I listened to Professor Sunstein and Glenn this morning, and waited for the transcript because I really could not believe how banal some of Professor Sunstein's purported justifications were. The one which particularly struck me as surreal was this:

"I think it has an understandable motivation, but I don’t think it’s appropriate at this stage to attempt to impeach two presidents consecutively."

Surreal, yet revealing. In Professor Sunstein's mind -- and, I think, in Nancy Pelosi's mind and Harry Reid's mind -- impeachment is "off the table" because to impeach the President might subject somebody to criticism for "engaging in a crass political payback" over the Republicans' effort to impeach Clinton. That's the level of analysis going on here?

Where is any consideration of the substantive merit of impeachment based upon the gravity of the conduct at issue? OK, if "perjury" was Clinton's delict, is somebody suggesting that torture, aggressive war, felonious and unconstitutional wiretapping and the like "don't measure up"? Sunstein follows the above-quoted statement with "any crime has to be taken quite seriously", yet both fails to identify any of the crimes that are in question here and then follows up by saying both that impeachment isn't warranted and, get this, Bush probably won't issue pardons so we should see about maybe investigating something during the Obama administration. What is he smoking?

It is not true that "advice of counsel" renders a crime non-criminal. Period. And, by the way, where an attorney's advice is sought and given in furtherance of a "crime or fraud", not even the attorney-client privilege immunizes the communications relating to that crime. The effort to portray every criminal activity of the President or his minions as being not only "policy" rather than "crime", but unchallengeable and inscrutable policy to boot, is absurd. Literally, totally absurd and utterly dependent upon a false suggestion of talismanic unassailability of any action that somehow has a lawyer behind it. And as the administration gets ever more brazen about advancing this notion, it only plays into the administration's chutzpah when, as now, the Congress just wrings it's hands and wonders what to do, what to do? The "what to do" is to impeach these clowns. Don't go to courts for years on end, impeach them. Now.

Does anybody think that the Republicans in Congress next term will hesitate to attempt to impeach Barack Obama for double-parking? That they will hesitate to do so because it might seem "unseemly" to impeach two out of three presidents in a row? Or will it be more likely that they will say "it's not our fault that the Democrats lacked the courage of their convictions and the will to enforce their constitutional obligation to protect the Constitution, we never got asked to do that over Bush so don't gripe now"? Sheesh.

Professor Sunstein's comments were just sad. Foolish, actually. But sad, mostly. Sorry to hear this kind of thing from one called a constitutional scholar. I favor impeaching as many consecutive presidents as display conduct of the nature characterizing the administration of the current occupant. Does the Constitution counsel otherwise?

Not sure we have any disagreement. My point is that saying "lawyer, lawyer" doesn't ever end the inquiry -- which is the way Mukasey is framing his decision not to even investigate torture circumstances, let alone prosecute. In the circumstances you identify, one who would seek to invoke a defense against a criminal allegation would bear the burden of first establishing the elements of the defense, such as "this was an arcane provision of the tax code, how could I know?"

I'd be pleased to see somebody explain that they thought torture was OK because the President's representative told them the President thought it was OK because the Vice President's Chief of Staff commissioned a "legal memo" from John Yoo, who told them that he thought the President is not bound by the Constitution or laws of the United States. Or have a telecom exec say they thought it was OK to wiretap in clear violation of an existing Federal statute and the Fourth Amendment because the President asked him/her to do it. Then let's explore the basis on which that advice was given. I'd even go so far as to embrace the terms of Article 8 of the Nuremberg Trials, which declined to excuse a war crime on the basis of a plea of "only following orders", but reserved the right to consider that proferred justification and to grant mercy upon sentencing of "front line" defendants if that was the situation.

So let's impeach the President and the Vice President and let them make that case in their defense.