Wednesday, November 14, 2007
Ending Impeachment Myths IX -- "He'll just get pardoned, anyway."
The source of this myth isn't exactly clear to me, but I've seen it on a regular basis. Fortunately, it is extremely simple to dispel, because impeachment convictions are specifically exempted from the pardon power by the Constitution.
Check it yourself. Article 2 Section 2 states:
As you can see, the Founding Fathers were thinking ahead.
There are some recent cases in history that may have contributed to the birth of this misconception. Among them:
Does this mean that if H Res 333 is successful, Cheney is immune from prosecution? Not at all. It means that he would be stripped of office, stripped of the dubious "executive privilege" defense, and be able to face criminal charges in a court of law as a private citizen.
While it is possible that the President would try to issue a "pre-emptive pardon" (as in the Nixon case), this could be challenged. Arguably, honorable Republicans would oppose this move in order to prevent further destruction of their party's public image.
SUMMARY:
Check it yourself. Article 2 Section 2 states:
"The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
As you can see, the Founding Fathers were thinking ahead.
There are some recent cases in history that may have contributed to the birth of this misconception. Among them:
- the "pardoning" of Richard Nixon by Gerald Ford -- Members of House Judiciary Committee (including John Conyers) had finished approval of the first three articles of impeachment against Nixon, conclusive evidence had emerged that Nixon was abusing his powers of office, and it was clear to all that the full House would vote to impeach soon. Conviction in the Senate seemed unavoidable. Republican leaders of Congress went to the White House to discuss things with Nixon, who was convinced to resign. New replacement President Gerald Ford issued a pardon about a month later for "all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974."
This so-called "pre-emptive pardon" had a questionable legal basis, as it was completely novel. Hindsight makes clear some of its lingering effects. People were not happy: Ford's polling numbers dropped sharply once it was issued.
The very reasonable argument was put forth that, although the President does have the Constitutional right to issue pardons, a pardon cannot be properly issued until after a conviction has occurred. Since there were never any criminal charges filed against Nixon, the validity of this argument was never tried in court. However, the legality of a "pre-emptive pardon" is hardly set in stone, and it would take a ruling in a court case to see if the idea passes judicial muster.
The important part of all this is that Nixon's "pardon" was not for his impeachment. Nixon resigned before the article of impeachment against him even passed out of the House of Representatives. Also, the decision not to pursue criminal charges was optional. The legitimacy of the "pardon" issued by Ford could have been challenged. - the commutation of "Scooter" Libby's sentence by President Bush -- After "Scotter" Libby's conviction for his role in obstructing the investigation into the Valerie Plame affair, President Bush decided to commute Libby's 30-month sentence, ensuring that he would serve no jail time for his crime. As many observed, this also ensured that he would not testify about the role Vice President Cheney (Libby's boss) played in the scandal. Many people were displeased; as noted earlier, polling immediately afterward showed 54% of the public in support of beginning impeachment hearings against Cheney.
Please note: Libby was not pardoned for his crime, and the conviction remains on his record... for now. Many believe that a full pardon will be issued at the end of Bush's term, especially in light of Bush's refusal to rule this out.
Does this mean that if H Res 333 is successful, Cheney is immune from prosecution? Not at all. It means that he would be stripped of office, stripped of the dubious "executive privilege" defense, and be able to face criminal charges in a court of law as a private citizen.
While it is possible that the President would try to issue a "pre-emptive pardon" (as in the Nixon case), this could be challenged. Arguably, honorable Republicans would oppose this move in order to prevent further destruction of their party's public image.
SUMMARY:
- This myth is pure fantasy: The Constitution prevents the issuance of pardons to reverse an impeachment conviction.
- Impeachment opens the way for criminal charges.
- Don't forget: "Pre-emptive" pardons are not necessarily legitimate.
Latest Polls on Impeachment
Way back at the start of the "Ending Impeachment Myths" series, in which much of the data available six months ago is collected, I noted:
It seems reasonable to assume that support for impeachment has increased since last October, but it will take more scientific polling to confirm this. The question is: Who will be brave enough to find out?
In the wake of Dennis Kucinich's move to bypass Pelosi's "off the table" policy on the House floor, recent polls by Rasmussen Reports and the American Research Group have finally shed some new light on what Americans are thinking.
The ARG poll shows a stunning indictment by the public:
- a large majority thinks Bush and/or Cheney have abused their power as members of the executive branch
- in both cases, majorities believe Bush and Cheney have committed impeachable offenses
However, there is less agreement concerning opinion on what should be done about the situation:
- According to ARG, 43% believe Cheney should be removed from office
- According to Rasmussen, 31% believe Cheney should be impeached and removed from office, while 40% believe he should not.
- the news on H Res 799 was followed either "very closely" or "somewhat closely" by 48%
- 37% followed it, but "not very closely"
- 14% report that they followed it "not at all"
Perhaps most surprising, the Rasmussen poll found that respondents asked "Would you be more likely or less likely to vote for a candidate who actively works to have Vice-President Cheney impeached?" had a greater chance of saying "less likely" (36%) than "more likely" (25%). It is possible that the wording here had some effect on the end results, if some respondents interpreted the question as being about their likelihood of voting for Kucinich -- the only candidate visibly associated with the matter in the news.
Both polls were taken in the days immediately following Kucinich's introduction of H Res 799, with the ARG poll coming after the Rasmussen survey. Do the differences in support for a Cheney impeachment reflect rapidly-changing opinion, or just differences in methodology?
Back in July (immediately following the commutation of Scooter Libby's sentence), a groundbreaking ARG poll found that 54% of the public favored "beginning impeachment proceedings against Vice President Dick Cheney". Has the overall trend of support for impeachment gone down?
Maybe, and maybe not. The new ARG data finds that 27% of the public believes Cheney abused his power, but that either that the abuse is not serious enough to warrant impeachment or that impeachment should not happen even though the abuse warrants it. It is my firm belief that the start of hearings would both increase the level of public interest and start changing the minds of some of that 27%.
I look forward to more data.
Thursday, November 08, 2007
Kucinich Gambit Shows Who's Who
The re-introduction of articles of impeachment against Vice President Cheney on Tuesday didn't accomplish anything new... yet. Although the use of the "question of privilege" rules to introduce the resolution (H Res 799) made sure that it would receive at least an hour's worth of attention on the House floor, the end result was that the resolution was referred to the Judiciary Committee, where its twin brother, H Res 333, has been languishing for over six months.
The net effect on overall progress towards impeachment remains to be seen -- at least one member of the House Judiciary Committee who previously had little to say about the matter (Robert Wexler, whose chief claim to fame is saying "cocaine is fun" on the Colbert Report as a joke) has now openly called for hearings to begin.
There are, however, two things that the legislative upheaval most certainly accomplished:
Each member of Congress is labelled as follows:
Now, each representative's individual action may not mean anything, but I think the pattern as a whole is telling. There are four distinct groups.
[Note: I threw in Ron Paul just because I found his vote to table surprising. I very much respect Mr. Paul's integrity and would be interested to see his reasoning on the matter.]
[UPDATE: It seems that Ron Paul clarified his intent on his vote to table. His reasoning is legitimate, and his support for hearings is clear. Hopefully, this means we'll see him bring more attention to this issue.]
The net effect on overall progress towards impeachment remains to be seen -- at least one member of the House Judiciary Committee who previously had little to say about the matter (Robert Wexler, whose chief claim to fame is saying "cocaine is fun" on the Colbert Report as a joke) has now openly called for hearings to begin.
There are, however, two things that the legislative upheaval most certainly accomplished:
- The test has shown the limits of Pelosi's "off the table" policy regarding impeachment. Any member of Congress can interrupt normal House business as often as desired to ensure that any evidence they want to present at least makes it out on C-SPAN (with postings on YouTube sure to follow).
- It has definitively revealed the fault line between real Democrats (i.e. the ones that adhere to the same values that people think of when they think of an "unnamed Democrat" in a theoretical matchup in poll questions) and the pseudo-Democrats (i.e. the ones that seem to hold power in the party and that never do as well as the unnamed Democrat in those polls since they don't adhere to those values).
Each member of Congress is labelled as follows:
- "Judiciary?" -- Is the representative on the House Judiciary Committee? Orange means yes, grey means no.
- "333 Co?" -- Has the representative co-sponsored H Res 333? Green means yes, yellow means no.
- "Table?" -- Did the representative vote to "table" (i.e. kill) the resolution introduced on Tuesday? Yellow means yes, green means no, grey means did not vote.
- "Committee?" -- Did the representative vote to refer the resolution to the Judiciary on Tuesday? Yellow means yes, green means no, grey means did not vote.
Now, each representative's individual action may not mean anything, but I think the pattern as a whole is telling. There are four distinct groups.
- "True believers" -- Representatives Bob Filner (CA), Edolphus Towns (NY), and Maxine Waters (CA) have all shown a consistent pattern of support. Not only have they signed on as co-sponsors to H Res 333, they voted in favor of immediate action.
If you live in the district of one of these representatives, be sure to call them up and express your support for their unwavering courage. - "Cautious supporters" -- Several representatives have gone so far as to sign on as co-sponsors to H Res 333, voted not to table H Res 799, but also voted to delay action by sending it to the Judiciary. If you want to look at this charitably, that means they wantt to take action but didn't feel they could lay out a proper case in the one-hour debate window provided for by the rules for questions of privilege. If you want to look at this cynically, that means they sent it to die in Committee while trying to pander a bit to pro-impeachment constituents. Most are probably somewhere in between. This group consists of Tammy Baldwin (WI), Yvette Clarke (NY), William Lacy Clay Jr. (MO), Steve Cohen (TN), Danny Davis (IL), Keith Ellison (MN), Sam Farr (CA), Sheila Jackson-Lee (TX), Hank Johnson (GA), Carolyn Kilpatrick (MI), Barbara Lee (CA), Jim McDermott (WA), James Moran (VA), Jan Schakowsky (IL), Diane Watson (CA), Lynn Woolsey (CA), and Albert Wynn (MD).
If you live in the district of one of these representatives, you might consider calling them and telling them you support the immediate start of hearings on the matter in the Judiciary Committee. - "On-the-fencers" -- Seven representatives, all of whom are on the Judiciary Committee, have not signed on as co-sponsors of H Res 333 but also voted against tabling H Res 799 on Tuesday. This is a very important bloc of voters on that committee, and it includes the chairman, John Conyers. (History tip for the younger kids: Conyers was instrumental in the impeachment hearings against Nixon; he also created a resolution in support of impeachment hearings last year that did not make it out of committee.)
I can't say I fathom the motives of these voters, since these people have had the ability to act on H Res 333 for six months and have not. Cynically, it's purely a case of political double-speak: They can say they supported "moving the resolution forward" and then continue to ignore. As mentioned above, at least one member of this group (Wexler) has come out in favor of hearings, so from a hopeful perspective this may mean they simply want to do things right by starting investigations. Time will tell. This group includes: John Conyers (MI), Luis Gutierrez (IL), Robert Scott (VA), Brad Sherman (CA), Melvin Watt (NC), Anthony Weiner (NY), and Robert Wexler (FL).
If you live in the district of one of these representatives, you should probably call them and tell them that you would like them to co-sponsor either H Res 333 or H Res 799, and that you support Wexler's call for the immediate start of hearings on the matter of impeaching Cheney. - "Loyal lapdogs" -- Nine Democratic representatives on the Judiciary Committee have consistently demonstrated hostility to the idea of impeachment. They haven't signed on to H Res 333. They voted to table H Res 799. When that failed, they voted to send it to the Judiciary, where they presumably have no intention of acting on it. In other words, they've shown lock-step support for Pelosi's policy. They are: Howard Berman (CA), Rick BoucherArtur Davis (AL), Bill Delahunt (MA), Zoe Lofgren (CA), Jerrold Nadler (NY), Linda Sanchez (CA), Adam Schiff (CA), and Debbie Wasserman Schultz (FL).
If you live in the district of one of these representatives, you might want to call them and tell them you won't be voting for them next election as a result of their failure to represent you on Tuesday. Even better, you may wish to express that same thought at this site, where you can opt to have your comments sent to your Senators and local newspapers, as well. At the very least, you may want to call them and ask them to explain the rationale behind their votes. You may even wish to compare their responses to the common impeachment myths outlined in earlier posts here.
[Note: I threw in Ron Paul just because I found his vote to table surprising. I very much respect Mr. Paul's integrity and would be interested to see his reasoning on the matter.]
[UPDATE: It seems that Ron Paul clarified his intent on his vote to table. His reasoning is legitimate, and his support for hearings is clear. Hopefully, this means we'll see him bring more attention to this issue.]
