Help on US constitution stuff.

[chickenfeet]

President Bush has admitted to an extensive program of wiretap surveillance in the US. Many commentators have argued that this is unconstitutional and, therefore, presumably, illegal.

So what happens now? Normally the courts are the guardians of the constitution in the US but I'm not aware of any mechanism by which a case could be brought in a case like this.

The Senate (I think it's the Senate) could impeach him but no-one would expect the Senate to make its decision on legal and constitutional grounds. It would inevitably be a political decision based on the perceived merits or otherwise of the President's actions. This would pretty much negate the idea that, in part at least, the constitution exists to protect the individual from the tyranny of short term majorities.

In any event, doesn't a Bill of Impeachment require a two thirds majority? In which case the President plus 34 senators can break the constitution with impunity. Am I missing something here?

Please note, I'm not asking people to argue the political or constitutional case for or against wiretapping. The question I am interested in is "what redress is possible against a President who breaks the constitution?".

Comments

[a-d-medievalist.livejournal.com]

I think that the Senate could also ask for an investigation to see whether the President broke the law. Actually, I think that the House of Representatives can call for an investigation as well. But after that, I'm not sure --

The best parallel would be Watergate, though -- President breaks law, big investigation, impeachment imminent, pres steps down.

So there should be legal precedent in Watergate. I just can't remember how it happened, exactly. I think it was a Senate investigation.

[(Anonymous)]

That's correct. The senate alone has the power to impeach the president and you need a 2/3 majority.

[eiramanit.livejournal.com]

Actually, that's not correct. The House of Representatives are the ones with the power to impeach. The Senate acts as the jury in the impeachment proceedings (i.e., they remove him from office or not).

This site gives a good description of the events...
http://www.teachervision.fen.com/u-s-presidency/u-s-constitution/195.html

[chickenfeet2003.livejournal.com]

So, all the president needs to ignore the constitution is a simple majority in the House OR 34 senators. Peachy!

[eiramanit.livejournal.com]

Well, to stay in office, yes. But I don't think that necessarily has anything to do with whether or not he faces criminal charges. The only reason Nixon didn't face criminal charges (or impeachment since he resigned before they could impeach) was because the new President Ford pardoned him.

But yes, it sucks that Bush probably won't have to answer for any of this. However, Cheney doesn't look so good as President either :(

[a-d-medievalist.livejournal.com]

Yeah, but this in one of those times it might not help much -- well, actually ...

Seriously, I don't think having a majority could prevent an investigation. It could prevent an impeachment, and he is the type who would not step down. But I don't think Congress has lost all good sense. Most, perhaps, but they want to be re-elected, and investigations can be presented as "we're just doing out due diligence."

I think one of the saddest things is that Bush actuially makes me miss Nixon.

[blonde222.livejournal.com]

The real answer: the beauty of the Constitution is that in most situations, it is so vague and hard to interpret that it is impossible to know whether it has been broken or not.

"Cruel and unusual punishment" for example... is that an 18th C ref to torture, or does it/should it extend to hanging or its modern day equivalents?

So, for all the commentators who think that this wiretapping in these circumstances breaks the Constitution, there will another vociferous bunch who argues that it does not....

[chickenfeet2003.livejournal.com]

But, and here's the rub, there's no way of testing it in the courts and if the only test is whether Congress finds it politically acceptable there's not much point in having a constitution.

[a-d-medievalist.livejournal.com]

I don't think that's true. I have a vague, but possibly correct, impression that someone could file an amicus brief -- the problem is that I don't know that that could be done when someone is in office ...