quote:The Ashcroft example is complicated in that firing him at that point would have been resulted in serious political damage to President Bush.
Which is always going to be the case when the President fires an AG for not signing off on the legality of an executive program.
Beyond that, it still answers Tom's question quite soundly. He asked "Why" the AG wouldn't sign off and not be fired. We know it happened at least once. Political reasons are an answer to that question, even though I don't think that was the motivating factor.
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Dag, the point we've discussed re: "colorable" before is that it IS an empty word in this situation, because the determination of what actually constitutes a "colorable" argument is not one that can be realistically made without bias by any of the parties expected to make this decision.
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Which is why it should be put to the court, for the definitive answer, and not used as the basis for the most extreme sanction available.
If they present it in court, there is a neutral arbitrator and significant penalties for the lawyer advancing a non-colorable argument.
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quote:Which is always going to be the case when the President fires an AG for not signing off on the legality of an executive program.
We don't know this to be the case. In fact, from a cynical perspective, you could argue that Bush later deliberately undermined Ashcroft's position at Justice in order to replace him in a way that would avoid political fallout, and thus assume that the changes which were previously made to the program have since been rolled back in silence. Washington moves slowly enough that I don't see any real, practical reason why this couldn't apply to virtually every case of obstruction -- especially since the President picks the AG originally, meaning that disagreements would only arise in exceptional situations in the first place.
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quote:Which is why it should be put to the court, for the definitive answer, and not used as the basis for the most extreme sanction available.
Which is why I am saying that your argument amounts, as far as I can tell, to the claim that all impeachment proceedings that don't involve clear criminality should go through the Supreme Court. If we grant that part of the AG's job (as seen by his immediate boss) is to justify -- and come up with -- "colorable" arguments for executive policies, and believe that the Supreme Court is the appropriate venue for determining whether an argument is truly colorable, and would expect that only non-colorable arguments would be ignored by Congress, then it does seem to logically follow that you see the Supreme Court as a quasi-mandatory first stop in any impeachment.
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quote:Which is why I am saying that your argument amounts, as far as I can tell, to the claim that all impeachment proceedings that don't involve clear criminality should go through the Supreme Court.
Except your assuming that "colorable" isn't something that is regularly evaluated by lawyers every single day, most of the time without going to court.
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But, Dag, those lawyers are going to disagree. It's practically a given. Even if we leave the DoJ out of it, it's guaranteed that some bunch of aging lawyers in the Republican Party are going to disagree with another bunch of aging lawyers in the Democratic Party -- for political reasons alone, if not for actual philosophical/legal ones. And you're saying that when that happens, it should go to the Supreme Court before it goes to an impeachment hearing.
But the only time I could ever imagine it not happening would have to involve the AG saying something like, "Oh, yeah, I guess that was pretty unconstitutional. Sorry. We'll stop immediately."
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quote:But, Dag, those lawyers are going to disagree. It's practically a given.
I disagree. I've disagreed vehemently and repeatedly. So I, at least, am not saying that any issue "should go to the Supreme Court before it goes to an impeachment hearing."
quote:Even if we leave the DoJ out of it, it's guaranteed that some bunch of aging lawyers in the Republican Party are going to disagree with another bunch of aging lawyers in the Democratic Party -- for political reasons alone, if not for actual philosophical/legal ones.
Which is another great reason not to move into impeachment based on what the advocates alone are saying.
quote:But the only time I could ever imagine it not happening would have to involve the AG saying something like, "Oh, yeah, I guess that was pretty unconstitutional. Sorry. We'll stop immediately."
Or when the President is doing something very, very wrong. Which is the heart of the dispute. I don't want the President's constitutional duty of interpreting statute and constitution to be performed under the threat of impeachment if a bunch of people in the opposite party think his interpretations are wrong. I want impeachment to be more reserved than that.
But I still don't think that any issue "should go to the Supreme Court before it goes to an impeachment hearing."
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quote:I don't want the President's constitutional duty of interpreting statute and constitution to be performed under the threat of impeachment if a bunch of people in the opposite party think his interpretations are wrong.
I understand your reservations, although I don't agree with them. But how should a Congress deal with a president who hurls potentially abusive Constitutional "reinterpretations" like spaghetti at a wall, just to see what sticks? It's simply not politically feasible to review every individual policy, and at some point a clear pattern of skirting close to the edge has to become actionable. Doesn't it?
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I am still unsure if Dag is arguing to reform the impeachment process, or just to add something new: a SCOTUS declaratory mechanism that can be initiated by the President or Congress.
quote:Originally posted by Dagonee: This is not my preferred form of verification of the legality of this program. I would far prefer to have it submitted to the courts, and I wish there was a mechanism for the administration and congress to seek declaratory judgments regarding the matter.
I can certainly see the wisdom for such a process although I am not exactly clear what the status of those decisions would be in relation to the jurisprudence of case law and precedent. It smacks of French civil law but presumably these declarations could find their place much like the signing statements.
What I can't figure, is how this addresses the impeachment process except as another potential factor that may, or may not, be considered by Congress in the proceedings.
If the SCOTUS declaration is not a requirement, nor a replacement, for impeachment, impeachment as a concept, or even as a specific process, is unchanged with or without the new mechanism.
The catchall of ‘high crimes and misdemeanors’ remains, as does congressional authority to determine what that means. Whatever objections that this constitutes a ‘vote of no-confidence’ endure, even if employed less often by virtue of the SCOTUS mechanism.
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