Presidential Crimes
September 8, 2008 2:55 PM   Subscribe

Presidential Crimes: Moving on is not an option. "In deciding about legal redress, we need to be clear about the large stakes in our decision. The very multiplicity of the apparent crimes, the sheer array of arguably broken laws, is dizzying. But that multiplicity must be faced, for in it we will see that what got in President Bush’s way was not any one law but the rule of law itself. It is the rule of law that has been put in jeopardy by a project of executive domination; it is the rule of law that will continue to be in peril; and it is only, therefore, by addressing the crimes through legal instruments—through a formal, legal arena, and not simply through the electoral repudiation of bad policy—that the grave and widespread damage stands a chance of being repaired."
posted by homunculus (96 comments total) 20 users marked this as a favorite
 
yes, but on the other hand....

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posted by Artw at 2:58 PM on September 8, 2008


To be honest, the main priority right now is making sure that once he leaves office that he's not replaced by more of the same (McCain). Legal redress would be nice, but I'm not holding my breath.
posted by jonmc at 3:07 PM on September 8, 2008 [1 favorite]


“Written laws are like spider's webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful.” - Anacharsis
posted by lalochezia at 3:11 PM on September 8, 2008 [19 favorites]




To be honest, the main priority right now is making sure that once he leaves office that he's not replaced by more of the same (McCain).

I completely agree, and also I think that Bush and company are far more likely to have to answer for their crimes someday if their party loses power right now.
posted by gurple at 3:24 PM on September 8, 2008


If Bush hands out a bunch of pardons before he leaves office he's effectively admitting that he and his administration broke a bunch of laws, when their stance the entire time has been that what they are doing is okay. There will probably be a small pile of pardons--for instance, I think Scooter Libby might get a pardon right before the end--but there probably won't be any for the most egregious crimes, because so far they've been swept under the rug or outright denied, and handing out pardons for them will further hurt the GOP politically. To some extent, anyway.

Also, Bush can't pardon himself.

As for the premise of the article: YES. YES, THAT IS EXACTLY RIGHT.

If Bush and his administration are not punished for their crimes, the precedent set is going to cripple the American democracy forever. It will, in all truth, be the beginning of the end. And president from now on will be able to view Bush as evidence that the executive branch really can do whatever it wants and get away with it, and they will.

If McCain becomes president, this is guaranteed. McCain already demonstrates contempt for many laws (like habeas corpus); there's no way he's going to take Bush to task for what he's done.

Obama might. He might not, too, but there's actually a chance he might, based on this. And that is, for me, the biggest reason to elect him.
posted by Caduceus at 3:29 PM on September 8, 2008 [4 favorites]


Also, Bush can't pardon himself.

Why not? Here is one of many old articles I found from the Clinton days that all said he could (although Clinton said he would not pardon himself).

You don't even have to wait for any prosecution, Ford pardoned Nixon absent any charges, to keep prosecution from happening.
posted by wildcrdj at 3:38 PM on September 8, 2008


Also, Bush can't pardon himself.

The day before the Inauguration.

1) Pardon Cheney.
2) Resign.
3) Cheney takes oath of office.
4) Pardon Bush.

You might as well move on. Your last hope -- a thin one -- of making anyone accountable was the civil lawsuits about domestic spying. Given that both candidates supported giving amnesty to the telcos that did this -- and destroying the ability of those lawsuits to proceed -- there will be no accountability.

Worse, those powers? They're now well established. Whoever wins gets them as well.
posted by eriko at 3:39 PM on September 8, 2008 [1 favorite]


Also, Bush can't pardon himself.

He could pardon everyone else in his administration, resign on January 19, and let Cheney pardon him.

I don't expect that to happen at all, but I wouldn't put it past him.
posted by decagon at 3:40 PM on September 8, 2008


Eh. Henry Kissenger still roams free, so I'm not holding my breath.
posted by availablelight at 3:40 PM on September 8, 2008 [8 favorites]


Why not? Here is one of many old articles I found from the Clinton days that all said he could (although Clinton said he would not pardon himself).

Er... because it seemed logical. That's depressing.
posted by Caduceus at 3:40 PM on September 8, 2008


Another one , about the Nixon thing. One of the things they considered was having Nixon pardon himself. Again, I haven't heard any serious refutation of this power.
posted by wildcrdj at 3:41 PM on September 8, 2008


Er... because it seemed logical. That's depressing.

Yes, yes it is. Basically, you can force a President out of office through impeachment, but you can only convict them of a crime if they let you (or they don't think they'll get caught, and you charge them after they are out of office, and the current President lets you do it). They're pretty close to untouchable criminally.
posted by wildcrdj at 3:43 PM on September 8, 2008


You know the saddest thing here? That some day some minorish Bush Admin official is going to run for, and gain, higher office. Just like the Nixon Era to the Reagan Era and the Reagan Era to the Bush Era.
posted by DU at 3:51 PM on September 8, 2008


Bush’s fabrications about Iraq’s weapons of mass destruction, connection to al Qaeda, and status as an imminent threat to the United States provide the legal basis for charging him with murder

I've never really understood this (and I'm not going to buy the book). What is it about dishonesty that makes the exercise of Presidential war-making powers into murder of the U.S.'s own soldiers? Why isn't other warfare murder in the same way? If I intentionally kill someone in an honest, upfront manner, and I have a decent reason, it's still some form of criminal homicide. The President's ability to wage war must be based on something else.

I'm in favor of prosecuting Bush and co. for any crimes they committed, but it shouldn't be on novel theories. It looks too political that way.
posted by Mr. President Dr. Steve Elvis America at 3:53 PM on September 8, 2008


And what about the incredibly autocratic use of signing statements? Please, let us not allow this criminal to retire to brush-cleaning in Crawford in between $100K speeches. Kissinger is mildly scared; Bush and Cheney should be made very scared.
posted by kozad at 3:54 PM on September 8, 2008 [1 favorite]


eriko writes "The day before the Inauguration."

Except that forever taints Bush's legacy as ending his second term with resignation, just like Nixon. Although Nixon never went to jail, some of his cohorts did, and the rest of his life he was frustrated and not able to reclaim his legacy. Bush is acutely aware of his own legacy and is determined to make it look pristine, trying to rewrite history before the historians can get to it.
posted by krinklyfig at 3:55 PM on September 8, 2008




Why isn't other warfare murder in the same way?

I've always considered war to be a large-scale version of the "in proper defense of another" defense of homicide. But if you knowingly kill a (claimed) attacker who wasn't really attacking, that's just plain murder.
posted by DU at 4:11 PM on September 8, 2008


I won't be happy until I see those two on trial. And I want it to make the OJ trial to look like child's play. AND, I want them to have public defenders who already have 50 other cases to juggle. Is that too much to ask?
posted by bitter-girl.com at 4:13 PM on September 8, 2008 [1 favorite]


I've always considered war to be a large-scale version of the "in proper defense of another" defense of homicide. But if you knowingly kill a (claimed) attacker who wasn't really attacking, that's just plain murder.

I understand that as a basic moral principle guiding "just" warfare, but I don't think anyone has ever before suggested that all wars need to meet the state law requirements of self-defense in every jurisdiction from which soldiers are drawn for the President to escape homicide liability.
posted by Mr. President Dr. Steve Elvis America at 4:18 PM on September 8, 2008


And I want it to make the OJ trial to look like child's play.

You mean that a defendant is set free due to the charisma of his attorney, instead of being convicted by the overwhelming mountain of evidence against him that would have buried a less wealthy man? No, thanks. I'd rather an actual trial. Held in a stadium. With popcorn.
posted by Marisa Stole the Precious Thing at 4:19 PM on September 8, 2008 [2 favorites]


Prosecution of Presidential crimes? I think Fuzzy Monster said it best.
posted by The Card Cheat at 4:24 PM on September 8, 2008


Why isn't other warfare murder in the same way?

Wars of aggression are de facto war crimes.
posted by rokusan at 4:29 PM on September 8, 2008


In order to be pardoned, shouldn't you at least need to be indicted for a crime? I know that Ford pardoned Nixon even though Nixon was never indicted (much less convicted), but pardoned for what in that case?

Seriously: Can Bush issue a pre-emptive "get out of jail free" card for any future indictments/convictions? Because that's what we're talking about here, and that's not the same as a pardon. Right now, we're talking about get out of jail free cards, because Bush, Cheney, Gonzales, Rumsfeld, Feith, Addison…oh, the list goes on…haven't been indicted of anything yet (AFAIK), and probably won't be before Jan 20.
posted by adamrice at 4:31 PM on September 8, 2008


-I've always considered war to be a large-scale version of the "in proper defense of another" defense of homicide. But if you knowingly kill a (claimed) attacker who wasn't really attacking, that's just plain murder.

-I understand that as a basic moral principle guiding "just" warfare, but I don't think anyone has ever before suggested that all wars need to meet the state law requirements of self-defense in every jurisdiction from which soldiers are drawn for the President to escape homicide liability.


Maybe not state law, but the UN Charter is pretty clear on attacking countries that haven't attacked you.
posted by Marisa Stole the Precious Thing at 4:31 PM on September 8, 2008 [1 favorite]


(I forgot the traditional link.)
posted by rokusan at 4:32 PM on September 8, 2008


On preview, simpatico with Marisa.
posted by rokusan at 4:33 PM on September 8, 2008


Wars of aggression are de facto war crimes.

My question is about state law murder, though, which is the claim repeated in the linked article.

Anyway, it's not at all clear to me that the Iraq war was a war of aggression--my understanding of this is thin, but I gather it's a technical term, and doesn't just mean "war you started". I'm pretty sure not all unlawful wars are wars of aggression.
posted by Mr. President Dr. Steve Elvis America at 4:33 PM on September 8, 2008


but the UN Charter is pretty clear on attacking countries that haven't attacked you.

And with the UN's long history of prosecuting these crimes against the US stretching all the way back to Korea. (I had 1898 for the Spanish American war--just in time I realized the UN could hardly be blamed for not existing back then...)
posted by DU at 4:35 PM on September 8, 2008 [1 favorite]


rokusan, under the article you linked, the Iraq war would not be a war of aggression, since it wasn't "waged for the clear purposes of territorial aggrandizement and conquest." No one has ever thought that the U.S. really intended to conquer and hold, as its territory, Iraq, have they?
posted by Mr. President Dr. Steve Elvis America at 4:35 PM on September 8, 2008


Pretty much, yup.
posted by Artw at 4:38 PM on September 8, 2008


And with the UN's long history of prosecuting these crimes . . .

I can dream, can't I?
posted by Marisa Stole the Precious Thing at 4:41 PM on September 8, 2008


No, thanks. I'd rather an actual trial. Held in a stadium. With popcorn.

Can there be monsters? Like in that Star Wars gladiator scene?
posted by bitter-girl.com at 4:42 PM on September 8, 2008 [3 favorites]


No one has ever thought that the U.S. really intended to conquer and hold, as its territory, Iraq, have they?

You're forgetting that other supposed reason for invasion - oil.
posted by -harlequin- at 4:42 PM on September 8, 2008


Murder charges are just a bit on the wrong side of silly. However, Bush does have Malfeasance in Office written all over him. His "signing statements" have no basis in law, and they're basically proclamations of his intent to violate his oath of office.
posted by mullingitover at 4:42 PM on September 8, 2008


In order to be pardoned, shouldn't you at least need to be indicted for a crime? I know that Ford pardoned Nixon even though Nixon was never indicted (much less convicted), but pardoned for what in that case?

Text of the pardon:

Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon 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.

So yes, he can issue a blanket pardon of all crimes committed, without any indictment required. Pretty fucked up.
posted by wildcrdj at 4:48 PM on September 8, 2008


The US has made it crystal clear over the past few decades that it will never be subject to a UN trial. Even if officials fired up death-camps tomorrow, the US would still undermine the UN before acknowledging any jurisdiction to prosecute US actions. (This point-blank refusal and sabotage has been one of the biggest hurdles to giving teeth to international law, and one of the biggest reasons international law is in such a sorry state).

If there are prosecutions, they will be prosecuted by Americans, in American courts (or else occur under circumstances inconceivable today, such as in a world with a collapsed and largely powerless USA). The status quo, right now, is that America's actions, no matter what those actions might be, do not go on trial. Ever. America answers to America, and no-one else. Do not look to the world or the UN to prosecute Bush.

It is by American hand or else by none.
posted by -harlequin- at 5:11 PM on September 8, 2008 [1 favorite]


“Obama might. He might not, too, but there's actually a chance he might, based on this.”

Yeah. I keep getting Public Enemy’s “Shut ‘em Down” running thru my head when I see him. Irrational I know, but.

“You might as well move on. Your last hope -- a thin one -- of making anyone accountable was the civil lawsuits about domestic spying.”

You’re right. I was going to get up, go to the toilet, and relieve the pressure on my bladder and rectum, but the hell with it. I’m just going to keep on producing feces and urine anyway so I might as well just crap my slacks. I quit.
posted by Smedleyman at 5:11 PM on September 8, 2008 [1 favorite]


Murder charges are just a bit on the wrong side of silly. However, Bush does have Malfeasance in Office written all over him. His "signing statements" have no basis in law, and they're basically proclamations of his intent to violate his oath of office.

Is there a federal law "malfeasance in office" crime? I wouldn't think state law could specifically prohibit particular actions by federal officials in their capacity as federal officials--seems like a big federalism problem.
posted by Mr. President Dr. Steve Elvis America at 5:16 PM on September 8, 2008


Does anyone know if the legal status of the preemptive pardon of Nixon was ever tested?
posted by aaronetc at 5:31 PM on September 8, 2008


Mr. President Dr. Steve Elvis America - Fair points. I think it’s more the lying to congress, manufacturing evidence, blatant fabrications in the state of the union address, all that. I mean, lying after the senate passed the war bill is one thing, lying before it? Whole different enchilada. I mean he made up a whole thing about a report from the IAEA that Iraq was six months from developing a nuclear weapon. Congress might be irked at being lied to about that and passing a war bill based on that kind of information.

But the main articles gist seems to be Bushco can be hedged in - e.g. with a murder rap in each state (whether you buy the premise or not, if the prosecutors go for it - he can be prosecuted, conviction is a whole other deal) - as successive states pass those kinds of resolutions.
So right now he can’t travel to Brattleboro, Vermont, meh. But if larger cities, and even states pass these things, that starts to get dicey and the matter of applicability becomes less a matter of venue, and more a matter of pressure (even if symbolic).
I mean, if he has to leave the country to evade prosecution, that’s a pretty big statement there. Indeed - you could force some serious confrontation.
I mean, if he did go to Brattleboro - would the secret service shoot it out with the local P.D. when they came to arrest him?

Ultimately tho - and I think Madison (et.al) had Anacharsis in mind when they wrote it - there’s a deliberate ambiguity in the “high crimes” term. What is a ‘high crime’? Well, whatever congress wants it to be, from breaking and entering to lying about oral sex.
posted by Smedleyman at 5:36 PM on September 8, 2008


So right now he can’t travel to Brattleboro, Vermont, meh.

The problem with the Brattleboro resolution is that it's not serious. As I understand it, it involves a resolution to arrest Bush for "crimes against our Constitution." But there is no such crime. The Constitutional prohibition on ex post facto laws prohibits a criminal statute from being enacted that retroactively encompasses Bush's actions.

They're just screwing around. It's one thing for a small town to pass a non-binding resolution, though, you're right. Prosecutors shouldn't bring cases they know are legally baseless, though, ever. It doesn't matter how bad the person is, or how much you don't like them. If you know that the person didn't commit the crime, or that the crime isn't a crime at all, you just can't prosecute.

A flagrant abuse of executive power isn't fixed with another flagrant abuse of executive power. If there are crimes, actual crimes, that Bush can be prosecuted for without his prosecutors committing the very same misdeeds he did, then by all means, it should be done. But nonsensical resolutions promising further governmental abuses (if taken seriously) don't help the debate.
posted by Mr. President Dr. Steve Elvis America at 5:54 PM on September 8, 2008 [2 favorites]


there’s a deliberate ambiguity in the “high crimes” term. What is a ‘high crime’? Well, whatever congress wants it to be, from breaking and entering to lying about oral sex.

But this is only for impeachment and removal purposes. You're right--Congress can impeach and remove for basically any reason.
posted by Mr. President Dr. Steve Elvis America at 5:55 PM on September 8, 2008


“If there are crimes, actual crimes, that Bush can be prosecuted for without his prosecutors committing the very same misdeeds he did, then by all means, it should be done.”

Agreed. I think there’s two discussion points here that are kind of interweaving - what’s proposed in the article(s) and a legitimate criminal prosecution. I believe there’s a legitimate case to be had. Pursuing it this way - not so much.
And yeah, the Brattleboro resolution seems tongue in cheek. It is funny tho.
And it does make a statement. In terms of being in earnest, yes, were someone to overreach wouldn’t make it balance. I’m pretty sure lying to congress is a federal felony under several statutes. But you’d need a U.S. AG. And the statute of limitations is, what, five years?
posted by Smedleyman at 6:08 PM on September 8, 2008


I think it’s more the lying to congress, manufacturing evidence, blatant fabrications in the state of the union address, all that.

Don't forget torture. Scarry seems to consider the administration's use of torture to be their most unambiguous crime. As General Taguba said, “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
posted by homunculus at 6:25 PM on September 8, 2008


I've never really understood this (and I'm not going to buy the book). What is it about dishonesty that makes the exercise of Presidential war-making powers into murder of the U.S.'s own soldiers? Why isn't other warfare murder in the same way? If I intentionally kill someone in an honest, upfront manner, and I have a decent reason, it's still some form of criminal homicide. The President's ability to wage war must be based on something else.

from what I remember of the book, Bush is as guilty of the murder of American soldiers as the people who actually did them in because he unlawfully sent them to where they were killed. the legal premise is that he is criminally responsible for the consequences of his actions.

the argument depends on being able to establish that there is no legal basis for the Iraq war (because otherwise there's the legally protected ability to wage war that gets in the way), which is where the deliberately lying to congress so that they would authorise the war in the first place comes into play. Bugliosi's case uses those lies, the fact that they were lies, to undo the legitimacy of the war and establish the aforementioned criminal responsibility.

not that I am a lawyer or that I remember the book that well. but that might be the gist of it. I remember not being that fond of the argument. I much prefer the option put forward by Scarry.
posted by object-a at 6:30 PM on September 8, 2008


does our already existing knowledge of what they have done obligate us to press for legal redress?

Sounds great, now how exactly am I supposed to do that again? Write some more letters? As far as I can tell I am absolutely powerless in the face of a gutless, compromised congress. Perhaps I shall vote for a third party candidate, or do some anarchist street puppetry.
posted by nanojath at 6:42 PM on September 8, 2008


from what I remember of the book, Bush is as guilty of the murder of American soldiers as the people who actually did them in because he unlawfully sent them to where they were killed.

Creative, but it just doesn't feel right to me. What's being proposed is an ability by the states to criminalize actions that are within the general scope of the President's authority (the President really is allowed to wage war) but are done unlawfully, or involve some unlawful actions. I could be wrong, but this feels like overreaching.

Consider a much easier case: Does an arrest that falls within the general scope of an FBI agent's power, but that is unlawful in the particulars, necessarily become a state law kidnapping? I would've thought not.
posted by Mr. President Dr. Steve Elvis America at 7:09 PM on September 8, 2008 [1 favorite]


Moving on is the only option. The balance of powers is in jeopardy. Political appointees have censored and changed research reported by federal scientists and have fired federal lawyers for their party affiliation alone. We've invaded two nations and threatened others. We've lost international respect and have gained deserved disdain. Our economy is a smoke and mirrors trick on the brink of something bad. Congress is largely stagnant, but possibly on the brink of a larger ousting of those who aided and abetted this. The actions needed most badly right now are repair. The three branches aren't even functioning very well at the moment, and investigation required to pursue criminal trials requires those branches to not only work, but to work together as they are intended to do. No, a criminal trial is not only the least plausible but also the least responsible and least important item on the agenda right now. The next president is going to have a huge job of repairing his part of the government and working with Congress to solve some of our most important problems right now. These alone would be the kind of accomplishments that historians highlight for generations to come. Sending the past president and accomplices to prison is going to be beyond the powers of the next president, unless he is willing to bend and break the democracy to fulfill his own agenda and seek vengeance, as the last one did.
posted by Tehanu at 7:18 PM on September 8, 2008 [2 favorites]


Vengeance isn't the point. Scarry put it eloquently: "The incalculable damage left by Bush and Cheney’s day-in-and-day-out contempt for national and international law includes the power to sweep forward in time and trivialize into a matter of personal preference any future president’s adherence to the law."

Assume Obama becomes president, undoes some of the damage Bush has done while respecting the rule of law while throughout his term. What happens when he gets voted out of office in 2012 and someone like Palin becomes president?
posted by homunculus at 7:50 PM on September 8, 2008


If he actually undoes the damage Bush has done, the next person who trues what Bush did won't be able to. Repair means fixing the problem, not ignoring it. It means Palin or whoever gets checked when they overreach. I don't think Bush's actions can be repaired while Bush is also made to account for what he did publicly.
posted by Tehanu at 7:53 PM on September 8, 2008


Creative, but it just doesn't feel right to me. What's being proposed is an ability by the states to criminalize actions that are within the general scope of the President's authority (the President really is allowed to wage war) but are done unlawfully, or involve some unlawful actions. I could be wrong, but this feels like overreaching.

I think the catch is that by knowingly lying to congress to get a declaration out of them he undermined the legality of his own actions in the ensuing war. the parallel in the case of our fictitious FBI agent would be if this agent arranged for a warrant to be issued that justified the arrest/kidnapping and that the agent knowingly lied to have the warrant issued. in this case, the agent would be liable for (something like) kidnapping; anyone who helped who was not aware that the warrant was issued on illegitimate grounds would not be.

(sorry for the clumsy sentence construction, I didn't want to unnecessarily gender our dear fictitious agent.)

though I do agree that it's not the best argument. I wish I knew enough about The Law to take it apart. hey, lawyers! where are you when we need you?
posted by object-a at 8:09 PM on September 8, 2008


If he actually undoes the damage Bush has done, the next person who trues what Bush did won't be able to.

I hope you're right. 9/11 did give Bush a unique opportunity for abuse. But I don't think Obama will have the power to fix all that much.

Not that I have any expectation that Bush, Cheney and friends will ever be held accountable; they're going to walk away unscathed, laughing all the way to the bank. I'm just afraid that will only encourage whoever comes along later to see how much they can get away with too.
posted by homunculus at 8:11 PM on September 8, 2008


Mr. President Dr. Steve Elvis America writes "Is there a federal law 'malfeasance in office' crime?"

Yes. It's called "High crimes and misdemeanors."

The fact is that the overall spirit of democracy is really weak in this country. The idea that we should be wary of giving people power, and be zealous about stripping them of power as soon as possible, is alien to vast swaths of the populace. If it came down to a vote to give Bush lifetime carte blanche, the millions of people who would vote in favor would make you weep. Team sports mentality in politics is freedom's cancer.
posted by mullingitover at 8:14 PM on September 8, 2008 [5 favorites]


If 51% of the nation feels that Bush did not committ any crime, what political basis does any politician have for any kind of criminal pursuit of Bush? None. What about if 50% feels he didn't commit a crime?
posted by spicynuts at 8:14 PM on September 8, 2008


spicynuts writes "If 51% of the nation feels that Bush did not committ any crime, what political basis does any politician have for any kind of criminal pursuit of Bush? None. What about if 50% feels he didn't commit a crime?"

Legislators don't answer to the entire nation, they answer to the constituents in their districts.
posted by mullingitover at 8:27 PM on September 8, 2008


the parallel in the case of our fictitious FBI agent would be if this agent arranged for a warrant to be issued that justified the arrest/kidnapping and that the agent knowingly lied to have the warrant issued. in this case, the agent would be liable for (something like) kidnapping

Is this actually true, though? The unlawfulness doesn't even need to be so egregious--suppose he arrests someone on reasonable suspicion under circumstances he really needed probable cause. That's an unlawful arrest, but it just doesn't seem like a state law crime to me, even though if I detained someone, handcuffed them, and drove them somewhere, and put them in a cage, I'd be in a big trouble.

Now, it's certainly possible that we have a country full of kidnappers with badges walking the streets, but the fact that I can't recall criminal prosecution ever being talked about as being on the table in these cases suggests to me that something else is going on.

This notion that unlawfully discharging executive powers renders any such actions ultra vires and subject to ordinary prosecution just doesn't seem borne out by what actually happens when government officials unlawfully discharge executive power.

Yes. It's called "High crimes and misdemeanors."

I'm only familiar with that phrase in the context of Article II, section 4 on the Constitution ("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"). This doesn't create a federal crime. It just explains when the President can be impeached and removed. Perhaps you meant something else.
posted by Mr. President Dr. Steve Elvis America at 8:28 PM on September 8, 2008


I don't think Bush's actions can be repaired while Bush is also made to account for what he did publicly.

You're, er, completely wrong. The only realistic way Bush's actions can be repaired is by bringing Bush to account for what he did. Obama (or whoever) can totally play nice and obey all the laws, but if there are no consequences for Bush's law breaking, the next president who doesn't feel like playing nice can come along and do the same thing all over again. To prevent future abuse of power without setting the precedent that breaking the law is, you know, punished, would require a pretty radical restructuring of the way our government works, and there's no guarantee that any such restructuring wouldn't be vulnerable to a different set of abuses of power.

If 51% of the nation feels that Bush did not committ any crime, what political basis does any politician have for any kind of criminal pursuit of Bush? None. What about if 50% feels he didn't commit a crime?

You know that it's not a matter of opinion as to whether you've broken a law, right?
posted by Caduceus at 8:37 PM on September 8, 2008


If 51% of the nation feels that Bush did not committ any crime, what political basis does any politician have for any kind of criminal pursuit of Bush? None. What about if 50% feels he didn't commit a crime?

So this is about what the electorate "feels"?

Again, how is a nation governed by the public perception of what does or doesn't constitute a crime a nation of laws and not of men? Even though a majority in the South disagreed with desegregation, the Feds made it happen, and those folks had to suck it up. That's how laws work. Torture and wars against non-aggressive state actors to grab resources (and even ex-officials like Greenspan and former CENTCOM commander Gen. John Abizaid have conceded the war was fundamentally about oil) are illegal under international treaties that we not only ratified, but went even further and explicitly gave the full power of domestic law in the legislature.

This is not a question of whether or not laws were broken. It's just a question of whether or not anyone's going to do anything about it.

When a nation's rulers, executive or otherwise, are held to be above the law, that's what's called an oligarchy. We can choose to become one of those, of course. That's fine. But we should understand exactly what it is we're choosing to become, if so.
posted by saulgoodman at 8:40 PM on September 8, 2008 [1 favorite]


Let us not forget that there are tremendous political ramifications involved with even discussing impeachment. So while I absolutely agree that it SHOULDN'T be a matter of opinion, the fact is that it will require a great amount of political strength and capitol to get the job done - so in a sense it IS a matter of how the electorate feels. Ditto for holding them accountable. Hell, I know Nixon-defenders. You don't think there will be Bush defenders?
posted by fingers_of_fire at 9:27 PM on September 8, 2008


Also, saulgoodman - we are, for all intents and purposes, an oligarchy. Sucks, right?
posted by fingers_of_fire at 9:27 PM on September 8, 2008


Mr. President Dr. Steve Elvis America writes "Perhaps you meant something else."

Well let me ask this: is there a legal requirement for a president to uphold their oath of office, or is that ceremony just a bunch of meaningless bullshit pageantry? It seems that if you've undermined the Constitution X number of times with a bunch of proclaimations of intent to ignore the law signing statements, you may have committed a federal crime.
posted by mullingitover at 9:29 PM on September 8, 2008 [2 favorites]


War crimes are certainly "high crimes and misdemeanors".

And there are numerous other crimes you could easily charge him with: accessory to murder (all the innocents tortured to death); in war, a commander who deliberately made a mistake that cost a battle would be charged with treason ("disloyalty to country" - you don't actually have to collaborate with enemies to be treasonous).

I frankly think 4000 counts of negligent homicide would not be out of the question. Bush sent these men and women to die based on a conscious and provable lie and bears the same responsibility as if he'd ordered them to march off a cliff.

Let's just settle for war crimes, shall we?
posted by lupus_yonderboy at 9:30 PM on September 8, 2008


The Republicans are crooks and the Democrats are isolationists.

I'm voting for Toyama Koichi!
posted by eye of newt at 9:30 PM on September 8, 2008 [2 favorites]


I think at this point impeachment is a lost cause. We're talking about prosecution after the new president has been sworn in.
posted by Caduceus at 9:31 PM on September 8, 2008


Well let me ask this: is there a legal requirement for a president to uphold their oath of office, or is that ceremony just a bunch of meaningless bullshit pageantry? It seems that if you've undermined the Constitution X number of times with a bunch of proclaimations of intent to ignore the law signing statements, you may have committed a federal crime.

I don't know if it's a federal crime to undermine the Constitution a certain number of times. Federal crimes are statutory, so you could look it up. I've never heard of such a thing, but there are lots of things I've never heard of.

Let's just settle for war crimes, shall we?

I think that's probably best, since the clearest violation of pre-established law is probably going to be found here. Attempts to construct novel theories of criminal liability just to use against Bush aren't constructive. Trying a former President for official acts is novel enough--let's do the rest by the books.
posted by Mr. President Dr. Steve Elvis America at 9:38 PM on September 8, 2008


this seems to be a wonderful exercise in mental masturbation. Does any one of you really believe that this will come to pass?
posted by dougiedd at 12:21 AM on September 9, 2008


I think we have been victim to what is called a "Rick Roller"

Stand by for confirmations.
posted by sharksandwich at 2:20 AM on September 9, 2008


I'll take any bets. I'll give 10 to 1 if they so much as get a subpoena.
posted by From Bklyn at 2:30 AM on September 9, 2008


"waged for the clear purposes of territorial aggrandizement and conquest." No one has ever thought that the U.S. really intended to conquer and hold, as its territory, Iraq, have they?

If I had more time today, I'd take that mantle.

Yes, I believe it was always the intention to claim and hold Iraq as a permanent beachhead from which to conquer and/or subjugate the entire middle east, and I believe if we had real investigators and discovery, that would be well supported by documentary evidence. The modern conceit is to install puppet governments rather than fly a US flag over each nation, but it's the same net result. Holding land, in the 21st century, is less meaningful than the ability to exploit that land, no matter whose name is on the lease.

The PNAC documents, the construction of huge permanent (or "lasting") military bases, the "100 years occupation", the meetings to negotiate/divide up Iraq's oil fields... all supports the obvious conclusion that the "topple Saddam, stablize, and then leave" was most certainly NOT the plan.
posted by rokusan at 5:01 AM on September 9, 2008


I didn't say it first: nothing will change.
posted by Vindaloo at 5:12 AM on September 9, 2008


As much as I would like to see the entire current administraton on trial, the dream wouldn't be complete without the spineless Democrats from Congress on trial as well for being afraid to stand up and say no. Fear for one's re-election does not trump oath of office.
posted by Enron Hubbard at 6:03 AM on September 9, 2008


So this is about what the electorate "feels"?

No, I'm legitimately asking, if the overall will of the people is split almost evenly between those who feel there have been crimes and those who don't, who has the political sack to take this on? Even if as noted above it's about constituents, seems to me that there are rather few politicians who have an overwhelming or even sizeable percentage of constituents who land on the 'prosecute the bastard' side of the spectrum.
posted by spicynuts at 6:52 AM on September 9, 2008


You're, er, completely wrong. The only realistic way Bush's actions can be repaired is by bringing Bush to account for what he did. Obama (or whoever) can totally play nice and obey all the laws, but if there are no consequences for Bush's law breaking, the next president who doesn't feel like playing nice can come along and do the same thing all over again. To prevent future abuse of power without setting the precedent that breaking the law is, you know, punished, would require a pretty radical restructuring of the way our government works, and there's no guarantee that any such restructuring wouldn't be vulnerable to a different set of abuses of power.

Consequences, yes. Prevention of future abuses, definitely. What I'm saying is protecting the office against future abuses is going to be a big job, and it's probably going to take investigations done in the name of expediency and not in the name of bringing those responsible to justice. I'm saying the cost of prevention is going to be collecting the information but not pursuing criminal trials.
posted by Tehanu at 7:28 AM on September 9, 2008


"...few politicians who have an overwhelming or even sizeable percentage of constituents who land on the 'prosecute the bastard' side of the spectrum."

ever heard of "sour grapes"? it's only human nature to convince ourselves we don't want the things we think we can't have anyway, a psychological mechanism for coping with the stress of disappointment. that doesn't mean we wouldn't really want the grapes if we actually could get our hands on them, that they wouldn't taste sweet and juicy in our mouths.
posted by saulgoodman at 7:33 AM on September 9, 2008


Man... I’d like to do some anarchist street puppetry. That’d be sweet.

“The fact is that the overall spirit of democracy is really weak in this country.”

Yeah, but it’s not a ‘belly full, head empty’ sorta thing. Lookit the massive shift in wealth. Not just the dispairity, but the style of living. Most people who aren’t living hand to mouth are part of both parents working families.
In the 50s and 60s you had this leave it to beaver thing where middle class mom stayed home and dad did a 9 to 5 thing and you had some leisure time.
Now some of that’s slave to ‘things’ but hell, that’s part of the lifestyle change too.
Look at the 60s. You had protests and such because a lot of young people had the time, money, and comfort zone to go and be involved. Not so much anymore.
So who has the time? Whether because you’ve bought too much stuff and you’re a slave to it, or you got suckered by predatory mortgage loan agents or you got Enroned out of your savings or 401k or whatever - on and on - the environment isn’t such that one can easily devote time to social issues.

And I can’t think that this isn’t by design. Whether conscious or not.
So this is a symptom, really: the fact Bush got away with it for so long.

And the fact that it might not work isn’t reason enough not to try. Maybe it will work the next time. Or the next. Or on another front.
It’s why they call it “exercise.”

And there’s a of a lot of work to be done, it’s not going to get any better unless something is done about it.
Or you can ignore it and let the dead continue to rule the earth and let their plutocratic regents reap the benefits.
And what the hell else did you have to do with your life anyway? Sit and jerk off to internet porn?
Yeah, that’s better than spending time fighting for truth, justice and liberty.
Taking responsibility for your existence and accepting stewardship for your world beats having nothing to do.
I keep seeing endless variations of “I don’t have the authority.” Balls.
You don’t think some dufus has more of a right to this world than you do because he’s got more money or because he’s convinced a buch of other jag-offs to sound off like him, do you?
So it comes down to force. Well, power is negotiable. Like bearer bonds. People start thinking it, it starts happening.
Don’t want to? Ok. Got other things you need to take care of? I can understand that. Busting your ass just trying to make a living? Yep, lots of people are. If you have to put food on the table, it’s hard to find time for anything else. If that’s where your priorities are - solid.
But don’t hand me this “can’t” nonsense. Especially the "you can't either."

“First they ignore you, then they laugh at you, then they fight you, then you win.” - Mohandas Gandhi
posted by Smedleyman at 7:35 AM on September 9, 2008


If Bush and his administration are not punished for their crimes, the precedent set is going to cripple the American democracy forever.

"Impeachment is off the table."-- Nancy Pelosi
posted by Fuzzy Monster at 7:37 AM on September 9, 2008


The Card Cheat: Thanks for the shout-out!
posted by Fuzzy Monster at 7:39 AM on September 9, 2008


I'm saying the cost of prevention is going to be collecting the information but not pursuing criminal trials.

What should happen is what happens in any civilized banana republic when high crimes are alleged by a substantial proportion of the populace: The Bush admin should quietly cut a deal for US protection from prosecution for war crimes and other violations of domestic and international law; there should be a show trial during which all the crimes actually are brought to light and a verdict rendered; then Bush and Cheney should be allowed to escape with the bulk of their wealth intact to Dubai or somewhere to live out the rest of their lives splendidly in exile. It's not optimal, but hey, it would get the job done.

/maybe ironic?
posted by saulgoodman at 7:42 AM on September 9, 2008


ever heard of "sour grapes"?

I'm sorry I have to admit I'm at a loss as to what you are on about. I'm asking if there are enough POLITICIANS out there with the sack to risk losing their jobs by doing the right thing against the will of at least half of their constituents.

I wasn't raised under a rock - I know what the fuck sour grapes means.
posted by spicynuts at 8:09 AM on September 9, 2008


If Bush and his administration are not punished for their crimes, the precedent set is going to cripple the American democracy forever.

"Impeachment is off the table."-- Nancy Pelosi


So he doesn't get impeached, as long as he's prosecuted after he leaves office, justice is served.

The thing is, and this has been said many times, this needs to be done. Not out of vengeance, or even because it's the just thing to do. It needs to be done to send a clear message to would be future administrators and the nation at large, that no one is above the law. These people need to be put on trial, and if found guilty, they need to be punished accordingly.

They have broken the law in so many ways that to just let it go would be an absolute travesty.
posted by quin at 8:43 AM on September 9, 2008


against the will of at least half of their constituents.
I wasn't raised under a rock - I know what the fuck sour grapes means.

do you really? if so, then you understand what i'm saying is that accountability for high crimes of bush and other recent leaders isn't really against the will of half the constituents, and half the constituents aren't perfectly happy with all the other routine abuses of power and privilege that now dominate our social and political institutions.

stemming these abuses only seems to be against the will of half the constituents because, like the fox in the parable, they've all convinced themselves that those grapes must be sour anyway. and that idea is the rot that's actually at the heart of america's recent cultural and social decline: the idea that the grapes (our ideals) are all just sour anyway, so why bother.

the fox and the grapes parable is about how we delude ourselves to bring our desires in line with what we think should be realistic expectations. well i think we have to start expecting more, and that once we do, we might find the grapes aren't so sour or out of reach as we've been telling ourselves.
posted by saulgoodman at 10:29 AM on September 9, 2008


President Dr. Steve E. America gave some of the commenters in this thread a free seminar in law. I wonder if they noticed.
posted by rockhopper at 10:58 AM on September 9, 2008


then you understand what i'm saying is that accountability for high crimes of bush and other recent leaders isn't really against the will of half the constituents

I am not convinced that the 51 or 50% of America that would not support prosecution of the administration holds this position because of what you call 'sour grapes'. They hold this position because for the most part they think that Bush is doing the right thing in light of our 'war on terror' (can't say that with a straight face myself, but you get what I'm saying). I could BE convinced, if you'd focus on what I'm asking, instead of trying to tell me what you think I'm asking. The fact that you think all of these 50 or so percent of people just can't be bothered because they think all grapes are sour is to my mind, based on what I see out there, a little optimistic. From what I see, A LOT of people think Bush is the right man for the job and are willing to give him the leash slack he says he needs to keep us safe from Boogiemen.

Also, a little lighter on the patronizing tone would help too, thanks.
posted by spicynuts at 11:22 AM on September 9, 2008


I'm voting for Toyama Koichi!

Holy crap that was awesome.
posted by Marisa Stole the Precious Thing at 11:33 AM on September 9, 2008


From what I see, A LOT of people think Bush is the right man for the job and are willing to give him the leash slack he says he needs to keep us safe from Boogiemen.

Also, a little lighter on the patronizing tone would help too, thanks.


I'm really sorry if I came across as patronizing--I didn't mean to. My take on this is that the idea of "sour grapes" is one of those really useful nuggets of received wisdom whose full depth of meaning we don't really appreciate anymore.

It's not just that the fox says "sour grapes" to himself. He lives "sour grapes"; it becomes his new point of view. Those grapes that once seemed so tempting become an affront to his sensibilities, something vile and contemptible.

I think that accounts for the persistent support for Bush among some blocks of supporters. But even then, I think you're overestimating how many of these dead-enders are still out there. Support for impeaching Cheney (never mind Bush), according to polls I've seen, has consistently been higher than 50%. And Bush's approval rating is lower than 30% and has been measured south of 25%! Now of course we all know polls don't mean a whole lot since polling is an unregulated pay-for-play affair, but my own experience seems to bear these results out, and Bush's low-approval has been reported so often in so many different contexts, I think it's pretty fair to take those numbers as accurate.

There's no reason channeling that much disapproval into support for investigation and prosecution for any illegal activities carried out by the Bush administration should require an act of political miracle-working. The Republican congress was able to carry out impeachment proceedings against Clinton--a sitting president who even then was confronting pressing national security issues--at a time when his overall approval ratings ranged from 60--70% and less than one-third of the public supported impeachment proceedings. What were the political consequences for the Republicans? They swept congress again and even got a Republican president.

Taking on an unpopular former administration like Bush/Cheney should be a piece of cake. It could even be done without a whole lot of public spectacle, with hearings behind the scenes until a solid case is made while the new admin focuses on more pressing economic and national security issues, to further minimize the chances of political backlash.
posted by saulgoodman at 11:50 AM on September 9, 2008


It needs to be done to send a clear message to would be future administrators and the nation at large, that no one is above the law. These people need to be put on trial, and if found guilty, they need to be punished accordingly.

They have broken the law in so many ways that to just let it go would be an absolute travesty.


quin, I completely agree with you. But I don't think it's gonna happen. Pardons will rain down and the guilty will walk free.

There might be a few show trials. A few minor assistants might get zapped for perjury or withholding evidence. But Bush, Cheney, Rumsfeld, Feith, Gonzales?

They're going to skate. They'll be given cushy board seats and rake in tons of money, just like Kissinger. And then when they die of old age they'll be given 'Elder Statemen' send-offs, just like Nixon.
posted by Fuzzy Monster at 11:54 AM on September 9, 2008


Is Tehanu just trolling? Who says "the best way to discourage future malfeasance is to... simply collect information and never punish"? That's insane, and the only logical explanation is that Tehanu is either batshit fucking crazy, or is deliberately trolling by making utterly absurd statements that no one could really believe for the simple purpose of derailing or muddying up a thread.

The Bushes are only going to skate so long as every single one of the world's nearly 7 billion people let him skate. Secret service, secret schmervice. No one is ever truly untouchable- hell, Reagan got shot while he was still president- and if these damned terrorists would just get off their asses and attack meaningful targets, we'd all be the better for it. Instead of attacking innocent people, Osama or some other upstarts should start picking off fringe members of the Bush clan, working his way into the direct family members. Hell, all they'd have to do is start camping out in Paraguay, and the Bushes would come to them!
posted by hincandenza at 12:59 PM on September 9, 2008


Is Tehanu just trolling? Who says "the best way to discourage future malfeasance is to... simply collect information and never punish"? That's insane, and the only logical explanation is that Tehanu is either batshit fucking crazy, or is deliberately trolling by making utterly absurd statements that no one could really believe for the simple purpose of derailing or muddying up a thread.

I don't think I was off-topic here, much less baiting anyone. By all means return to your fantasy revenge scenario though. That always raises the level of discourse around here.
posted by Tehanu at 2:32 PM on September 9, 2008


Tehanu--this isn't really my place. But what makes you think this is a revenge scenario? Since when is saying that the law should be enforced impartially about entertaining revenge scenarios?
posted by saulgoodman at 7:13 PM on September 9, 2008


I was referring to the second paragraph in hincandenza's comment, saulgoodman.
posted by Tehanu at 7:44 AM on September 10, 2008


Tehanu--oh yeah. Dang. Missed that. That is a pretty nasty revenge fantasy.
posted by saulgoodman at 7:54 AM on September 10, 2008


And with all of this, I have been looking for any comment from a major main-stream US news source commenting on Cheney's trip to Georgia and the Ukraine but have been unable to find anything of any substance, nor have I found anything in the Democratic blogs that are all obsessed with "yesterday's" polls. There has been lots in the British media and in some the alernative press. My question here is why? Who or what is stopping them? I joined a program to encourage the senate to do something and the only thing I ever every heard was a form letter from my Senator Diane Feinstein, Dem California saying that it wasn't a high priority and impeachment wouldn't win anyway. What more can I say?
posted by donfactor at 9:02 AM on September 10, 2008






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