Like many others, I have grown increasingly frustrated with the refusal of the Democratic party leadership to impeach our beloved alleged president and his cronies for their many blatant violations of our constitution, our laws, international law, and the Geneva Conventions.

It’s not as if these guys have been terribly subtle about all their law-breaking, after all. They’ve flat-out admitted things that are clear violations of one or more of the above, all the while maintaining that the laws somehow do not apply to them, and their arrogance has been exceeded only by the egregiousness of their crimes.

And yet, despite having a clear majority in the House, and a theoretical majority in the Senate, Democratic leaders like House Speaker Nancy Pelosi have made it clear that impeachment is off the table.

This has outraged many, myself included. Forget about justice, what does their failure to impeach tell future holders of that office? That they can do what they want and get away without real repercussions.

Lately, though, I’ve started thinking about it like a lawyer, instead of like an outraged citizen, and I’ve come up with a plausible explanation that, if true, would excuse their current inaction, or at least explain it.

If true. And only time will tell us that.

If you think about all this like a prosecuting attorney planning out the strategy for taking down a big criminal kingpin, the current inaction makes sense. Better to delay a bit so you can be sure of a conviction – at least, as sure as it is ever possible to be in our justice system – than to tip your hand too soon and blow your chance forever.

Let’s say the House of Representatives does decide to bring impeachment proceedings against Bush and Cheney, and successfully impeaches them both for their various high crimes and misdemeanors. What’s the next step?

Trial in the Senate.

The Senate where the Democrats can only be said to hold a majority because Lieberman is still caucusing with them.

You can impeach a president with a simple majority vote, which could be easily done. But actual conviction and removal from office requires a supermajority of 2/3 of the Senate.

There is no way the Democrats could be assured of getting that kind of support in the Senate. Hell, they’d be lucky if they could get all the Blue Dog Democrats to vote to convict, forget about persuading enough Republicans over to their side of the aisle.

Now let’s say you play the waiting game until Bush is out of office. Then where is the trial held?

I don’t know the answer to this one for certain, because there has never been an un-pardoned president whose crimes were on the scale of current chimp-in-chief. But ordinarily, when you have someone accused of serious violations of the federal laws and/or constitution, you have a trial in a federal district court. (Note: see update at end of post)

Now things suddenly get interesting. Because instead of having to convince enough Senators – many of whom have been bought and paid for by the corporate interests who are really calling the shots right now – you instead only have to convince either one judge or a jury of American citizens that Bush and his buddies have committed all these crimes beyond a reasonable doubt.

This strategy makes things very dicey, particularly in the case of a bench trial (judge only), because so many current members of the federal judiciary were appointed by Republican presidents.

I think that anyone who was actually appointed to the bench by the current administration would have to recuse himself or herself from the trial to avoid the appearance of a conflict of interests. Most judges don’t want to appear to have a blatant conflict of interest, particularly in high-profile trials (except in Texas, where they don’t seem terribly troubled by such matters). But if a Bush appointee was tapped to be the trial judge and refused to recuse himself or herself, the prosecutor could still seek recusal of the judge from a higher court.

That still leaves a lot of Reagan and George H. W. Bush appointees as potential judges, with a fair number of Clinton judges and a few left over from the Carter administration to balance the odds a bit. But even if the judge was appointed by a Republican, you would probably stand a far better chance of getting a conviction in that judge’s courtroom than in a Senate full of people who are more concerned with getting re-elected than with seeing justice done.

Frankly, most judges have a deep and abiding belief in the rule of law. They may differ in how they interpret things, but most who are good enough to be appointed to the federal bench won’t engage in or tolerate blatant partisanship in their courtrooms, at least not in a criminal trial. And federal judges don’t have to worry about losing their jobs if they make a politically unpopular decision, which gives them a lot more freedom to act according to their conscience and principles of justice than your average Senator enjoys.

There is another advantage to waiting until the bastards have left office before you begin prosecuting them: you would be able to go after all of them, including Cabinet members and high level staffers, without fear of having the convictions overturned by a presidential pardon.

Just think: you could go after Karl Rove, Alberto Gonzales, and a host of others.

You can’t force them to take the stand in their own trials, but you can at least force them to testify at each others’ trials. And here’s a fun fact: under the fifth amendment, a criminal defendant can just flat-out refuse to testify at his or her own trial. But for anyone else’s trial, the person must sit up in the witness chair, and respond “I refuse to answer that question because the answer may tend to incriminate me,” if he or she wants to hide behind the fifth amendment. Which is as good as an admission of criminal behavior, at least in the public eye.

Of course, this strategy will only work if Obama wins the election in November, because I think it’s a safe assumption that McCain would use the presidential pardoning power to keep any of the key people from even going to trial, just like Gerald Ford did with Nixon.

Still, it is a possibility.

Of course, this assumes that the Democratic leaders in Congress can actually get their acts together enough to come up with a plan like I’ve described here and follow through with it. Their current actions in the face of the alleged president’s demands for a new FISA bill with telecom immunity makes this seem less likely than one would hope.

Still, I can dream, can’t I?

And in case you were wondering, yes, I still think the bastards ought to be impeached.

jane doe

Update: One big caveat here: the Supreme Court could decide to intervene and conduct the trial(s) themselves, I suppose. It would be to my knowledge unprecedented, but then again, that’s never stopped the current cohort of justices.

Second update: On looking back over this, I think there’s another possible option, which is that some sort of special court or panel could be assembled to hear the charges and cases against various members of this administration, in which case all bets are off. Also, I should note that it’s been a long time since my Federal Courts class in law school, and this was not the sort of thing I ever dealt with as a lawyer, so I could be completely wrong on all this, in which case I do hope some other lawyer with more knowledge in these matters will set me straight.

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