Arrest Senator Shelby For Treason

by: Paul Rosenberg

Sat Feb 06, 2010 at 10:00


America is at war with al Qadea.  It's nonsensical, but true--at least in Versailles.  And since we're at war with al Qadea, that makes Obama a wartime President, which up until Obama's inauguration a year ago has meant that the President gets a lot deference from the opposition party.  Now, however, in what Josh Marshall has flagged as a "shark-jumping moment," Senator Richard Shelby (R-AL) has placed a blanket hold on all of Obama's nominations, just to get him some pork.

Others doubt that it is a shark-jumping moment. (How can you jump the shark 9 years after stealing a presidential election?)  But there's a good point here, as Jonathan Chait notes, and Paul Waldman elaborates:

This could be, as Josh Marshall suggests, a shark-jumping moment for the GOP. But I doubt it....

But now this kind of stuff barely raises an eyebrow, particularly among a press corps that has gotten used to the idea that Republicans play hardball, Democrats don't do anything about it because they're wimps, and therefore the latest outrage is barely worth taking note of. Jonathan Chait explains why this is possible:

    Many of the changes in American politics over the past three decades have involved the two parties slowly doing away with social norms that preventing them from using every tool at their disposal. The Senate minority could filibuster every single bill the majority proposed, but you just didn't do that, until you did. You could use a House-Senate conference to introduce completely new provisions into a bill, but you just didn't do that, until you did. (The topic became common in the Bush administration.) The possibility was always there to use endless amendments to filibuster a reconciliation bill. But nobody thought to do that until Republicans floated the tactic this week.

    The "hold" is a now similar tool to what the filibuster was forty years ago. It's a sparingly-used weapon meant to signal an unusually intense preference. A Congressional scholar reports that putting a blanket hold on all the president's nominees has never been done before. But there's no rule that says you can't. It's just not done, until it is.

The main thing that keeps those kinds of norms in place isn't the good will of all involved -- it's the understanding that if you violate them, there will be some kind of cost. The problem today is that there is no foreseeable cost for this kind of move.

And the idea that the Senate Dems would impose any sort of cost is, of course, completely ludicrous.  Which leaves it up to the President.  Ordinarily, I'm opposed to strengthening the power of the President.  But by the standards of Versailles itself, what Shelby has just done--trying to cripple Obama's ability to govern--is tantamount to treason--giving aid and comfort the enemy in a time of war, and I'd like to see him arrested for it.

That would get some attention.

Waldman argues that the Senate Dems should impose a political cost:

Paul Rosenberg :: Arrest Senator Shelby For Treason
If there's no practical cost, the only thing left to stop them from filibustering everything, or putting a blanket hold on every nominee to extort some pork for Alabama, is the possibility of a political cost. At this point, that's up to the Democrats to impose. It would require a little bit of toughness: they'd have to have everyone go out and say, over and over so it would take over the news, that Richard Shelby and his Republican friends are despicable extortionists who will sabotage the operation of the United States government for the sake of some pork-barrel earmarks. They could also fit it into a larger narrative about nihilistic Republicans who care so little about the country's fate that they will do virtually anything to subvert the administration, no matter what the cost, if they think it will gain them some advantage or some pork. If Democrats made enough noise about it, Shelby would back down, and it might even convince Republicans to think twice the next time one of them considers undertaking this kind of extortion.

Is that something Democrats are willing to do? Or are they afraid it would seem impolite?

Is he kidding?  Senate Democrats aren't even willing to think of doing anything, much less actually doing it.

The idea he offers is perfect sensible, of course. Which is why there's absolutely zero chance that the Senate Dems would even think of doing such a thing.

In contrast, arresting Shelby for treason is not the least bit sensible.  In fact, it's just the sort of thing that Shelby would do if he were President.  It's the exact presidential analogue of what he's just done.

Which is precisely why Obama should do it.

And do it now!


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If you want action I think you support the wrong party (4.00 / 5)
The Democratic Party won't even start up the trunk, let alone go out on a limb.  If you gave Obama the power he'd use it to have Alan Grayson arrested.

"Oh. My. God. .... We're doomed." -- Paul Krugman
http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...


The Democratic Party Is A Site of Struggle (4.00 / 2)
Internationally, it's a centrist party, and it always has been.  It was a centrist party during the New Deal, and it was a centrist party during the Great Society.  What changes is the balance of forces within it.  I wish it were different every bit as much as you do, but wishing will not make it so.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
I'm with you Paul (4.00 / 1)
But I'd take it a step farther.  If you and I somehow got into a reconciliation session and started to disrupt the business of Congress we would be arrested and charged with obstruction.  The GOP has said this is what they intend to do.  I'm sure it would never stick, but if Harry Reid had the least bit of concern for this country (as opposed to his re-election) he would arrest all of the Senate GOP leadership the minute they started to do this.  I realize the charges wouldn't stick, but the point would be made.  I'm sure the American public would love the sight of unruly Senators being frog marched out of the Senate.

Just another wish that won't happen.

"Oh. My. God. .... We're doomed." -- Paul Krugman
http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...


[ Parent ]
Dr. Margaret Flowers has been arrested again (!) (0.00 / 0)
She hasn't given up insisting that Medicare for All be included, made part of the reform, even to the point of being jailed once again. Yet Obama yields to handing over the reins to the opponents of reform.

She's going to go down in history.


[ Parent ]
Let's go all the way to crazy! (0.00 / 0)
You can't be serious. (Well, you can be, of course, but should you be?) This is beyond irony, this is giving in to all the squalor of political reality in a Washington gone completely round the bend.

On the one hand, I deplore the idea. On the other hand, there's a long-suffering part of me that'd be tickled pink. I vacillate...therefore I must be a liberal.

Molto cattivo, Paul, molto cattivo.


Fighting Fire With Fire Is All (4.00 / 2)
One thing about bullies: They can dish it out, but they can't take it.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Article 2, Section 6 (4.00 / 1)

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

I know the Constitution's not all that popular these days, but sheesh.

If you STILL don't get it, read US v Gravel



This is a Test of the Emergency Free Speech System. This is only a Test. In an actual Free Speech Emergency, I'll be locked up.


EXCEPT treason.... (0.00 / 0)
IANAL -- obviously -- but doesn't that leave Paul with a little wiggle room? Or does he have to do a John Yoo with the Article II, Section 2 powers? (And yes, this is snark.)

[ Parent ]
Is placing a hold a speech or debate? (0.00 / 0)
I don't think so. Hey, I even think there isn't anything in the constitution that gives a single Senator a right to hold up nominations (which are mentioned in that great document). Hmm, isn't there a legal theory that government has only the rights given to them though the constitution? Ain't that true for Congress, too?

[ Parent ]
Article II, section 2! (4.00 / 1)
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Now, pls point out where it is said here that Congress may give a single Senator the right to hold up nominations? Nothing here suggest they can do anything other than give the nomination a majority vote, up or down.


[ Parent ]
I don't see anything in this mandating Reid to respect the hold, too. (4.00 / 1)
And as far as I remember, Reid has ignored holds by his own party members before. So, there's precedent. He should simply ignore Shelby. And then, what will the rethuglican Senator do? Go to court? D'oh.

[ Parent ]
No he won't go to court (4.00 / 3)
He instead will object to every motion for unanimous consent and where necessary threaten a filibuster on the motion.

Under the rules in play a Hold is simply a stand-in for a promise to filibuster the nomination which under the best of circumstances means a full week of delay. By place 70 at once Shelby is promising to shut down the Senate entirely for a year and a half unless he gets his way.

The way out of this is clear. Get 50 Democratic Senators to agree to at least a temporary elimination of the filibuster, have Obama advise Biden in this capacity as President of the Senate to declare it unconstitutional, and then get those 50 Senators to vote to uphold the rule of the Chair and it is a done deal.

Until Shelby made his move I doubt you could have gotten 50 Senators to simply give up their prerogative but this is so over the top that they might have to. They can always reinstate some version of the Filibuster at the start of the next session, perhaps under the lines suggested by Harkin, but this open declaration of war against the President and the principle of majority rule justifies suspending this rule for the rest of this critical year.

Shelby can't be arrested, there is no such thing as impeachment or recall for a Senator, other than a public verbal horsewhipping there is just no recourse other than a rule change, if necessary done through the Nuclear Option.


[ Parent ]
Crippling The Senate IS Treason (4.00 / 2)
Pure and simple.

Of course the course of action you suggest is the far more reasonable approach.  But we abandoned reason back in the 90s, when we decided it was perfectly fine to turn a federal prosecutor loose to see if he could find an excuse to impeach the President.  That set the stage for Bush v. Gore and we're been in full-scale unreason land ever since.

So, fine, if we live in unreason land, then arrest the fucking senator for treason--and seek the death penalty, too, while you're at it.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
This sounds really alluring, Paul, but... (0.00 / 0)
...I still prefer Bruce's solution. Maybe I'm not bloodthirsty enough. But I also think if Reid and his lamers can be convinced to do anything at all, they sure won't chose the alternative where they'll have to hang a fellow Senator for treason. Imho that would give them an uncomfortable sensation in their necks...
:D

[ Parent ]
That's Sort of The Point (0.00 / 0)
Imho that would give them an uncomfortable sensation in their necks...

Expecting the Senate to fix this is, by definition*, insane.


* Folk definition of insanity: Doing the same thing over and over & expecting a different result.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
I'm still with you Paul (0.00 / 0)
The obvious point behind your suggestion is not to get a conviction but to use the power of leadership to stop this obstructionism by the GOP.  If the GOP wants war, then Reid has to take his testosterone injections and quit cowering in the cloakroom.  But I wouldn't stop with Shelby, I'd pursue a treason and conspiracy charge and march out the whole GOP leadership.  

"Oh. My. God. .... We're doomed." -- Paul Krugman
http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...


[ Parent ]
Yup! Use the bad example as evidence of the need to change the rules. (0.00 / 0)
And then remove all unconstitutional obstructionism. Sounds like a good way to sell this to the public. Nothing is more convincing than the truth! And truth is, Senate can't work anymore when a single Senator may hold everything up.

[ Parent ]
Advice and consent (4.00 / 1)
implies debate which is explicitly covered under the  'speech and debate'.

A hold is a private verbal (there is that 'speech' thing again) statement to the Majority Leader that you will withhold consent to any unanimous consent motion in regard to a particular nomination and piece of legislation. The Senate is free to change its rules and give the Majority Leader the kind of control over the movement of legislation that the House gives the Speaker but until it does Shelby's conduct while despicable and disloyal is constitutionally protected.

Now you could probably find something in the Patriot Act that could plausibly be argued overrules the Speech and Debate Clause, because I hear John Yoo and David Addington are willing to work piece rates and give you any legal opinion you care to commission, but since I believe the Patriot Act itself is a piece of unconstitutional trash wouldn't suggest going down that road either.

What the Senate needs to do is dump unanimous consent in favor of simple verbal Ayes and Nays and ensure that the presiding officer only hears the voices he wants to in moving business along. It is amazing what a big gavel, a loud voice, and a willingness to exercise selective hearing on procedural and privileged motions can do to get through a meeting agenda.

This picture is a perfect example of how a strong leader and alleged fighting boxer could get things done if he wanted to, after all LBJ was working with the same set of rules pretty much.
http://3.bp.blogspot.com/_fjW7...


[ Parent ]
Well, but nothing there says that consent has to be unanimous! (0.00 / 0)
And there's no precedent that shows the founding fathers intended it to be, afaik. So this looks like a rather weak agument to me.

And then, as in the "nuclear option", it's still an unresolved question (at least before the Supremes) if the Senate may implement rules that actually put up higher (and additional) hurdles than the constitution mandates.


[ Parent ]
Parliamentary Procedure dude (4.00 / 2)
Without unanimous consent that procedural motion has to come to a vote. And under the rules it is a debateable motion. And in the Senate debate is unlimited unless Cloture is invoked which process can take three days per motion.

There is no way that the Senate can simply waive standard Rules of Order, it can however eliminate the particular rule that imposed a supermajority requirement and minimum periods of debate in order to invoke Cloture.

Under normal order a motion to move the previous question is not debatable
http://www.parlipro.org/prevqu... . The Senate has simply made the decision to consciously modify this basic rule for their own purposes. The answer is not to move further from regular order but instead to return to it. Restore this standard rule and a bunch of this nonsense goes away, and all without needing to rewrite a few hundred years of rules for debate.

Roberts Rules of Order leave all kinds of room for time wasting, but ultimately leave the Chair and the majority in clear control even as they allow the minority room to object. The Senate relinquished some of that control in the belief that no single member would use that freedom to declare himself Dictator. Unfortunately one of the lunatics did take over the asylum, time to get him back in his rubber room, and change the rules that determine who gets to go where when. Tough on some of the other inmates perhaps but you got to do what you got to do.

BTW two weeks ago half of the Beltway were writing post-mortems on the Democratic Party. But then Ryan comes out with a Republican budget that voucherizes Medicare and privatizes Social Security and Shelby declares himself King of the World. Its a veritable gift pack to the Democratic Party, by their own actions the Republicans have given a kick in the ass to Democrats and we might even get some action here.


[ Parent ]
I Still Don't Know If They Can Come Back From A 41-59 Deficit (4.00 / 2)
Maybe if Harry Reid were half the boxer that Pelosi is.

Maybe.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
They Should Elect Al Franken Majority Leader (4.00 / 4)
And do it Monday.

The toughness of boxers is obviously over-rated.  The toughness of comedians is similarly under-rated.

Remember the old adage:  "Dying is easy.  Comedy is hard."

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Reminds me of a favorite movie, "Real Men" (1987) (0.00 / 0)
Starring John Ritter and Jim Belushi, not the gay porno with the same name. Quote:
Bob: "Who Are Those Clowns?"
Well, they actually are KGB agents and they are after him...

http://www.imdb.com/title/tt00...
(ignore all the losers who vote 6, this is really a 10. An unknown cult classic)



[ Parent ]
How about the toughness of wrestlers? (0.00 / 0)
Franken was one in high school.

[ Parent ]
Probably What Gave Him The Courage To Go Into Comedy As A Career! (0.00 / 0)
Makes sense to me.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Folks Below Are Right (4.00 / 3)
Placing a hold isn't speech or debate.  It's actually the opposite--it's a way of stiffling speech and debate.

Would such a move by the President precipitate a constitutional crisis?  Well, only sort of.  We've actually been living in a state of perpetual constitutional crisis for some time now--since at least Bush v. Gore, and my feeling is that a move like this might be necessary to force the political system to finally deal with and resolve this state of chronic crisis.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Err...By "Below", Of Course, I Meant "Above" (4.00 / 1)
"As above, so below" and all that.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
You're right (0.00 / 0)
The obstructionism has left the country in a state of economic crisis.  The majority party is completely unable to enact legislation by parliamentary procedure.  The Democrats are so afraid of losing they'll just do nothing.  You're right about Franken though, perhaps he and Grayson need to seek higher posts.  

"Oh. My. God. .... We're doomed." -- Paul Krugman
http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...


[ Parent ]
nice diary (0.00 / 0)
Too bad you couldn't get this posted in a letter to the editor of the N.Y. Times or another large paper. Seems like even repub voters would resent this obstruction in the name of pork.

Government by organized money is just as dangerous as government by organized mob..... FDR

French Pork (4.00 / 5)
Ya think a Democratic Senator would get away with blocking action on a Republican Presidents nomination in order to get a $40 billion military contract delivered to a FRENCH led consortium. Back in the day that would have gotten a Dem hanged from the nearest tree with his mouth stuffed with Freedom Fries.

I don't believe in jingoism myself but that prick Shelby and his supporters certainly do, if I were running the zoo every other word in the anti-Shelby attack ads would be 'France' or 'Airbus A-330'.

The Ben Nelson story is instructive, Nebraskans turned on him in a heartbeat even when his blackmail actually benefited him. I am thinking you can get Alabamans pretty whipped up by telling them that their boy Shelby is selling this country out to Old Europe.

And no that would not be fair and nice on our part. Nor even consistent with our particular beliefs. But at this point who gives a shit, I am ready to supply the rail to run a tar and feathered Shelby out of town on. Make it hurt, run ads with Shelby smilingly holding up a baguette smeared with Brie while sipping a glass of French Champagne. If the tables were turned they would doing that and worse, we can ask Max Cleland how that works.


[ Parent ]
Fair and Nice Left The Building Circa 1995 (4.00 / 3)
And no that would not be fair and nice on our part.

Back then, the House tried to shut down the government.  They thought Clinton was a weeny, and would just fold.  They thought wrong. But they haven't changed their attitudes one iota since then. It's time to fight fire with fire.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
The fact that he stood up to them gave Clinton the esteem and public approval (0.00 / 0)
that prevented his impeachment.  Unfortunately, Obama has never found a fight he couldn't avoid.  Well, except for batchslapping progressives.

"Oh. My. God. .... We're doomed." -- Paul Krugman
http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...">http://krugman.blogs.nytimes.c...


[ Parent ]
Yup! Rethuglicans replaced them with Jack and Squat! (0.00 / 0)
"Fair and Nice", really! That's so last century. Like going to a gun fight with bare hands. Ten points of fairness, but knockout in the first round. Bruce must be watching too many Hollywood movies if he thinks Dems can afford to act that way and still have a chance to win a fight!

[ Parent ]
Obama should suspend all of Shelby & McConnell's earmark funding... (0.00 / 0)
...Until an agreement is reached for orderly, timely up-or-down votes an all pending nominees.

He should do it in a big, splashy fashion. Make the announcement personally. Start a daily tracker of "Nominees held hostage." Ratchet up coordinated PR (yes, Dems that can be done). If the GOP dithers, start extending the suspension to the leadership and/or other senior members. Target the appropriators (i.e. follow the money). What are they going to do? Whine about not getting their earmarks? Please, do!

This is an Executive-Legislative fight. The Executive is the person who must step up on his own behalf and not simply rely on his allies in the legislature. Prior presidents have "impounded" appropriated funds before. Congress makes use of its 'power of the purse.' The Executive must make use of its 'power of disbursement.'


Self-refuting Christine O'Donnell is proof monkeys are still evolving into humans


I don't think the Obama administration takes kindly to suggestions! (0.00 / 0)
Have you tried using the "Contact us" feature on whitehouse.gov? One is obligated to choose a subject. "Message of support" always used to be first, and now it is the last on the menu. Comments on Policy or Non-Policy are the others. For a VERY SHORT time, "Administration" was a choice on the menu. I bet they got an earful, because that subject is no longer there!



[ Parent ]
a suggestion? (0.00 / 0)
careful, you night be arrested

ask dr. flowers!


[ Parent ]
Actually, I felt like my message had been heard! (0.00 / 0)
Obama came out with a statement on the subject, so of course, I thought that someone had looked at and realized the value of my comment. Can't recall the subject, tho'.

[ Parent ]
comfortable (0.00 / 0)
the pres and the dems seem too comfy in their seats to make waves and challenge the gop, the hell with the people when you can live the good life and still get the left to support you, don't look now dems but the times they are a changing and its about time.  

the shelby holds are one of the biggest, maybe the biggest, example of how wimpy dc dems are (4.00 / 1)
bush would have eaten us alive if a dem had done that

he would be yelling 'france' and 'unpatriotic' 24/7. maybe he'd have gone ahead with the treason arrest too.

needless to say, the dems would have blinked faster than the speed of light


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