In defense of impeachment

Crossposted at Daily Kos

There have been calls for the impeachment of President Bush and/or Vice President Cheney for years from the left. I had not been in that camp, because I felt that it would look too much like revenge or retaliation for the impeachment of President Clinton, let alone that the evidence seemed sketchy.

I can't say I feel the same way now.

Researching impeachment history in this nation, the two successful presidential impeachments and the one that was ended by President Nixon's resignation, the fact is that impeachments are political in nature. They were a legal/political solution given by the Founders, so that when a high official committed "high crimes and misdemeanors," they could be removed from office through a dignified process. In practice, though, the process only held a certain dignity during the Nixon impeachment process.

The first presidential impeachment was that of Andrew Johnson, Abraham Lincoln's successor. Johnson was a Southerner who was not into the idea of a harsh Reconstruction, putting him at odds with the Radical Republicans in Congress. They responded to Johnson's obstinance by passing laws such as the Tenure of Office Act, which prevented a president from firing Cabinet officers without Senate approval, a clear violation of separation of powers. Despite this clear challenge, Johnson still would not yield and fired his Secretary of War, Edwin Stanton, whom the law had been written to protect. Following this incident, the House passed articles of impeachment which read like a laundry list of complaints against Johnson, with none of them showing any true merit. The Senate acquitted Johnson by a single vote, a vote that many historians agree helped preserve the importance of impeachment, since Johnson's removal would've occurred on purely political motivations, an event that would've been very damaging to our nation.

From that point, no president faced impeachment until Nixon in 1973. Nixon's impeachment proceeding was perhaps the ultimate nexus of legal and political charges. There is little doubt that Nixon broke the law, while he likely did not have prior knowledge of Watergate, instead of cutting loose his close advisers like Haldeman, Erlichman, and Mitchell, he chose to keep them close and cover up their involvement in Watergate, using the CIA and FBI heads as pawns. At the same time, the impeachment hearings ended up bringing out other charges that were eventually voted down, such as impeachment for impounding funds or for the incursion into Cambodia. Those were more politically motivated charges than the charges related to Watergate, and were rightly voted down.

Whether you were a Nixon fan or not, you could not argue that Congress was not extraordinarily fair to Nixon throughout the process. Even Nixon, when he met with the leadership from both parties before he resigned, praised all of them and told them he would miss working with them and the political scrimmaging that went on. He didn't call them unfair, because even he could admit that no one had denied him his right to defend himself, to face clear, concise charges, and to have fair hearings. The process worked, and the change of leadership was incredibly smooth and dignified. It was during those last days that Nixon showed amazing courage, even though he'd done some terrible things, and the man that was on display those last few days was the core behind a solid president who made some bad missteps along the way.

In 1998, after an election in which the American people demonstrated their support for President Clinton by giving him the first midterm victory for a second-term president since 1816, the House of Representatives voted to impeach Clinton by a party-line vote for his actions surrounding the lawsuit filed against him by former Arkansas state employee Paula Jones. The vote was notable for the dramatics surrounding it involving the Speakership. Newt Gingrich resigned after the electoral defeat, and as Bob Livingston, (R-LA), the chairman of the Appropriations Committee, prepared to move into the slot, he was hit from two directions. The first was the allegations of marital infidelity on his part, which he would later acknowledge (and which had gotten Clinton into this mess in the first place) and the second was his own conscience. As described in Peter Baker's excellent book on the behind-the-scenes of the impeachment, The Breach, Livingston was in the Speaker's cloakroom when he almost decided to abort the proceedings and hold a censure vote. Between the pressure of his aide and the machinations of Majority Whip Tom DeLay (whom the book showed doing all sorts of things to keep impeachment alive, including borderline forgery of Livingston's and Gingrich's signatures), Livingston pressed on with impeachment, but decided to "set an example" and resign.

Before the Senate even took up the matter, they advised the House prosecutors to keep the trial short, as they had no chance of winning. Even Ted Stevens, the octogenerian Republican from Alaska, told the House Republicans they were wasting their time, demonstrating how strongly the partisan lines were drawn. Today's current red-blue divisions can be traced back to this trial, only the second to reach the Senate, and just as partisan as the first one. We all know the result of the trial. The Senate did not even have a majority of senators voting to declare Clinton guilty, in large part because the charges that the House voted to send to the Senate were the ones with the least factual basis to them. Democrats such as Dick Gephardt said as much after the voting was completed.

The Clinton impeachment was a confluence of the Johnson and Nixon impeachments. Where Johnson was impeached on pure politics, and Nixon faced impeachment on strong conspiracy charges, Clinton's behavior fell in the gray area between the two. Technically, he likely committed perjury in the Paula Jones case. The perjury committed, however, falls far short of the "high crimes and misdemeanors" the Founders envisioned. In Federalist #69, Alexander Hamilton writes, "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law."

Clearly, the thought process demonstrates that "high crimes" fall in the category of grave damage to our nation's well-being. Clinton's lying about sex, while shameful, did no such grave damage. To be honest, he shouldn't have been on trial in the first place. The Supreme Court set a terrible precedent by allowing civil suits against a sitting president. The president may not be above the law, but it is very detrimental to the carrying out of his duties. Similarly, having Clinton testify before a grand jury was out of line as well. It was a spectacle which ultimately served no useful purpose. Leon Jaworski, the special prosecutor towards the end of the Nixon administration, rejected the idea of calling the president to testify before the Watergate grand jury, feeling that it both put the president at risk and would create an unseemly spectacle. No such respect existed for Clinton, and the office took a hit in stature that was unnecessary.

Ultimately, the proper result came in Clinton's acquittal. It also left us with more bad precedent on how to run an impeachment. The two impeachment trials we have had ended up following just as Hamilton predicted in Federalist #65. "A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt."

So, now that I've related the history of presidential impeachment, now we come to the case of our current president, George W. Bush. As with the Clinton case, arguments for and against his impeachment run very passionately. I will do my best to avoid histrionics and keep this to a dispassionate advocacy.

There are multiple reasons to impeach President Bush, but only a couple have what I would consider true merit.

*Violation of United States law- The President has openly admitted to violating the FISA act of 1978, which restricted the methods and usage of certain surveillance, as well as clearly defining who could be wiretapped without court approval. The domestic surveillance program, which includes reading of mail, warrantless phone tapping, and Internet spying, is a clear Constitutional violation, as well as a violation of United States statutes and of the Supreme Court's decision in
UNITED STATES v. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, 407 U.S. 297; 92 S. Ct. 2125 (1972). The Court held in a unanimous opinion (six justices writing the majority opinion, the other two concurring, Rehnquist recused himself from the case) that the warrantless wiretapping of United States citizens within the borders of the nation was unconstitutional and therefore illegal. The majority opinion, delivered by Justice Powell, says, "It has been said that "the most basic function of any government is to provide for the security of the individual and of his property." Miranda v. Arizona, 384 U.S. 436, 539 (1966) (WHITE, J., dissenting). And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. As Chief Justice Hughes reminded us in Cox v. New Hampshire, 312 U.S. 569, 574 (1941):

"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses."

But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development -- even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens. We look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, 365 U.S. 505 (1961). Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements . . . without any 'technical trespass under . . . local property law.'" Katz, supra, at 353. That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards....These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."

This is the first, most clearest area where this administration has violated the law. That decision touched on the heart of these issues we face today, and it has not been contravened in any decision since. The President admits to wiretapping without warrant citizens of this nation who were party to international calls. The decision states that any effort at electronic surveillance on citizens must be preceded by a warrant. This violation went on unchecked for almost five years before the administration reversed course and decided to submit their cases to the court appointed by statute to handle these matters, the FISA court. If the administration truly believed that they were in the right, why the reversal? The only answer appears to be that Congress' leadership was now held by the opposing party, and such a move would preclude any investigation into the matter. The president hopes to avoid investigation and possible prosecution into these matters by returning the issue to where it should always have been.

*Abuse of executive branch power. The President has abused the power of the executive branch through his nearly 1,000 signing statements, which declare that he can ignore the law Congress just passed if he, and he alone, sees fit to, and with his usage of the recess appointment, which he has used not for second-tier positions or for true emergencies, but rather to fill appeals court positions, United Nations Ambassador, administrator of Customs and Immigration, and many more positions. Any candidate he placed before the Senate that was rejected either overtly or through a "pocket rejection," if you will, was appointed during a congressional recess. The Framers clearly did not allow for unchecked and unlimited use of this appointment power. They were clear in making the power an emergency one, necessary for the continued operation of the government. The President has not done so, instead, he has used the power to put politically acceptable people in these positions because he wants them there.

What is far more pernicious than the appointments are the signing statements. Historically, signing statements were used to convey how the law would be enforced, or to add a measure of approval to it. Today, they are the tool of choice for the president to carve exceptions into the laws, most noticably the anti-torture act that passed Congress last year. The President's signing statement read, "''The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief." As Senator McCain explained on the floor of the Senate while the bill was being taken up, "For the information of my colleagues, the second amendment, which would be before the Senate for consideration at a different time, basically says that cruel and inhumane treatment will not be inflicted upon any prisoner, and we would adhere to the Geneva Conventions as well as other international agreements concerning the treatment of prisoners.

But on this issue it says this amendment would prohibit cruel and inhumane and degrading treatment of prisoners in the detention of the U.S. Government, and it is basically fairly straightforward and simple, as I read.

The Army Field Manual and its various editions have served America well, through wars against both regular and irregular foes. The manual embodies the values Americans have embraced for generations while preserving the ability of our interrogators to extract critical intelligence from ruthless foes. Never has this been more important than today in the midst of the war on terror.

I think we all agree to fight terrorism we must obtain intelligence. But we have to ensure that it is reliable and acquired in a way that is humane. To do otherwise not only offends our national morals but undermines our efforts to protect the Nation's security.

Abuse of prisoners harms--harms, not helps--us in the war on terror because inevitably these abuses become public. When they do, the cruel actions of a few darken the reputation of our honorable country in the eyes of millions. Mistreatment of our prisoners also endangers U.S. servicemembers who might be captured by the enemy--if not in this war, then in the next. "

Senator McCain's words indicate the meaning of Congress when they passed this bill, and the President's response is basically that he will do what he wishes. Consistently, the phrase "unitary executive" pops up in these statements, where the President declares that this or that act of Congress intrudes on his constitutional authority to regulate the "unitary executive" and therefore, he will take their law, which he signed, as simply being advisory and not carrying the force of law. He is declaring himself above the law, for it is Congress who passes the laws, who creates the laws, of this nation, through their powers granted in Article I of the Constitution.

Furthermore, the president routinely denies Congress the information that they are entitled to through the oversight process. Committee and subcommittee chairs will request and/or subpoena information from executive branch offices and are denied, typically on the excuse that the information is classified. This administration has classified virtually all of its behavior, even the day-to-day activities of the Department of Agriculture, for instance. With that overreaching use of classification, the administration is declaring that it is not subject to the law or congressional oversight. It is virtually impossible to receive information when it is put behind the wall of classification, and it unconstitutionally hinders the Congress from the discharge of their duties.

It is on the basis of these actions that the President has done substantial harm to our Constitution, and is in violation of his oath of office, which requires him to "protect, preserve and defend the Constitution of the United States." His actions have rendered his oath shattered, and have created a situation that will require years of work to repair. If the President can declare himself above the law, above the Congress, and fundamentally prevents a superior branch of government from undertaking some of their most basic duties, then they have rendered upon this nation of laws a massive wound that requires this most extreme action. If Congress can declare the actions of a President impeachable for his personal behavior, which did not substantially inflict harm upon this nation and its rule of law, then it has no choice but to determine that this president, who has committed high crimes against the very being of the Constitution, not only be impeached, but be convicted in the Senate and removed from office. If it does not, then it will have committed an equally grave offense.