An Open Letter to Nancy Pelosi

Dear Speaker Pelosi,

I am sorry to hear that you are still opposing impeachment hearings for any of the current administration. There are clear indications of serious unlawful activities by the Attorney General, the Vice-President and the President. I understand that you are concerned that impeachment proceedings will divide the nation and distract the congress from it's legislative agenda.

Shining the harsh light of truth on this administrations mis-deeds will not divide the nation but elevate it.

Responding to your constitution duty of oversight, of defending the laws and constitution of the country is not a distraction. This is the highest duty of every legislator.

Speaker Pelosi, I call on you to honor your pledge to defend the constitution and address the lawlessness of the administration. The time to put impeachment on the table is now.

My deepest respects,

The best video on Attorney gate

The limit on the pardon power "in cases of impeachment"

The question has been raised in other discussions whether, if a person is impeached by the House, convicted by the Senate and then convicted of the same crime by the courts, they could latter be pardoned. The constitution is unclear on this question. The most relevant section is:

Article II, Section 2:

The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

So the question turns on the meaning of "except in cases of impeachment".

I am far from a constitutional lawyer. In fact, IANAL of any kind. However, it appears that the framers did intend to exclude just the case we've outlined above from the President's pardon power. Against this view one could cite the following. Writing about impeachment

William Rawle, A View of the Constitution of the United States 210--19 1829 (2d ed.)

http://press-pubs.uchicago.edu/founders/documents/a1_2_5s17.html

It is therefore right and proper that the president should be disabled from granting a pardon, and restoring the offender to his former competency; but there is no restraint on his pardoning when a conviction in the common course ensues, for such pardon extends only to the punishment which is then pronounced, and does not affect the sentence of the senate.

So Rawle seems to suggest that while the President can not void the judgement of the Senate, she can pardon any subsequent convictions.

Story give us some perspective on this question:

Joseph Story, Commentaries on the Constitution 3:§§ 1488—98

http://press-pubs.uchicago.edu/founders/documents/a2_2_1s30.html

§ 1495. There is an exception to the power of pardon, that it shall not extend to cases of impeachment, which takes from the president every temptation to abuse it in cases of political and official offences by persons in the public service. The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence, that the president should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. The constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.

Story notes that the reason for the exclusion of pardon power from cases of impeachment is to prevent the president from protecting corrupt individuals. Clearly this impedement would be weakened if the she could prevent judicially imposed penalties for the crimes that were the basis of impeachment. This however, is certainly not conclusive.

Question is fairly well wrapped up however, in the following:

Records of the Federal Convention Document 1

http://press-pubs.uchicago.edu/founders/documents/a2_2_1s1.html

2:411; Journal, 25 Aug.]

It was moved and seconded to insert the words "except in cases of impeachment" after the word "pardons" 2 sect. 10 article

which passed in the affirmative

On the question to agree to the following clause "but his pardon shall not be pleadable in bar [of impeachment]"

it passed in the negative [Ayes--4; noes--6.]

I conclude from this that the president looses all power of pardon over the crimes for which a person is impeached, in all venues, not just in the context of the impeachment and Senate trial and their consequent penalties. I assert that this question turns on the distinction between "the bar" of impeachment, that is in the Senate, and "cases of impeachment". cases of impeachment refers to the facts, or crimes, upon which the impeachment is based. Thus, the founders rejected limiting the effect of a pardon such that it had no bearing on the Senate trial. They went further by asserting that the pardon power did not apply to the cases, that is the crimes, for which a conviction in the Senate occurs.

Update Ronk over at The Next Hurrah has another, interesting discussion of this topoic.

Update 2:

Some additional sources;

George Mason:

You will please, says he, to recollect that removal from office, and future disqualification to hold any office, are the only consequences of conviction on impeachment. Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.

Note that his language around impeachment was adopted while that around treason was not.

Here, Blackstone makes a clear distinction between the pardon powers before and after impeachment using the phrase "in bar of impeachment" to refer to the use of a pardon preventing an impeachment or it's direct consequences and the House of Commons voted that "that a pardon is not pleadable in bar of an impeachment." That is, a pardon can not block impeachment and removal from office. This is precisely the language that was explicitly rejected in favor of the phrase "in cases of impeachment".

George Tucker gives a reading that suggests the crimes can be pardoned but not the consequences of impeachment. However, he does not explain the difference in language used by Parliment vs. that in the US constitution.

William Rawle argues:

Impeachments are generally efforts of the people of that country through their representatives in the house of commons, to obtain redress before a distinct and independent tribunal, for the mal-practices of the great officers of the crown. No pardon previously granted, can shelter the accused from a full inquiry, and thus his misconduct, if substantiated, is developed and exposed to the nation, but after the impeachment has been solemnly heard and determined, it is not understood that the royal grace is further restrained or abridged.

With us, no pardon can be granted either before or after the impeachment; and perhaps, if this mode of trial is retained at all, it is right that the sentence of a guarded and august tribunal, which, as we shall find, is exceedingly limited in the extent of its punishments, should be excepted from the general power of the president to defeat the effect of the condemnation.

Bush's gift to his opposition

Bush's declaration that DOJ will not pursue any contempt referral against someone who is attempting to honor a claim of executive privilege is a real gift to those who would like to remove this administration. He has made the path forward very clear.

It would have been much smarter on Bush's part not to make the assertion that he is immune from a contempt citation, allow the USA to take the referral, and then bog it down in the GJ. It would have been much harder for congress to respond to that more passive aggressive approach. Instead, his compulsion to explicitly assert his authority provides the road map to impeachment. This should play out in the following ways:

1. The House needs to issue contempt citations at once and refer them to the DC USA.
2. There are two possible outcomes from such a referral:
1. The USA can bring the charges before a GJ and attempt to indict. In this unlikely case he will fired. I certainly hope this happens on a Saturday night if only for poetic reasons. If this happens, it needs to be answered with impeachment hearings.
   
2. The USA can refuse to bring charges. This is the more likely scenario.
3. In either scenario there is now a clear path to moving forward:
1. Begin inherent contempt charges in the House against the parties for whom contempt referral was made.
2. Begin impeachment hearings against anyone in the chain of command involved in the refusal to pursue the original charges.

By declaring that there can be no judicial recourse against the arbitrary assertion of executive authority Bush has made the roads forward very clear, and all roads lead to impeachment.

Keeping busy

With the tremendous sense of urgency we all feel about moving impeachment forward, the slow progress we are seeing can be very discouraging. Felling helpless and powerless is not unusual. But the truth is we are neither helpless nor powerless. Our voices will be heard as long as we continue to raise them. Here are some practical steps we can follow:

There are several ways you can have an impact but realize that these will all take time. So what ever you do, keep doing it. The fact that people don’t stop calling and emailing is in itself important.

The most important thing is to keep up the volume on as many fronts as possible. These include:

Letters/email/phone calls to:

• Newspapers, and other MSM

• Congresscritters. Esp all of those on key committees, even if they are not from your district.

• Your local state reps and senators. The rules that the House uses make resolutions from state legislators on this issue ver important and they can not be ignored.

• Your friends and neighbors.

Put up signs, wear T-shirts, send people links to the Moyer’s piece.

Stay active, vocal and informed, praise the lord and pass the information.

The Surge is working: NOT - -July Edition

In a previous post I discuses one of the ways we are getting set up for claims that the surge is working. We're already starting to hear these claims but BushCo is hoping to by time before he declares success. In Sept he will point to dramatically lowered rates of casualties among coalition forces. They know he'll be able to do this because the casualty rates ALWAYS FALL IN THE SUMMER. Here is an update to one of the charts in the earlier piece shown that this pattern is continuing. Once you account for the higher baseline brought on by the surge, the curves are almost identical.I'll update this every couple of weeks but you can see where this is going. When we start to hear how the violence is down we can be ready to respond:

Update to end of July



Of course it's down stupid, it's always down in summer. Your saying the surge caused the summer?

Planning for Regime Change

OK, I think is is starting to be time to start talking about how to make impeachment and conviction or resignation palatable to the rethugs. For all my rants I know we can not force regime change before the election without them. I think the pressure their districts and states will eventually have them looking for a way out as they will recognize that they are headed for defeat in 2008 and it is just a matter of cutting their losses. So what will be required? I think these are the sort of terms we need to think about.

1) Cheney resigns or is impeached. This has to be the first thing to happen of course.

2) A VP replacement that is acceptable to both parties needs to be put in place. Powell might be a name to float here. He would not be a big threat in 2008, he really does have a modicum of integrity and common sense, and he does not have too many enemies in the Senate. He may be willing to promise no pardons and if he does he may keep the promise.

3) Bush must then be impeached and convicted.

4) Gonzo has to go. Powell could then fire him or he could be impeached. I prefer impeachment since there is a good case to be made that he could not then be pardoned for succeeding criminal conviction.

5) Rice needs to be impeached.

6) A new AG needs to be appointed who will pursue criminal charges against all of the above and others. It may be that this can wait until after 2009 when there is a Dem admin to prosecute.

7) It may actually make sense to offer to send the members to BushCo to The Hague since they don’t have a death penalty the war criminal may want the deal.

There are lots of other possible road maps but we need to start drawing one now or we won't get there.

Dear Madame Speaker: IMPEACH!

Dear Speaker Pelosi,

I know you must be outraged by the Presidents commutation of Scooter Libby. Outrage, however is not enough. I know you have said of our President that he is not worth impeaching. By deed or by neglect he supported the exposure of Valarie Plame, a covert CIA operative. As you know, Ms. Plame worked to protect our country from the spread of weapons of mass destruction and was exposed in order to extract vengeance on her husband, a critic of the Bush administration. Exposing Ms. Plame was an act of treason. Exposing Ms. Plame's network was no less than giving aid and comfort to the enemy in time of war. To call it anything less obscures the true nature of that seditious act. How many agents died as a result of this betrayal. We will probably never know but surely many were placed in grave danger.

All members of congress have taken an oath to defend the constitution of the United States. By granting clemency to Mr. Libby, the President has declared his allegiance to these traitors. As our representatives, it is your duty to begin impeachment proceedings with all due speed. When you speak with one voice, declaring the treasonous character of this administration, the American people will be behind you.