Worse Than A Crime

“Worse than a crime—a blunder” describes so many of the major decisions of this administration. It's odd, however, to see popping up on a mailing list of law professors the query as to whether the current failure to plan for or to provide disaster relief might be grounds for impeachment.

Personally, I think mere incompetence, even gross incompetence, is not a “high crime and misdemeanor” as the Constitution understands the term, so were I in office I would not vote to impeach for that. Furthermore, I have some trouble seeing what impeachment would accomplish given that the person who'd take over is probably making many of the key decisions now anyway.

On the other hand, lying to the people to take us to war…

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7 Responses to Worse Than A Crime

  1. pfc says:

    Doesn’t this rise to the point of criminal negligence?

    Also, I hate to be originalist, but what was the meaning of the term “misdemeanor” in the 18th century? Did it have today’s connotation of breaking a codified law (but less serious than a felony)? Or did it mean (as Dictionary.com lists as its first meaning, “A misdeed”.)

    I’m not a lawyer. I don’t know. I’d really like to hear your answers to those questions.

  2. Altoid says:

    Not an easy question. On the one hand, impeachment of Clinton shows that “impeachable” is, for practical purposes, whatever the would-be impeachers want it to be. On the other hand, non-impeachment of Reagan shows that it is not necessarily an offense for a president to refuse to preside.

    That there was no conviction in Clinton’s case, and that the public didn’t buy the “whatever we say” argument (because its partisan basis was pretty transparent), somewhat mitigates against that view of impeachment. But I have to say that I think this view– “impeachable” is whatever the impeachers say it is– is pretty close to the political experience of the founding generation and to what they knew of British proceedings (prosecutions of individual targets for treason, as well as straightforward impeachment of officials, most often, I think, casualties of fights between Parliament and the king). Considering related provisions like the limitation on punishment for conviction being only removal/disbarment from office, the strict definition of treason, and the prohibition on bills of attainder, I do think it’s probable that they wanted to avoid repeating the British pattern and to separate official from personal performance and liability. That doesn’t mean, however, that impeachment isn’t still at heart a political question, in my view.

    The non-feasance case has always been the harder one, in my mind. We’ve had some notable slouches in the White House, like Reagan, in whose case it would have been hard to disprove non-feasance. Others in his administration, as in Nixon’s, worked hard to avoid the faithful execution of the laws, but how do you hold a superior responsible for the underlings in a presidential system? Without strong public opinion behind you (as built in Nixon’s case for other reasons), you’d have to be willing to break the system completely, as Clinton’s impeachers were willing to do. These days, I think a non-feasance impeachment could work only if the political mood in the country were to be completely unmistakable, and if a plausible appearance of actual criminality could be cobbled together besides.

    Would willful non-feasance– an explicit decision not to execute certain of the laws faithfully– be something to pursue? Seems hyper-technical from a public-opinion standpoint; it would have to be something like a direct order not to spend allocated money on something and having a really dreadful result. Rigging the allocations in Congress, as has been done, wouldn’t be enough, I don’t think. But I don’t know.

    Anyway, as long as the HR is in the hands it’s in, I can’t think of a single thing that would result in bush’s impeachment. Not the classic “dead girl or live boy in the bed” scenario, not provable lies about Iraq, not countersigned payoffs from Chalabi. Your lap dog doesn’t dump on you– it would be out of character.

  3. Joe says:

    Wrong or not, one does note that Congress impeached Clinton for alleged crimes that could be indictable. See Posner’s book. In fact, it did not agree to two potential counts of impeachment for the very fact they were deemed overly trivial. The remaining two arguably (quite so) were as well, but again, they were “indictable” offenses if the facts were as the “prosecutors” argued they were.

    As some writers noted at the time of the Clinton (and Nixon … one mention was of a President who just went away on vacation and never came back or refused to do any presidential duties) impeachment, “high crimes and misdeameanors” need not necessarily be a codified law, there being a lot fewer of them in the late 18th century. And, a few impeachments of judges etc. were in part based on things that probably are not “crimes” in a criminal sense. There is some clear original intent that “maladministration” was not intended to apply.

    OTOH, the President does have a duty to faithfully execute the laws etc. If s/he fails to do so, even if it is not technically a crime, it would be impeachable … failing to do one’s job, be it a judge or president, was among those that were listed. But “criminal negiligence” and “maladministration” are pretty hard to differentiate, to my eye.

    But, ultimately, the House has prosecutorial discretion. Still … this does not mean minority party sorts cannot raise the issue.

  4. Phill says:

    I think you are making the mistake of being overly legalistic here. Failure to execute the duties and responsibilities of office was clearly intended to be an impeachable offense. The high crimes and misdemeanors are intended to be political.

    As a practical matter if the necessary 20 GOP senators are inclined to be critical, let alone convict Bush is effectively a President without the necessary support to maintain his office, there is no point in lingering.

    One thing is certain, Al Qaeda has taken notice of the bumbling incompetence of Dufus and co and they will attack the US again. At this point I doubt that it will be politically possible for Cheney to pull the trigger on ‘Operation Just Retribution’ and attack Iran with nuclear weapons regardless of the real source of the attack.

  5. James Wimberley says:

    It’s all academic. The real legal problem will be the future liability of ex-president Bush and members of his administration for ordinary criminal offences under the Torture Convention, national security law, and so on. This will be a serious poser for any Democratic president. Taking legal revenge on your predecessor, Mexico-style, is not a happy practice. On the other hand the crimes of this Administration are not of the kind where it’s satisfactory to say “boys will be boys” and grant a blanket amnesty.

  6. Joe says:

    To cut thru the particulars, I don’t think impeachment should be used as a “no confidence” method ala parliamentary regimes though if 1/2 of the House and 2/3 of the Senate says so with public support, the President should resign. And, esp. since the Supreme Ct said it won’t get involved, if it is used that way, it will be a fait accompli.

    Simply not doing one’s job might be impeachable, but really — it would have to be truly blatant, so blatant that the necessary numbers agree.

  7. Shirley says:

    Yes I do believe that this horror for the black people during this disaster is an impeachable offence.
    Our president has completely neglected a whole race of people those that it is his duty to protect. I have never witnessed anything so abominable in my life as the last week of horror for these people.
    All men are supposed to be created equal, at least that was what I have lived by, and now all of a sudden a whole race does not count. That is a crime of the worst kind and is an impeachable crime.

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