Attorneys General–institutions matter

Now that indictments have been announced against the (outgoing–dare I say?) Prime Minister of Israel, it is worth reviewing the institutional basis of the office of Attorney General in Israel.

I am seeing some casual takes on Twitter about why the US doesn’t have an Attorney General who takes a tougher line against law-breaking at the top of government. But the offices could hardly be more different. The US Attorney General is a cabinet appointee. The President picks who holds that position, subject only to Senate majority confirmation. Of course, Trump has had a highly compliant Senate majority throughout his presidency.

Trump could not have had occupants of the office that have been as awful for the rule of law as they have been, if the office were structured like Israel’s. So it is worth sketching how the process of appointing the Israeli Attorney General works. My source for this is Aviad Bakshi, Legal Advisers and the Government: Analysis and Recommendations, Kohelet Policy Forum, Policy Paper No. 10, February 2016.

a. There shall be formed a permanent selection committee that shall screen suitable candidates, one of which shall be appointed to the position by the government. The term of each committee shall be four years. 

b. The chairman shall be a retired justice of the Supreme Court who shall be appointed by the President (Chief Justice) of the Supreme Court upon the approval of the Minister of Justice, and the other members shall be: a retired Minister of Justice or retired Attorney General appointed by the government; a Knesset Member elected by the Constitution, Law and Justice Committee of the Knesset; a scholar elected by a forum comprising deans of law schools; an attorney elected by the Israel Bar Association. 

c. The AGI term duration shall be six years, with no extension, irrespective of the term of the government. 

d. The government may remove the AGI from his position due to specific reasons.… These reasons include, in addition to personal circumstances of the AGI, disagreements between the AGI and the government that prevent efficient cooperation. In such an event the selection committee shall convene to discuss the subject and shall submit its opinion to the government, in writing. However, the opinion of the committee is not binding, and the government may decide to remove the AGI contrary to the recommendation of the committee. The AGI shall have the right to a hearing before the government and before the committee. 

All of this makes for a reasonably independent office. Even if appointment and dismissal are still in the hands of the government, the screening and term provisions make it an arms-length relationship. The occupant of the post is obviously not a cabinet minister, as in the US, and is not a direct appointee of the head of government or the cabinet.

Worlds apart, institutionally.

And this is even before we get into the parliamentary vs. presidential distinction. A president is–for better or worse–meant to be hard to indict, let alone remove. That’s why the main tool against a potentially criminal executive in the US and many other presidential systems is lodged in the congress, through impeachment, and not in a state attorney. A prime minister in a parliamentary system, on the other hand, by definition has no presumption of a fixed term.

The normal way to get rid of a PM is, of course, a vote of no-confidence or the PM’s own party or coalition partners withdrawing support. But that’s the point–they are constitutionally not protected when the political winds, let alone the legals ones, turn against them.

In the broader institutional context of a parliamentary system, it is presumably much easier to take the step of also designing an independent Attorney General’s office that has the ability to indict a sitting head of government.

On the other hand, there is still no obvious way to remove Netanyahu from office any time soon, unless his own party rebels against him. Even though Trump’s own party will probably block the super-majority in the Senate needed to remove him from office*, the resolution of the case against Trump might happen considerably sooner than any resolution of Netanyahu’s case. Barring a rebellion by his current allies, Netanyahu may remain PM for another 4-5 months, through a now-likely third election (since last April) and the post-election coalition bargaining process.

* Assuming the House majority impeaches him, which now looks all but inevitable.

‘Far left’

In this morning’s LA Times, in an article about the impeachment vote that wasn’t, the sponsor of the resolution, Dennis Kucinich, is referred to as “a far-left Ohio Democrat running for president.” Well, it was good of them to acknowledge his scarcely visible presidential campaign, but just what does “far left” mean here?

Does Kucinich advocate the nationalization of the means of production? Is he promoting the establishment of workers’ collectives? The creation of a national planning board? Last time I checked, no.

Your Congress, working for you

So, the House voted to debate the impeachment of Vice President Dick Cheney. Wait, no it didn’t.

That the whole afternoon of position taking is summarized as follows by ABC News shows just how absurd the process (or non-process) is:

House Democrats on Tuesday narrowly managed to avert a bruising debate on a proposal to impeach Dick Cheney after Republicans, in a surprise maneuver, voted in favor of taking up the measure.

So, Republicans wanted the debate and Democrats wanted to “table” (not put on the table) the matter. With me so far?

That first line of the news item quoted above is a real head-scratcher. Democrats dodged a real bullet there, all right: A debate to impeach not only a war criminal (among other epithets any objective observer could hurl his way–and that of the man who is his superior, if only constitutionally), but an executive branch official who has single-digit approval.

One might think that in any sane democracy, the party with the majority would relish such a debate. However, the Democrats subsequently passed another measure to bury the matter in committee. Phew. That was a close call.

Thank you, Dennis Kucinich, for at least revealing the absurdity of the party you call your own.

Sen. Feingold: Backer of the President?

For the second time in a month, a prominent liberal member of Congress from the so-called opposition party has proposed to censure the President. As I noted when Rep. Wexler proposed the same, back in the days of the impeachment of President Clinton it was the President’s supporters who proposed censure as an alternative to impeachment. Here we go again.

Sen. Russel Feingold says that President Bush and Vice President Cheney deserve sanction for “misconduct relating to the war in Iraq and for their repeated assaults on the rule of law.” He further says that his proposed resolution “is about holding the administration accountable.”

Sen. Feingold goes on, in justifiably strong terms:

Censure is not a cure for the devastating toll this administration’s actions have taken on this country. But when future generations look back at the terrible misconduct of this administration, they need to see that a co-equal branch of government stood up and held to account those who violated the principles on which this nation was founded.

The Senator is correct in his assertion that this administration has “assaulted” the Constitution and he is also correct that failure of Congress to act and hold this administration accountable will set a historic precedent that severe misconduct can go on without consequences. However, in the US Constitution, the mechanisms that the co-equal legislative branch has to hold the executive accountable are few, but clear: Cut off funds for its misconduct and/or put impeachment on the table. Censure is for the President’s defenders to propose as a non-serious retort.

Wake up, Wexler!

It seems like ancient history now, but when the House of Representatives impeached President Bill Clinton over the grave threat posed to the Constitution by his unwillingness to talk about how he relieved stress in the Oval Office, some of his own defenders countered with the idea of “censure.” In fact, the progressive organization, Move On, was originally formed to advance a petition to “Censure President Clinton and Move On to Pressing Issues Facing the Nation.”

One might wonder, then, why Rep. Robert Wexler, one of Clinton’s most vigorous defenders on the Judiciary Committee, would be the one to propose a constitutionally meaningless censure of President George W. Bush over his commutation of Scooter Libby’s sentence.

In his opening remarks as the Judiciary Committee began its impeachment hearings against Clinton, Rep. Wexler exhorted “Wake up, America” and he reminded listeners that:

When we started these proceedings, I expressed my fear that this impeachment, if successful, would forever lower the standard for impeachment for future presidents. In my worst nightmare, I did not foresee this.

No, evidently it has raised the bar, even for Rep. Wexler, who, one might guess, never in his worst nightmares could have imagined some of the things he has seen the current President and Vice President do.

Why not put impeachment on the table? In addition to the litany of other causes for impeachment, the protection of a convict whose crime was committed to protect the President and Vice President is precisely the sort of act for which impeachment was invented, as none other than James Madison himself noted at the Virginia ratification convention.

Let’s get this right, Rep. Wexler: Put impeachment on the table, and let the President’s defenders propose censure as a half measure.

Madison on suspicious sheltering and its constitutional consequences

In the Virginia ratifying convention,

George Mason argued that the President might use his pardoning power to “pardon crimes which were advised by himself” or, before indictment or conviction, “to stop inquiry and prevent detection.” [The points applies equally to commuting a sentence.–MSS]

James Madison’s response:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty…

These quotes are located within a document prepared by the House Judiciary Committee in 1974. The passage quoting Madison’s words has a very germane footnote by the author of the original source being cited by the Committee:

Madison went on… that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected.

The reference to the President or Vice President being “suspended until impeached and convicted” is worth thinking about, as is Madison’s apparent claim that the House of Representatives can “remove” the President.

All impeachment procedures in other presidential systems that I am aware of provide explicitly for the suspension from all duties of the impeached official, pending trial. Obviously a suspension (which indeed would be at least a temporary removal) is neither explicit in the US Constitution nor has it been practiced in the two actual impeachments of US Presidents. But did Madison believe an impeached (but not yet tried) President or Vice President would be suspended from office? Did he perhaps even believe that the official in question could be suspended before the full House votes impeachment? One might infer that from the footnote quoted above. Did he believe that in the event of impeachment processes against both the President and the Vice President there would be an Acting President? Any Acting President, of course, in this scenario, would be the Speaker of the House. (And, following the passage of a bill of impeachment, is there any time limit on how long the party controlling the Senate’s agenda can wait to begin a trial…?)

My emphasis in the quotations above, of course. Just working on that table-setting, the importance of which can hardly be over-emphasized…

The footnote quoted above cites (at note 29) as its source: J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 74 (reprint of the 2nd ed.).

Thanks to RAC for the tip.

The first Italian-American woman President

Among the many potential “firsts” in the 2008 field of US presidential candidates would be the first woman to be President (Clinton) or the first Italian-American (Giuliani). In fact, those two New York politicians are still the supposed front-runners to face each other in the next general election.

But as I drive around northern San Diego County, I am expressing my desire to combine these characteristics–Italian-American and woman–in one person to sit in the Oval Office. And to do it now. I mean, really, why choose? And, more importantly, why wait?

Click and scroll right (sigh) for a close-up

Pictured parked alongside the corralito, the sticker on the right-rear bumper of the official Ladera Frutal pick-up certainly makes me popular here whenever I drive around our congressional district, which is firmly in the grip of the Viper.

Of course, the wish expressed on the bumper really says nothing about the Italian-American woman herself (nor her heritage, nor her gender), but about whom she would be replacing.

Just doing my small part to put impeachment on the table. Because if we don’t hold this president and vice president accountable, we set a terrible precedent. We, and the Democrats we put in charge of Congress in 2006, would be showing an unforgivable lack of seriousness about protecting the Constitution.

This 4th of July, 2007, let’s celebrate our freedom by putting impeachment–double impeachment–on the table. Because our freedom can’t wait till 2008.

Happy Independence Day!


On AP:

Oregon Sen. Gordon Smith, a Republican who voted in favor of the Iraq war in 2002 and has supported it ever since, now says the current U.S. war effort is “absurd” and “may even be criminal.”

In an emotional speech on the Senate floor Thursday night, Smith called for changes in U.S. policy that could include rapid pullouts of U.S. troops from Iraq. He said he never would have voted for the conflict if he had known the intelligence that President Bush gave the American people was inaccurate.

Senator, when the “intelligence” does not pass the sniff test, it probably reeks of political manipulation. But, in any event, welcome back to reality. We’ve missed you. May you bring more and more of your colleagues back over.

Of course, the impact of the remark is more than a little diluted by the mandatory I-was-misunderstood moment that came later:

A spokesman said Friday that Smith did not mean to call the war criminal in a legal sense.

Fine. A political sense will do.

There are thus just two amendments to the Senator’s remarks that are in order. First, delete the “may even be” and replace with “is.” Second, add the adjective “high.” Then we’ll really be getting somewhere.

Is there any reason remaining not to impeach?

I can think of many reasons for impeachment, conviction, and once and for all, removal of this president and vice president. Most of those reasons center around the way they lied to get us into the Iraq debacle.

But now the administration’s claim that it was wiretapping only calls to/from foreign countries is unravelling, with the news that the government holds “the largest database ever assembled in the world“–on domestic telephone calls.

The depths to which this rogue administration has gone to violate civil liberties, the Constitution–and, from the very beginning, democracy itself–go far beyond anything I ever thought possible in this land.

Approval ratings–before this latest story–have fallen to the low 30s. People are catching on. Better late than never.

So, what, exactly, is the reason not to impeach?

h/t Steven.

Bob Barr–standing on principle

Bob Barr is not so popular these days at the annual Conservative Political Action Conference as he was in the glory days of the impeachment of President Clinton.

From the Washington Post*:

“Are we losing our lodestar, which is the Bill of Rights?” Barr beseeched the several hundred conservatives at the Omni Shoreham in Woodley Park. “Are we in danger of putting allegiance to party ahead of allegiance to principle?”

Barr answered in the affirmative. “Do we truly remain a society that believes that . . . every president must abide by the law of this country?” he posed. “I, as a conservative, say yes. I hope you as conservatives say yes.”

But nobody said anything in the deathly quiet audience.

The audience was, however, far more enthusiastic for Dick Cheney’s plans to use illegal surveillance as a campaign issue:

With an important election coming up, people need to know just how we view the most critical questions of national security.

That is today’s “conservative” movement: More comfortable with authoritarians like Cheney than with the real thing.

Then there is Viet Dinh:

The threat to Americans’ liberty today comes from al Qaeda and its associates and the people who would destroy America and her people, not the brave men and women who work to defend this country!

Al Qaeda cannot destroy “America and her people.” Only her people, and leaders her people refuse to check, can do that. Barr knows that, and as he left the event, he said:

I just told them what they need to know… It’s difficult… It’s not about sex, which was very easy to explain.

*h/t The Reaction.

Nixon Now

Polysigh gets into that 70s retro craze. So does the ACLU.

The Polysigh post contains an extended excerpt from the famous interview of Richard Nixon conducted in 1977 by David Frost, and notes the echoes we are hearing today.

I will pull out just a few shorter excerpts.

Nixon, responding to Frost’s questions about domestic wiretaps:

Well, when the president does it that means that it is not illegal.

Nixon expresses his opinion that this ipso facto legality of presidential actions is nonetheless checked:

we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress.

Ah, yes, the quaint old days of divided government, but what if the Congress isn’t acting as an independent check on such matters? What is the congressional majorities–assuming they are even informed–accept, at least implicitly, the president’s assertion that, in “national security” the president by definition acts legally. And, as for the reelection check, it is not much good in a second term. It is arguably of limited utility even at the end of a first term, given that it is a blunt instrument and, more importantly, that the very essence of limited government is that just because something is popular does not mean it is good government. What if the actions of an imperial president enjoy transient popularity, but in the meantime are undermining the liberties that a limited government was meant to secure? Then the president’s inherently legal actions in national security may fail to be checked by congress or the electorate. That still does not make them consistent with liberal democratic principles.

As for the ACLU, it would proudly accept that “enemy of the state” mantle that a shirt being advertised on some allegedly ‘conservative’ blogs gives it. Enemy of the state indeed, when the head of state is violating liberties that the constitution is supposed to protect.

Repeat after me: A government of laws, not men.

Related previous posts, starting with the first one after the revelations (which, I noted, were really not all that new) about the warrantless surveiilance: