Found via Eschaton, but Not Atrios:

Bush and Cheney have broken the law consistently throughout their reign, often openly, and to the great detriment of our own country and others; when they obey it, they do so more as a matter of convenience than from any fealty to it or any fear of retribution. They’re pleased to use the legislature to achieve their ends when they can — as when Congress obligingly immunized administration personnel from prosecution under the War Crimes Act — and to ignore it when they can’t. Former Justice Department official Jack Goldsmith explains the dynamic as described to him by Dick Cheney’s current number two, torture maven David Addington: “We’re going to push and push and push until some larger force makes us stop.” They have, and that larger force has not materialized — and the administration have been at pains to ensure that the force, if it ever arrives, won’t do so in the person of the courts — and the result is a constitutional republic with its framework intact and its guts eviscerated. There is only one remedy, and that’s impeachment.

Read the whole thing here.

I understand (but don't endorse) the political strategy that says that pushing for impeachment “hurts the Dems at the polls” in 2008. And I wouldn't have endorsed it even it if had been true the last time they said it — in 2006 — even as Democrats in localities where impeachment efforts took root posted historic gains and even outperformed their colleagues nationally.

But I understand fear. Really, I do.

Still, you have to wonder what kind of a long term strategy this is for the exercise of power in America. In the 40 years or so since Nixon's first election, the Democrats have held the Congress for 28 years, and been out of power for just 12. It's the exact reverse with respect to the White House, where Democrats have been out for 28 years and in for just 12. During that time, the Republicans have reelected three presidents — arguably the most aggressive expanders of executive power to occupy the office — Nixon, Reagan and George W. Bush. In the same space of time, Democrats have reelected just one president (the first elected to two terms since FDR, by the way) — and that guy got impeached!

So I find myself at a loss for explaining why laying low rather than vigorously defending the powers of the one branch Democrats have been successful at holding is so brilliant and pragmatic. It seems to me that the strategy puts all our eggs in one very shaky basket: winning and holding the White House in perpetuity.

I want to win the White House as much as anybody in 2008. Maybe more. But I also know that there's another election coming up after that. And another after that. And another after that. Should we be so unfortunate as to lose one, on what grounds would a later Congress assert the prerogatives it has surrendered this time around? And wouldn't the effort to reassert those powers just fall prey to the same pathetic excuse that quashes it today?

One by one, Senators are coming out to express their reservations about the nomination of Michael Mukasey for Attorney General. From John McCain and Lindsey Graham (both of whom, to be frank, everyone should expect to roll over in the end), to John Kerry, to Bernie Sanders, Senators have expressed puzzlement and astonishment at Mukasey’s inability to take a clear position on whether or not waterboarding is torture.

Still worse, if that’s possible, is the fact that Mukasey remains unwilling to say definitively whether or not the President of the United States is bound by statutory law of any kind.

In a NYT op-ed published last week, Prof. Jeb Rubenfeld of Yale Law School identified an answer given by Mukasey that should prove far more troubling than the horrifying but considerably narrower answer he gave to the torture question:

AT his confirmation hearings last week, Michael B. Mukasey, President Bush’s nominee for attorney general, was asked whether the president is required to obey federal statutes. Judge Mukasey replied, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

Rubenfeld elaborates:

According to Judge Mukasey’s statement, as well as other parts of his testimony, the president’s authority “to defend the nation” trumps his obligation to obey the law. Take the federal statute governing military commissions in Guantánamo Bay. No one, including the president’s lawyers, argues that this statute is unconstitutional. The only question is whether the president is required to obey it even if in his judgment the statute is not the best way “to defend the nation.”

If he is not, we no longer live under the government the founders established.

True.

And thankfully, the op-ed caught the eye of Sen. Chris Dodd, who today announced his opposition to Mukasey’s nomination based specifically on this point.

Which, since it’s a point I’ve been making about this “administration” for going on two years now, brings me back to the position I took just a few days ago: Nobody for Attorney General.

What Mukasey has expressed here is really a basic tenet of the Bush “administration’s” view of constitutional law. Mukasey himself has expressed nothing here that puts him at odds with the policy-making elements of the “administration” with respect to executive powers, and that’s something Senators need to recognize if they’re going to approach this nomination, or indeed any dealings with the Bush White House at all, in any rational fashion.

Ask yourselves who could convince you – and how would they do it? – that they were serious about safeguarding the basic tenets of the Constitution and its separation of powers, and at the same time keep faith with this “administration?”

Any president — and I mean any president — ought to be able to depend on a certain amount of deference from his or her Attorney General, of course. This ordinarily goes without saying, but in this case must be said because it sets up an irreconcilable paradox. Is it even possible to serve an administration that regularly asserts constitutional interpretations like the one Judge Mukasey did and protect the fundamental rule of law which underlies our entire constitutional system of government? How could it be so?

Who could do that? Could anyone?

If not — and I assert that it is simply not possible to do — should Senators be operating under normal circumstances? That is, should they be proceeding with the nomination as if this president — who has himself created this irreconcilable paradox — were in fact entitled to this or indeed any nominee?

An “administration” that sends distinguished federal judges to Capitol Hill and puts them in a position requiring them to hedge on answers to such basic questions as must a president obey federal statutes is operating so far outside the bounds of normalcy already, that it hardly seems worth anyone’s time to pretend that an Attorney General is necessary to the functioning of the government at all.

Indeed, the confirmation of an Attorney General at this point does the country a considerable disservice, by glossing over the fact that the “administration” is operating in a manner that would actually require this kind of evasion from someone who supposedly aspires to the nation’s top law enforcement position.

This is a process that should come to a full stop, so that Senators may pause and take a good look around at what’s happened, and what they’re being asked to facilitate, in the name of “business as usual.”

Michael Mukasey is certainly qualified to be Attorney General of the United States, if Alberto Gonzales sets any precedent.

And while that may be the least convincing recommendation anyone can ever be given for the job, consider that Mukasey yesterday gave perhaps the least convincing answer to one of the most important questions asked of him — by Sen. Sheldon Whitehouse (D-RI)– in his confirmation hearing:

WHITEHOUSE: Is waterboarding constitutional?

MUKASEY: I don’t know what is involved in the technique. If waterboarding is torture, torture is not constitutional.

WHITEHOUSE: “If waterboarding is constitutional” is a massive hedge.

MUKASEY: No, I said, “If it’s torture.” I’m sorry. I said, “If it’s torture.”

WHITEHOUSE: “If it’s torture.” That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces, and pouring water over the cloth to simulate the feeling of drowning. Is that constitutional?

MUKASEY: If it amounts to torture, it is not constitutional.

WHITEHOUSE: I’m very disappointed in that answer – I think it is purely semantic.

MUKASEY: I’m sorry.

And Whitehouse is right, of course. To say torture is not constitutional is — or should be, in a sane world — to say nothing at all. That is the response one might expect from a junior high school civics student, not a nominee for Attorney General.

But Mukasey, and his putative boss, George W. Bush, have a much bigger problem than being able to get away with massive hedges. The problem is that Bush’s policies have made it impossible for any nominee for Attorney General who hopes to retain any amount of faith with this “administration” to answer these threshold questions with any amount of honesty.

It is simply bedrock truth that no one can answer the torture questions honestly without exposing the fact that the “administration” hinges its entire detainee policy on semantics.

It is similarly unfathomable — or once was unfathomable in America — that a nominee for Attorney General of the United States would ever have to say anything other than “no” to the question of “Is waterboarding constitutional?”

George W. Bush’s detainee policies have, quite simply, rendered honest and conscientious service as an Attorney General impossible. One simply cannot serve both this president and the law faithfully. It is a paradox and an impossibility, because this president does not serve the law faithfully. And what it means, at bottom, is that George W. Bush’s “administration” is an enemy of the rule of law, and has so diminished our capacity to live by it that no honest Senator should permit him the charade of attending to it with the window dressing of confirming an Attorney General.

Anyone who would hold that job in this “administration” will by definition be reduced to serving as a placeholder only — a mere figurehead to whom everyone will, out of pure habit only, refer to as the “Attorney General,” but who will at the end of the day be prevented from administering the law he will have sworn to uphold.

(Bumping this back to the top, as TPM and CQ are reporting that Majority Leader Reid is planning to break with Senate protocols and IGNORE DODD’S HOLD, bringing the bill to the floor in mid-November. This is the same Reid that has let similar GOP holds go unchallenged.

The best option is magnify the hold by getting our own Senators to sign on. Leahy has spoken out strongly against the bill, let’s encourage him and Bernie to join Dodd in going the extra mile. Contact info at the bottom of the full diary. This is a full-blown red alert, folks… – promoted by odum)

The House FISA bill is dead in the water.

The Senate FISA bill will have retroactive immunity for the people who sold you out:

Senators this week began reviewing classified documents related to the participation of the telephone carriers in the security agency program and came away from that early review convinced that the companies had “acted in good faith” in cooperating with what they believed was a legal and presidentially authorized program and that they should not be punished through civil litigation for their roles, the official said.

Only here's the thing: on what planet did the telecom companies here act in “good faith?” There's every indication that those who agreed to go along with the spying scheme were rewarded with free passes on regulatory issues like mergers and acquisitions, while the one company that actually asked questions and insisted on listening to their lawyers got shut out of the booming mergers market, and found their CEO sentenced to six years in prison.

Sounds like maybe something the Senate Judiciary Committee should look into. And I'm sure they will.

Which means you, as Vermonters, have a special ability to influence the process. 

How badly does it need to be influenced? Well…

Look at this:

It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants.

Immunity for companies that can demonstrate they acted “pursuant to a legal directive.”

What kind of “legal directive” are we talking about? Well, consider that this immunity is intended to be retroactive, to cover the activities these companies have already engaged in. There haven't been any court orders issued that authorize such activity. If there had been, the companies wouldn't need this bill. So we must be talking about some other kind of “legal directive.” The kind that gets written in the executive branch. The kind that the executive branch keeps secret. The kind the executive branch tells Congress they're not entitle to see.

These “legal directives” are really just “legal opinions” drafted by the “administration.” They're untested in any court, because they won't allow any court to see them, and any case that tries to test them gets blocked, usually when the “government” invokes the “state secrets” doctrine, or some other claim that national security or executive privilege would somehow be compromised.

So what we're saying here is that secret memos can now be drafted (retroactively and be backdated if necessary?) that purport to be “legal directives” upon which the telecom companies can claim to have relied in “good faith.” Or worse, they may even be able to say they received nothing but oral assurances that their activities were “legal.” And if you want to see these “legal directives,” it just so happens that since they've been prepared by the Office of Legal Counsel or some other close advisors to the president, executive privilege may just prevent you from doing so.

Or “national security.”

Or “I just don't feel like it, and you can't make me.”

And that's the real problem here. How is anyone to tell the difference between law that meets the commonly accepted definition we all work with every day on the one hand, and “whatever the hell the president says” on the other?

What is “law,” anyway? Is it the stuff that Congress passes in public and that you can read in order to be able to obey it? Or is it just anything that can in practice frighten you into obeying? If you can be sent to jail, or immunized from suit, or whatever, based on a secret showing that you relied in “good faith” on a memo an “administration” official gives you (and literally nothing more — and perhaps even a lot less), you really have to ask yourself that question. What. Is. Law?

And if nobody knows what “law” is, one might just as well ask what the point of being in Congress is. After all, it's purported in our Constitution that Congress has the prerogative to make the laws. But now it's making laws that say things other than what it passes can substitute for law — specifically anything the White House puts on in a memo, or whispers to you in a meeting.

That's a gut punch directly to the very foundation of western civilization. And we worry whether talking about it will jeopardize our chances in the next election.

Shall we maybe have a discussion on this?

Senators (if that's what you are, anymore)?

UPDATE: Senator Chris Dodd has announced he's going to put a “hold” on the bill, and Pat Leahy has started staking out an aggressive position of his own.

UPDATE 2: Here is the contact information for Leahy's and Sanders's offices. Please contact them and encourage them to join Dodd in the hold. Please spread the word to others…

Leahy:

Bernie:

District Offices:

So the other day, I read where the “government” was approaching all the big phone companies and asking for secret access to their customer data. Data that it would be illegal for them to collect on their own, but if the companies would maybe just give it to them… well… who could say for sure?

And by “the other day,” I mean May 10, 2006:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

Awful. Horrible. Evil. What could be worse? 

A little bit later, I found out. Like when I read this: 

The National Security Agency and other government agencies retaliated against Qwest because the Denver telco refused to go along with a phone spying program, documents released Wednesday suggest.

Mmm. Not good.

That should be investigated, don't you think? Especially in light of the fact that the United States Senate is poised to pass legislation immunizing AT&T, Verizon and BellSouth for selling out your rights to privacy, while Qwest got punished for refusing to play ball.

But how? Just how could the United States Senate investigate such a thorny legal situation?

Well, first, I assume you'd have to find one of the United States. And  then I guess you'd have to see if that State had any Senators who did that sort of thing.

You know. Investigated legal stuff that was really, really important. 

Because this seems really important. Don't you think? AT&T, Verizon and BellSouth get free passes, and CEO Joe Nacchio, the guy who nixed the deal for Qwest gets, what, exactly?

Nacchio was convicted last spring on 19 counts of insider trading for $52 million of stock sales in April and May 2001, and sentenced to six years in prison.

Ew! Insider trading? Do we really want to touch that? Well, maybe. Maybe not. Here's something interesting about the case, though. Check out the chronology of events reported in the Rocky Mountain News story:

Nacchio planned to demonstrate at trial that he had a meeting on Feb. 27, 2001, at NSA headquarters at Fort Meade, Md., to discuss a $100 million project. According to the documents, another topic also was discussed at that meeting, one with which Nacchio refused to comply.

The topic itself is redacted each time it appears in the hundreds of pages of documents, but there is mention of Nacchio believing the request was both inappropriate and illegal, and repeatedly refusing to go along with it.

Nacchio was convicted last spring on 19 counts of insider trading for $52 million of stock sales in April and May 2001, and sentenced to six years in prison.

The NSA contract was awarded in July 2001 to companies other than Qwest.

See what I'm getting at here? The government says Nacchio is guilty of insider trading because when he sold his stock in April and May of 2001, he knew or should have known that it was significantly overvalued, because the company's earnings were dwindling.

But beginning in February 2001, Nacchio believes Qwest has got an inside track on a $100 million contract. And…

Nacchio also asserts Qwest was in line to build a $2 billion private government network called GovNet and do other government business, including a network between the U.S. and South America.

Why would Nacchio think he had that money sewn up?

Nacchio was on a Bush-appointed national security telecommunications advisory panel.

That's usually as good as cash in the bank with this “administration.”

So Nacchio might have had every reason in April and May 2001 to believe Qwest was looking good. It wasn't until July that the government steered the contracts elsewhere.

And then all of a sudden, Qwest stock's not looking so good. In fact, it looks terrible. And just two months before, CEO Nacchio was selling $52 million worth?

Book 'im, boys. Tell it to the judge, Nacchio!

Only Nacchio couldn't. Classified. “National security,” dontcha know. So it looks like it's six years in the pen for Nacchio.

Now that the blogs have gone ahead and said it aloud, this is something that's being whispered in nearly every conversation on the subject. Even in The Washington Post:

Nacchio's account, which places the NSA proposal at a meeting on Feb. 27, 2001, suggests that the Bush administration was seeking to enlist telecommunications firms in programs without court oversight before the terrorist attacks on New York and the Pentagon. The Sept. 11 attacks have been cited by the government as the main impetus for its warrantless surveillance efforts.

And, as the Wired blog reports:

Qwest CEO Not Alone in Alleging NSA Started Domestic Phone Record Program 7 Months Before 9/11
By Ryan Singel October 12, 2007 | 4:23:55 PM
Startling statements from former Qwest CEO Joseph Nacchio's defense documents alleging the National Security Agency began building a massive call records database seven months before 9/11 aren't the only accusations that the controversial program predated the attacks of 9/11.

[…]

And in May 2006, a lawsuit filed against Verizon for allegedly turning over call records to the NSA alleged that AT&T began building a spying facility for the NSA just days after President Bush was inaugurated. That lawsuit is one of 50 that were consolidated and moved to a San Francisco federal district court, where the suits sit in limbo waiting for the 9th Circuit Appeals court to decide whether the suits can proceed without endangering national security.

So here's the key. The domestic spying has always been justified by saying it was a necessary response to 9/11. But clearly there's damned good reason to believe these programs were conceived and initiated well before the September 11th attacks.

That would mean — gasp! — that your “government” is full of it.

But it's not just that. If Qwest's competitors were already abetting this bloodless(?) coup before 9/11, then the “administration's” domestic spying not only has little if anything to do with response to terrorism, but it also objectively failed to prevent 9/11.

So the next time Congress is threatened with having the “responsibility” of a threatened attack on its conscience if they don't knuckle under to the Bush junta, as was the case in the August FISA capitulation, perhaps they'll give some thought to the demonstrated record of failure the program evidenced with regard to the single biggest attack on American soil ever perpetrated.

And when they're asked to roll over once again, this time granting immunity to the companies that agreed to sell out your inalienable rights to the “government” in exchange for contracting money (taken out of Qwest's pocket, for refusing to play along), do you think maybe they should take five to figure out just what the hell's going on before they vote?

I do. But then again, what am I going to do? Vote “Bag of Hammers '08” if they don't?

The moral of the story? Political opponents of the Bush “administration” get fingered by the feds. You get spied on. And Sen. Jay Rockefeller (D-WV), writing the Senate's new FISA bill, says Nacchio — who refused to hand over customer data illegally to the governmetn — can rot, while AT&T and others — who gave you up to the feds — get retroactive immunity.

Any Senator who votes for this retroactive immunity under these conditions is a stone moron.

Sure wish there was some Senator from one of the United States who made it his business to look into matters of justice such as this.

Call me if you know any.

I'm sorry to have to say it, but it's true.

Milbank nails Leahy.

[The White House has] stalled or ignored Leahy's requests as his committee looks into the wiretapping program and the travails of Gonzales. They have calculated — accurately so far — that the Dynamic Duo of Leahy and Schumer would deliver harsh words but no punishment of consequence.

“The time is up. The time is up,” Leahy announced yesterday. “We've waited long enough.”

But what would Leahy do about it? The first questioner riddled Batman with this.

“The full Judiciary Committee will have to sit down and determine whether to seek contempt from the full Senate,” said the noncommittal action hero.

Does that mean he would seek a contempt-of-Congress citation? “What I want to do is get the response to these things,” Leahy demurred.

Rebecca Carr of Cox News tried again to pin him down, but Leahy continued to escape. “What we have to find out is what happened here,” he answered.

How about withholding money from the administration? “Let's take it step by step,” he proposed.

Holy incrementalism, Batman!

Weak, weak, weak. Weak tea.

The best spin that can be put on this — and the spin Leahy would no doubt put on it — is that the Senator was careful, even cagey, and displayed a statesmanlike refusal to tip his hand.

The rest of the world saw this: He's got nothin'.

I understand, of course, that Leahy wants — needs — to proceed with caution. But then why not just do that? Why not issue your non-statement from Vermont? Why fly to DC to say you have to fly home and then fly back again when your colleagues get into town, then meet with them and decide what to do?

The White House spin machine even sent out signals yesterday that August 20th was never supposed to be any kind of deadline. Leahy showed up to insist that it was.

And a deadline for what? Apparently for him to hold a press conference to announce that he would have to wait until September to confer with his colleagues about what to actually do about the White House missing the “deadline.”

Which in the real world means September was the deadline. And yesterday's performance did nothing but reinforce the appearance of a Congress unwilling to stand up for itself.

It may well be that Leahy has the resolve to move forward with contempt charges. And why wouldn't he? It's risk free. The “administration” has already said point blank that this Department of Justice will not prosecute such charges. But he couldn't say so, because he knows he can't count his chickens before they're hatched. And when your “chickens” are people like Arlen Specter, it's probably quite wise not to count them for anything. Specter collapses so often, I wouldn't even feel comfortable counting him as an egg, quite frankly.

So yes, it's a difficult line to walk. But when you know how squishy your troops are, you've got to include that in your calculus. Don't set deadlines you can't enforce, and for God's sake, don't have press conferences to announce you can't enforce them. Although to be honest, a presser to announce that would have at least been more concrete than the thin gruel we got yesterday. At least it would have been definitive on something.

Hey. Long time, no see. Thought you might like this. Whoever's producing these (and his name is David Olson) is a goddamned genius.

Speaker Symington, finally showing the wisdom to get out of the way of the people that the Governor found at his town meeting, has relented and will permit a floor vote on a House impeachment resolution tomorrow, though she intends to vote against it.

Wonderful. And I hate to look a gift horse in the mouth, but of course, there was no “gift” here. This was the result of hard work. So I’d like to make a few more points before we let the chips fall where they may.

In her statement on the subject, Symington explained her position on the Legislature’s earlier vote calling for an immediate withdrawal of American occupation forces from Iraq:

Despite my general reluctance to debate national issues in the Legislature, I supported this debate and the outcome. I am proud that Vermont was the first state to take such a strong stance against the war.

And it was a strong stance against the war occupation. Very strong. So strong, in fact, that it represents a position considerably more aggressive than that taken by the United States Congress itself. Still, it seemed, at the time, necessary and appropriate for the Vermont Legislature to advise them as to the best means of redressing the harm and injustice this administration has brought to our nation and the havoc it has caused beyond our borders. Didn’t it?

Those are exactly my words, though. Those are Speaker Symington’s words. But not about the troop withdrawal legislation. Save for one word, “advise,” those are the words Symington used in her most recent statement to oppose the impeachment resolution. Except in that statement, it was “second guessing,” not “advising.” I guess it’s all in how you look at it.

The Speaker quite correctly points out the fantastic job that the Democratic Congress has done in opening investigations into this “administration’s” conduct, and naturally, the praise for the leadership shown in that regard by the Members of Vermont’s Congressional delegation is both effusive and well-deserved. Nobody’s been more pleased with the robust pursuit of oversight than I have. But I also look ahead and ask to what end are we conducting this oversight?

So far, we have only the vaguest indications that the Members of Vermont’s delegation are considering where this path leads, though I can’t blame them for being cautious about it:

In a joint statement issued late Friday, Sen. Patrick Leahy, D-VT, Sen. Bernie Sanders, I-VT, and Rep. Peter Welch, D-VT, said, “Currently, for the first time since Pres. Bush has been in office, there are a number of investigations taking place regarding the actions of the Bush administration, including how and why we invaded Iraq, no-bid contracts, the firing of U.S. attorneys by the attorney general, the assault on constitutional rights and the use of Republican Party e-mails in the White House. Before we talk about impeachment, it is imperative that these investigations be allowed to run their course and we should then follow wherever the facts lead.”

These investigations will be followed wherever the facts lead.

Which is a good thing, right? Of course it is. On the other hand, it’s also one of the minimum basic requirements of oversight. You follow the facts where they lead. Anything other than that just isn’t oversight. So, that’s about as non-committal a statement as you can possibly make about an investigation that implicates the “administration” in the above-recited litany, don’t you think?

The fact of the matter is that the activities being probed as clearly indicate the need to consider the remedy of impeachment as anything the Congress could ever hope to investigate. Everyone knows it, but few (though a growing number) are willing to acknowledge it. In one of the great ironies of our time, it is the fate of those who see around the corner to endure the slings and arrows of those who would cling to the label of “realists” even as they persist in denying that fact. Worse things have happened, of course. It does us no good to dwell on that.

The Speaker then continued:

Impeachment may be needed where checks and balances fail. That is not the case now, and instead of choosing that disruptive and divisive option, we should support the legislative branch of our government as its members work to hold the executive branch accountable for their misguided policies and mismanagement. We should not short circuit that process of accountability.

Here, it’s particularly hard to agree. Where are the successes of our system of checks and balances? We certainly saw none under the Rubber Stamp Republican Congress, but we knew we never would. And while we can hold out hope that oversight and investigations conducted by Congressional Democrats can be of help, anyone who’s been even casually following along can see plainly that the White House has no intention whatsoever of complying with Congressional inquiries. And why would they? After all, the oversight power of Congress is ultimately backed by the threat of the one thing that Speaker Symington has worked so hard to suppress. And if the opposition party won’t even discuss it, what worry has the White House in tempting fate?

The day will come — and it will come sooner rather than later — when Chairman Leahy and his colleagues have had enough of White House stonewalling. Some of you who know him better than I do would say that day has already arrived. But with what weapons do you expect your Senator to enforce compliance from a recalcitrant and bunkered George W. Bush? The arsenal is limited, and purposefully so. But there’s no getting around it: the ultimate leverage the Congress has against the executive is impeachment, and there’s absolutely nothing in the world Speaker Symington can do or say to change that fact. The only thing she can do is contribute to a political strategy that would render it irrelevant, and in so doing, render the Congress irrelevant as well.

Indeed, as the Vermont delegation said, “it is imperative that these investigations be allowed to run their course and we should then follow wherever the facts lead.”

When we come to the end of that trail of facts, will Gaye Symington and Vermont’s Democrats have offered their support for what comes next? Or will they have established a narrative — impeachment as “disruptive and divisive” — for the White House’s apologists to seize as their own?

Whenever I’m looking to put the political plays of the Bush “administration” in long-term context, I point people to “Constitutional Hardball,” (PDF) a law review article written by Georgetown now Harvard Law Prof. Mark Tushnet. I think it’s a real eye-opener for those who might otherwise advocate simply waiting out the Bush gang, and “fixing” the problems they’ve created at the ballot box.

What is constitutional hardball?

A shorthand sketch of constitutional hardball is this: It consists of political claims and practices — legislative and executive initiatives — that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.³ It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents’ victory would be a serious, perhaps permanent setback to the political positions they hold.
———-
³ By this I mean the “go without saying” assumptions that underpin working systems of constitutional government. They are had to identify outside times of crisis precisely because they go without saying. (An alternative term would be conventions.)

How do you know when it’s happening?

One way to distinguish periods of ordinary politics from periods of transformation is that during the former pre-constitutional understandings are taken for granted, whereas during the latter such understandings are brought into question.

And what’s really going on when it’s happening?

The idea is that the institutional arrangements characteristic of a particular constitutional order — characteristic, that is, of each specific period of ordinary politics — are the presuppositions accepted by all politically significant actors in that period, whereas the whole point of constitutional transformation is to alter the previously taken-for-granted institutional arrangements. Of course the proponents of transformation are going to place pre-constitutional understandings in question, because they want to replace those understandings with others.

How does this relate, exactly, to today’s situation? Read on after the jump.

Tushnet provides an illustrative example:

A crude example, far more crude than a full analysis would be: Prior to the New Deal, Congress initiated legislation subject to modest review by the President, whereas after the New Deal the President initiated legislation subject to modest review by Congress. And, during the  transformative period when Franklin D. Roosevelt was attempting to construct a new constitutional order, his efforts to seize the legislative initiative were understood to be challenges to settled pre-constitutional understandings about the relation between President and Congress — and, as such, revolutionary.

Tushnet’s article dates from 2003. How might we illustrate the concept of constitutional hardball today? Would we conclude that the Bush “administration’s” assertion of broad, unconstrained executive power — including the power to abrogate federal law (like FISA) — constitutes an example? How about this “administration’s” understanding and use of signing statements, no longer used merely as markers denoting the President’s position on matters of constitutional law, but rather as policy directives to the entirety of the executive branch as to how to interpret and execute the law? The novel concept, driven by Tom DeLay (with Jack Abramoff’s money), that Republican-controlled states could and should redraw their Congressional districts in between the accepted ten year intervals, purely for partisan advantage? The application of political litmus testing to the appointment of U.S. Attorneys? The White House’s assertion that its senior officials are not subject to the subpoena power of the Congress?

Or perhaps the Military Commissions (read: Torture) Act?

Political actors can play constitutional hardball with substantive principles. Proponents of a constitutional transformation will propose legislation that pushes the envelope of existing constitutional doctrine. The proposed statutes will not be obviously unconstitutional, because constitutional hardball consists of actions that are plausibly defensible under existing constitutional doctrine. But, they will signal that their proponents have a substantially different understanding of government’s role than had seemed settled. And, importantly, the proposals, if enacted, might have the effect of enhancing the political strength of the coalition seeking to change the constitutional order.

So what does it look like to lose a “game” of constitutional hardball?

The high-stakes characteristic of constitutional hardball shows that hardball is an element of the more general phenomenon Jack Balkin and Sanford Levinson identified as partisan entrenchment. According to Balkin and Levinson, large-scale changes in deep institutional arrangements occur through a process of partisan entrenchment.

Balkin and Levinson focus on partisan entrenchment in the courts. “When a party wins the White House, it can stock the federal judiciary with members of its own party, assuming a relatively acquiescent Senate.” In doing so, the president extends his party’s policy positions, and its positions on the meaning of the Constitution, over a much longer period than his own presidency. And, once the judges are in place, “they start to change the understandings of the Constitution that appear in positive law.” For Balkin and Levinson, partisan entrenchment means that “[p]arties who control the presidency install jurists of their liking — given whatever counterweight the Senate provides.”

The process of partisan entrenchment should, I believe, be understood more broadly than Balkin and Levinson’s initial presentation. The full process of partisan entrenchment has several stages, in which control of the courts in only one phase. First, proponents of a particular set of arrangements gain control over one component of the government. They then use that control to devise mechanisms that ensure their continued control of that component. For example, they might develop ways of implementing civil service regulations, intended to eliminate eliminating partisan influence on the lower levels of the bureaucracy, so that lower-level bureaucrats are in fact committed to a particular partisan program.

U.S. Attorneys replaced — without Senate advice and consent — according to partisan litmus tests?

Or, perhaps more important, they set their substantive legislative or executive agenda to attract strong support from some, and to demobilize their opponents.

Huge and lopsided tax cuts for the “base?” The enormous shift of federal grant resources from community-based to “faith-based” organizations?

Further, those who control one component of the government try to leverage that control into taking control of other components.

Mid-census, partisan redistricting plans approved by Justice Department political operatives despite unanimous opposition from career civil servants in the Voting Rights section? Federal and local law enforcement using “enhanced powers” of surveillance to infiltrate and undermine opposition activists? The use of highly politicized U.S. Attorneys’ Offices to strategically prosecute local Democrats?

And what are the stakes involved in losing such a “game?”

The stakes are high when politicians play political hardball, that is, because the politicians believe that the winners might end up with permanent control (meaning, control for the full time-horizon of today’s politicians) of the entire government. The winner of constitutional hardball takes everything, and the loser loses everything.

Pretty serious, wouldn’t you say? And yet, it is precisely the Serious People — that is, the political punditry and the forgers of the Conventional Wisdom — who counsel us to ignore the dynamics of constitutional hardball, to seek the “middle ground,” and prize the art of “bipartisan compromise.” What might be the result of such an asymmetrical response? Tushnet answers:

I suspect that most readers are likely to think that there is something distasteful about constitutional hardball as a process. After all, playing for keeps in politics is, it might be thought, a recipe for social disaster, leading at the extreme to genocide and annihilation of the enemy. Even short of that, constitutional hardball might lead to unpleasant personal relations among politically active people. And, as L. Michael Seidman has emphasized, playing for keeps might be wrong just because it fails to acknowledge the possibility that one’s political-constitutional opponents might actually be right about the Constitution — a possibility that, according to Seidman, is ever-present.

Note, though, that some of these normative questions are not about constitutional hardball itself, but are about what happens when someone wins the game. Consider, for example, the sheer distastefulness of constitutional hardball. That problem could be eliminated after constitutional transformation occurs — after, that is, we emerge from the tunnel into the new constitutional order. Then, the politicians having control of the government can revert to ordinary constitutional politics, and their opponents can, like Eisenhower and Nixon in 1960, play the game on the winners’ terms, hoping to pick up a victory or two themselves. If our normative misgivings are founded in simple distaste for constitutional hardball, exacerbated by the fact that politicians have been playing it for more than twenty years now, we can take solace in the possibility that someday the Republicans might win.

So, what do you say, folks? Shall we bide our time and rely on the courts to fix it all for us? Will oversight and exposure of the Nixon/Bush doctrine be enough? Will Americans finally and miraculously simply awaken to the realities of constitutional transformation? Did the Clinton impeachment really make us so afraid of the process itself that it should be considered unavailable to us in combating the constitutional-level game undertaken by Republicans? Is this really something we can actually debate our way out of? Can we really afford to head into 2008 under the banner of “bipartisan cooperation?”

As Senator Leahy bravely tightens the noose around the neck of the Bush “administration,” Vermont Democrats have lent him invaluable political backing in signaling their support for the remedy that ultimately gives him his power in his subpoena showdown — impeachment. The Vermont legislature now stands poised to lend its voice to the growing chorus joining Leahy’s charge.

In her continuing opposition, however, the understandably cautious Speaker Gaye Symington clings ever more tenuously to the excuses she’s invented for herself not to act. With the nation’s eyes on the contest of resolve now being waged between Leahy and Bush, her expressions of concern become increasingly indistinguishable from willful protection of the Bush White House.

Just as principled, anti-war Democrats in Washington were this week called upon to support an Iraq appropriations bill about which they had grave misgivings, so the time has come for Symington to reconsider the bottom line consequences of her trepidation. Senator Leahy, on behalf of Vermonters and all Americans, stands eyeball-to-eyeball with Bush in a high stakes staring contest in which even Republicans are backing away from the President. Gaye Symington, though, busies herself with watching the clock, insisting that the overwhelming weight of Vermont’s legislative agenda precludes an expression of support for Leahy’s brave stand in defense of the Constitution.

In a statement issued following the adoption of the Vermont Democratic Party’s impeachment resolution, which calls for a similar act from the legislature, Symington concocted her most self-serving excuse to date:

I do not believe that it is appropriate for the Vermont legislature to initiate an impeachment process of a president — any president — until the United States Congress conducts a formal investigation using its Constitutional prerogative.

Symington continues — probably willfully — to misunderstand her role in all this. Vermont’s legislature cannot force the Congress to do anything it doesn’t want to do. Congress can easily ignore Vermont’s resolution if they don’t feel they’ve conducted enough inquiry to warrant moving immediately forward with impeachment.

One might well ask why the legislature should proceed if the resolution can be ignored. But one might have asked the same question about the legislature’s resolution calling for an immediate withdrawal of troops from Iraq — a resolution Symington both supported and somehow found the time to allow to the floor.

To borrow the Speaker’s phrasing, I do not believe that it is appropriate for the Vermont legislature to imagine it can cause complications with the Congress’ Constitutional prerogative that it in fact has no direct influence over. Symington’s excuse is that she’s worried that she’ll be short-circuiting the Constitutional process, when in fact all the resolution can do is ask that that process be initiated by the very people whose prerogative it actually is.

Ironically, if she were right, and the legislature truly did have the power to force immediate consideration of impeachment, many Vermonters would consider her reluctance to act an even more egregious dereliction of duty. The fact that she’s wrong only makes her tremorous indecision that much more indefensible.