Tuesday, June 12, 2007

No Confidence, Part II

So the Senate failed to invoke cloture on a vote of no confidence in Attorney General Alberto Gonzales. As I explained yesterday, such a measure would have been a perfectly appropriate way to ratchet up the political pressure on the President to fire the embattled Attorney General -- the Senate has every right to express its view on this important question without incurring the time and costs of an impeachment proceeding.

But OK, it didn't work. And not only that, but the Republicans seem to have won the media debate, successfully painting the no-confidence vote as some weird British thing that doesn't belong in our system. The Democrats learn once again that if you're going to try to turn the political screws, you have to do it right. Now they just look ineffectual, which is their negative stereotype. You can't let the other side make you look like your stereotype.

So what next? The answer is that cabinet officers are impeachable. It's a rare thing for a cabinet officer actually to get impeached (it's only happened once, I believe), but that's only because, if a cabinet official gets into impeachable trouble, there's usually so much political pressure for him to resign or for the President to fire him that impeachment usually becomes unnecessary. In this case, a President known for his unusual stubbornness and the A.G. are sticking to their guns. So it's time for Congress to haul out the heavy ammo.

Has Gonzales committed an impeachable offense? The impeachment clause of the Constitution states that "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." So one might think that Congress needs to prove that the Attorney General has committed some high crimes and misdemeanors in order for him to be impeachable.

There are two answers to that. First of all, it seems as though there is a good chance that he did commit high crimes in the literal sense. One strongly suspects that some of his statements to Congress about the U.S. Attorney scandal have been outright lies -- such as his claims that he can barely remember anything that happened. And the Justice Department itself seems to have concluded that he was breaking the law in connection with the domestic wiretapping program (although he wasn't Attorney General at the time).

But even more important, it's not clear that an impeachable offense has to be an actual violation of criminal law. Professor Michael Dorf of Columbia suggests that policy disagreement is not a basis for impeachment, which seems right enough, but he also points out that malfeasance in office, whether or not literally a "crime," may sufficiently be an impeachable "high Crime." Senators have agreed.

After all, to use an example that I believe comes from Judge Posner, suppose the President didn't commit any crimes, but simply left the country, moved to the French Riveria, and lived splendidly on his $400,000 salary while doing no presidential work? And made clear that he intended to continue doing that throughout his term? It seems hard to believe that the country would have no mechanism for removing the President from office in such a case.

So I would say that Gonzales could be impeached for malfeasance in office. The charges would have to go beyond mere policy disagreement, but things such as violation of civil service laws by making politics a criterion for hiring career staff would qualify as an impeachable offense even if it is not literally a crime. Gonzales is impeachable.

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