I’ve been too busy this week to closely follow the most recent incidence of Democratic spinelessness over the Bush Administration’s illegal wiretapping, but I have a question that I don’t think has been asked yet. The issue here revolves around immunity for the telecom companies who complied with the Bush Administration as they broke the law. I think that what the telecoms did was inexcusable and I certainly don’t have much sympathy for the executives who went along with it. But there’s obviously a bigger problem here, and that’s the fact that we had an administration in the White House that was putting pressure on these companies to break the law in the first place. The question I have is: Are the Democrats in the House even considering the possibility of granting the telecoms immunity in exchange for information that could incriminate high ranking Bush Administration officials? If so, I’m fine with giving them immunity in exchange for having a few of them testifying under oath in front of the House with the details of how the Bush Administration broke the law. I don’t see what would stop them from doing this, and even if it remains impossible to actually indict the Bush Administration officials who are fingered, it would still make it even more clear that the Justice Department under Bush looks the other way when it comes to the crimes that this administration has committed. As I said, I haven’t been able to follow this too closely this week, so I want to throw this out to the wind to see if I’m missing something.
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IThe fourth and fifth claims are about warrantless wiretapping. This brings us to two fundamental flaws of logic. For starters, they are asking Congress to impeach the President for something that the Congress knew about beforehand, and did not try to prevent. That is nonsensical on its face.
But additionally, there is a real legal disagreement about whether the wiretapping program was legal. This is something that should be decided by the Supreme Court, not Congress. And if the Supreme Court finds against the President, then impeachment should not follow unless the President continues in that course of action. If we allow Congress to threaten impeachment over a valid legal disagreement, then we are in effect ceding the President’s obligation and authority to interpret the law and the Constitution for the Executive branch to the Legislative branch, which is a serious violation of the separation of powers.
There’s a reason why the Democrats never took the warrantless wiretapping to the Supreme Court: it didn’t want to lose. I personally think that the case is significantly stronger against wiretapping than for it, but the Democrats didn’t want to turn this into a legal dispute. They wanted to keep it rhetorical.
http://soundpolitics.com/archives/009981.html
Lee
clever but I do not think it works because the legislation is not form immunity but for decriminalization. BUT … this may raise a worse point … if this si decriminalized by the Telecoms doesn’t that implicitly exempt the admin as well?
Perhaps the way to get this done would be to pass legislation celarly stating that requesting such activities by a company does not put them at risk but does make the request illegal and subject the persn making the request to being drawn and quartered,
State Secrets Act will be invoked (as it has so many times by this administration). We can’t let the terrorists know what we are doing.
It’s a BS argument, but it works every time.
@1
For starters, they are asking Congress to impeach the President for something that the Congress knew about beforehand, and did not try to prevent.
No, Congress did not know about it beforehand. Even Bush doesn’t even try to claim this.
From a statement from Senator Feingold:
http://www.feingold.senate.gov.....60207.html
Please try to argue that Senator Feingold is lying here.
Second, I’m not necessarily arguing for impeachment here. It’s probably too late in the game for that. I’m arguing for finding the best way to disclose the reality of what’s been happening. Achieving “justice” in this case is arguably impossible at this point.
But additionally, there is a real legal disagreement about whether the wiretapping program was legal.
No, there isn’t.
This is something that should be decided by the Supreme Court, not Congress. And if the Supreme Court finds against the President, then impeachment should not follow unless the President continues in that course of action.
Um, no. The Wikipedia article on impeachment explains how it works.
http://en.wikipedia.org/wiki/Impeachment
There’s a reason why the Democrats never took the warrantless wiretapping to the Supreme Court: it didn’t want to lose.
There are several groups (EFF, ACLU) who are actively trying to take this case up in the courts.
I personally think that the case is significantly stronger against wiretapping than for it, but the Democrats didn’t want to turn this into a legal dispute. They wanted to keep it rhetorical.
Part of the point of this post is that Democrats ARE shying away from the battle. But that has little to do with whether or not the Bush Administration broke the law. It has to do with certain Democrats’ own authoritarian views and their fear of being cast as “soft on terrorism.”
And no, I didn’t check out the Sound Politics link for reasons that should be fairly obvious.
@1
Marvin,
I just clicked through to the Sound Politics post and noticed that your comment is text posted verbatim from there. Make sure you clearly indicate quotes that were taken from elsewhere.
Bush always has the power to pardon the telecom’s executives from criminal charges, and I think this extends to the corporations, as well. The only practical problems are that Bush might be required to name everyone involved in the process, to avoid charges being brought after Bush leaves office. That might be embarrasing in itself, as it is a red flag which says “look here!” to anyone who is interesting in unraveling what occured.
But the pardon powers don’t extend to the civil process, which is what is currently being persued. It’s not the prospect of a big damages award against the Telcoms which Bush fears – it is the pretrial discovery, including lots of subpeonas and depositions and requests for production of documents.
So far, the Bush administration has done a pretty effective job of stonewalling investigations by refusing to produce witnesses, asserting a dubious executive priviledge as to others, refusing access to most documents and e-mails, and claiming the inadvertant destruction of others – along with their backup copies. But they have to be concerned about what might be found in the Telcom’s records, which they haven’t had the opportunity to scrub in a similar fashion. The domestic spying scandal could well be just the tip of the iceberg – who knows what other misdeeds might be revealed? Remember that Nixon conspired to obstruct justice not because he was concerned about the Watergate break-in, but because he knew there was a lot more to the Plumber’s activities besides the Watergate escapade, and he didn’t want ANY of it to come out.
Also, pretrial discovery has it’s own land mines, as Clinton discovered. The underlying case brought by Paula Jones was never proven (eventually settled by Clinton agreeing to pay a little more than Jone’s legal fees), but when he lied in a deposition about relations with an entirely different woman, the Republican hit machine had everything they needed to throw at him. Scooter Libby was never convicted for outing Valerie Plame, but he was convicted of perjury/obstruction of justice. It is a trap experienced politicians can fall into easily – they are so accostomed to lying to the public, and lying to the media, that it is difficult for them to think that they can’t get away with lying in a deposition or in court.
We presume that with immunity, there will be no need for the Telcom executives to turn snitch on the Bush administration. It certainly worked when Libby, who had publically hinted at pointing the finger at Cheney, clammed up once his sentence was commuted. One can easily imagine the Telcom executives letting Bush know that if they go down, they aren’t going to be alone. But Bush & Co. could also face the opposite problem: with immunity from prosecution under the FISA bill, the Telcom executives can’t refuse to testify by citing their 5th Amendment priviledges, since there is no threat of prosecution.
Either way, whether the FISA bill passes with or without Telcom immunity, it will be interesting to see who Bush pardons in his final days in office. I will be astounded if he leaves office without at least pardoning Rove, Cheney, and himself to boot.
Just remember that the Bush regime has set the precedent here. It may come back to bite America – it certainly will come back to bite the GOP and they deserve it.
From my understanding, the lawsuits filed against the Telcom companies for the Fed’s illegal wiretapping have never made it to trial on the merits. The trial courts have ruled, in pretrial motions, that the plaintiffs don’t have standing to sue because they can’t prove that they, personally, were spied upon. Of course, they can’t prove it without access to the records from the Telcoms or the Justice Dept., release of which has been blocked citing national security considerations. So the Plaintiffs are in a catch-22 situation: they can’t proceed with their suits without the records, and the the court won’t let them get the records unless they can prove that they, individually, were harmed to a sufficient extent to allow the case to proceed to pre-trial discovery.
@6
We presume that with immunity, there will be no need for the Telcom executives to turn snitch on the Bush administration. It certainly worked when Libby, who had publically hinted at pointing the finger at Cheney, clammed up once his sentence was commuted. One can easily imagine the Telcom executives letting Bush know that if they go down, they aren’t going to be alone. But Bush & Co. could also face the opposite problem: with immunity from prosecution under the FISA bill, the Telcom executives can’t refuse to testify by citing their 5th Amendment priviledges, since there is no threat of prosecution.
I think this is an excellent point, and if the Democrats recognize this and are playing it this way on purpose, I may have to rescind my “spinelessness” comment. :)
@8
Absolutely.
Marvin’sPudge’s statement in comment #1 misstates the case significantly. Democrats have tried to take this to court. But they’ve been gamed by judges who are buying the Administration’s circular arguments.The idea of immunity by presidential pardon raises an interesting and previously untested part of the Constitution:
Art. 2, sect. II:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
If my memory serves me correctly, anyone pardoned for crimes related to the Impeachment of the president would be nullified or not allowed to proceed. Although, I don’t think there has been a legal test of this.
It would actually appear that we’re verging on a constitutional crisis anyway. The Justice Department is refusing to bring Contempt of Congress charges against numerous administration officials who either refused to appear when subpoenaed, refused to answer questions in committee hearings or obviously perjured themselves. It’s perhaps another step to refuse to prosecute individuals outside the administration, and one I’d expect the administration would take if the wiretapping exemption isn’t passed.
This would in effect appear to render Congress completely impotent, beyond even its own attempts to do so. At such a juncture, what can Congress do other than either impeach, or sit on its hands until the election and hope that the next chief executive chooses not to pursue the same course–assuming the current chief executive doesn’t decide to appoint himself “president-for-life”.
So, under such a circumstance, could the principal charge in Articles of Impeachment be simply one of abject failure to “protect and defend the Constitution”? Or…could it be argued that one can somehow protect and defend the document while simultaneously refusing to obey it?
Art @ 12: I haven’t been up to speed on the details, but Howard Dean wrote a book (I haven’t read it yet) which, according to interviews, talks in part about the Congressional right to enforce subpeonas as part of it’s inherent powers.
What happens is that the Congress authorizes the Sgt. at Arms to go arrest the person, bring them directly before the Congress, where if they continue to refuse to testify or produce doucuments as required, at trial will be immediately held as to whether to hold them in Contempt of Congress and imprisoned until they obey.
It’s similar to a judge’s civil contempt powers, when they can summarily imprison or fine a person for contempt of court if the infraction occurs within the judge’s presence.
All of which brings up the interesting visual of the Sgt. of Arms of the House of Representatives, presumably backed up by the Capital Hill Police, insisting to the Secret Service that they have the right to knock down the door of Cheney’s residence in the middle of the night, and drag him before the House in his pajamas. After a quick trial, they can then imprison him in the lower basement broom closet until he agrees to testify. ;)
Art & 12: A more direct route to impeachment would not to bring in disputes over the definition of the Presidential Oath, which is a pretty vague standard. Instead, simply charge the President with Obstruction of Justice for refusing to produce records or witnesses as required.
But the practical problem with impeachment is one of timing. Nobody really wants to remove Bush if it puts Cheney in office, even for a short time. You have to get rid of Cheney first, then Bush. With only nine months left with Bush & Co. in office, there isn’t much time. The best time for this strategy might have been to start proceedings this time last year. But it didn’t happen, so we have to figure out where to go from here.
Ideally, you could have Cheney impeached & removed, then a moderate Republican nominated and confirmed by the Senate, then Bush impeached, and then the moderate Republican is the caretaker President until next January. This was pretty much what happened to Agnew & then Nixon, except that Agnew resigned in a plea deal rather than wait for impeachment. But Cheney isn’t going to cooperate by resigning, and Bush won’t cooperate by naming a moderate Republican as his replacement. He might name McCain as a “poison pill” which the Democrats won’t want because it allows their 2008 nominee to play the role of being Presidential, or he might name Tom DeLay or Karl Rove or somebody else equally unacceptable.
This leaves the door open to Bush being impeached with the Vice-Presidency vacant, at which point Pelosi as Speaker of the House steps into the Presidency. But I think she, and a lot of Democrats, don’t like that scenario very much – it looks a bit too much like Pelosi and the House Democrats staged a coup to put one of their own in charge.
10 – Whoa! Stamm is Pudge?
No. No. Can’t be.
@15
No, he’s just plagiarizing. It’s almost insulting to Pudge to suggest it. :)
@13: rhp
We need to protect those brooms in the broom closet from a full Cheney night.
@11: GBS – hmmm- so if congress impeaches the president he can’t use the pardon for any actions relating to impeachment – therefore he would need the retroactive immunity.
If congress grants retroactive immunity (I hope not) can they then vote to remove it after impeachment?
1 MS
there is a real legal disagreement about whether the wiretapping program was legal.
That sounds like the “disagreement” about global warming. That is, if you can pay a guy to say he disagreees, you can claim disagreement.
Over here in the real world, when the government wants to suveil a coversation between an American in this country and someone overseas, the law says they have to get a FISA warrant. No warrant, illegal. No “disagreement.”
@1 “For starters, they are asking Congress to impeach the President for something that the Congress knew about beforehand, and did not try to prevent. That is nonsensical on its face.”
Let’s try Stamm’s logic on something closer to home: If a burglar tells you he’s going to loot your home while you’re away on vacation, the burglary is not a crime because you knew about it ahead of time.
Waytago Marvin, you dumbfuck.
“But additionally, there is a real legal disagreement about whether the wiretapping program was legal. This is something that should be decided by the Supreme Court, not Congress.”
For once I agree with you, Marvin. We should indict, prosecute, and convict the motherfuckers who ordered the illegal wiretapping, then let them appeal all the way to the Supreme Court.
“And if the Supreme Court finds against the President, then impeachment should not follow unless the President continues in that course of action.”
Once again, Stamm demonstrates his total lack of knowledge of the Constitution. Impeachment is exclusively a power of Congress, and the Supreme Court has no jurisdiction over this.
“If we allow Congress to threaten impeachment over a valid legal disagreement, then we are in effect ceding the President’s obligation and authority to interpret the law and the Constitution for the Executive branch to the Legislative branch, which is a serious violation of the separation of powers.”
If a Republican congress could impeach Clinton for allegedly lying to a court, then a Democratic congress sure as hell can impeach Bush for breaking federal laws.
“There’s a reason why the Democrats never took the warrantless wiretapping to the Supreme Court: it didn’t want to lose. I personally think that the case is significantly stronger against wiretapping than for it, but the Democrats didn’t want to turn this into a legal dispute. They wanted to keep it rhetorical.
http://soundpolitics.com/archi ves/009981.html”
You get your legal advice from Sound Politics? No wonder you have your head so far up your ass your tongue is hanging out of your mouth.
HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR
Well, I guess the flip side is that telecom immunity wouldn’t immunize administration officials (including Bush), and telecom executives wouldn’t be able to hide behind the Fifth Amendment.
@17 Is Stamm a plagiarist, or merely too stupid to know what quote marks are for?
@22
Probably both
But don’t worry–when a Democrat is president the Republicans in Congress and in the courts (and the press) will suddenly find themselves in agreement that any exercise of presidential power is a very, very bad thing.
Pelletizer@22: He implemented the time worn trick of acting donkey.
Clueless Idiot plagiarized here before and you never called him on it!