Constitutional law question for the group,....

[Parisle]

--- Ok,.. let's say that the evidence for impeachment and even for further legal proceedings is clearly there,.. perhaps even on several counts. Clearly there, mind you,.. John Dean says it is, and I believe him. But no impeachment is forthcoming. Maybe the reason for this eventually gets boiled down to the perception that the partisan republicans in the Senate would never go along and convict.

--- Okay, fine. But a Constitutional infraction has still been committed. Isn't this sort of like a police department refusing to arrest a crime suspect in spite of having evidence "beyond reasonable doubt?"

--- Can not an individual state SUE the government and demand that it do its duty? And if a Senate looks at unassailable evidence, and still refuses to convict, isn't there some malfeasance that attaches to their failure to act?

[onenote]

1. the answer to your questions is no

To all of them.

[PDJane]

2. As I understand it, yes.

If the resolution to impeach passes the state house, then it has to be acted upon by congress.

That route has never before been taken, but it is possible. (Yes, I work with lawyers. This is information from an American lawyer.)

Jefferson's Manual states:

"In the House there are various methods of setting an impeachment in motion: by charges made on the floor on the responsibility of a Member or Delegate; by charges preferred by a memorial, which is usually referred to a committee for examination; by a resolution dropped in the hopper by a Member and referred to a committee; by a message from the President; by charges transmitted from the legislature of a State or territory or from a grand jury; or from facts developed and reported by an investigating committee of the House.<3>"

As far as a moral obligation goes, that's not codified by law. However, it would do something to repair the American reputation abroad.

[MonkeyFunk]

11. It wouldn't require bringing it to the floor...

people are getting their hopes up WAY too high over this state-caused impeachment clause. It will have zero legislative impact on an actual impeachment. The "action" the House takes would be to refer it to committee where it dies. It's no different than Cynthia McKinney proposing articles of impeachment last session. The House doesn't have to DO anything with them.

[krispos42]

3. A state legislature can prod the House to take up the issue of impeachement

Once a state does that, the House must drop all other business immediately until the issue is voted on by the appropriate committee, which I assume is the judiciary committee. But the state legislature must pass through both houses a resolution (or whatever it is called) first.

I think some states are trying that. If a state does do it, I'd guess it would be Vermont first.

Does anybody have any information about what states are trying to do this? Illinois did last year, but died when the sessioned ended in January 2007.

http://www.ilga.gov/legislation/billstatus.asp?DocNum=0125&GAID=8&GA=94&DocTypeID=HJR&LegID=25794&SessionID=50

[MGKrebs]

4. I think New Mexico's effort has been blocked.

[krispos42]

5. D'oh!

:banghead: :banghead: :banghead: :banghead: :banghead: :banghead: :banghead: :banghead: :banghead: :banghead: :banghead: :banghead: :banghead:

[MGKrebs]

7. It's unfortunate, but it looks like it might have been Dems who

blocked it.

http://www.democracyfornewmexico.com/democracy_for_new_mexico/impeachment/index.html

[onenote]

8. A state can pass a resolution, but it can't force any real action

I'm afraid that you are wrong in your description. Whether the intiative for impeachment comes in the form of a motion by a member of Congress or a resolution passed by a state legislature (which would still have to find a member of Congress to introduce it, by the way), precedent indicates that it would be referred to the Judiciary Committee. Nothing is going to stop while the Committee considers, or more likely, doesn't consider it.

The fact is that if there was a member of Congress willing to start the impeachment process, he or she would. If a state legislature passes a resolution (which seems unlikely), there is nothing that they can do to force a member of Congress to present it. The key is the Constitution itself, which states, unequivocally: the House "shall have the sole power of impeachment."

Jefferson's Manual is interesting, but it isn't law. If the Parliamentarian of the House decides that an impeachment resolution is to be treated in a particular way, its going to be treated that way. And in all likelihood the Parliamentarian is not going to go out on a limb and do something that the Speaker doesn't want.

[krispos42]

9. Jefferson's rules are binding. This should be very interesting if it gets traction.

The way I read it is that every time a new Congress convenes, they adopt a set of procedures and rules to operate buy. The House uses Jefferson's Rules, so it is not tradition, but something that they vote on in a binding manner every two years.

http://en.wikipedia.org/wiki/Jefferson%27s_Manual

And in that binding manner, if a state legislature does send it to the House, by Jefferson's Rules all House business ceases until the issue is resolved. It is 'privileged' of the highest order.

<snip>

In the <<NOTE: Sec. 603. Inception of impeachment proceedings in the
House.>> House there are various methods of setting an impeachment in
motion: by charges made on the floor on the responsibility of a Member
or Delegate (II, 1303; III, 2342, 2400, 2469; VI, 525, 526, 528, 535,
536); by charges preferred by a memorial, which is usually referred to a
committee for examination (III, 2364, 2491, 2494, 2496, 2499, 2515; VI,
543); by a resolution dropped in the hopper by a Member and referred to
a committee (Apr. 15, 1970, p. 11941; Oct. 23, 1973, p. 34873); by a
message from the President (III, 2294, 2319; VI, 498); by charges
transmitted from the legislature of a State (III, 2469) or territory
(III, 2487) or from a grand jury (III, 2488); or from facts developed
and reported

<<Page 315>>

by an investigating committee of the House (III, 2399, 2444).

<snip>

A direct <<NOTE: Sec. 604. A proposition to impeach a question of
privilege.>> proposition to impeach is a question of high privilege in
the House and at once supersedes business otherwise in order under the
rules governing the order of business (III, 2045-2048, 2051, 2398; VI,
468, 469; July 22, 1986, p. 17294; Aug. 3, 1988, p. 20206; May 10, 1989,
p. 8814; Sept. 23, 1998, pp. 21560-62; see Deschler, ch. 14, Sec. 8). It
may not even be superseded by an election case, which is also a matter
of high privilege (III, 2581). It does not lose its privilege from the
fact that a similar proposition has been made at a previous time during
the same session of Congress (III, 2408), previous action of the House
not affecting it (III, 2053). As such, a report of the Committee on the
Judiciary accompanying an impeachment resolution is filed from the floor
as privileged (Dec. 17, 1998, p. 27819), and is called up as privileged
(Dec. 18, 1998, p. 27828). The addition of new articles of impeachment
offered by the managers but not reported by committee are also
privileged (III, 2401), as is a proposition to refer to committee the
papers and testimony in an impeachment of the preceding Congress (V,
7261).

<snip>

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_house_rules_manual&docid=hruletx-57

http://www.gpoaccess.gov/hrm/browse_109.html

This has never been done before, so if it does happen it should be quite... interesting! :-)

[onenote]

12. not really "binding"

In addition to reading Jefferson's Manual, you need to consider, among other things, the House Rules, Deschler's precedents, and Hinds' precedents. Its a lot to digest. Let's clear up some common misconceptions to start. First, the language in section 603 of Jefferson's manual wasn't written by Jefferson and isn't in the Constititution. Take a look at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_house_rules_manual&docid=hruletx-57.pdf The large font language is Jefferson's. The small font language,which is where you'll find the discussion of how the impeachment process can be initiated and the privileged status of impeachment resolutions is explanatory language written later based on rules adopted by the House and various precedential decisions by the Speaker, the Parliamentarian and the House itself.

Moving on, the language cited states that impeachment resolutions are "questions of privilege". And so they are. This applies not just to resolutions emanating from a state legislature or from a grand jury, but all impeachment resolutions. Yet, as we know, impeachment resolutions that are introduced in the House of Representatives are routinely referred to the Judiciay Committee, where more often than not they just die.

But let's assume that a member of Congress takes a resolution from a state and proffers it as a question of privilege (and remember, nothing obligates any member to do so, which then raises the question of who is going to proffer such a resolution and if they were willling to do so why didn't they just proffer a resolution of impeachment directly themselves?) Anyway, if you plow through all the materials cited, you'll discover that once a question of privilege is asserted, its up to the Chair -- meaning the Speaker -- to decide initially whether to accept it as properly asserted. There is little to stop Pelosi from simply referring the resolution to committee. If challenged, the Parliamentarian could be consulted who could conclude that there is precedent for referring a privileged resolution to committee or even that the question of privilege was not properly raised. If that ruling is challenged, then the matter would come to a vote of the House, which, odds are, would support Pelosi's ruling.

Take the best case, Pelosi agrees that its a question of privilege and assigns one hour of debate, split between the minority and majority. First of all, if a member wants to stand on the floor of the House and argue for impeacahment, he/she can probably find a way to do that now, without introducing a resolution. But the bigger question is how different will the world be after one or two members speak in support of an impeachment resolution for a half hour/15 minutes or even if 30 members each make a one minute statement?

Finally, after going on for an hour, someone will rise with a motion to refer the resolution to committee, which will pass and the process will be back where I said it would be...dying in committee.

Again, I'm not saying that these state initiatives are a bad idea -- they're not, although I'll be surprised if any of them pass. I'm also concerned about the impact if some of these resolutions actually come to a vote and are soundly defeated. I like these resolutions because raising the impeachment issue, having it debated, and getting it publicized makes it more and more "mainstream" and seem less draconian.

Finally, consider the case of Judge Charles Swayne -- his impeachment was commenced by the introduction of a resolution passed by the state of Florida. The resolution itself called for the matter to be investigated by the Judiciary Committee. Interestingly, even though this was asserted as a matter of privilege, the House proceeded to a vote on a motion to refer the resolution itself to Judiciary. While that motion was defeated,the fact that it was taken provides precedent for an attempt to short circuit any real consideration of a state-enacted resolution on the House floor. (In the end, Florida's resolution to commence an investigation of Swayne was passed, and, pursuant to that resolution, the matter was referred to the Judiciary Committee to conduct an investigation. This process, which began in December 1903, finally produced articles of impeachment in January 1905 -- over a year later. And ultimately, the Senate acquitted Swayne on each count. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=hinds_prec_vol_iii&docid=f:hinds_lxxviii.pdf

While the Clinton impeachment certainly proceeded more quickly, that was because the majority party in the House wanted it to move. That isn't the case now, and thus, even under the theory that Jefferson's Manual provides a route to commence the impeachment process, it doesn't mean that the process will get any farther, any faster than it has up until now.

In short, he idea that the House would suspend business to consider anything more than whether to refer the resolution to committee is not realistic.

[krispos42]

13. Hey hey hey, keep your 'reality' out of my hopes and dreams! :-)

I'm really starting to realize how sad it is that we the people have to practically prod our Representatives with a cattle prod to do this thing.

I am hoping that the recent dust-up about the US Attorneys will make things much simpler than, say, the 4th Amendment warrentless wiretap scandal and those people will be impeached. I hope that the White House being issued a whole raft of subpoenas and ignoring them might be a much clearer case for the public to understand and for the Senate to prosecute.

[onenote]

14. not trying to be the bad guy

As I said, I think the state initiatives have value; but I also think that its important for everyone to understand how the process really works.

[krispos42]

16. I know, no problem :-)

[Tellurian]

15. Brilliant..and thanks,

for your succinct articulation of the process and stating our chances of eventual successful relief.

bookmarked.

[northernsoul]

6. I'm not aware of any legal authority for what you want

IIRC, there was a case orginating in Colorado where a woman sued the local cops for not arresting a guy who abused her which ended up being dismissed. I'm not aware of any legal authority which gives citizens standing to sue the government for failing to prosecute alleged crimes. A long-standing principle of Anglo-American legal tradition is that law enforcement officers have to be given some latitude and discretion to determine what they will or will not act upon. In other words, your neighborhood beat cop has discretion to ignore that fact that you were jay-walking, or he can give you a warning, or he could cite you. At the next level up, even if there is an arrest, the prosecutor's office has discretion as to whether or not they are actually going to bring charges or not. I believe that the analogy extends to the Congress and Presidential Impeachment. I wish it weren't so, but there ya have it.

This has been just my two cents - I don't practice in Constitutional or criminal law, so I will defer to those who do.

[MonkeyFunk]

10. No

impeachment is purely a political function, not a criminal one.

Congress has no affirmative obligation to impeach, no matter what the circumstances - and nobody can make them do it.