Time for a Grand Inquest into Bush's High Crimes

One of House Speaker Nancy Pelosi's first acts upon taking the gavel was to rule impeachment off the table. She wanted Democrats to focus on challenging the president on the war and on kitchen table concerns -- from energy to education to health care. With Democrats now enjoying an increasing margin in generic polls and looking towards gaining seats in both the House and the Senate, the strategy certainly hasn't hurt politically.

But the constitutional implications are far more disturbing. This was dramatized as the Congress debated the FISA reform legislation that will provide retroactive immunity to the telecommunications companies for warrantless interception of the conversations of Americans -- and by implication, retroactive acceptance of the president's authority to order such wiretaps.

We have witnessed a staggering abuse of power by this president. Even former Bush Justice Department officials now charge President Bush with trampling the Constitution. Bush has claimed the prerogative to declare an endless war without congressional approval, to designate someone an enemy without cause, to proceed to wiretap them without warrant, arrest or kidnap them at will, jail them without a hearing, hold them indefinitely, interrogate them intensively (read torture), bring them to trial outside the US court system. He claims that executive privilege exempts his aides -- even the aides of his aides and his vice president's aides -- from congressional investigation. He claims the right to amend or negate congressional laws with a statement upon signing them. And much more.

Even this Supreme Court, stacked with activist right-wing judges enamored of executive national security powers, has rebuked the president on some of these claims, particularly around the treatment of allegedly enemy combatants. But many of Bush's claims will escape judicial determination.

And there is the rub. According to the leading case on presidential powers, if Bush's extreme assertions of power are not challenged by the Congress, they end up not simply creating new law, they could end up rewriting the Constitution itself, altering the Constitutional division of powers by establishing the president's claims as constitutional powers that the Congress or the Courts may not infringe.

The Steel Seizure case -- Youngstown Sheet and Tube v Sawyer, 343 US 579 (1952), remains the leading case on presidential power. In Youngstown, a six member majority of the Court joined in overturning Truman's executive order nationalizing the steel plants to end a strike during the Korean War. Justice Black wrote the opinion for the Court, but the historically influential opinions were penned by Justices Robert H. Jackson and Felix Frankfurter, both Democratic appointees. Frankfurter laid out the argument for a sort of common law of constitutional amendment:

Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part [343 U.S. 579, 611] of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by 1 of Art. II.

In Youngstown, Jackson concurred, arguing that the president's powers vary as to whether he acts with congressional authority (his greatest power), in the absence of it, or in opposition to it:

When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

When a president egregiously abuses his power -- particularly in areas relating to the rights of American citizens -- remedies are often difficult. The Supreme Court is reluctant to arbitrate a power struggle between two co-equal branches. That is why the Constitution prescribes the specific remedy of impeachment for crimes and abuses of power -- High Crimes and Misdemeanors -- and empowers the House and Senate to sit in judgment whether the actions are to be accepted or condemned.

What the Court said in Youngstown is that if presidents assert a prerogative -- like the power to make war without a congressional declaration -- systematically, with unbroken regularity, with the knowledge of the Congress and are never questioned -- then that practice becomes a Constitutional power that cannot be infringed upon by the Congress or the Courts.

Thus, Congress must formally object to President Bush's abuses or it risks by "indifference or quiescence" contributing to the powers of our imperial presidency.

When Pelosi took impeachment off the table, it was reduced to being a rhetorical protest vehicle for progressives like Dennis Kucinich or Russ Feingold. But Congress need not convict President Bush to impeach him for High Crimes and Misdemeanors. And arguably, the House need not even impeach the president to hold a Grand Inquest into the powers that he has claimed, registering a formal objection to them. The Judiciary Committee in the House should formally convene that Inquest, no matter what the decision is on impeachment. For if Pelosi's sensible political judgment results, as it has to date, in a show of congressional "inertia, indifference or quiescence," the Democratic majority in Congress may have gained a dozen seats at the cost of relinquishing its own powers, and putting the rights of Americans at risk.

Comments

[JennyJay]

Nancy Pelosi DOES NOT CARE ABOUT JUSTICE . . . she is, afterall, nothing but a politiician. But America cares about JUSTICE, and Nixon and Clinton did far less than Bush, and impeachment was at least started. America wants it on the record that impeachment proceedings were started against Bush/Cheney. AMERICA CARES ABOUT JUSTICE!! What giant cowards our lawmakers are.

[darker]

Remember, our KING GEORGE W. BUSH is related to Britain's Queen and Prince Charles.
Born with " a silver spoon..."

Bush has no concept of reality and "doesn't wanna know".

Americans, the self-made VICTIMS OF REPUBLICAN MEDIA MANIPULATION, willingly voted for Bush-Cheney TWICE. Based on lies, deception, fake image-making and false appearances and promises.

Education in USA is a failure, everyone flunked history. And they faithfully REPEAT THEIR FAILURES.

[bipolar2]

But, you got what you wanted. Why are you complaining now?

** Recessional: the Rotting Legacy of 40-43 to 44 **

1. Better-defined imperial limits: in distance, treasury, projection of power
2. Pox Americana harassed at every frontier supply line.
3. Richer rich, poorer poor, dying middle.
4. Tyrannical social control at home erasing living memory of a democratic republic.

Those wretched ephemeral babblers lusting after the purple in '08 notwithstanding, a slide into the abyss can only be slowed not reversed.

Little Bush, our postmodern Caligula, has done nothing but catalyze the rot of Empire. This is not necessarily a bad thing.

The Romans knew all about us. "Those whom the gods wish to destroy, they first make demented."

bipolar2
© 2008

[speakingtruth2power]

My latest comments to DiFi were met with an email from her, declaring that in Her

considerable Intelligence expertise, our security needs are such that we must allow

past abuses to our Constitution to go by and allow a modernized FISA new leeway

to protect US from the current boogieman. I told her to join Joe Lieberman, stage left.

[FirstShirt]

Bush's abuse of power no more creates new law than Roosevelts incarceration of thousands of innocent Japanese american families without due process. Both abused power during wartime and both were given a pass.

[CoulterIsASuccubus]

At the very least the Shrub should be censured.

[NetProphet]

I'm for this......it's about time the current Pres has been put on the table for all the 'high crimes' & 'misdemeanors' he's committed. But i suppose we'll have to wait - at least until November - when we can be free of the cock-n-bull stories played out by our PHARMACEUTICALLY-run MEDIA.

[Okieborn]

George Bush is SPECIAL !!
WHO ELSE COULD WIN AN ELECTION HE LOST ???
BUSH WILL WALK OFF INTO THE SUNSET , ALL FREE OF GUILT !!

[textynn]

And with all the country's money for his personal private interests.

[teacake]

You can thank the hypocritical moronic fanatic Christians for this. They have hatred in their hearts but speak of love. They have anger in their guts but profess peace. They kill children but scream bloody murder against abortion. They protect the robbers (oil cartels) but prosecute a man who steals a loaf of bread for survival.

[dhinds]

tdbach wrote:

"What makes impeachment important in this case is that it alone can provide a legal framework to COMPEL members of this administration to testify and turn over documents they have kept under wraps. If we don't impeach, these guys will go off into the private sector to reap the rewards of their crimes without anyone really knowing just what they did."

"Knowing just what they did and why they did it" is *fundamental* for demonstrating the most significant difference between the two major candidates! IOW, not impeaching greatly weakens the Democratic Party's chances on November 4th.

[davedave]

the truth was mr. clinton did have sex w that woman. w/o impeachment proceedings we would have never known that. truth be told i don't care....

the bush years have many more examples of terrible, homicidal, cynical behaviors. truth be told i care desperately and need the rest of the voting, taxed and governed society to also know.

this is not trivial!

d

[glaze]

Impeachment is NOT the REMOVAL of a public official, it is only a legal statement of charges, paralleling an INDICTMENT in criminal law. Impeachment is stage 1 of 2.
The second stage in the removal of a public official is the CONVICTION.
So just to impeach this administration is not enough, and the timing is too short for conviction.
However, it is certainly possible to proceed with CRIMINAL charges against FORMERLY sitting public official(s).
My view is to give Speaker Pelosi until January 21 to announce criminal proceedings against Bushco. This is very likely to produce a more satisfying conclusion that simple removal from office. It would involve actual PUNISHMENT! FOR ACTUAL, POSSIBLY CAPITAL, CRIMES!
After eight years of undeniable illegal behavior, I can wait another six months for the BIG SHOW.
If Speaker Pelosi fails to do this,...

[Merg]

Pelosi doesn't have the guts to do the right thing. But the entire world would cheer if, after the Nov. elections the Congress started Impeachment proceedings against Bush and Cheney. Maybe it would keep the boys too busy to make war with Iran.

[outnow]

If Congress doesn't take action they are making new common law in derogation of the Constitution, according to Democratic appointees Justices Frankfurter and Jackson. President Truman was the first neocon. The burning of Tokyo killed more people that the bombing of Nagasaki and Hiroshima, according to General Curtis LeMay. Now you see why Bush likes Truman. All options were on the table. Just because someone is a Democrat, he/she is not more of a "checks and balances" person. "liberal" can mean different things. More wars were started by Democrats than by Republicans. Clearly, Pelosi and Steny Hoyer are quite content with the way Bush runs things and the precedent they are creating by their inaction. Non-assertion of a known right is waiver. Pelosi and Hoyer have wiaved, arguably, our rights to a system of checks and balances. Bush/Cheny are laughing at the usurpation of our constitutional rights by our own elected representatives. Moreover, Pelosi and Hoyer fund the war. There is just a single political party and a court that supports unitary executive theory, especially in time of war - which is now a permanent state.

[booker52]

Just call him KIng George, he acts like it.

[Alablanca]

I THINK NANCY PELOSI AND HOYER HAVE BETRAYED THOSE OF US WHO FOUGHT FOR DEMOCRATS TO BE THE MAJORITY IN CONGRESS. THEIR SUPPORT OF FISA WAS THE UTMOST BETRAYAL. THE SAME THING GOES FOR OBAMA - HE HAS MADE A COMPLETE TURNAROUND FROM WHAT HE RAN ON IN THE BEGINNING. HE IS BEHAVING RATHER ARROGANT IN HIS APPROACH AND HIS DECISIONS. I'LL VOTE FOR HIM BECAUSE MC CAIN IS UNSTABLE AND THE WORST CANDIDATE. BUT AS FAR AS I AM CONCERNED, DEMOCRATS, WITH A FEW EXCEPTIONS HAVE DEMONSTRATED THAT WE CAN'T TRUST THEM EITHER.

[NetProphet]

. . . . . I have often wondered about Pelosi and where she stands ever since she first stood as Chairman of the House.

[textynn]

It's TOTALLY true. Americans are being totally disrespected. We believe in things in this country and our leaders are just thumbing their noses at laws and morality. The leaders we have are not worthy of this great country and we need to rid ourselves of them ASAP.

[dhinds]

1.- Congressman Kucinich's Impeachment Resolution has already been submitted and must de dealt with one way or another;

2.- The accions realized by President Bush and V.P. Cheney either are or aren't impeachable offences;

3.- Does the damage done to the nation warrent impeachment?

4.- The Impeachment process will demonstrate that the evidence presented to justify invading Iraq was falisfied;

5.- One of the two major candidates believes the invasion of Iraq was justified, the other doesn't.

6.- That is a fundamental difference between the two candidates and the impeachment process will focus the nation's attenion that issue;

7.- President Bush will not be impeached due to the present composition of Congress but the point will have been made!

[Kashathree]

Little late to look into impeachment for Bush, isn't it? Thank God, this "entity" has less than seven months to dictate, lie, embarrass, (add your own labels) our Country. Impeachment of Bush would put Cheney in the Oval Office. Is that any better than having Bush there?

We should have talked impeachment in 2004--if not before. Let's just work together so that this won't happen again.

Getting qualified teachers in the classroom would be one place to start.

[lylo]

Impeachment was talked about from early 2002 on, if I remember correctly. But everyone keeps saying there is no legal justification for such an act. Or at least the representatives from KY.