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December 18, 2005

Censure and Move On?

Posted by Nicholas Beaudrot of Electoral Math

Like Hilzoy, I think that the Clinton impeachment has raised the bar for what ought to be an impeachable offense. Politically, if the opposition party calls for every President's head, we will have turned what ought to have been a very solemn process into nothing more than a political tool. From a policy perspective, the impeachment process will stall all other legislative and policy work for at least two years of each Presidency, which might be a good while reactionaries are in office, but bad when the reactionaries hold Congress and decide to investigate a reality-based President.

Update: Several people have said that the Clinton impeachment lowers the bar. Others (see e.g. Lindsay) say that at the very least it did nothing to raise the bar. Upon reflection, this is of course correct; if the Clinton impeachment was improper, it should be ignored when examining the prospects of future impeachments.

In addition, the twin goals of the Democratic party right now ought to be to build up support for its own brand while tearing down support for the Republican brand, rather than simply discrediting Bush alone. After all, if Bush's approval goes down, Republican "moderates" will start brandishing their "independence" just a little bit more, and cut a few more ads to that effect. Tarring Bush with impeachment doesn't do much to destroy support for the Republican Congress, which can only be done by exposing large swathes of the party for the basic policy corruption that has occured thanks to the K Street Project and a few years of executive power coupled with exactly zero oversight.

From a practical standpoint, I just can't see a way to get sixty-seven votes in the Senate, which would be required to impeach the President (and let's be realistic: do you really think Bush would respond to calls for resignation?). Even if Democrats were to gain ten seats in the Senate -- which would require defeating Senators like Trent Lott (R-MS), Craig Thomas (R-WY), and Richard Lugar (R-IN) -- there would still have to be a dozen reality-based Republicans who were willing to vote to remove their own leader, and I just can't see that happening. Bush will have the "defense" that he was trying to do the right thing for the country while acting as the commander-in-chief, which will at least resonate in the court of public opinion and give thirty-four Republican Senators a bit of cover.

So right now, I'm inclined to think the best tactic is to call for a censure of the President and an end to warrantless domestic spying. Censure would show that the Democratic party is above the idea of turning impeachment into exercise in partisan sniping. It would still act as an effective wedge for Republican Congressional candidates in the 2006 elections, who will be forced to choose between standing by their man in the face of controversy on one hand, and admitting that he skirted the law on the other. While I think this is the right idea politically, I reserve judgement on whether or not the President's blatant violation of the law in the apparent belief that he is acting in his power as Commander-in-Chief constitutes an impeachable offense.

And yes, I felt strange writing that last sentence. A politically aware American in 1999 who went to sleep and woke up seven years later  would think that he had been transported into some strange alternate universe, where Senator Lindsay "I managed the impeachment process against Bill Clinton" Graham (R-SC) is considered something of a moderate, where Newt Gingrich is critical of the House leadership, where budget debates center on whether or not the deficit should grow at a fast rate or an exceedingly fast rate, and where the President's admission that he defied explicit statutory language can lead commited Democrats to respond "maybe it's not that bad".

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» Avoiding the no-win situation from Pandagon
I agree with Nick--despite the fact that the warrantless domestic spying thing is probably an impeachable offense, that's a tactic that the Democrats need to avoid like the plague. Writing that sentence caused me to scream in pain and writhe... [Read More]

Tracked on Dec 18, 2005 1:13:21 PM

» What Next? from Fiat Lux
Over at Ezra's place today, Nicholas Beaudrot has a reality-based perspective on what should happen next regarding the President. Like it or not, the fact that Clinton was impeached does change the calculus as to whether... [Read More]

Tracked on Dec 18, 2005 2:08:12 PM

» Impeach Bush from Dadahead
The point of impeachment isn't to score political points for Democrats; it's to hold a criminal accountable for his actions. Its justification is deontological, not consequentialist. We have a duty to prosecute Bush for his crimes. [Read More]

Tracked on Dec 18, 2005 4:57:38 PM

» Censure Bush? from Bryan O'Bryan
I recall back to the early years of the Clinton presidency. I knew several individuals who had littered their bumpers with Impeach Clinton! stickers long before the impeachment proceedings began. Should Clinton have been impeached? Wa... [Read More]

Tracked on Dec 20, 2005 6:16:22 PM

Comments

You deserve to feel odd. Presidents have a lot of power for good or ill. Defying limits on that power openly is just not allowable.

Posted by: opit | Dec 18, 2005 12:23:55 PM

"I reserve judgement on whether or not the President's blatant violation of the law in the apparent belief that he is acting in his power as Commander-in-Chief constitutes an impeachable offense."

Feh! We may not have the votes to impeach but that the offense is impeachable is beyond doubt.

Posted by: BroD | Dec 18, 2005 12:35:09 PM

Eh?! The Clinton impeachment didn't "raise the bar", it lowered it to the floor. Bush, unlike Clinton, has done something FAR worse than lying about getting a hummer from a consenting adult, he has willfully violated federal law AND the Constitution in a manner directed against all American citizens. If this isn't truly deserving of impeachment then virtually nothing is.

NO to censure. YES to impeachment. Let's put the bar back up high where it belongs rather than keep it down low in the pants.

Posted by: Praedor Atrebates | Dec 18, 2005 12:52:53 PM

1) I would ask you to simply explain the massive Democratic gains in the 74 congressional elections. There may indeed have been several factors, but Watergate was certainly relevant. Republicans will stand by and support their President when in jeopardy, and that is why impeachment(House) but not removal(Senate) would be advantageous to Democrats. Republicans did not distance themselves from Nixon, and they will not do so with Bush.

"...we will have turned what ought to have been a very solemn process into nothing more than a political tool."

2) Sorry. That is exactly what impeachment and removal are, and should be. A political tool. Bush has claimed almost unlimited legitimacy for four years by winning an election. No one in America has a blank check. Impeachment is merely and simply the equivalent in the American system of a "vote of confidence" is in a parliamentary system. It is nothing terrible or terrifying, and a non-politicized executive branch should be able to survive a change of leadership. And most parliamentary systems have a more professional bureaucracy than America, simply for this reason, to weather political storms and seasons.

The transient, fickle, largely corrupt, factious and chaotic Congress is the focus of power in America, for better or worse. We do not have a king, and there is no solemn supernatural security vested in his person or the office that may not be diminished for fear of chaos and anarchy. We not only survived the Clinton impeachment, we prospered. The bar hasn't been raised, it has been rightfully lowered. Impeach at will.

Posted by: bob mcmanus | Dec 18, 2005 12:56:26 PM

1.) Go after Cheney. Cheney is not popular. If you force Cheney out, and Bush appoints a more acceptable figure as Vice-President, the balance of power in the game changes.

2.) Democrats cannot initiate impeachment. Republicans will have to do that, even after Democrats gain a majority in one house or the other. Democrats should take the position that Bush should, by rights, be impeached and removed from office, but that it is up to Republicans to take the lead. Shame Republicans for failing to do their duty to the law, to the Constitution and to the Country.

Posted by: Bruce Wilder | Dec 18, 2005 12:56:52 PM

As much as I wish that this were not the case, the fact that Clinton was impeached does change the calculus as to whether or not Bush should be. And I agreed that there's no way in hell we'll get the 67 votes necessary anyway.

A censure vote is a better bet all around.

*sigh*

Can I go back to 1999 now?

Posted by: fiat lux | Dec 18, 2005 2:00:27 PM

sixty-seven votes in the Senate, which would be required to impeach the President

No, that's what required to convict a president. A simple majority in the House is required to impeach. The system is designed to make it actually rather easy to put a president on trial, but is astonishingly difficult to actually force one from office.

For the most part I agree with your recommendations, if not with the rationale behind them. Clinton's impeachment didn't raise the bar on impeachment, it just made securing public support for impeachment much more difficult (which is close to the opposite effect). When the impeachment process is employed as a political stunt, people will treat it like a political stunt, even when it's used legitimately.

Not impeaching Bush, on the other hand, actually will raise the bar, because future criminal presidents will always be able to point to Bush's offenses as failing to justify removal from office. This bothers me a great deal, but under our current system I can't imagine a president actually getting convicted by the Senate, any more than I can imagine a viable third party emerging at the national level.

Posted by: Iron Lungfish | Dec 18, 2005 2:07:23 PM

I like Bob's comment about impeachment being a form of vote of non-confidence. The threat of impeachment ought to keep presidents in line. It ought not to be this terrible, awe-inspiring thing. Presidents are elected to govern within the law. When they go outside the law, a different check has to apply.

The only problem is, in Parliaments, party discipline is engrained so getting the votes to impeach is easy. That's just not true in the US. Many, many red state and conservative Democrats will not vote to impeach Bush, let alone remove him -- and they'll speak out against those who do. Having a four or five seat majority in Congress is not going to fix that. It's not a question of simple majority like it would be in Canada.

On principle, Bush ought to be impeached. If he had a real defence of going around the FISA Court, he'd be making it. Instead, he and the talking-point goons basically argue he did it on necessary authoritarian grounds because Congress is so weak and needs to be thwarted and because the evil bureaucracy must to subverted. Impeachment procedings would be the antidote to all this. In practice, impeaching him in such a way that the Dems retain dignity and discipline will be a real test. (Personally, if this story holds and if the Dems gain in the midterms with impeachment as background noise, I think they ought to try it though.)

Posted by: Laura | Dec 18, 2005 4:52:32 PM

I'm with Bruce:
"Democrats should take the position that Bush should, by rights, be impeached and removed from office, but that it is up to Republicans to take the lead. Shame Republicans for failing to do their duty to the law, to the Constitution and to the Country."

And shame on the Democrats if they don't do this.

Posted by: BroD | Dec 18, 2005 6:51:39 PM

First of all, Nick, are you kidding me? We have the grounds for impeachment alright. Boy do we ever have the grounds for impeachment. You make it sound like we're trying to railroad Bush or something.

Having said that, I actually agree with your conclusion that an impeachment at this stage of the game will be a bad move for the Democrats. We are living in an age which is amazingly resistant to scandals -- there have been so many during this administration that was worse than watergate. It has only been recently that the momentum has begun to reach critical mass, as a veritable panoply of Republican malfeasance continues to come out of the woodwork and increasingly onto the nightly news. To impeach necessarily means taking the attention off all those other wrongdoings at all levels of the republican party to focus on one scandal, a significant one to be sure, but one which the American people, still suffering from impeachment fatigue and the urge to close ranks during wartime, might not take as seriously as they otherwise would.

Even if we do manage to destroy Bush's reputation, what does it matter? This is already an imploding lame-duck administration. It is far more important to continue to chip away at Republican administration on every level -- those are the guys we're going to be fighting the next cycle, not the Bushies.

Posted by: Battlepanda | Dec 18, 2005 9:49:52 PM

This "Clinton impeachment raises the bar" arguement is grating Up-Is-Downism. Grating because our own people seem to be forwarding the arguement that any President should be able to do as he will if he follows an impeached President.

Give me a break. The repugnicons have been spewing this nation of laws bit for years now, let them meet the law.

Posted by: Fr33d0m | Dec 18, 2005 10:32:16 PM

The Democrats should do everything they can to impeach Bush for the same reason that Saddam is on trial: he deserves it. No political calculations, only justice, plain and simple.

Posted by: Dadahead | Dec 18, 2005 10:55:30 PM

Wow. Lots of free and frank discussion. I expected as much. :) Let me try and take these point by point.

First, the "duty to impeach" does not exist. The analogy is that a District Attorney is not compelled to prosecute every time he sees a weak sister of a case and can forsee losing in front of a jury.

Iron Lungfish makes a good point by distinguishing between "articles of impeachment" and "conviction". This distinction is lost in popular discussion of impeachment but obviously very important. However, we all agree that the President will not resign unless he faces an obvious losing vote in the Senate, and one can imagine the President (or his proxies in the Senate Leadership) twisting arms to maintain thirty-four votes in his favor. . Perhaps, if he is convinced by other prominent Republican officals or constituents that having Republicans vote "nay" on impeachment will lead to further Senate losses and damage to the GOP party and/or constituencies, but what are the odds? Republican officials will have plenty of opportunity to Sistah Souljah Bush; they don't need to call for his resignation. So, I start with the assumption that impeachment is impossible. What is the purpose of a DA bringing drug distribution cases to court even if he knows he has insufficient evidence? To show drug dealers that if they hide the evidence, they will not face consequences? Here, the DA has acceptable reasons not to bring charges. Likewise, the purpose of voting articles of impeachment that will fail to produce a conviction under any circumstances seems dubious.

Iron Lungfish (and others) also makee the point that failing to impeach will give future Presidents greater confidence to defy statute. Here I am truly in a bind. Because of the state of play in Congress, impeachment cannot succeed, so bringing charges guaranteed to fail just shows that impeachment is often a paper tigers. But, failing to at least try to impeach shows the opposition is gun shy. I have no good solution here.

Many have pointed out that the Clinton impeachment ought not to "raise" the bar for impeachment. Upon reflection, everyone else is right, and I was wrong. However, I think it does not lower it either. This is an aesthetic choice -- that impeachment ought to be a tool for governing, rather a tool for politics -- so I can respect those who disagree with me. In fact, there is lots of evidence I may be wrong; seven of fifteen two-term Presidents have had at least one member of Congress attempt to bring articles of impeachment against them. Eisenhower is the exception among post-WWII Presidencies. So, here I was either incorrect, or misspoke, or both. But, if we believe that Clinton should not be impeached for lying about an affair in a misguided attempt to protect his family, then clearly there are some things which while they are illegal do not constitute "treason, bribery, or other high crimes and misdemeanors". Again, I think open violation of statuatory language governing the operations of an Executive branch agency rises to that level. But, there are those who do not, and some of them work for the Senate Judiciary Commitee's Majority Counsel staff. See e.g. Mark Schmitt on the Unitary Executive (the paper he references can be found here). There are plenty of people who believe that the President is entitled to broad deference in matters of foreign policy, and one can make the case that the secret spying was in fact in exercise of foreign policy operations (since spying was limited to international communications). Again, I would never make that argument, but there are people who are taken seriously who do.

Bob McManus asks about '74. Yes, in '74 Democrats won a lot of seats because Republicans stood by Nixon as he went down, and then the party took another hit when Ford pardoned Nixon. But that was a media environment where the most respected name in news was able to say things like "The Watergate break-in involved matters of national security, President Nixon told a national TV audience last night, and for that reason he would be unable to comment on the bizarre burglary. That is a lie." Today, the headline would read "Nixon declines comment on Watergate Incident; says McCord acted as part of War On Communism". Absent calls from prominent in-power Republicans for the resignation or impeachment of the President, such action will be portrayed as nothing more than partisan tit-for-tat. It runs the risk of impeachment backlash, which, while it may be low, is non-zero, and I think the expected cost (that is, probablility of a backlash * number of seats lost or not gained because of the backlash) outweighs the benefits. Censure is a similar wedge. Republican candidates will still be forced to wedge on the "Bush" question, and will alienate one side or the other, but with lower risk of backlash from the middle.

Bruce has good suggestions; go after Cheney and have Dems point out that it will take a Bipartisan commitment to protecting the country from an out-of-control executive. I could get behind those ideas.

I don't my calls for censure and skepticism of the efficacy of impeachment is pundit tut-tutting about balance and compromise and ensuring that Democrats maintain high ground. I want heads to roll just as much as the next person. I look at the articles so far, and I find it hard to look at the evidence right now and believe anything besides the fact that the President doesn't want to obey the rule of law. But I cannot see any way of bringing the executive to heel through impeachment. All political power emanates from the barrel of a gun, or perhaps a bank account, so until Democrats win some elections, calls for impeachment strike me as moot.

Posted by: Nicholas Beaudrot | Dec 19, 2005 12:41:06 AM

Wow. Lots of free and frank discussion. I expected as much. :) Let me try and take these point by point.

First, the "duty to impeach" does not exist. The analogy is that a District Attorney is not compelled to prosecute every time he sees a weak sister of a case and can forsee losing in front of a jury.

Iron Lungfish makes a good point by distinguishing between "articles of impeachment" and "conviction". This distinction is lost in popular discussion of impeachment but obviously very important. However, we all agree that the President will not resign unless he faces an obvious losing vote in the Senate, and one can imagine the President (or his proxies in the Senate Leadership) twisting arms to maintain thirty-four votes in his favor. . Perhaps, if he is convinced by other prominent Republican officals or constituents that having Republicans vote "nay" on impeachment will lead to further Senate losses and damage to the GOP party and/or constituencies, but what are the odds? Republican officials will have plenty of opportunity to Sistah Souljah Bush; they don't need to call for his resignation. So, I start with the assumption that impeachment is impossible. What is the purpose of a DA bringing drug distribution cases to court even if he knows he has insufficient evidence? To show drug dealers that if they hide the evidence, they will not face consequences? Here, the DA has acceptable reasons not to bring charges. Likewise, the purpose of voting articles of impeachment that will fail to produce a conviction under any circumstances seems dubious.

Iron Lungfish (and others) also makee the point that failing to impeach will give future Presidents greater confidence to defy statute. Here I am truly in a bind. Because of the state of play in Congress, impeachment cannot succeed, so bringing charges guaranteed to fail just shows that impeachment is often a paper tigers. But, failing to at least try to impeach shows the opposition is gun shy. I have no good solution here.

Many have pointed out that the Clinton impeachment ought not to "raise" the bar for impeachment. Upon reflection, everyone else is right, and I was wrong. However, I think it does not lower it either. This is an aesthetic choice -- that impeachment ought to be a tool for governing, rather a tool for politics -- so I can respect those who disagree with me. In fact, there is lots of evidence I may be wrong; seven of fifteen two-term Presidents have had at least one member of Congress attempt to bring articles of impeachment against them. Eisenhower is the exception among post-WWII Presidencies. So, here I was either incorrect, or misspoke, or both. But, if we believe that Clinton should not be impeached for lying about an affair in a misguided attempt to protect his family, then clearly there are some things which while they are illegal do not constitute "treason, bribery, or other high crimes and misdemeanors". Again, I think open violation of statuatory language governing the operations of an Executive branch agency rises to that level. But, there are those who do not, and some of them work for the Senate Judiciary Commitee's Majority Counsel staff. See e.g. Mark Schmitt on the Unitary Executive (the paper he references can be found here). There are plenty of people who believe that the President is entitled to broad deference in matters of foreign policy, and one can make the case that the secret spying was in fact in exercise of foreign policy operations (since spying was limited to international communications). Again, I would never make that argument, but there are people who are taken seriously who do.

Bob McManus asks about '74. Yes, in '74 Democrats won a lot of seats because Republicans stood by Nixon as he went down, and then the party took another hit when Ford pardoned Nixon. But that was a media environment where the most respected name in news was able to say things like "The Watergate break-in involved matters of national security, President Nixon told a national TV audience last night, and for that reason he would be unable to comment on the bizarre burglary. That is a lie." Today, the headline would read "Nixon declines comment on Watergate Incident; says McCord acted as part of War On Communism". Absent calls from prominent in-power Republicans for the resignation or impeachment of the President, such action will be portrayed as nothing more than partisan tit-for-tat. It runs the risk of impeachment backlash, which, while it may be low, is non-zero, and I think the expected cost (that is, probablility of a backlash * number of seats lost or not gained because of the backlash) outweighs the benefits. Censure is a similar wedge. Republican candidates will still be forced to wedge on the "Bush" question, and will alienate one side or the other, but with lower risk of backlash from the middle.

Bruce has good suggestions; go after Cheney and have Dems point out that it will take a Bipartisan commitment to protecting the country from an out-of-control executive. I could get behind those ideas.

I don't my calls for censure and skepticism of the efficacy of impeachment is pundit tut-tutting about balance and compromise and ensuring that Democrats maintain high ground. I want heads to roll just as much as the next person. I look at the articles so far, and I find it hard to look at the evidence right now and believe anything besides the fact that the President doesn't want to obey the rule of law. But I cannot see any way of bringing the executive to heel through impeachment. All political power emanates from the barrel of a gun, or perhaps a bank account, so until Democrats win some elections, calls for impeachment strike me as moot.

Posted by: Nicholas Beaudrot | Dec 19, 2005 12:43:49 AM

First, the "duty to impeach" does not exist. The analogy is that a District Attorney is not compelled to prosecute every time he sees a weak sister of a case and can forsee losing in front of a jury.

Disagree. Assuming the case was serious - e.g., a murder - the DA would in fact have a duty to prosecute if he knew who committed the crime.

Now, if for some reason he felt very, very sure that he wouldn't get a conviction, it's possible that this duty could be overridden by other considerations. But the prima facie obligation to prosecute wrongdoers, especially when the crime is serious, nonetheless exists.

Posted by: Dadahead | Dec 19, 2005 1:07:56 AM

But the prima facie obligation to prosecute wrongdoers, especially when the crime is serious, nonetheless exists.

Hrm. Maybe I have a terminology problem. When I say "prosecute", I mean "bring to trial and attempt to gain a verdict of guilty". The DA need not bring every case to trial. Instead, if she realizes that the trial outcome is likely to be unfavorable, she may elect negotiate a plea bargian. Here the censure analogy holds; knowing that Bush cannot be put in any forum that will ensure an impeachment conviction, they should seek the maximum realistically available punishment.

Posted by: Nicholas Beaudrot | Dec 19, 2005 1:38:46 AM

Democrats must try for impeachment.

Anything less and the practice may continue (it may just become more secret).

Anything less is implicit approval.

And yes, here there is a clear duty to impeach. It is in their oath of office to Defend the Constitution.

Posted by: i dunno | Dec 19, 2005 6:08:38 AM

Yeah, I think that we should take Gore 2000 as a general model for our tactics. The Republicans made themselves look bad the way they fought for every inch, whereas Gore came out with his reputation as a gentleman intact.

Historians of the future will praise the Democrats for the way they refrained from using the impeachment tactic, even when they would have been perfectly justified in using it, and even when this meant allowing Bush to establish himself and his Republican successors as strongmen.

The contrast to the Republicans, who were willing to attain their goals by bringing impeachment charges against Clinton or any other Democrat for any reason, or for no reason at all, could not be sharper.

The submissive-wetting school of permanent-minority politics is alive and well, I see.

Posted by: John Emerson | Dec 19, 2005 8:27:08 AM

John: The Republicans had some expectation that the Courts would give them the outcome they want. Here, proponents of impeachment have no such expectation. This isn't Vichyism, it's realism; if you read other thing I wrote I think you'll see I'm all for bringing a cannon to a gun fight.

I have yet to here a satisfactory answer to the question "what is the point of voting articles of impeachment if all parties know that they will fail"?

Posted by: Nicholas Beaudrot | Dec 19, 2005 9:23:35 AM

I was responding primarily to your pre-update post, and I stand on what I said.

Your post wasn't about whether or not this is a good time to impeach. It was a principled statement that the Clinton impeachment raised the bar for impeachment. Democrats have a knack for coming up with self-crippling principled statements.

You also said "Politically, if the opposition party calls for every President's head, we will have turned what ought to have been a very solemn process into nothing more than a political tool." This is true, but not relevant to the present context, because Bush, unlike Clinton, deserves impeachment. In the present context it's a Republican talking point.

As soon as Bush was inaugurated, highminded people started deploring the politics of personal destruction that they had tolerated (and sometimes participated in) under Clinton. Some Democrats chimed in, but they shouldn't have -- they were being gamed.

Gore thought that contesting the 2000 election would have been bad for the country, but he was wrong, because caving in was worse. He chose the greater evil.

Posted by: John Emerson | Dec 19, 2005 10:45:02 AM

I had Pizza Hut last night. Not very good pizza, but that's life. Tonight maybe I'll order pizza again, but only if it's really good - cuz I'm kinda sick of pizza. Pizza Hut last night raised the bar for what pizza today would be acceptable. Not because the Hut is quality, but because at this moment it's even more important not to gorge on one substance. That's what Hilzoy is saying about impeachment.

If Democratic pollsters believe that calls for impeachment will resonate in the electorate (not succeed... just get repeated play on talk shows as one of two good options), then they'll advise their candidates to do it. If they believe it won't, we won't hear a peep. I honestly don't know which will play better, you should ask a focus group in Ohio.

Posted by: Tony Vila | Dec 19, 2005 11:39:51 AM

WTF?

if this is an impeachable offense, then dems should move forward w/ calls for it. screw the gossamer-thin tactical considerations of it.

look, we either are a nation of laws or we aren't. I'd like to think we are. or were we all fed a bunch of pure trouble in river city hokum in high school civics? something like violating federal statutes to spy on your own citizens is a very big deal.

I know how sillily patrician this sounds, but bush's conduct is uncivilized in the fullest sense of the word, and should therefore merit the same penalty: society needs to reassert it's ethical and legal norms.

should we not prosecute murderers b/c we may not be able to convict them?

Posted by: mencken | Dec 19, 2005 4:08:42 PM

"should we not prosecute murderers b/c we may not be able to convict them?"

The difference here is between "may not" and "cannot". And I argue that in cases where the prosecution "cannot" convict, they ought to plea bargain for the maximum feasible penalty.

Believe me; I am seeing red and want a political metric ton of flesh for this sort of behavior.

Posted by: Nicholas Beaudrot | Dec 19, 2005 6:10:15 PM

"should we not prosecute murderers b/c we may not be able to convict them?"

Bad analogy. Better is you should arrest a murderer if you catch him in the act or if he admits it. Worry about the jury pool later.

Stop him now so he won't kill again.

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