about it but I can't recall a judge ever letting somebody walk on the grounds the crook was a good guy and his friends really like him.
 

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