Thursday, July 12, 2007

Misdemeanor Impeachments and the Unitary Executive

These were my contributions to an Open University thread at The New Republic .

I have always preferred the position that the phrase "high crimes and misdemeanors" is meant to cover the entire waterfront.

Impeachment over a misdemeanor is a ridiculously low bar. If the word "misdemeanor" is not taken literally, but meant simply as a contrast to "high crimes", then the bar for impeachment is lower still. It may consistent with the view that the Framers did not want the Exeuctive to be comfortable with power.

Or argue this way. As a thought experiment. A low bar for impeachment would be especially warranted if you conceded that there was such a thing as a "unitary executive" or that the Constitution was vague enough to allow you to cobble together a "unitary executive".

If the branches are co-equal, and there is a "unitary executive," the only way to re-establish equilibrium among braches of government is through "misdemeanor impeachment."

So that Lewis Libby's conviction, even it were commuted or pardoned, is in and of itself at least a misdemeanor attributable to the "unitary Vice President" and grounds to impeach the Vice President.

For example, abuses of the FSA, if any were found, or at Gitmo or Abu Gharib, or even in the procurement process in either Gulf, would be a misdemeanor attributable to the "unitary President" and, in and of itself, and impeachable offense against Bush.

Looking at impeachment only for "high crimes" does not get you where you really want to be. It may not be keeping with the notion that the Framers intended the Legislature to be the Article I branch -- the first among equals.

The bottom line is that if there is enough revulsion over behavior that 2/3 of the Senate wants someone removed from office, there is always a misdemeanor out there that they can find as grounds for impeachment.

And I think that's right.

If a Democrat is elected to the Executive in the face of a ultra Republican Congress (or vice versa), then the whole process ought to grind to a halt.

After all it is a democracy, and the voters have some responsibility to elect reasonable people to represent them.

If the voters place extreme people in power who cannot compromise with each other, and therefore, nothing can get done, you have no choice but to assume that the voters want that.

We may be at that point right now.

Then, we can have another election and try to past the impasse

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