The premise of the Bush Administration’s malfeasance is, bluntly put, that the President is above the law and above the Constitution as written. What is the consequence if Bush is not impeached? Primarily, it will prove that the Bush Administration is right, as a practical matter, and will provide support for future presidents to presume and defend the same. In short, the doctrine of “separation of powers,” on which our Constitution rests, will severely be undermined.

It is, by definition and necessarily, a “high crime” to refuse to adhere to the Presidential Oath of Office by refusing to protect and defend the Constitution. Bush’s treatment of the principles enshrined in the Constitution leads one to conclude that he must think he has met his oath because the Constitution itself remains safely housed in a big building and Nicholas Cage didn’t actually steal it, so it must be adequately protected and defended. That, of course, kind of misses the point… though some might argue it is the most credible explanation for Nancy Pelosi’s conduct.

It is also, by definition and necessarily, a “high crime” to fail and refuse to discharge the Presidential duty, as specified in Article II of the Constitution, to “faithfully execute the Laws of the United States”. So how, then, does the Attorney General refuse to investigate or prosecute torture, or how does the Administration interfere with the EPA’s enforcement of the Clean Air Act or sidestep a Supreme Court ruling demanding compliance, or how does the President justify issuance of “signing statements” flatly stating a refusal to enforce a law as enacted by Congress? Among other things like engaging in a war of aggression based upon lies, or commissioning underlings to craft legal arguments designed and intended to prevent application or enforcement of governing principles of the Constitution itself for the purpose of seeking to obstruct justice and shield review or consideration of the legality of the ensuing policies by falsely asserting executive or attorney-client privilege.

This is not about “criminal prosecution”, this is about the President directing administration actions directly in contravention of the laws and the Constitution of the United States. The responsibility for all of these executive actions falls directly, by Constitutional design, upon the President – indeed, while Bush’s neocon minions refer to a “unitary executive theory”, that concept has its origins not in any fundamental dispute over the scope of the President’s authority but rather in the literal number of persons who shall, under the Constitution, be deemed to constitute the “Executive” (the debate at the time was between a committee or a single person to occupy the position of "the executive”, and the Founders went with the idea of a single person, “unitary” executive and largely for the purpose of allowing focus of responsibility, accountability and blame, see Federal # 70 by Hamilton). If the President of the United States is engaging in or directing a course of criminal conduct and/or refusing to discharge his Constitutional obligation to enforce Congress’ laws or to protect and defend the Constitution’s demands, it is not incumbent upon the Congress to petition a court to compel the President to do so, it is incumbent upon the Congress to impeach and remove the President. Now. Quickly, not subject to interminable court processes, appeals and the like.

There is, in fact, “time” in which to impeach this President and his Vice (“I’m not a member of the Executive Branch”) President, too. In fact, there is not enough time not to impeach them. Bush, Cheney and their evil lords are daring Congress to act and confident Congress will continue to cower. One need only read the brief filed by the US Attorney’s Office in opposition to Congress’ lawsuit seeking to hold Harriet Miers in contempt for violating a Congressional subpoena to see this plainly: there, it is argued that the courts should not get involved because this is just a dispute between the branches of the government, and Congress should be left to exercise its constitutional remedies to obtain Executive compliance, mentioning appropriations….

Impeach these malicious actors right now. This country deserves better than what we are getting and our Constitution spells out the remedy. If no action is taken to stop Bush, no enforcement of the importance of respecting the Constitutional oath of office and the Constitutional obligation to enforce our laws is undertaken, who or what will stop any action by any President in the future?

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.