Christy Hardin Smith, this morning at FireDogLake:

When push came to shove, [Karl Rove] testified on five separate occasions — that we know about — and his loyalty is to himself and to Bushie.  Which begs the question, if the President pointed the finger squarely at Dick Cheney, dumping any responsibility and accountability into his lap, how likely is it that Rover did the same thing?  And truly, if Mr. Dirty Tricks himself is working on the backdoor double cross, how much behind the scenes machinations do we not know about at this point — and how comfortable are you right now if you are Dick Cheney?

Probably very comfortable, because Cheney and the entire Bush administration - and, probably, any administration - will argue that the Vice President is a constitutional officer, and as such, he can only answer for "high crimes and misdemeanors" that he may have committed while in office by impeachment in the House of Representatives and trial in the Senate.

Article II, Section 4:

Section 4 - Disqualification

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

If you're thinking, "Hey, Spiro Agnew," think again. Agnew resigned and was convicted of crimes he committed while Governor of Maryland. No indictment alleged that Agnew acted criminally while he was Vice President. The only remedy for that would have been impeachment.

If you're thinking, "Hey, Ken Starr," think again. The Independent Counsel Act, the law under which Starr was appointed, required him to advise Congress of anything that could constitute grounds for impeachment. The text:

(c) Information Relating to Impeachment.— An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment. Nothing in this chapter or section 49 of this title shall prevent the Congress or either House thereof from obtaining information in the course of an impeachment proceeding.

However, the statute had a five-year limitation, and expired in 1999. Due to bipartisan concern about the excesses of independent counsel investigations, Congress chose not to renew it.

Patrick Fitzgerald is operating under a different statute - he is a US Attorney, an employee of the Justice Department, who is in charge of the Plame leak investigation because the Attorney General had to recuse himself. He is not "independent" of the Justice Department with his own independently funded office or anything like that. He's just not directly answerable to the Attorney General or political appointees in this matter due to their conflict of interest.

Under those rules, Fitzgerald not only has no mandate to report to Congress, there's no facility for him to do so whatsoever. There's no language about reporting impeachable offenses to Congress if he thinks he finds them, or if he wants to - he's tasked only with finding criminal activity and prosecuting it.

If he finds evidence that the Vice President committed felonies, he can't do anything with it. He's not allowed to disclose grand jury testimony that does not lead to criminal indictment - in fact, grand juries are secret exactly so that spurious charges without enough evidence to support indictment don't get made public. Fitzgerald doesn't seem to be on any kind of Starr-like Crusade to take down big names, so he's unlikely to try to get damaging information about constitutional officers entered into the record for its own sake. (Independent counsels were appointed by judges and were usually from the opposing political party of the targets of the investigation. Fitzgerald is a professional prosecutor and a registered Republican.)

If you want Cheney removed from office for crimes he may have committed, though, there's something worth considering (emphasis added):

To assure that the law would be reappraised periodically in light of experience, Congress authorized the statute for no more than five years at a time. The law was the subject of congressional hearings at those intervals. It was extended for additional five year terms in 1982, 1987, and then in 1994, after being allowed to lapse at the end [of] 1992.

You can't even blame that on the GOP - in 1994, Democrats controlled both the House and the Senate, as they did in 1992. It's obvious from the past five years that the current GOP-led Congress has no interest in investigating anything the current administration has done, but if the Democrats gain control in 2006, Congress could reauthorize the Independent Counsel Act.

There's no realistic chance of that applying, though, since political realities would mean no counsel could be appointed to investigate any of this before late 2007, giving the counsel no time to finish an investigation before the current administration leaves office on January 20, 2009. If impeachment and removal from office are the only remedies for criminal activity by a constitutional officer, the only way it's going to happen to this administration is by Congress acting under its own constitutional powers, not by recommendation of an independent counsel.

If you're thinking, "Hey, Bush will just pardon Cheney," think again. He's not allowed to do that. Article II grants the President his powers, and is what administration supporters have been citing as justification for their assertions that the President doesn't have to obey any laws he doesn't like, one slapped down last week by the Supreme Court. It says, emphasis added:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

The President cannot use his clemency powers to stop an impeachment proceeding or to forgive the underlying offense. Claiming constitutional immunity is a double-edged sword: criminal courts may not be able to reach the Vice President, but if they could, the President could pardon him. If the Vice President is answerable only to impeachment, then if it happens, the President can't save him.

230 years and still surviving attacks from within and without - happy 4th of July, everyone.