Unimpeachable Logic

Leonard Jaffee has meticulously laid out a compelling case for impeaching our Vice-President. The most important point in his analysis is that the decision to impeach can be taken solely by the House and Senate, without constraints from the Judicial Branch.

"Still, for the House and Senate, the Supreme Court's inclination is irrelevant. The Supreme Court does not determine the meaning of "high Crimes and Misdemeanors." The House and Senate do. Their determinations are not subject to judicial review or limited by judicial precedent or any statute. Even if Cheney's coercions are not technical federal or state-law crimes, they were high Crimes and Misdemeanors. They perverted Cheney's office monstrously and harmed, hugely, our Republic."

Now the real question is: why shouldn't we impeach Dick Cheney? With a 28% approval rating, the general public won't shed any tears to see him on the hotseat. Those Rethugs in the House and Senate who may defend him will do so at considerable political cost.

The Awful Truth

Well, it's official, folks. The wheels have come off the Neocon bus. Long habits of contempt for the rule of law have led the Executive and the Cheney branches of our national government to openly defy the legislative branch. Rather than work together with the duly elected representatives of the American Republic to restore the badly shaken faith of most citizens in the good will of their government, Cheney and his faithful lapdog lil'Bush are telling the House and Senate to "go f@#* themselves."

Laurie Kellman reports from Washington, D.C. for The Associated Press:

"The Senate subpoenaed the White House and Vice President Dick Cheney's office Wednesday, demanding documents and elevating the confrontation with President Bush over the administration's warrant-free eavesdropping on Americans.
Separately, the Senate Judiciary Committee also is summoning Attorney General Alberto Gonzales to discuss the program and an array of other matters that have cost a half-dozen top Justice Department officials their jobs, committee chairman Patrick Leahy announced.
Leahy, D-Vt., raised questions about previous testimony by one of Bush's appeals court nominees and said he wouldn't let such matters pass.
"If there have been lies told to us, we'll refer it to the Department of Justice and the U.S. attorney for whatever legal action they think is appropriate," Leahy told reporters. He did just that Wednesday, referring questions about testimony by former White House aide Brett Kavanaugh, who now sits on the U.S. Court of Appeals for the District of Columbia.
The escalation is part of the Democrats' effort to hold the administration to account for the way it has conducted the war on terrorism since the Sept. 11, 2001, attacks. The subpoenas extend the probe into the private sector, demanding among other things documents on any agreements that telecommunications companies made to cooperate with the surveillance program.
The White House contends that its search for would-be terrorists is legal, necessary and effective pointing out frequently that there have been no further attacks on American soil. Administration officials say they have given classified information such as details about the eavesdropping program, which is now under court supervision to the intelligence committees of both houses of Congress.
Echoing its response to previous congressional subpoenas to former administration officials Harriet Miers and Sara Taylor, the White House gave no indication that it would comply with the new ones.
"We're aware of the committee's action and will respond appropriately," White House spokesman Tony Fratto said. "It's unfortunate that congressional Democrats continue to choose the route of confrontation."
In fact, the Judiciary Committee's three most senior Republicans Arlen Specter of Pennsylvania, former chairman Orrin Hatch of Utah and Chuck Grassley of Iowa sided with Democrats on the 13-3 vote last week to give Leahy the power to issue the subpoenas.
The showdown between the White House and Congress could land in federal court.
Also named in subpoenas signed by Leahy were the Justice Department and the National Security Council. The four parties the White House, Cheney's office, the Justice Department and the National Security Council have until July 18 to comply, Leahy said. He added that, like House Judiciary Committee Chairman John Conyers, D-Mich., he would consider pursuing contempt citations against those who refuse.
Gonzales, in Spokane, Wash., on Wednesday to discuss gang issues with local officials, said he had not seen the subpoena documents and could not comment on them directly.
"There are competing institutional interests," Gonzales said.
The Judiciary committees have issued the subpoenas as part of a look at how much influence the White House exerts over the Justice Department and its chief, Gonzales.
The probe, in its sixth month, began with an investigation into whether administration officials ordered the firings of eight federal prosecutors for political reasons. The Judiciary committees subpoenaed Miers, one-time White House legal counsel, and Taylor, a former political director, though they have yet to testify.
Now, with senators of both parties concerned about the constitutionality of the administration's efforts to root out terrorism suspects in the United States, the committee has shifted to the broader question of Gonzales' stewardship of Justice.
The issue concerning Kavanaugh, a former White House staff secretary, is whether he misled the Senate panel during his confirmation hearing last year about how much he was involved in crafting the administration's policy on enemy combatants.
The Bush administration secretly launched the eavesdropping program, run by the National Security Agency, in 2001 to monitor international phone calls and e-mails to or from the United States involving people the government suspected of having terrorist links. The program, which the administration said did not require investigators to seek warrants before conducting surveillance, was revealed in December 2005.
After the program was challenged in court, Bush put it under the supervision of the Foreign Intelligence Surveillance Court, established in 1978. The president still claims the power to order warrantless spying.
The subpoenas seek a wide array of documents from the Sept. 11 attacks to the present. Among them are any that include analysis or opinions from Justice, NSA, the Defense Department, the White House, or "any entity within the executive branch" on the legality of the electronic surveillance program.
Debate continues over whether the program violates people's civil liberties. The administration has gone to great lengths to keep it running.
Interest was raised by vivid testimony last month by former Deputy Attorney General James Comey about the extent of the White House's effort to override the Justice Department's objections to the program in 2004.
Comey told the Judiciary Committee that Gonzales, then-White House counsel, tried to persuade Attorney General John Ashcroft to reverse course and recertify the program. At the time, Ashcroft lay in intensive care, recovering form gall bladder surgery.
Ashcroft refused, as did Comey, who temporarily held the power of the attorney general's office during his boss' illness.
The White House recertified the program unilaterally. Ashcroft, Comey, FBI Director Robert Mueller and their staffs prepared to resign. Bush ultimately relented and made changes the Justice officials had demanded, and the agency eventually recertified it.
Fratto defended the surveillance program as "lawful" and "limited."
"It's specifically designed to be effective without infringing Americans' civil liberties," Fratto said. "The program is classified for a reason its purpose is to track down and stop terrorist planning. We remain steadfast in our commitment to keeping Americans safe from an enemy determined to use any means possible including the latest in technology to attack us."

Too bad these aspiring tyrants in the Cheney-Bush administration feel they have to keep Americans safe from allowing their own elected representative to get the full truth.

Justice Jackson knew the score in 1952

Wouldn't it be nice to have our constitutionally elected public officials at least show some modest familiarity with the basic concepts of the founding document that established, and defined their limited powers? Is that too much to ask?" Yet perhaps as a medievalist trained in paleography I expect too much from these guys. Well, fortunately for George, Dick, and Alberto there is a Cliff-notes version!

Short, sweet, and readily available, the opinion of Justice Black of the U.S. Supreme Court in the case of Youngstown Sheet & Tube Co. v. SawyerSupreme Court of the United States,1952,

Justice Black (1952) concurring opinion:

"Youngstown Sheet & Tube Co. v. Sawyer
Supreme Court of the United States,

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate. In these circumstances, and in these
only, may he be said (for what it may be worth), to personify the federal
sovereignty. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government as an undivided whole lacks power. A seizure
executed by the President pursuant to an Act of Congress would be supported by
the strongest of presumptions and the widest latitude of judicial interpretation, and
the burden of persuasion would rest heavily upon any who might attack it.

2. 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.

3. When the President takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter.
Courts can sustain exclusive Presidential control in such a case only by disabling
the Congress from acting upon the subject. Presidential claim to a power at once
so conclusive and preclusive must be scrutinized with caution, for what is at stake
is the equilibrium established by our constitutional system.


The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate. In these circumstances, and in these
only, may he be said (for what it may be worth), to personify the federal
sovereignty. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government as an undivided whole lacks power. A seizure
executed by the President pursuant to an Act of Congress would be supported by
the strongest of presumptions and the widest latitude of judicial interpretation, and
the burden of persuasion would rest heavily upon any who might attack it.

2. 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.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
Courts can sustain exclusive Presidential control in such a case only by disabling
the Congress from acting upon the subject. Presidential claim to a power at once
so conclusive and preclusive must be scrutinized with caution, for what is at stake
is the equilibrium established by our constitutional system.

Fun with Draft Dodger Dick

This whole refusal of our creepy veep to hand over information to the national archives because he is supposedly not bound by the rules of the executive branch has led to quite a bit of fun on the many blogs I read.

Perhaps my favorite quip comes from Kevin Drum who poses an interesting question: "By the way, back in February when this story was first reported, Cheney wasn't arguing that the VP's office wasn't executive. He was arguing that the VP's office was both legislative and executive, and thus could ignore the rules of either branch whenever it suited him. So here's my question: If a quantum superposition of a dead cat and a live cat is Schrödinger's Cat, is a quantum superposition of legislative Cheney and executive Cheney Schrödinger's Dick?"

Thanks for making my day, K.D.!!

Power Behind the Throne

While we can have a few chuckles, mocking Dick Cheney's self- appointed position as his own fourth branch of government, (see Friday's post) there is a serious story to be told about the Veep's unprecedented power and influence.

And now, it seems, the mainstream press is finally starting to tell at least some of that story. Here is an excerpt from a piece (the first part of a four-part series) by Barton Gellman and Jo Becker, staff writers for the Washington Post.

"Cheney preferred, and Bush approved, a mandate that gave him access to "every table and every meeting," making his voice heard in "whatever area the vice president feels he wants to be active in," Bolten said.
Cheney has used that mandate with singular force of will. Other recent vice presidents have enjoyed a standing invitation to join the president at "policy time." But Cheney's interventions have also come in the president's absence, at Cabinet and sub-Cabinet levels where his predecessors were seldom seen. He found pressure points and changed the course of events by "reaching down," a phrase that recurs often in interviews with current and former aides.
Mary Matalin, who was counselor to the vice president until 2003 and remains an informal adviser, described Cheney's portfolio as "the iron issues" -- a list that, as she defined it, comprises most of the core concerns of every recent president. Cheney took on "the economic issues, the security issues . . . the energy issues" -- and the White House legislative agenda, Matalin said, because he became "the go-to guy on the Hill." Other close aides noted, as well, a major role for Cheney in nominations and appointments.
As constitutional understudy, with no direct authority in the executive branch, Cheney has often worked through surrogates. Many of them owed their jobs to him….

Stealth is among Cheney's most effective tools. Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security."
Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs. His general counsel has asserted that "the vice presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch," and is therefore exempt from rules governing either. Cheney is refusing to observe an executive order on the handling of national security secrets, and he proposed to abolish a federal office that insisted on auditing his compliance." You can read the rest of this first installment here.