On Constitutional Remedies

Josh Marshall has a, to me, very inadequate post this evening on what to do about the Bush Administration:

Without going into all the specifics, I think we are now moving into a situation where the White House, on various fronts, is openly ignoring the constitution, acting as though not just the law but the constitution itself, which is the fundamental law from which all the statutes gain their force and legitimacy, doesn't apply to them.

If that is allowed to continue, the defiance will congeal into precedent. And the whole structure of our system of government will be permanently changed.

Whether because of prudence and pragmatism or mere intellectual inertia, I still have the same opinion on the big question: impeachment. But I think we're moving on to dangerous ground right now, more so than some of us realize. And I'm less sure now under these circumstances that operating by rules of 'normal politics' is justifiable or acquits us of our duty to our country.

It is so frustrating to me when smart people like Josh (he's a Brown grad too, snark) just up and ignore the remedies that the Congress has available to it. Now it just so happens that I favor impeachment of Gonzales but do not favor impeaching the President.

But I do favor the Congress using its many powers - the Spending Power, the inherent contempt power - in nontraditional ways to check the Bush Administration's behavior. Why does Josh throw up his hands instead of urging the Congress to use the power it clearly can apply - on Iraq, on Gonzales, on just about everything.


It seems to me Josh is guilty of what he attributes to impeachment proponents:

So to use an analogy which for whatever reason springs readily to my mind at this point in my life, coming out for impeachment under present circumstances is like being so frustrated that you can't crawl that you come out for walking. In various ways it seems to elevate psychic satisfactions above progress on changing a series of policies that are doing daily and almost vast damage to our country. Find me seventeen Republican senators who are going to convict President Bush in a senate trial.

But there is so much the Congress can do WITHOUT those 17 Republicans! It can NOT fund the war! It can not fund illegal spying! It can use inherent contempt proceedings in the House to enforce its subpoenas!

That Josh and so many other so called wonk bloggers do not think of these remedies - and Josh is only one of many who really seem to have little understanding of these Congressional powers - is truly frustrating.

Either they are not familiar with the Constitution and the Federalist Papers or they have been brainwashed into forgetting what these documents teach us.

Yes, it has been an obsession with me to discuss these important Congressional powers. But they are critical now. And I must say I get angry with our smart wonk bloggers when they do not put in the time to learn of these remedies. They are failing at their roles imo.

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    Talex (5.00 / 2) (#9)
    by Big Tent Democrat on Wed Jul 25, 2007 at 10:31:55 PM EST
    I deleted your abusive comment. I will delete comments that abuse you as well.

    However, you still have only 1 comment left for today.

    I like Josh (none / 0) (#1)
    by andgarden on Wed Jul 25, 2007 at 09:59:24 PM EST
    But I hope he isn't committing press release journalism here.

    (That wouldn't even make any sense--Conyers mentioned Inherent Contempt as recently as last week).

    Hmmmmm (none / 0) (#2)
    by squeaky on Wed Jul 25, 2007 at 10:02:47 PM EST
    It is so frustrating to me when smart people like Josh (he's a Brown grad too, snark) just up and ignore the remedies that the Congress has available to it.

    I  guess that is why we need lawyers and constitutional scholars.

    We would all be better informed (5.00 / 1) (#5)
    by andgarden on Wed Jul 25, 2007 at 10:12:54 PM EST
    if New York Times reporters read fewer press releases and more CRS reports.

    Well (none / 0) (#3)
    by Big Tent Democrat on Wed Jul 25, 2007 at 10:09:13 PM EST
    What good are they if we can't feed the information into the political discourse?

    None (5.00 / 1) (#4)
    by squeaky on Wed Jul 25, 2007 at 10:11:48 PM EST
    Except for the museum.

    I feel made of wax (5.00 / 2) (#6)
    by Big Tent Democrat on Wed Jul 25, 2007 at 10:13:37 PM EST
    Hardly (5.00 / 1) (#7)
    by squeaky on Wed Jul 25, 2007 at 10:20:14 PM EST
    Although a little bit of wax is not so bad.

    Josh missed it (none / 0) (#13)
    by NMvoiceofreason on Thu Jul 26, 2007 at 12:10:48 AM EST
    And lawyers miss more. What is to keep Conyers et.al. from filing a writ of mandamus to require the AUSA to do what he "SHALL" do. Statotory construction is pretty clear on that one.

    I Have Also Do Not (none / 0) (#8)
    by talex on Wed Jul 25, 2007 at 10:20:16 PM EST
    been in favor impeaching Bush but favor impeaching Gonzales. But today I'm half-way to where Josh is at on Bush.

    My main reason in not favoring impeaching Bush is because reaching back into the past and then fighting to get documents and witnesses and probably having to go through the courts for some of that even though we shouldn't have to seems like a gaint waste of time. And then not only would 17 Enablers/Repub Senators not vote to convict but all of the above would probably pretty much run out the clock on his term. So what would be the point?

    However - if he were to do something new like not uphold the Constitution that was as clear as day to everyone and it didn't require documents or witnesses that would hide under executive privilege then yeah impeach him. He is moving perilously close to that.

    If he were to blatantly violate or disregard the Constitution then all it would take to try him is a hand full of Constitutional scholars and there are plenty of those who are ready to step up.

    Now I don't recall the rules of evidence in an impeachment but I think I do remember they are much loser than in a criminal or civil case. So given that I am pretty certain that some of his past deeds could also be presented to show a pattern of behavior. Like FISA for instance.

    So yeah I'm getting there under the right set of circumstances. The one caveat would be I'd want to make sure that we could get 17 Repub votes. Then I'm a go.

    Impeachment Rules of Evidence (5.00 / 1) (#20)
    by Molly Bloom on Thu Jul 26, 2007 at 07:01:43 AM EST
    If I recall correctly  it is whatever rules of evidence the Senate decides to follow during the removal hearings. If I am not mistaken, they decide what is and is not admissible.   I would hope that they would decide to follow the rules of evidence, the US Courts use for what should be obvious reasons. After laying down what the rules are, they probably would vest the CJ, who would preside over the removal hearings,  with the authority to decide what is admissible.

    (I still oppose impeachment as fruitless without votes for removal).


    Quite the hypothetical, eh? (none / 0) (#10)
    by scarshapedstar on Wed Jul 25, 2007 at 11:00:06 PM EST
    If he were to blatantly violate or disregard the Constitution...

    Reminds me of OJ Simpson's Book somehow...


    He had a lot of money, too - didn't he.. (none / 0) (#17)
    by dkmich on Thu Jul 26, 2007 at 04:07:12 AM EST
    Seems like justice is for poor people and saps.

    this guy is smart? in SAT scores? AP (none / 0) (#11)
    by seabos84 on Wed Jul 25, 2007 at 11:07:51 PM EST

    the bushco fascists have been moving, VERY effectively, into fascist rule for years

    decades if you want to (legitimately) count RayGun.

    He's a good writer, but, ya know what?

    he is f$$$ing clueless -

    and I mean clueless in the sense of someone who has to read "Nickled and Dimed" to know WTF niclkled and dimed is about.

    In the leather chairs by the fireside of the the Ivy covered halls,

    all us unwashed peeee-ons is pawns in the Great Game...

    I just want to rub this elitist a$$holes face into a puddle.


    The power of the purse (none / 0) (#12)
    by piniella on Wed Jul 25, 2007 at 11:52:36 PM EST
    I agree with Big Tent (I think).  Congress could use the budget to cut off the funding to the war if Pres. Fredo refuses to change course. I sent my House member an e-mail and let him know I would support him if he voted to deby funding.

    Hit them with your purse, Mary (none / 0) (#14)
    by NMvoiceofreason on Thu Jul 26, 2007 at 12:22:42 AM EST
    Reminds me of a fight I saw behind a gay bar back in my teens. Don't just flap your hands, Mary. (not speaking to  piniella  or Big Tent, both of whom I respect). If Congress were serious, and I mean this in the most sincere way, the supplemental would have been authorized with EXACTLY the same words that got it vetoed. "I'm sorry Mr President, that you mistook us for your flunkys. Now listen to the people." Instead, Bush got his way, and the Mary's flapped their hands.

    When will Mr. Smith go back to washington? When will we have ONE senator, willing to fillibuster anything and everything that does not bring the troops home? Because we dont have one. As James Carville said, genetic defect - democrats have no spine (including myself, therefore).

    Specific tactics, like Waxman and Conyers: Investigate, make them testify on the record. Do not give them a dime for the war. Pass HR 413 and take away the power to commit war. Refuse to authorize one dime for the Justice department while Gonzo leads it.


    Wow (none / 0) (#15)
    by chemoelectric on Thu Jul 26, 2007 at 12:32:47 AM EST
    Your complaints about blogger ignorance of the Constitution and Federalist Papers seems parallel to my complaint about blogger ignorance of Bush's psychiatric condition. But to be really parallel to this anger at Josh Marshall I would also have to be a psychiatrist, which I am not, being angry at non-psychiatrists for their ignorance of psychiatry. :)

    Josh Marshall, after all, is a journalist, not a lawyer or legislator. I don't know what he did his dissertation on but I guess it might not have been the Federalist Papers. If it was, then woops, I admit that then it's a fair fight. :)

    To be frank, I think Josh Marshall has matured immensely in just the last few years, but abilities always take years to develop, and Marshall is quite young.

    JMM's Dissertation (none / 0) (#21)
    by Molly Bloom on Thu Jul 26, 2007 at 07:07:33 AM EST
    In JMM's own words from the TPM archives:

    Specifically, I'm making a final push to finish my doctoral dissertation which is about17th century New England, Indians and English settlers, their economic interactions and basically how they were always managing to whack each other.

    Practicality vs. doing the right thing (none / 0) (#16)
    by eurodem on Thu Jul 26, 2007 at 02:44:51 AM EST
    While I understand the practical arguments against Impeachment, for me it simply comes down to whether the President has committed Impeachable offenses.  If you believe the answer to this question is yes, then like a lone protester, maybe one of the first, you are compelled to seek all possible remedies, including Impeachment.  

    Viewing this from abroad, I have to say it counts very much to put America on record as saying what has been done in its name is not right.  Letting, W fade off the stage without making a stand hurts America long-term.  A defensible position internationally, is having Democrats do everything in their power, including drafting articles of impeachment.  Let the record show that Republicans were not for defending the constitution and Ok with Bush's abuses.

    Frankly, to really improve our standing abroad, the gang needs to be tried on war crimes.  Why should any country follow the Geneva convention anymore when we have basically said it is all up for interpretation.

    Apprapo War Crimes - today's WP op ed (none / 0) (#19)
    by eurodem on Thu Jul 26, 2007 at 06:22:24 AM EST
    War Crimes and the White House

    The Dishonor in a Tortured New 'Interpretation' of the Geneva Conventions
    By P.X. Kelley and Robert F. Turner
    Thursday, July 26, 2007; Page A21

    P.S. cutting off funding does not even begin to address the wrongs of this administration


    I agree totally on all points (none / 0) (#22)
    by yourstruly on Thu Jul 26, 2007 at 07:49:57 AM EST
    Furthermore, there seems to be a bit of a disconnect between favoring impeachment of Gonzales, but not the guy that sent him there to lie.

    It really makes me wonder what crime Bush could possibly commit, where the outrage would cause these anti-impeachniks would say enough is enough.


    I'm not a constitutional scholar (none / 0) (#18)
    by Militarytracy on Thu Jul 26, 2007 at 04:21:50 AM EST
    or a lawyer but I know you speak the truth here.  When dealing with people who distort and controvert and grab and then run and hide we can't just throw our hands up.  We have to address the issues and develop a treatment plan, so I'm here reading your stuff every day because you know this and work on the treatment plan and aren't afraid to add to it or take away from it based on solid evidence and debate.  Then you push for the plan to be acted on.  These are the things we must all do if we want any sort of accountability and if we want our country back.  If we throw up our hands they will change the  structure of our government, but only if we throw up our hands and give in along with wasting our time on unworkable remedies.

    A wingnut's opinion (none / 0) (#23)
    by eplebneesta on Thu Jul 26, 2007 at 10:11:42 PM EST
    For some reason the Dems can't even pass a funding bill with MORE troop funds than requested because it contained only unbinding requests for troop timetables.  If they can't (or won't) pass this, why think they will cut off funding?  Bush has not yielded on anything important.  He didn't when Reps were in the majority and isn't with the Dems in the majority.  And the Dems have been shut down completely by the Reps regardless of who has been in the majority.  Oh sure, he tosses out meaningless "defeats" like Miers.  Poor guy had to settle for Roberts and Alito.  And, based on results so far, the 2006 election.

    I don't see any reasons given why the other methods you favor are superior to impeachment.  Can the application of all of the alternative methods mentioned deal with as many of the admin's crimes, and prevent them from continuing as well as impeachment?  And is it more likely that congress would be able to execute multiple actions rather than one?  Especially a bunch of congressional actions that even "smart people" don't know about vs impeachment which is known to the apparently less smart masses and already favored by many of us.

    Re funding, Bush has already shown a willingness and ability to illegally obtain funds.  He did a lot of troop movement w/o congressional funding. And, a $TRILLION has gone missing in the past from the pentagon and a lot of money is missing from Iraq.  AND I hear that he's been making $BILLIONS responding to all of those Nigerian bankers trying to transfer funds.

    But given the scope and magnitude of this admin's crimes and systematic dismantling of the Constitution and usurpation of power, I do think that this is the time to impeach. Before it is literally too late. It is, to me at least, utterly inconceivable that the NeoCons will yield the vast new presidential powers to the democrats.  I don't think that Cheney would be pleased to know that, say Gravel, could order a warrantless wiretap on him to see what his real role was in, well, every criminal activity of this administration.  To continue the precedent of ignoring the rule of law and closing the opposition out of everything they do.  To let the Dems inherit the ability to stonewall congress, to commit crimes at will and declare all evidence inaccessible due to executive privilege.  Will the war mongering and war profiteering NeoCons allow the Defeat-o-Crat, treasonous, terrist loving, Paris Hilton tax opposing scum to:

    1) Stop their "Forever War's" multi $BILLION income stream
    or, given that Dems are politicians, too:
    2) Divert the stream into their own and their cronies' pockets.

    Either way, they won't give up huge sums money obtained by committing serious crimes without committing more serious crimes to prevent it.

    Elections have been stolen before... some conspiracies suggest 2000 and 2004.  They been caught installing operatives in key places to aid in stealing votes.  AFAIK, none of the fired USAs have been removed or replaced, so dragging out the investigation until 2008 will render it moot.  They will have gotten the desired effect anyway.  They've been illegally using government agencies, employees and money to help particularly vulnerable Rep candidates.  What else have the done that has gone undiscovered?  With a group of politicians you never find the last crime.

    Republican obstructionism combined with Dems' inability to override presidential vetoes means that, while Reps may not get all they want, they certainly won't get much they don't.  The effects of Democratic "wins" in 2006 have been minor at best.

    Hopefully, they will only proceed as far as election stealing.

    But, to put on the tinfoil hat, we can also look at some other facts that may or may not be unrelated.  (Unrepentantly copied from another of my posts elsewhere).

    Many things we thought we'd never see happen in America:

    . Suspension of Habeas-Corpus.
    . Dismissing the Geneva Conventions as "quaint."
    . A "president" calling the Constitution a "goddamned piece of paper."
    . The nebulous definition of "enemy combatant."  Pretty much what the WH wants it to be.
    . Extrordinary rendition for ECs.
    . Torture of ECs.
    . 2 Bush "wins." One via an UNPRECEDENTED SCOTUS decision.
    . Falsified evidence for war in Iraq. (OK, this has happened before.)
    . $1 TRILLION unaccountable from defense budget. $1,000,000,000,000.00
    . 2 planes flown by an amateurs hitting the the twin towers.
    . A plane flown by an amateur hitting the Pentagon.
    . But this I would expect: A 4th flight being stopped by the passengers once they knew what was happening.  It's a good thing it wasn't a flight to a Republican convention.  Everyone would've gotten a deferment so they wouldn't need to fight.
    . Losing 2 AUFs simultaneously.
    . All other standard governmental corruption on an industrial scale.
    . A privatized Walter Reid making the wounded sleep in their own urine.
    . Any dissent w/administration being seriously called treason.
    . No draft while fighting the supposedly most important war of the ages.
    . A president taking direct orders from the god of Abraham... the same god
    supposedly giving orders to the other side.
    . Survivor, "Idol", Britney, Lindsey, Paris, Steroids.  Sorry, got distracted there for a second.


    * A population that, by and large, doesn't care (enough).

    And a few random facts:

    . Bush made it legal to move troops into states w/o Governors' OK.
    . The loose definition of "catastrophic emergency" in the NSPDs. Essentially "The Declaration of Martial Law - EZ form" (thanks BB)
    . Stacked SCOTUS, "Bushie" USAs.
    . $1 TRILLION "mad money."
    . A decimated National Guard.
    . Control of the largest mercenary army in the world.  These boys may be redeployed to the US soon.

    An admittedly "gut feel" from me:  I would not put the precipitation of a "catastrophic emergency" past the group in charge.  Not even the manufacture of one if needed.  A group capable of defrauding their own nation into an illegal war of aggression is capable of pretty much anything to get what they want.

    A lot can happen between November and January if it needs to.
    Conclusions are left as an exercise.
    Responses are due before Nov 2008.

    Things I never expect to happen:
    Cheney: "Hillary, here's the number to call to get a warrantless wiretap. Have fun!"

    E Pleb Neesta
    Blessed are the cheese makers.

    You are wrong on your facts (none / 0) (#24)
    by Big Tent Democrat on Fri Jul 27, 2007 at 09:22:58 AM EST
    So I really can't respond to this.

    I know I am, but what are you? (none / 0) (#25)
    by eplebneesta on Fri Jul 27, 2007 at 01:48:17 PM EST
    Which ones?  
    I would really like to know, since right is right and wrong is wrong, regardless of opinion, and I'd rather be right.  If I have something to learn, let me know.

    And even so, there are things which could have been responded to, such as benefits of non-impeachment methods.

    And a blanket "you're wrong, (but I won't say what, where or how), so I can't answer" is, with all due respect, a seriously BS answer.

    I could've said the same in my original response and we would get nowhere.  A forum such as this is supposedly for the exchange of ideas and the education of ALL involved.  Not a place for anyone to pass down unquestionable wisdom from on high.  Attitudes like that that have been a problem as long as they have existed.  Even if I spelled my own name wrong, I should still expect the courtesy of a real answer.  This is supposed to be a, to coin a phrase, polylogue, and while "you're wrong" is a response, its worth is questionable.

    I, at least, realize that it is possible for anyone to be wrong, at least once.  Since that hasn't yet happened to me, I have to assume that until I do make my one mistake that it can happen any time.

    If this is it, then, and this is no joke, please let me know.  If I'm wrong then I'm wrong and better for knowing that, and better still for knowing the right answer.  True progress cannot be made using incorrect facts, Faux Noise notwithstanding.  I have formed opinions based on things that I have learned. And if those things are wrong, then my opinions must be reconsidered in the light of new facts.  Yes, I can, and have, revised opinions when they were based on incorrect facts.  I see lots of this in blogs and fora across the net.

    In matters of opinion, such as xxx is better than impeachment, then it should be open to debate.  Beyond "you're wrong, somewhere, and so I won't answer."

    So, nuke me, deconstruct me, educate and enlighten me but please don't dismiss me.

    Or else I'll have to say:

    "Nuh uhuhuh... your facts are wrongER.  I can't answer."
    And, possibly, because sometimes my passions get the better of me: "PPPPPPTTTTHHHHrrrrrrrppppppptttttttt!!!!!!!"
    And I'm sure no one wants to experience that.

    E Pleb Neesta
    Blessed are the cheese makers. <<<< Was this an incorrect fact?