"Hawke" wrote in message
...
Ed Huntress wrote:
"William Wixon" wrote in message
...
"John R. Carroll" wrote in message
...
Steve B wrote:
Bush and Cheney would be in jail by now.
But then, so would a high percentage of the US presidents in history.

Nixon, Reagan and Bush jr. for sure.
Ed Huntress and I had an extended conversation a while ago and his take
was
that it it's just bad to put Presidents in jail for stuff they do in
office.
He didn't really argue the merits, however. My point at the time was
that
had Ford not Pardonned Nixon, Nixon might well have been tried and
convicted - thereby setting an example that his successors would have
heeded
regarding the law.

In the end, I concluded that both arguments have merit but having tried
the
former so often and gotten increasingly egrigious conduct, we ought to
have
a stab at the latter.
I think.
Maybe.


--
John R. Carroll


you'd think by the end (at least) of obama's term (if he makes it)
there'll be a vocal group falling all over themselves to put him in jail
huh? i wonder if this is the time enough people will agree that it's
better to put him (a black liberal rather than a white conservative) in
jail than not and make this thing happen. you know he's going to do
something bad, they all do/have, this time though people will probably
"get tough" on him (whereas in the past they let it slide).

b.w.

Any way you slice it, if you jail a president for something he did in
office, whether he's out of office or not, you're going to create a
Constitutional crisis. I don't mean a disagreement. I mean a crisis.

There is nothing in the Constitution that gives Congress or the courts
any power over the president, except for the power of impeachment. It's
all a matter of case law and it's never been significantly tested. The
counterargument is that it would be a violation of the separation of
powers.

In fact, it can't be "tested." You can get a decision, but all it can do
it create a crisis.



So then there is someone who is above the law?

I didn't say that. I said that prosecuting him for an official action would
cause a Constitutional crisis.

It's easy to provoke a crisis under our Constitution. It's much harder to
avoid them. If we have a serious one, the whole structure is thrown into
turmoil and its strength is sapped. You'll recall Marbury v. Madison (1803).
If Jefferson had provoked a confrontation with the Court, we would have had
a hell of a mess. And the Court's authority to decide Constitutionality was,
at that point, unwritten and undecided.

Jefferson recognized this and decided to avoid provoking a crisis. That,
itself, became a wise precedent.

If you can't hold a president accountable for crimes he commits in office
then he's above the law.

If he murdered someone in broad daylight before a crowd, you'd have another
crisis, but there's little question about how it would be resolved. But the
"crimes" you're talking about were official acts. Most presidents would not
provoke a crisis by circumventing laws of Congress or of the Constitution,
but it's happened in wartime, most blatantly by Lincoln, but also by FDR and
others. If a president today sent federal troops to smash the printing
presses in Buck's County, PA, under the guise of the Sedition Act -- as John
Adams did -- half the country would want to try him for crimes. Fortunately,
no one did.

They do have a process for this but the problem is one of balls and
partisanship. Congressmen lack the balls to impeach and then convict a
president for a crime and then you have the president's party refusing to
follow the law due to their partisanship. Both mean the president can't be
touched. In my book it's a bad precedent. But in America we still aren't
sure that the president isn't really the king and so he gets treated like
the law applies to everyone but him. We ought to convict a president and
send him to the big house one of these days just to teach the next ones a
lesson. Unfortunately, we missed our chance. The last guy and his VP were
perfect candidates with their starting illegal wars and costing so many
people their lives. If those weren't serious enough crimes I can't imagine
what they would have to do to deserve conviction? What they did actually
made Nixon look like Little Bo Peep.

Hawke

Put your poli sci hat on and think this one through. If you prosecuted Bush
and Cheney, you'd provoke a whole series of Constitutional conflicts.

As you say, Congress had the authority to impeach them. They didn't do it.
So now you want to convict them. First, you would have one president
prosecuting a previous president through the Justice Department. There's no
precedent for that. Second, you have a case of Congress dictating to the
Executive branch how it's to carry out its Constitutional responsibilities.
That's an ugly one, which would raise the separation of powers issue. Third,
you'd wind up with the lower federal courts deciding not only the
Constitutionality of presidential actions (for which there is precedent) but
also their criminality under laws made by Congress that would criminalize
the Executive (for which there is no clear precedent). The Supreme Court, by
upholding or reversing the decision, would wind up prosecuting (or not) a
president for official acts. It would make Bush v. Gore look like a day in
traffic court.

Do you want to start that? If you do, Congress will be handed a tool to
coerce the Executive for the rest of history -- and there's little doubt in
my mind that, sooner or later, they'd use it in a way that would create a
more fundamental crisis.

This system survives because of the precedent set by Jefferson over Marbury.
He decided to acquiesce to the Supreme Court. Brilliant man that he was, he
undoubtedly recognized the consequences of provoking a crisis by ignoring
the Court's ruling.

The countries that have conflicts between the branches are banana republics,
tin-pot dictatorships, and military "republics" like Pakistan. You can make
cases for one side or the other on the Constitutionality of Bush's actions,
and you can debate the theory of Congress passing laws that bind the
president's hands, but the most important issue for the country is not who
wins these cases. but whether the three branches respect the limits of their
power. Arguably, Bush did not. We have a mechanism to deal with that:
impeachment and removal from office. If we don't use it in an appropriate
case, we have a system failure. (I'm not drawing a conclusion about the case
for impeachment in this case; I'm talking only about consequences.) But
that's nothing compared to provoking a full-blown conflict between the
branches of government.

--
Ed Huntress