"Hawke" wrote in message
...

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.

If it is so onerous to have a constitutional crisis that you would do
anything to avoid it, then in effect, you really do have a president who's
above the law.

It's a mixed bag. The courts have consistently held that a president is
immune to civil suit over acts performed while he was in office, including
claims that he violated citizens' civil rights. A modern case that
reaffirmed the immunity to suits was Nixon v. Fitzgerald (1982). (Clinton
was sued by Paula Jones for acts he committed *before* he became president.)

Regarding a president committing crimes, he can be prosecuted. Thus, my
example of a president committing murder -- it would be a crisis, and it
could cause a Constitutional crisis over rules of evidence and executive
priviledge -- but there is no doubt about how it would come out. It would do
more damage than is apparent, however.

But the crimes must be clear violations of the law. What you're suggesting
now is a violation of laws that would be challenged by the president on the
basis of their Constitutionality. So now you're talking about a situation in
which two branches of government (exec. and legislative) are arguing about a
law's constitutionality, and the Court, rather than just vacating an
executive order or letting it stand, would wind up prosecuting the president
for criminality, or not.

That's a more serious crisis. The Court would be deciding if the president
would go to jail, for example. Even fining him would raise a chilling
conflict over the separation of powers.

And here's how such a crisis could play out: Many people, perhaps most but
certainly a very large percentage, will view the Court's decision as a
political one and they'll start calling for impeachment of the Justices --
like this silly thing going on over the Citizens United case right now, only
serious. Say it was Bush; the Court vacated his order to monitor phone
calls, allowed a criminal prosecution by a lower court to stand, and we had
another 9/11 attack. Now you have 18 states with recall petitions for
Senators and Congressmen; 2/3 majorities who opposed the original law (or
who claim they opposed it, or simply agreed with the president after the
fact) trying to expell all of the other legislators; threats of secession,
etc.

That would cause Congress to disintigrate. Forget the merits of the cases --
at this point, the issue is the functioning of the government. This scenario
is unlikely but any serious Constitutional crisis will damage the
functioning of government.

So that's what you're weighing when you consider prosecuting a president,
whether he's in office or out of it. Is it worth it? Challenges between
branches of government can be managed if the people respect what's
happening, and respect is going out the window if there's a criminal
prosecution of a president. Even a quarter of the country up in arms over it
is enough to seriously damage the government's ability to function.

Fortunately, we haven't had many such crises, and we've gotten past them.
Criminal prosecutions are done for a reason, generally to satisfy the
public's need for "justice," a term I won't try to define. g When you
prosecute a president, you have to ask yourself if the benefit to the
country will outweigh the conflict and damage it will do. Usually, not.

Prosecuting Bush would pit the left against the right in a vicious battle
that would play out in attempted expulsions, impeachments, and recalls. It's
not worth it.


Maybe the founding fathers didn't think this one out. If you have one
branch of the three being a single individual, and if the other branches
have no power over him, then isn't he above the law, or maybe you might
say that law doesn't apply to him?

Maybe they didn't. More likely, I suspect they were aware of the possibility
as one of the many challenges that made the success of our government
unlikely. And many of them thought its success was unlikely.

I mean, how could any law apply to him if the cost of prosecuting him is
so high no one would ever do it?

That's a good question. One hopes that we elect presidents who don't violate
the law, so the conflict and crisis will be avoided. For the most part
that's been the case. Thus, our government has never crumbled.



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.

That's true, but you assume that it had to be set up the way they did it
then. Had there been a crisis they may have set the system up differently,
and maybe better. I'll bet the founders never imagined the court would
wind up the political entity it has become. As to the ease of provoking
constitutional crises I can't recall a single one in our history. That
being the case, I don't see it as being so easy to provoke.

There have been many, some major. Andrew Jackson had his Nullification
Crisis, in which South Carolina threatened to secede. Georgia was grumbling
about it. Lincoln had his Civil War. We had the Pentagon Papers and its
crisis over the First Amendment. We had Bush v. Gore, which was settled more
peaceably than many of us feared at the time.

Every one of them was a threat. The Nullification Crisis and the Civil War
almost destroyed the country. You'd have to be a committed revolutionary or
an anarchist to think any of it was a good thing.




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

Again, maybe. But we'll never know. Might have been better to have fought
it out then and come to a different conclusion. Is it better to have to do
it now or when the country was just starting?

It depends on how much you want to threaten the Constitution itself. It
depends upon a reasonable agreement that we'll adhere to it. If enough
people get ****ed off, that's the end of it.



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.

If I remember correctly at the time Adams sent troops to PA to destroy the
press the sedition act was still legal. I don't remember, but I think it
wasn't repealed until Jefferson was in office. Whenever the law was
removed if it was in place when Adams did his thing in PA he would have
been acting within the law. So as long as the sedition act hadn't been
declared unconstitutional Adam's actions would have been legal.

Legal, but today, legal or not, it would provoke a crisis.


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.

Not necessarily. It all depends on how the leaders in the other branches
react. If they were conflicted about whether something the president did
was a criminal act then you would probably get a crisis. If there was
bipartisan agreement that what the president did was way beyond legal then
maybe no crisis at all. But since it's never happened it's pretty hard to
say how it would play out.

Not the "leaders." It depends on how *the people* react. Right now you have
the Gunners and their Sons of Timothy McVeigh rattling their sabers.
Fortunately, they're a tiny minority of crackpots and malcontents. If the
number got really large, you'd have a crisis -- not because anyone would
shoot, but because they'd be pulling every string that's allowed by the
Constitution, with threats and counterthreats going on all over, until the
government just couldn't function.



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.

Your points illustrate what I was saying before. With the possible
problems that would arise from a prosecution of a president it makes it
where a president actually is outside the reach of law. Constitutionally,
the only thing that can be done to a president is to impeach and remove
from office. There is no procedure for doing anything else. I think the
founding fathers dropped the ball on this one. They didn't seem to imagine
OUR president doing things so heinous that he should be sent to prison for
them.

He can be impeached and then prosecuted for a crime. It's just that making
it happen is unlikely to produce a result that's good for the country.

Again, many of the Founders didn't think the country was likely to work.
This is one of the reasons. The possibilities for conflicts to escalate into
Constitutional crises was great, and we have the words of some of them
indicating that they didn't think this would hold together in the face of a
crisis.

"A republic, if you can keep it," said Franklin.

Funny isn't it that after seeing all the ****ty things the King of England
did they couldn't see our leader doing the same kind of things. If they
had they would have put in place some kind of disciplinary procedures with
more teeth in them than simple removal.

They tried to accomplish it with separation of powers and other structural
designs. Amazingly, it's worked.


But I'm thinking that we're not talking about minor offenses here. If the
president did things that would qualify as legitimate war crimes, crimes
against the country, or against large groups of Americans then you would
see a grass roots desire to make him pay. I'm not so sure that would be
such a hard thing to do if there was overwhelming support for it.

I don't think it's ever reached "overwhelming" proportions in the case of
Bush. Most people were angry about many things he did, but the feeling about
the supposed crimes was more divided.

Other countries have gone back and punished former leaders of crimes when
they were in office. I think if there was a great enough desire to do it a
way around the hurdles would be found. We have a history of finding ways
around laws when we really want to and I'm confident we can go around the
Constitution if we really wanted to.

I'm sure we could. And it probably would be the end of the US position in
the world if we did.



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.

Well, I think the office of the president has gotten way too powerful. If
the congress were to reassert the power that it really has that would be
fine with me. And I can't see the congress willy nilly coercing the
executive every time they felt like it. I'd bet they would use it
sparingly if at all. You would have to get majorities to do that. If they
set it up so they were large ones it might never happen. But having the
ability to do it in a pinch might be a good idea. We need to take back
some of the power from the executive branch one way or another.

I'll stick with what we have. That's true Burkean conservatism, which is
what I am. g



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.

Yeah, but it would have been interesting if he had. No telling how that
one would have come out.

I have no desire to live in interesting times.


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.

Like I said before, I think the executive branch has taken too much power
and the congress too willingly acquiesced. I'm not partial to one guy
having the same power, if not more, than the other branches. Way to easy
for mischief giving one man that kind of power, just look at Bush, Cheney,
and Nixon. If they didn't have so much power they couldn't have done what
many of us consider criminal acts. But as long as congress does nothing
the president is virtually omnipotent. It seemed we had settled the power
arrangements between branches in this country a long time ago. But it has
shifted over time. I think it's a good idea to take a look at which branch
gets to do what and reevaluate if it's still a good idea or not. Maybe
that is what some would call a constitutional crisis but to me it's just a
reassessment. I'm not for just leaving things like they have always been.
Times change and the government needs to keep up. Over the last few
decades that executive branch has gotten too powerful. If it takes a
"crisis" to bring the branches closer to equilibrium I'm all for it.

Hawke

You make progress only if you have a stable government -- unless revolution
is your idea of progress. We got lucky in that regard. Most revolutions
don't work out as well.

--
Ed Huntress