Friday, October 21, 2005

The Big "Unless" 

Via our esteemed colleague Media Girl: John Dean, White House counsel under Nixon, speculates that the Fitzgerald investigation may be sailing toward hitherto uncharted waters:
[T]here is the real potential that this investigation and prosecution could reach right into the top of the Bush White House. How high is the source in question? Could it be George Bush himself? Dick Cheney? Karl Rove? Scooter Libby? My guess is that, in different ways, all four likely were involved in the exposure of Plame's covert identity . . . .

During Watergate, the Watergate Special Prosecutor did considerable research on whether or not a sitting president could be indicted. While the law is not black letter, the consensus of considered opinion is that he cannot.

First, there is the Constitutional language that appears to make impeachment and removal the only solution for presidential misconduct. There is also the point that conduct bad enough to constitute a serious crime, is likely also bad enough for impeachment -- and that, after impeachment removal, of course, an ex-president can be indicted.

On a more practical level, a president can remove any federal prosecutor who might indict him, for they all serve at his pleasure.

As for vice presidents, they can be indicted. Indeed, Vice President Aaron Burr was indicted by two states for the murder of Alexander Hamilton. Vice President Spiro Agnew negotiated an indictment for failing to pay taxes (rather than bribery), and resigned from office.

The problem with an indicted vice president, however, is that unless he resigns, he remains in office until impeached by the House of Representatives, and convicted by the Senate. That leads to a potentially absurd situation: As the presiding office of the Senate, a vice president who had been impeached could preside over his own trial. (The Constitution failed to account for this situation by naming another official who could preside -- a slight flaw, to say the least.)

Clearly, anyone below the office of president can be indicted. But again, unless the president (or vice president) demands that official's resignation, or he resigns voluntarily, he could serve unless impeached.

As a practical matter, of course, it is difficult to imagine anyone remaining on the president or vice president's staff if they were under indictment. But if the political situation somehow allowed that - perhaps because the indictment seemed makeweight or political, or both - then there would be no constitutional impediment to the staffer's continuing to serve, other than impeachment . . . .

The really big fish in this case is the Vice President. And I have little doubt, based on my knowledge of the case, and of the way Cheney typically operates, that a case could be made against him.

But Fitzgerald is an experienced prosecutor, and that means only if he found himself confronted with an exceptionally egregious case (the equivalent of Spiro Agnew's taking payoffs from Maryland contractors in his Vice Presidential Office), would Fitzgerald consider indicting Vice President Dick Cheney . . . .

It is difficult to envision Patrick Fitzgerald prosecuting anyone, particularly Vice President Dick Cheney, who believed they were acting for reasons of national security. While hindsight may find their judgment was wrong, and there is no question their tactics were very heavy-handed and dangerous, I am not certain that they were acting from other than what they believed to be reasons of national security. They were selling a war they felt needed to be undertaken.

In short, I think the frenzy is about to end -- and it will not go any further. Unless, of course, these folks were foolish enough to give false statements, perjure themselves or suborn perjury, or commit obstruction of justice. If they were so stupid, Patrick Fitzgerald must stay and clean house.
Mr. Dean could no doubt have given the Bush boys some useful advice about the inadvisability of the coverup.

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