I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, March 19, 2006

Various matters

(1) I am posting on Crooks & Liars today, and will link to the posts here once they are up.

(2) Tomorrow (Monday) afternoon, from 2:10 pm to 2:45 pm, Warren Olney's radio show To the Point is having a panel debate on the specific topic of Feingold's Censure Resolution and impeachment generally. I will be one of the guests, along with John Dean, National Review's Ramesh Ponnuru, and Josh Marshall. There may be another guest -- a well-known Democrat who has expressed serious reservations about censure -- but he wasn't yet confirmed as of Friday afternoon. The show is broadcast on most NPR radio stations (a Station List can be found here (click on "Station List" in the left-hand margin)), and can also be heard with streaming online audio here.

There is only one reason this panel discussion (and similar discussions) are taking place again -- because Russ Feingold's Censure Resolution forced back into the news the incomparably important crisis that arises from the fact that we have a President who has claimed the power to break the law. And this happened just as Bush followers thought they had successfully made this whole scandal fade away. Anyone who wants to know what the purpose or value is of Feingold's resolution can start there for an answer.

(3) Josh recently authored a column in Roll Call arguing against the impeachment of George Bush on both substantive and political grounds. Josh says he wrote the column "[s]ince talk of impeachment is in the air" (it is?), and based on that rather precarious premise, Josh announces: "it seems incumbent on all vocal critics of the president to go on the record with their points of view on this momentous question."

I think the Feingold censure Resolution is quite plainly a much more prominent and controversial issue at the moment than impeachment, and Josh in his column doesn't say whether he favors that. Nor has Josh ever said on his blog whether he favors the Resolution. He wrote one post on the topic which began this way: "I think I'm with Kevin Drum on this whole Feingold censure thing." Josh then added: "So 'censure' him. Or don't censure him." So does Josh favor the Resolution or not? Who knows?

Josh does say rather unequivocally that Bush broke the law, and Josh recognizes that Bush claimed that "the law actually doesn't apply to him" (which Josh accurately describes as "being a very big deal"). And he does criticize Democrats for running away so publicly from the Resolution on the ground that it makes Democrats look bad. But it's impossible to tell (because he never says) whether Josh favors censure or not.

While not sharing his views on censure, Josh does step up to the plate to opine on what he apparently perceives to be the raging political controversy of impeachment and says this:

The clearest case for impeachment is one in which the president refuses to follow the law and accede to the Congress’s and the court’s oversight powers. The only solution to such a constitutional crisis would be for the Congress to remove the president from office for violating his oath and committing political high crimes.

But that’s just not the case at the moment because Congress has made little if any effort to rein him in. So impeaching him can’t make any sense because the Congress — in the constitutionally indolent hands of the Republican majority — has made no attempt to oversee the president by constitutional means.

This strikes me as both inaccurate and circular. The Founders recognized that if a President began violating the law, Congress would have no real way to stop him, because the President controls the forces which execute and enforce the law while Congress has no similar force which it controls. Thus, the tool which the Founders gave to Congress to "rein in" a law-breaking President is the tool of impeachment. That is how Congress reins in a President who insists on defying the law.

The premise of Josh's argument seems similar to the premise of the newly introduced Terrorist Surveillance Act of 2006 -- that when the President is caught breaking the law, the way Congress "reins him in" is by enacting another law to (again) limit what the President is doing, perhaps making clear that this time they really mean it. But Congress has already passed a law which limits the President's eavesdropping activities (FISA) and the President is violating that law because he believes, as Josh recognizes, that he has the power to do so. Passing another law is not the way that Congress reins in a President who has seized law-breaking powers. Censuring the President is obviously intended to have that effect, but the only other real remedy which Congress has under our Constitution to "rein in" a law-breaking President is impeachment.

This isn't to say that I think impeachment proceedings should begin, only that Josh's substantive argument against it -- that impeachment is inappropriate even though Bush is violating the law because Congress hasn't tried to "rein him in" -- strikes me as weak and illogical. Congress already reined in the President when it enacted FISA. Once Bush proclaims that he will not abide by legal restrictions on eavesdropping activities -- which, as Josh recognized, he has claimed -- then impeachment (or, more mildly or preliminarily, censure) is the tool which Congress possesses for reining in the law-breaking President.

(4) I posted yesterday on that truly vapid and evidence-free Eleanor Clift column, which claims that the Feingold Resolution is perceived as an act of "political extremism" which shows that Democrats "can’t be trusted with the keys to the country." Digby has even more analysis of that column which I recommend highly. This issue isn't important because Eleanor Clift per se is important. It's important because the arguments she is reciting are the ones which have become tacitly accepted by the conventional wisdom-producing pundit class, and those arguments -- especially when disseminated in unison by the supposedly "liberal" and "conservative" pundits --- do have great influence.

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