I see that Ted Fertik has an op-ed in today's YDN
, arguing for the impeachment of the president and vice president. Yet he fails to give even a cursory nod to the progenitor of the whole genre
of YDN-column-arguing-for-Bush's-impeachment. Whatever, that's fine.
What's not fine is the way that Fertik -- and this is unfortunately typical of what I suspect is a majority of my pro-impeachment comrades -- discredits the case for impeachment by trampling over clear if finely-grained distinctions, confusing issues of law with issues of moral judgement with issues of political loyalty, and generally eviscerating the pragmatics of his own ends by letting loose with a disjointed grab-bag of complaints of varying merit against separate individuals who seem to have metamorphosed for polemical purposes into one.
Here's what I mean. The paradigm of an impeachable offense is, as everyone knows, a "high crime or misdemeanor." Now, the highest category of crimes, as everyone knows, is felony. On any plausible reading of the Constitution' s account of the mechanisms involved in triggering impeachment proceedings, it's an essentially exceptionless truism -- synthetic, yes, but probably necessary under any constitutionalism sufficiently similar to our own -- that, if it is true that the president committed a felony offense, Congress is justified in impeaching the president. It isn't a strictly logical consequence of this proposition -- though it would be given some appropriate complementary moral and political premises -- but it seems to me rather undeniable upon reflection that if the president commits a felony, Congress not only is justified in impeaching the president, but has an obligation to do so.
The only possible exception to such an obligation (Senator Feingold made this point when I spoke to him after his speech a month ago
) would be if the net consequences for the nation are dire enough. And if you'll grant my anti-utilitarianism (I can defend it another time if you insist, Tom
) -- or if you wish to avoid any strong theoretical commitments even for the sake of argument, just assume some fairly uncontroversial premises about the resilience of the American state and its ability to survive crisis, even emerge from crisis healthier than it had previously been -- such exceptions, though they could be construed as possible, do not actually exist. In other words, just given the plain text of the Constitution, we have a more or less wholly a priori argument that the president's impeachment is unconditionally obligatory just in case he or she commits a felony. Having made this argument, the only a posteriori statements an advocate of impeachment has to make are assertions to the effect that the president did indeed commit a felony; and such an assertion is not a matter of opinion; it is either a fact that the president did or did not commit a felony; p or ~p, the middle is excluded. So if p is the atomic proposition that the president commited a felony, and q is the complex proposition expressing the a priori argument about Congress's obligation to impeach, and r is the proposition that Congress is obligated to impeach the president, we have a valid, sound, complete modus ponens argument for impeachment:
(1) p (premise about matter of fact)
(2) q (a priori premise)
(3) If q, then (if p then r) (logical consequence of a priori premise)
(4) r (entailed by 1, 2, 3)
What I was attempting to do in my column on impeachment was make precisely this argument. The prima facie evidence that the president violated the FISA statute is as strong as prima facie evidence can be; the apologists who deny that evidence are in a state of clinical denial, so in hock to the Bush-cult that their own eyes and ears have become alienated from them as Bush-hating moonbats. The constitutional and legal arguments -- that FISA is unconstitutional if it limits the president's permissible actions under article II, and that the AUMF actually nullifies the FISA-mandated restrictions on wiretapping, respectively -- collapse like a flan in a cupboard under supremely minimal scrutiny; they are ad hoc self-justifying jokes, or at least would be if the punditariat didn't deem them expressions of respectable, equal-time garnering mainstream opinion. And, of course, violation of FISA is a felony offense. So we have a sub-argument for premise (1) of the foregoing: knowing the agreed-upon set of empirical, descriptive propositions about what the president actually did, and the facts of the matter about the texts of the Constitution, US Code, and AUMF, we can know effectively a priori that the president did in fact commit a felony. None of the assertions to the contrary the administration's defenders have polluted our discourse with -- not those about the felony status of FISA violations, nor those about the constitutional permissibility of violating FISA -- is worth the breath and food energy required to utter them, and no exculpatory assertions are going to come to light, because none exist.
Notice: We have a minimal set of empirical propositions -- namely brutely non-normative descriptions of the president's activity, and the unambiguous linguistic propositions expressed by the relevant legal documents -- and a minimal set of a priori theoretical considerations. In conjunction, the two entail proposition (4); Congress has a duty to impeach the president. And we have a maximal economy of argument -- no premises are eliminable.
Now I'm not an expert on pragmatics or Gricean communication theory, but I don't think one needs to be for the following intuition to be prima facie sound: Just as Occam's razor rules out complicated explanations in favor of maximally simple ones ceteris paribus, some kind of communicative/pragmatic corrolary of Occam's razor should suggest that, ceteris paribus, one should construct an argument with as few premises as possible; if premises can be eliminated without weakening the conclusion of the argument, they should be eliminated. And (4), obviously is a maximally strong conclusion; it's even stronger than the conclusion most pro-impeachment folks have reached themselves; for most of the pro-impeachment crowd, the line is something to the effect that "Congress should
impeach the president." The analogue according to (4) is "Congress must
impeach the president." The distinction is subtle but real and irreducible. Normative operators like "should" and "must" are paradigmatically intensional operators; i.e., substition salva veritate (substition preserving truth value) fails. [That's "intensional"; it doesn't have anything to do with intention--ed.
] No pro-impeachment gloss is a strict synonym of (4) except of course (4); so for any statement y such that y does not equal (4), y is a weaker imperative than (4).
Back to the action. Does Fertik adopt such an economical approach? Of course not. The foremost plank of his case for impeachment has to do with the administration's dishonesty in making the case for war. Needless to say, the general case that the administration's argument for war was founded on faulty evidence is basically irrefutable, and the allegation that the administration knowingly presented evidence it knew was false is approaching irrefutability. But there is a leap from acknowledging all of that to grounding a case for impeachment on that foundation. The term "the administration" is patently unidentical to the term "George W. Bush"; forget about Fregean senses and intensions; their extensions are widely disparate. "Bush" happens to fall under the extension of "the administration," and that's it. Fettering out of that inequivalence the precise instances of unlawful misconduct that led to the administration's presentation of false data, and the precise agents responsible for such misconduct is beyond hopeless; if there is an ascertainable fact of the matter, it would take longer than the remainder of Bush's tenure to discover; and there may not be an ascertainable fact, simply interlocking sets of circumstances in which agents acted on the borderline between legality and illegality, that produced the end result we all know.
And all along I've been taking it for granted that a president obtaining an authorization for military action on faulty grounds does indeed constitute a felony offense. But that notion needs to be scrutinized, too. Citing highly general constitutional provisions to the effect that international treaties are binding on the US, per Fertik, does not even come close to establishing that dishonest arguments for war on the part of or on behalf of the executive constitute crimes at all, much less felonies. A great deal of the causal explanation of the war's origins has everything to do with the administration's and its supporters manipulations of public opinion; a substantial part of the reason that so many Democrats voted for the war resolution is that they'd just been bludgeoned in the 2002 midterm elections, and were acutely aware of the fact that a no-vote on war could render them subject to variously deceitful and repugnant attacks on their courage, their commitment to national security and national self-defense, and their fundamental loyalty as citizens. A substantial part of the reason that so many legislators in both parties, and editorializers and intellectuals of all political affiliations supported the war is that administration officials would give public speeches, appear on chat shows, give presentations to the UN, etc. etc. ad nauseam, alleging that Iraqi possesion of WMDs was a borderline apodictic certainty. Of course it wasn't, and there's good reason to think the officials making those claims knew they were speaking falsely, and all of the foregoing -- attacking the patriotism of political opponents, ginning up popular hawkishness through agitprops and deceit, and speaking falsely in public discourse, probably knowingly so, are all egregiously shitty things to do. But they are not illegal. And attempting to impeach a wartime president for legal-if-shitty behavior on the part of his underlings is not a cause, it's a farce.
Likewise with the rest of Fertik's Costco inventory of complaints. They are on far soggier turf than the simple argument from the FISA violation to obligatory impeachement, they point towards weaker conclusions, and thereby dilute the impressive force of the FISA-exclusive argument for impeachment. Worst of all, they indicate a kind of unseriousness about what impeachment is and when it's justified; and they denote the supersession of genuine concern for the sanctity of constitutionalism with partisan tribalism. What do I mean by that last remark? George W. Bush should not be impeached because of his environmental policies or his desire to do away with social security or his tax cuts to the wealthy. Even less should he be impeached because he's an uncurious philistine who's spent sixty years falling upwards and deserves none of the things he has; least of all should he be impeached just because he is he. Impeachment is not a fucking joke; it's a remedy to a constitutional crisis, and I'm sorry, but the election of people one disagrees with or finds distasteful, no matter how distasteful one finds them, is never a constitutional crisis. It belongs to a distinct phenomenal category, for which the remedy is to win a damned election just once.
The difference between adopting practical views based on principled convictions and fabricating convictions to back-justify irrational partisan affiliations is neatly captured by the difference between the two arguments for impeachment. The first (mine) contains no dispositions, intentional features, or propositional attitudes that incline in favor of or against impeachment, either in general or in the case of a particular president. It's just a conditional that's either necessary simpliciter or necessary over some convention-restricted range of quantification; if p then q, p, therefore q. And either p or ~p; there's no worry about recalcitrant data, since the argument is an argument for
impeachment just in case premise (1) is true, and generates a contrapositive argument against
impeachment just in case (1) is false. If ~p, no worries, then don't impeach. If p, impeach, but only if p. The second argument (Fertik's and some supermajority of pro-impeachment folks') is shot through with intentionality. It's never presented systematically, and I can't begin to get a handle on how one might systematize it, but it basically boils down to: Bush is a motherfucker; we don't like motherfuckers; if a motherfucker is president, our preference is that the motherfucker be impeached; so let's just throw as many arguments as our collective ass contains at the White House, and just hope that our Jackson Pollack approach to indictment construction manages to produce a coherent picture. Disliking motherfuckers may be the normatively correct disposition to have towards them, but it's not a conviction, and it's certainly not a principle one arrives at through reflection and self-scrutiny. Arguments arising from such surface dispositions are likely to wind up having dispositions and propositional attitudes of their own; and that's when you know you're not in the realm of arguments at all, but of contrived pseudo-arguments.
Am I jumping the gun on Fertik's motivations? I think not. His previous contribution to the rich legacy of America's oldest college daily was this nauseating paean to Hillary Clinton
, which argues, though it would be flattery to call it an argument in the first place, that all people who dislike Hillary/oppose her re-election to the Senate or her potential election to the presidency (the distinction between personal dislike and political opposition is -- surprise -- quietly elided) do so because they are misogynists. Of course. What else would you call someone who opposes a particular candidate because he or she proposes outlawing flag-burning
or because he or she favors censorship of media content
or because he or she resorts to racist demagogy
in an effort to outflank the Republicans from the right or because there is no evidence to support the claim, and ample evidence countermanding it, that he or she has adopted any of these positions in the first place out of sincere belief rather than calculation of where his or her prospects for career advancement lie? I mean, come on, anybody who would categorically oppose such a candidate, regardless of his or her identity, ethnic, religious, or sexual background is obviously a misogynist whom all progressive wymyn-loving folks should shun.
So in conclusion: there's the impeachment programme, go out and do it, and don't say I never did nothing for practical politics. A Hillary loyalist is probably too far gone (can you imagine one favoring her
impeachment just in case she repeatedly violates FISA?) but the rest of us pro-impeachment types need to get our act together.