It’s not that Bricker thinks the President is above the law. The President is not above the law, and Bricker does not think he is. If the president violates the law he can be prosecuted…for violations of the law. Not for being a scumbag or a liar.
And just as clearly, officials are not criminally responsible for actions they took while discharging their duties. The city council that uses eminent domain to evict you from your house isn’t guilty of theft. The prison guard you keeps you in jail isn’t guilty of kidnapping. The captain who orders his platoon to take that hill isn’t guilty of murder even if it is certain that lots of men in that platoon aren’t coming back. And so on.
As for the contention that the system is broken because the Republican congress spent a lot of effort investigating Clinton, yet the Demorcatic congress isn’t doing the same thing against Bush, well, the argument I’d make is that the Clinton investigation was wrongheaded. We shouldn’t take the Clinton impeachment as the new standard for the future. And the system worked in the sense that while Clinton was embarrassed he won and the Republicans lost.
And what happens when your Grand Jury orders congress to impeach the President, and Congress ignores them? What penalty does congress face?
This is the trouble with all these schemes. We already have a system that can work to remove a rogue president, the only caveat is that it requires Congress to actually want to remove the rogue president. If Congress isn’t willing to impeach the president, then what? The voters select a congress that will. And if the voters aren’t willing to select a congress that will impeach the president? Well then it’s game over.
All this is driven by the public. If you want to impeach President Bush, rather than convincing a judge, you’ve got to convince the voters. If the voters were clamoring for Bush’s blood, you can bet your boots that Congress would be holding impeachment hearings today. Except while the voters are tired of Bush, and have a pretty low opinion of Bush, very few voters have the stomach for impeachment, and besides, we’re going to have a new president in 6 months. If you think they SHOULD that’s fine, but the remedy there isn’t demanding new laws that you can prosecute George Bush, but rather to convince the rest of us that Bush must be impeached. If you can’t convince us that Bush must be impeached, you’re surely not going to convince us to change the law to make it easier to prosecute the President, right?
You’ve got the cart before the horse. You’re not going to get new laws to go after George Bush if you can’t convince everyone that George Bush must be gone after.
The fact is, impeachment is a political act, not a judicial act. It is congress’s responsiblity to expell disgraced members of congress (such as Trafficant), just being sent to jail doesn’t automatically expell you from Congress. It is congress’s responsibility to impeach the president or vice president or other officials. They can’t delegate that responsibilty. They can’t wish they didn’t have it. Delegating that responsibility to unelected officials is undemocratic, and erodes accountability. That was the whole point of giving the power of impeachment to congress…congress is directly accountable to the voters. They can pursue an unjust vendetta against a President (see the Clinton impeachment debacle), but they’re going to have to pay a price.
The ultimate protection for our liberal democracy is not a particular set of laws, or a particular constitution. It is the determination of the citizenry that we should have a liberal democracy. If the citizenry doesn’t want a liberal democracy then the constitution is irrelevant.