By Sanford Levinson
I have argued against attempts to impeach President Bush, not least because I seriously doubt there is evidence that he has committed a "high crime" or "misdemeanor," as against displaying catastrophic misjudgment and incompetence that, alas, is not, according to most well-trained lawyers, impeachable. But assume that Harriet Miers, whose testimony Bush is desperately trying to prevent, were to testify that she indeed discussed the US attorneys with Bush and that he indicated that he had decided to sell the appointments for large contributions. That would obviously be a "smoking gun" and clearly impeachable. (Needless to say, I have no reason to believe that such a conversation ever took place, which is why this is a "thought experiment.")
But now comes the problem: Even if there turns out to be unequivocal evidence that the President is indeed a "crook," meriting impeachment according to the standards of the most meticulous lawyer, is it not the case that it would be almost insane to impeach the President if the alternative is Dick Cheney? However important vindicating the principle that "no person is above the law" may be, it wouldn't trump the absolute importance of keeping Dick Cheney away from the Oval Office and the powers of the Commander-in-Chief.
If I am correct in my surmise that all of us would agree that it would be better to maintain even a clearly criminal (and not merely incompetent and mendacious) president in office than to allow the constitutionally-designated successor actually to take office, then I think that counts as a knock-down argument against the current Constitution and the lack of a procedure to remove a vice president through a vote of no-confidence. Or would any of the Open University community blithely accept a Cheney presidency as the price of removing the presumptively criminal President from office? In any event, what exactly should one say about a Constitution that forces us to make such a choice, even in a thought experiment?