Is impeachment of Bush/Cheney tricky for the Democratic Party?

http://www.afterdowningstreet.org/?q=node/24608

Why We Need More Investigations Like Cheney Needs More Power

Submitted by davidswanson on Thu, 2007-07-12 19:51. Evidence | Impeachment

Their crimes stand open on the table before us. Their lies about Iraqi ties to al Qaeda are on videotape and in writing, and they continue to make them to this day. Their claims about Iraqi weapons have been shown in every detail to have been, not mistakes, but lies. Their threats to Iran are on videotape. Bush being warned about Katrina and claiming he was not are on videotape. Bush lying about illegal spying and later confessing to it are on videotape. A federal court has ruled that spying to be a felony. The Supreme Court has ruled Bush and Cheney's system of detentions unconstitutional. Torture, openly advocated for by Bush and Cheney and their staffs, is documented by victims, witnesses, and public photographs. Torture was always illegal and has been repeatedly recriminalized under Bush and Cheney. Bush has reversed laws with signing statements. Those statements are posted on the White House website, and a GAO report found that with 30 percent of Bush's signing statements in which he announces his right to break laws, he has in fact proceeded to break those laws. For these and many other offenses, no investigation is needed because no better evidence is even conceivable. And rather than taking three months, the impeachment of Cheney or Bush could be completed in a day.

But the investigations that Congress has pursued at its glacial pace over the past six months, while thousands upon thousands died, have produced another impeachable offense, the refusal to comply with subpoenas. That is what President Richard Nixon did; and his refusal to comply with subpoenas constituted the offense cited in one of the three Articles of Impeachment approved by the House Judiciary Committee on July 27, 1974 as warranting "impeachment and trial, and removal from office."

Bush and Cheney are claiming executive privilege. Nixon also tried that one. It didn't work then; and it won't work now. Condoleezza Rice is claiming, with more frankness, that she's just not inclined to comply. Even Nancy Pelosi ought to understand by now that the removal of the threat of impeachment is what empowers the White House to ignore subpoenas, and that the threat of impeaching the White House for its stonewalling would break down the wall even before we reached impeachment.

http://writ.news.findlaw.com/dean/20061215.html
Refocusing the Impeachment Movement on Administration Officials Below the President and Vice-President:
Why Not Have A Realistic Debate, with Charges that Could Actually Result in Convictions?
By JOHN W. DEAN
----
Friday, Dec. 15, 2006

There is a well-organized and growing movement to impeach President Bush and/or Vice President Cheney. On my bookshelf sit half a dozen books making the case for Bush's impeachment. I myself have no doubt that Bush has, in fact, committed impeachable offenses, and that for each Bush "high crime and misdemeanor," Cheney's culpability is ten or twenty times greater.
---------------------------------------------------------------------------------------------

There Is No Chance Either Bush or Cheney Will Be Removed From Office

The Republican Congress shamed itself when it impeached and tried President William Jefferson Clinton. It was a repeat of what an earlier Republican Congress had done to President Andrew Johnson, following the Civil War. Both proceedings were politics at their ugliest.

Democrats, when they undertook to impeach Richard Nixon, moved very slowly, building bipartisan support for the undertaking. Nixon, of course, resigned, when it became apparent that the House had the votes to impeach and the Senate had the votes to convict, with his removal supported by Democrats and Republicans, and conservatives and liberals alike.

Getting the necessary two-thirds supermajority in support of impeachment in today's Senate, which is virtually evenly-divided politically, is simply not possible. With forty-nine senators of the 110th Congress members in good standing with the Republican Party, and most of them rock-ribbed conservatives, even if the House produced evidence of Cheney personally water-boarding "Gitmo" detainees in the basement of his home at the Naval Observatory, with Bush looking on approvingly, there are more than thirty-three GOP Senators who still would not vote to convict. (Senate Republicans who have no problem with torture, or with removing the right to habeas corpus, and who refused to exercise any oversight whatsoever of Bush or Cheney, are hardly going to remove these men for actions in which they too are complicit.)

Pelosi and Reid have long understood this reality, and rather than do to Bush and/or Cheney what Republicans did to Clinton - impeach him in the House merely because they had the power to do so and they wanted to tarnish him, only to lose their battle decisively in the Senate - they are simply not going to play the same game. Politically, this is smart. Americans do not want another impeachment, particularly when Bush and Cheney will be out of office in January 2009.

Meaning of "High Crimes and Misdemeanors"
by Jon Roland, Constitution Society
http://www.constitution.org/cmt/high_crimes.htm
The question of impeachment turns on the meaning of the phrase in the Constitution at Art. II Sec. 4, "Treason, Bribery, or other high Crimes and Misdemeanors". I have carefully researched the origin of the phrase "high crimes and misdemeanors" and its meaning to the Framers, and found that the key to understanding it is the word "high". It does not mean "more serious". It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.
Under the English common law tradition, crimes were defined through a legacy of court proceedings and decisions that punished offenses not because they were prohibited by statutes, but because they offended the sense of justice of the people and the court. Whether an offense could qualify as punishable depended largely on the obligations of the offender, and the obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.
-----------------------------------------------------------------------------------------------
Independent Counsel Kenneth Starr erred in presenting in his referral only those offenses which could be "laid at the feet" of the president. He functioned like a prosecutor of an offense against criminal statutes that apply to ordinary persons and are provable by the standards of "proof beyond a reasonable doubt". That is not to say that such offenses are not also high crimes or misdemeanors when committed by an official bound by oath. Most such offenses are. But "high crimes and misdemeanors" also includes other offenses, applicable only to a public official, for which the standard is "preponderance of evidence". Holding a particular office of trust is not a right, but a privilege, and removal from such office is not a punishment. Disablement of the right to hold any office in the future would be a punishment, and therefore the standards of "proof beyond a reasonable doubt" would apply before that ruling could be imposed by the Senate.

It should be noted, however, that when an offense against a statute is also a "high crime or misdemeanor", it may be, and usually is, referred to by a different name, when considered as such. Thus, an offense like "obstruction of justice" or "subornation of perjury" may become "abuse of authority" when done by an official bound by oath. As such it would be grounds for impeachment and removal from office, but would be punishable by its statutory name once the official is out of office.

An executive official is ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons. It is not necessary to be able to prove that such failures or violations occurred at his instigation or with his knowledge, to be able, in Starr's words, to "lay them at the feet" of the president. It is sufficient to show, on the preponderance of evidence, that the president was aware of misconduct on the part of his subordinates, or should have been, and failed to do all he could to remedy the misconduct, including termination and prosecution of the subordinates and compensation for the victims or their heirs. The president's subordinates include everyone in the executive branch, and their agents and contractors. It is not limited to those over whom he has direct supervision. He is not protected by "plausible deniability". He is legally responsible for everything that everyone in the executive branch is doing.

Therefore, the appropriate subject matter for an impeachment and removal proceeding is the full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied. The massacre at Waco, the assault at Ruby Ridge, and many, many other illegal or excessive assaults by federal agents, and the failure of the president to take action against the offenders, is more than enough to justify impeachment and removal from office on grounds of dereliction of duty. To these we could add the many suspicious incidents that indicate covered up crimes by federal agents, including the suspicious deaths of persons suspected of being knowledgeable of wrongdoing by the president or others in the executive branch, or its contractors.

The impeachment and removal process should be a and if judged to have been excessive by reasonable standards, to be grounds for removal, even if direct complicity cannot be shown.