G
Gandalf Grey
Guest
Does the Constitution Require Impeaching Bush and Cheney?
By David Swanson
Created Apr 15 2008 - 9:56am
Presented at George Mason University on April 14, 2008
Dedicated to Betty Hall and the New Hampshire State Legislature.
John Adams, who was later the second president of the United States, wrote
some words in the Constitution of Massachusetts that have been quoted
approvingly by the U.S. Supreme Court and every state supreme court in the
United States. He described a separation of powers among three branches of
government and said that this would be done
"to the end it may be a government of laws and not of men."
Thomas Paine in his "Common Sense" pamphlets that helped launch the American
war for independence, wrote that
"so far as we approve of monarchy, ... in America THE LAW IS KING. For as in
absolute governments the King is law, so in free countries the law OUGHT to
be King; and there ought to be no other."
I raise this point in order to suggest that the question of whether the US
Constitution requires impeaching Bush and Cheney is not an academic one and
is very closely tied to the straightforward question of whether we should
impeach Bush and Cheney. The Constitution is the highest law of this land.
If it requires that something be done, then a failure to do it amounts to
moving the country in the direction of lawlessness, and possibly in the
direction of the rule of men and women, not of laws.
This is the case unless, of course, we amend the Constitution to fit our
chosen behavior. The Constitution is not infallible. There are sections of
the original text that I'm pleased have been removed through the amendment
process. There are other sections that I think should be changed, things
that should be added that are not there, etc. But there is a great danger in
sidestepping the democratic process of amending the law and proceeding to
simply violate it.
There are cases in which we do that. For example, for over 50 years the
United States has fought wars without Congress ever declaring war, as
required by the Constitution. But these are policies that should, in fact,
be reversed and be brought back under the rule of law. If you believe a
president should have the power to declare wars, then you should work to
amend the Constitution to provide that power. Otherwise some president you
disapprove of may decide to grant him or herself the power to do something
else not found in the Constitution, and it may be something you don't like,
but there won't be much you can say about it.
The Constitution, of course, gives the three branches of the national
government different powers, and provides each with checks on abuses of
power by the others.
The president is to execute the laws created by Congress. He, or she, serves
as commander in chief of the military. He can pardon crimes (but not
impeachments). If he consults with and gets the support of the Senate, the
president can negotiate treaties and appoint officials, ambassadors, and
judges. That's about it. There is no constitutional presidential power to
write or alter or violate laws, to act in secret, to abridge the judicial
system, to violate the Bill of Rights, to violate existing treaties, to
build an empire, or to launch a war. Oh, and the Vice President under the
Constitution has no particular powers at all, other than serving as the
president of the Senate, where he or she only gets to vote if there's a tie.
In contrast, the legislative branch of our government, historically and even
today in the version students are still taught in schools, has much greater
power. The Congress, to which the first half of the entire Constitution is
devoted, has the exclusive power to enact laws. Congress also has the sole
power to raise and spend money. It has the power to declare war and to fund
and oversee the military. It has the power to regulate international and
interstate trade. Congress handles immigration, bankruptcies, the printing
and valuing of money, the post offices, copyrights. Congress has the power
to "constitute tribunals inferior to the supreme court," and "to define and
punish piracies and felonies committed on the high seas, and offenses
against the law of nations." But the first power that the Constitution
grants the House of Representatives is the power of impeachment. The first
power it grants the Senate is the power to try all impeachments.
In school we learn about the "Separation of Powers" and about something
called "Checks and Balances." Our three branches of government are supposed
to be separately elected, none of them created by any other. The Supreme
Court is constituted by both the executive and legislative branches, not one
alone. And the power to run the nation is supposed to be divided. Congress
has certain powers. The courts have other powers. The president has others.
Congress, as the most powerful branch, is further divided into two houses
with somewhat separate powers. It's important to understand that Congress is
more powerful than the other branches, which is one reason the phrases
"balance of power" and "checks and balances" can be misleading. There is not
supposed to be anything evenly balanced about it.
Under the U.S. system, the executive branch is understood to have the
following checks on legislative power, and it still has them, plus some:
1. The veto. Bush does still have this power, but it is overshadowed by his
newly created signing-statement power. No longer must he choose between
signing a bill and vetoing it. Now, he can choose to sign it and rewrite it.
While signing statements are not new, this use of them is, and twice studies
by the GAO have found that in a significant percentage of cases the laws
Bush announces the power to violate he has proceeded to violate.
2. Commanding the military. Bush does still have this power, but he has
added to it the power to declare war in violation of Article I of the
Constitution and in violation of the UN Charter which under Article VI is
the law of the land, plus the power to misappropriate funds for wars that
were not approved for them, and the power to take state militias (also known
as the National Guard) away from the states to join the US military in
fighting foreign wars.
3. The vice president's vote in the Senate. He does still have this power.
4. Recess appointments. Bush makes use of this power.
5. Calling Congress into session in emergencies and determining adjournments
when the two houses cannot agree. This is less relevant now that Congress
hardly ever goes home.
And the President is understood to have these checks on the judicial branch,
which he indeed still has:
1. Appointing judges. Bush still has this power.
2. Pardoning convicts. Bush still has this power. He has even commuted the
sentence of a White House staffer convicted of obstructing justice in a case
Bush himself is involved in (an act that James Madison and George Mason
deemed an impeachable offense). Bush also has taken unto himself the power
to order former staffers to obstruct justice, the power to refuse subpoenas,
and the power to refuse to testify under oath or without the vice president
at his side.
The executive branch also has a check on itself. The vice president and
cabinet can vote that the president is unable to discharge his duties.
The judicial branch has an important check on Congress and the president in
that it can rule laws to be unconstitutional. The chief justice of the
supreme court also serves as president of the Senate during a presidential
impeachment. But that power depends on the House of Representatives first
impeaching.
The legislative branch is supposed to have an array of checks on the
president and vice president, including various minor powers of oversight.
Congress can override a presidential veto, but that power is rendered
meaningless by the new presidential power of the signing statement. The
Senate has the power to approve or reject appointments and treaties. Both
houses of Congress can approve or reject a new vice president, but that
power depends on removing the current one.
Congress has the power to put a halt to any activity of the executive branch
by defunding it, but the current president has misappropriated funds to
engage in activities never approved by Congress, such as the secret initial
steps in the invasion of Iraq or the secret warrantless spying programs, as
well as activities for which Congress has banned the use of funds, such as
the construction of permanent military bases in Iraq. (In the president's
defense he says the bases are not permanent, but only enduring, but no one
has successfully explained what that means or how it gets around the
language in the various congressional bans signed into law by Bush.) The
Democrats in Congress claim to oppose continuing the occupation of Iraq, but
they're about to throw another $102 billion at it. They will do so, (unless
the public rises up and stops them), in part out of fear of the media
calling them silly names, but in part out of fear of Bush misappropriating
funds and continuing the occupation anyway. In that situation, they would be
obliged to impeach the president or look even more foolish than usual. Last
September during General David Petraeus's first round of testimony,
Congressman Brad Sherman asked him what he would do if Congress stopped
funding the occupation and Bush ordered him to continue it anyway. Petraeus
said he could not answer without checking with his lawyer.
Congress has the power to request or subpoena witnesses or documents, to
file Freedom of Information Act requests, and to issue contempt citations to
desired witnesses who fail to comply with subpoenas. But those are all
powers that evaporate if the power of impeachment is removed. In the current
Congress, the Speaker of the House has promised never to impeach. As a
result, the executive branch simply ignores FOIA requests, subpoenas, and
contempt citations. Condoleezza Rice gave the most straightforward
explanation of this practice when she refused to comply with a subpoena last
year. She said that she would not comply because she was "not inclined to do
so."
Impeachment is not just the power on which all the other intra-governmental
powers of the legislative branch depend. It is the central power through
which the framers of the Constitution expected the legislative branch to be
able to hold the other two branches in check. Impeachment was given to the
House as the part of our government closest to the people. Unlike almost
anything else, impeachment is mentioned in six separate places in the
Constitution. The Constitution is considerably shorter than this paper I'm
reading you today. It is a very concise document that tells us nothing about
how to run elections, that makes no mention of political parties or
primaries, that has not one word about corporations, that describes the
process of impeachment in some detail and gives it prominence and central
importance in every way. The initial discussion of the House of
Representatives in Article I Section 2 is one-sentence:
"The House of Representatives shall chuse their Speaker and other Officers
and shall have the sole Power of Impeachment."
In Article I, Section 3, the role of the Senate is discussed purely in terms
of impeachment trials, and six sentences are devoted to explaining the
process.
Article II, which covers the executive branch, has four sections, and the
fourth consists of this one sentence:
"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."
George Mason remarked that: "No point is of more importance than that the
right of impeachment should be continued. Shall any man be above Justice?
Above all shall that man be above it, who can commit the most extensive
injustice?"
That is to say, if we are going to give anyone leeway to act above the law,
the last person it should be is the person to whom we have entrusted the
greatest power.
To the extent that I've looked at the discussions of impeachment at the
Constitutional Convention and the states' ratifying conventions and in later
remarks of the founders, one thing becomes clear:
They considered impeachment of the utmost importance. They had risked their
lives in a bloody struggle to overthrow a king. The last thing they wanted
was a new one. And the fact that any new king might be voted out after four
years did not alter their insistence that what they called "an elected
despot" be subject to premature removal. Jefferson in particular, but others
as well, expected and hoped that impeachment would be used at least once a
generation. They did not believe that the threat of it would be sufficient
to hold presidents or justices in check without its routine use.
To the extent that I've looked at the history of impeachment in this country
(and I rely above all on John Nichol's book "The Genius of Impeachment"), a
few things become clear:
1. Impeachments and movements in Congress toward impeachment have in fact
been much more common than many people realize.
2. Impeachments tend to be very popular with the public, and congress
members who impeach tend to be viewed as standing up for the Constitution.
3. Impeachment movements that fall short of actual impeachment in the House
or of removal from office following a trial in the Senate have served
nonetheless to substantially restore the rule of law.
Let me give you a few examples to illustrate each of those three statements.
How common is impeachment?
The U.S. House of Representatives has initiated impeachments 62 times and
impeached 17 people, including 13 federal judges, one supreme court justice,
one secretary of war, one U.S. senator, and two presidents. Of the 17, seven
were convicted in the Senate. Articles of Impeachment have been filed
against 10 presidents: Tyler, Johnson, Cleveland, Hoover, Truman, Nixon,
Reagan, Bush, Clinton, and Bush. Two were impeached and acquitted. One
resigned, as did the secretary of war. If the Elliot Spitzer scandal on top
of the Bill Clinton impeachment gave you the idea that threats of
impeachment are only for Democrats and only for sex, you were not completely
off. More impeachments have been filed by Republicans and Whigs than by
Democrats.
Republicans moved to impeach Republican Herbert Hoover and Democrat Harry
Truman. Truman's abuses of power were very quickly reined in by the Supreme
Court, and the impeachment was dropped, but the Republicans looked good and
won the next elections. Democrats led the effort to impeach Richard Nixon,
but Republicans joined in, backed impeachment, and persuaded Nixon to
resign. Gerald Ford stepped in and ran as an incumbent but lost, and the
Democrats in Congress won the biggest victories in Congress anyone
remembers.
How popular is impeachment?
In contrast to the post-Nixon elections, when the Democratic leadership
chose not to impeach Ronald Reagan, arguing that it was more important to
win elections, they proceeded to lose the elections. When the Republicans
impeached and tried Bill Clinton against the will of a huge majority of the
public, they held both houses of Congress and took the White House, losing a
few seats in the Senate which had acquitted. Some of the impeachment leaders
won with bigger margins than they had before, and Al Gore was put on the
defensive to such an extent that he chose impeachment-advocate Joe Lieberman
as a running mate and pretended he'd never met Bill Clinton.
After the Whigs attempted to impeach Tyler, they picked up seven seats, and
Tyler left politics.
Weeks after he lobbied for Johnson's impeachment, Grant was nominated for
President.
After pushing toward impeachment for Polk, Lincoln was elected president.
Keith Ellison, who introduced a resolution to impeach Bush and Cheney into
the Minnesota state legislature in 2006, was subsequently elected to
Congress.
With Bush and Cheney in office we've seen polling companies refuse to poll
on impeachment because it's not in the news or expected to happen, at the
same time that other polling companies find a majority in support of
impeachment. Bush and Cheney have broken Nixon's and Truman's unpopularity
records, and the Congress that refuses to impeach them is even more
unpopular.
Is a failed impeachment necessarily a failure?
Not always. Nixon's resignation was a success for the rule of law. The
effort to impeach Truman led to a reigning in of his abuses. Impeachment
hearings even short of an impeachment vote in the House have a tremendous
educational and political value.
I'd like to get a gauge of who I'm talking to. Can you please raise your
hand if you consider yourself more than any other designation including
independent, to be a Democrat? A Republican? A Green? A Libertarian? An
Independent?
I suspect the show of hands from Independents would give hope to the
founders of this nation if they could see us. They tended to fear greatly
the acquisition of power by political parties, which they called factions.
They did not write political parties into the Constitution, and they did not
expect impeachment to be understood as in any way partisan. We've come so
far now, however, in the direction of the rise of Factions, that Congressman
Jerrold Nadler, a Democrat from New York who chairs the Constitution
Subcommittee of the House Judiciary Committee, says that impeachments are no
longer possible because of party loyalties. In other words, unless the
Senate suddenly becomes two-thirds Democratic in order to make possible a
conviction without a single Republican vote, Nadler won't bother to support
even an impeachment inquiry in the House, although he did so in 2006. And
nonprofit organizations routinely and mistakenly tell their members that
they cannot advocate for impeachment because their tax status won't allow
them to do partisan work. Of course we saw Republicans support the
impeachment of Nixon, and Democrats support the impeachment or conviction of
Clinton, but partisan madness today does not get distracted by mere facts.
Neither the Democratic Party nor the Republican Party supports impeachment,
but the first thing an impeachment advocate is called is partisan.
The founders of the country may be partly to blame for the rise of
partisanship. They gave us a system modeled on the old British system, not
the new one. They replaced a king with a president, but did not make the
president the leader of the majority in the legislature. Instead the
president is elected independently, and the election is winner-take-all. As
more power shifts from the Congress to the president, this fact takes on
greater importance, third parties are seen more than ever as spoilers, and
two major parties begin to demand the loyalties that properly ought to
belong to a branch of government. Most congress members today have almost no
concern for what powers the Congress maintains as against the White House,
but have extreme concern for whether the next president will be a Democrat
or a Republican. This mindset facilitates the transferring of still more
power from the legislature to the now misnamed executive, with the danger of
dictatorship on the horizon.
The weakness of our system of government is winner-take-all presidential
elections. The strength of it is the checks that each branch can impose on
the others. But without impeachment, that all falls apart. So, the question
arises: Can impeachment be taken out of the Constitution temporarily and be
restored to it?
Please raise your hand again if you are a Republican or a Libertarian or a
right-leaning independent.
Now please keep your hand up if you would like Hillary Clinton or Barack
Obama to have the power to spy without warrants, to detain without charges,
to torture, to murder, to mislead Congress and the nation into wars, to
rewrite laws, and to violate laws with no consequences?
Now please put your hand back up if you oppose impeaching Cheney and Bush.
You guys want to have your cake and eat it too, and I don't think you can.
Here's another question: Can the impeachment process be abused and then be
restored to its proper role?
Please raise your hand if you are a Democrat or a Green or a left-leaning
Independent.
Now please keep it up if you think that the Bill Clinton impeachment was
appropriate and that digging into a president's sex life is what the
founders intended Congress to work on.
Now please put your hand back up if you oppose impeaching Cheney and Bush.
You guys seem to me to be allowing one misuse of a vital tool to compel you
to never use it correctly. But you should keep one thing in mind, President
Obama, if there is a President Obama, will not last six months without
Republicans pushing for his impeachment aggressively and unapologetically.
Think about that. Think about the likelihood that a Democrat could be caught
approving torture and not end up in jail. You Democrats claim to oppose the
Republicans' agenda, yet you grant them a license to kill.
Sometimes being a Republican means never having to say you were wrong.
President Bush is on film being warned about Hurricane Katrina and on film
swearing he wasn't warned and could not possibly have been expected to
imagine such a thing was coming. Bush was warned by the CIA of possible al
Qaeda attacks a month before 9-11, took no steps to prevent them, and now
says he had no earthly way of imagining what was coming. We know that top
Iraqis, including Saddam Hussein's son-in-law filled the United States in on
the truth, but Bush tells us he had no way of possibly imagining that all
those mythical stockpiles of weapons of mass destruction didn't really
exist. Generals warned that hundreds of thousands of troops would be needed
to occupy Iraq, and economists warned that it would cost hundreds of
billions of dollars. They lost their jobs, and Bush now tells us he had no
humanly possible way of imagining that such things were true. So, somebody
ought to have told Bill Clinton. You don't go out there and say "I did not
have sex with that woman" and get yourself impeached. You go out there and
say "I had no way of imagining what might happen when she crawled under my
desk."
What exactly is an impeachable offense? Essentially it is an abuse of power.
A crime can be an impeachable offense and cannot be. And an action can be an
impeachable offense without being a crime. If the president cheats on his
taxes, that may not be impeachable. You or I could do that. It's not an
abuse of his power. But if he lies to the public about serious national
policy matters, that may be impeachable, without being a crime. Shooting
your hunting buddy in the face: not impeachable. Outing an undercover agent:
impeachable. Lying about sex is arguably not a proper impeachable offense.
Anyone can do THAT. Firing U.S. Attorneys because they won't pervert the
justice system to serve your partisan electoral interests is probably
impeachable. In the end, of course, what's impeachable is simply whatever
the House of Representatives decides is impeachable. The founders discussed
more than anything else, I think, the need to have the power of impeachment
in case a president took the nation into an unnecessary war.
When President Polk misled the nation into an aggressive war on Mexico with
the intention of stealing Mexican land, a young Republican congressman named
Abraham Lincoln challenged him. Last year, Republican Alaska Congressman Don
Young attempted on the floor of the House to quote Abraham Lincoln's opinion
on opposition to presidents' war plans. Young failed rather dramatically.
Here's his misquote of Lincoln:
"Congressmen who willfully take actions during wartime that damage morale
and undermine the military are saboteurs and should be arrested, exiled, or
hanged."
That was close. You can see how Young could have made the mistake. Here's
what Lincoln actually said:
"Allow the President to invade a neighboring nation, whenever he shall deem
it necessary to repel an invasion, and you allow him to do so, whenever he
may choose to say he deems it necessary for such purpose - and you allow him
to make war at pleasure. Study to see if you can fix any limit to his power
in this respect, after you have given him so much as you propose. If, today,
he should choose to say he thinks it necessary to invade Canada, to prevent
the British from invading us, how could you stop him? You may say to him, 'I
see no probability of the British invading us' but he will say to you 'be
silent; I see it, if you don't.' The provision of the Constitution giving
the war-making power to Congress, was dictated, as I understand it, by the
following reasons: Kings had always been involving and impoverishing their
people in wars, pretending generally, if not always, that the good of the
people was the object. This, our Convention understood to be the most
oppressive of all Kingly oppressions; and they resolved to so frame the
Constitution that no one man should hold the power of bringing this
oppression upon us."
Lincoln wrote these words while America was at war with Mexico, under the
presidency of James Polk, and while Lincoln was a member of Congress. But
Lincoln did more than talk about the fraud that had been used to launch that
illegal and imperialistic war. He introduced a resolution demanding that
Polk provide proof. Polk claimed to have launched that war only after
American blood had been shed on American soil. Lincoln's resolution required
Polk to identify the spot where that blood had been shed.
"Let him answer fully, fairly, and candidly," Lincoln said of the wartime
President. "Let him answer with facts and not with arguments. Let him
attempt no evasion, no equivocation."
When President Polk did not answer, Lincoln and John Quincy Adams sought a
formal investigation of the president's pre-war intelligence claims, and of
his use of secret funds to launch his fraudulent and illegal war. Under this
pressure, Polk announced that he would not seek reelection. Lincoln, Adams,
and their allies in Congress then passed a resolution honoring the service
of Major General Zachary Taylor "in a war unnecessarily and
unconstitutionally begun by the President of the United States."
Which brings us to the question of exactly what Bush's and Cheney's
impeachable offenses are. An exhaustive list would take us all day, so I'll
give you my top 12 for the president and my top 12 for his boss.
And by the way, the founders intentionally chose a single executive, not a
pair, not a triumvirate, not a council, in order to hold that one person
responsible for the executive branch. The Cheney co-presidency and groups
like the secret energy task force deny us the ability to know who the
decider is, but under our Constitution it really is Bush, regardless of what
you may think of his mental abilities.
BUSH:
1. Refusal to comply with subpoenas (not disputable, and passed by the
Judiciary Committee against Nixon)
2. Routine violation of numerous laws, preceded by announcement of intention
to do so in signing statements (White House website and GAO studies)
3. Violating U.S. law and the Constitution through widespread wiretapping of
the phone calls and emails of Americans without a warrant. (Confessed to.)
4. Commuting the sentence of I Lewis Scooter Libby.
5. Violating the United Nations Charter by launching an illegal "War of
Aggression" against Iraq without cause, using fraud to sell the war to
Congress and the public, and misusing government funds to begin bombing
without Congressional authorization.
6. Violating U.S. and international law by authorizing the torture of
thousands of captives, resulting in dozens of deaths, and keeping prisoners
hidden from the International Committee of the Red Cross.
7. Violating the Constitution by arbitrarily detaining Americans, legal
residents, and non-Americans, without due process, without charge, and
without access to counsel.
8. Violating the Geneva Conventions by targeting civilians, journalists,
hospitals, and ambulances, and using illegal weapons, including white
phosphorous, depleted uranium, and a new type of napalm.
9. Violating U.S. law by using paid propaganda and disinformation,
selectively and misleadingly leaking classified information, and exposing
for political retribution the identity of a covert CIA operative working on
sensitive WMD proliferation.
10. Violating U.S. and state law by obstructing honest elections in 2000,
2002, 2004, and 2006.
11. Gross negligence in failing to assist New Orleans residents after
Hurricane Katrina.
12. (This one is happening right now.) Negotiating with the president of
Iraq an agreement of a sort that heretofore has always been called a treaty,
but doing so without the constitutionally required advice and consent of the
US Senate, or for that matter the Iraqi Parliament. The power to negotiate
such treaties would logically include the power to negotiate the same sort
of treaty in reverse: that is to say, an agreement to station Iraqi troops
in the United States with the license to kill Americans with impunity.
CHENEY:
1. Refusal to comply with subpoenas.
2. Creating and advocating the "Unitary Executive Theory" which is used by
the White House to defy laws duly enacted by Congress and thereby justify
dictatorial action. Cheney's office has drafted many if not all of the
signing statements.
3. Cheney played a key role in setting up illegal spying programs.
4. Coordinating campaign to obstruct the investigation conducted by Patrick
Fitzgerald.
5. Coordinating a campaign of retribution against whistleblower Joseph
Wilson, including the outing of a covert CIA operative.
6. Leading efforts to institute routine use of torture.
7. Leading campaign to manipulate pre-war intelligence.
8. Creating a secret Energy Task Force which operated in defiance of
open-government laws.
9. Directing massive no-bid contracts to his company, Halliburton, and
profiting from the same illegal war he defrauded the American public to
launch.
10-12. The charges found in H Res 333, also known as H Res 799.
For some of these impeachable offenses, the evidence is not even disputable.
They simply have refused to comply with subpoenas, for example. The subpoena
that Nixon refused to comply with was part of an impeachment investigation,
but the equivalent could be generated in a week by simply opening an
impeachment hearing and subpoenaing testimony or evidence from Bush or
Cheney.
The signing statements, for example, are completely public. And while
Congress should impeach regardless of its own level of complicity in the
offenses being addressed, there are plenty of offenses like refusing
subpoenas and releasing signing statements that Congress is not complicit in
at all.
Violations of FISA and the 4th Amendment are not in dispute. Bush is on
videotape lying about the warrantless spying programs for years. He's also
on videotape openly confessing to violating FISA. John Dean, Nixon's lawyer,
calls Bush the first president to confess to an impeachable offense.
Have Bush and Cheney threatened an aggressive war on Iran? They're both on
videotape doing so. Cheney has done so from a ship off the coast of Iran.
Remember that in the 1950s our CIA overthrew Iran's democracy and installed
a dictator. We have labeled Iran evil and criminal. We have invaded and
occupied the nations to its east and west (Afghanistan and Iraq). So threats
to Iran are taken seriously by the Iranians. If anything could drive Iran
further toward dictatorship it would be an attack by the United States.
Was Bush criminally negligent during Hurricane Katrina? He's on videotape
being warned of the danger. He's on videotape claiming he was never warned.
Have Bush and Cheney used unlawful detentions and torture? The Supreme Court
in Rosul v. George W. Bush ruled detainees were being wrongfully imprisoned
at Guantanamo Bay Detention Center in Cuba. The Bush Administration's
detainment policies and actions were ruled unconstitutional and illegal - in
violation of Amendments V, VI &VII. The use of torture, legally justified by
Attorney General Alberto Gonzales and thus condoned by President Bush and
Vice President Cheney is an additional violation to the 8th Amendment. The
Supreme Court again in Hamdan v. Donald Rumsfeld, George W. Bush, et al.
ruled that the Military Commissions instituted by the Bush Administration
violate the Universal Code of Military Justice and the Geneva Conventions to
which we are bound by American law. Again, the Bush Administration's actions
were found by the highest court of the land to be illegal and
unconstitutional - violating Amendments V, VI, VII . Bush and Cheney and
their staffs have defended these policies on video and in writing. The
practice of detaining without charge and the numerous victims of it are
undisputed public knowledge. Evidence of torture is voluminous and
indisputable and includes public photographs. Bush's signature is on a
February 2002 authorization to torture.
Bush openly admits it, but claims that certain torture techniques are not
torture, techniques like waterboarding for which Americans have gone to
prison, for which Americans have prosecuted Japanese as war criminals,
techniques our founders hoped to leave behind in England through the Eighth
Amendment.
Did Bush and Cheney intentionally mislead the Congress and the public into
the invasion and occupation of Iraq? They are on videotape doing so, and the
evidence that they knew exactly what they were doing is overwhelming and has
been collected on my website at http://afterdowningstreet.org/keydocuments
[1]
Impeachment hearings could be dragged out for as long as desired, or could
be over and done with in an hour. No new information is needed.
Ah, but isn't it too late for impeachment?
It is never too late to establish that future presidents and vice presidents
will be required to obey laws and the Constitution.
It is far from too late to try to prevent the damage Bush and Cheney can
still do in the next 9.5 months, which DO exist.
There is nothing else for Congress to do that impeachment could distract
from. All good bills are vetoed and all partially good bills are signing
statemented.
Impeachment in this case could be very quick because of the overwhelming
evidence.
If your preference is to focus on the next election, think about how that
election would look were John McCain forced to choose between the
Constitution and Dick Cheney.
Most impeachments happen late. The movements to impeach Truman and Hoover,
and the impeachment of Johnson, happened later than where we are now.
Most impeachment movements achieve useful results in restoring the rule of
law without getting all the way to impeachment, much less removal from
office.
If there is time for endless hours of grilling steroid-popping baseball
players, there is time for impeachment.
If Congress is sincere about wanting Bush and Cheney to obey its laws and
comply with its subpoenas it will impeach. If it does not impeach, it is not
sincere, and no non-impeachment investigations will get anywhere.
But isn't this all beside the point when we should not dare to impeach a
president during a time of war? No, I side with the last great Republican
president on this one: Abraham Lincoln. When a president takes us into an
unnecessary war, and people are dying for no good reason, that is the most
important time to challenge the president. And this current so-called war,
we are told, will last for decades or forever. If announcing eternal war
provides immunity from impeachment, can you guess what percentage of
presidents will make that announcement? James Madison saw war as the tool
through which a president might seize inappropriate powers. "War," he said,
"is the true wet-nurse of executive aggrandizement."
Remember, we are borrowing from China to spend our grandchildren's
hard-earned pay to fund an illegal occupation of a distant land, an
operation that our own intelligence agencies say is boosting terrorist
recruitment, an operation opposed by about 80 percent of Americans, 90
percent of Iraqis, and 70 percent of active-duty US troops. If we can't
challenge THAT, what can we challenge?
Well then, you might ask, isn't it more important to end the occupation, the
so-called war?
Ending the war is a task that could best be accomplished by inaction, by
Congress refusing to provide any more funding. Or it could be accomplished
by a bill created by one committee. It is not a full-time task for the
entire Congress.
However, this Congress has already demonstrated that it has no intention of
ending the war. Pelosi has sworn that cutting off the funding is "off the
table."
What could help move Congress would be the same thing that helped a previous
Congress find the nerve to finally cut off the funding for the Vietnam War
(once the troops were already home) and convinced Nixon not to veto the
cut-off in funding: impeachment. In this case, even more so than Nixon's,
impeachment would drive the war debate in the right direction, because
impeachment would be for offenses either directly connected to the war or
offenses that have been justified by "war on terror" propaganda.
In addition, should Congress actually cut off the funding and end the war,
it is very likely that Bush and Cheney would misappropriate funds from the
Pentagon to keep the occupation going. They did so in order to secretly
begin the war, and they have never been held accountable for it. So,
removing them from office is not only needed in order to give Congress the
nerve to end the war, but is also needed if the war is to actually end.
Won't impeachment take up too much time and distract from other goals?
Nixon's impeachment took three months. Clinton's impeachment and trial
combined took four months. The current Congress has wasted more than that
amount of time already in avoiding impeachment, and has almost nothing to
show for it (a minimal partial and gradual correction to the plummeting
minimum wage). Congress has taken no serious steps toward ending the
occupation of Iraq, and has in fact provided major new funding for it.
During Nixon's impeachment and the lead up to it, in contrast, the threat of
impeachment allowed Congress to raise the minimum wage, create the
Endangered Species Act, and end a war.
Important as stem cell research and immigration policy may be, when did the
Bill of Rights become a distraction? What is more important than restoring
the right to not be spied on, to not be picked up without charge and locked
away to be tortured with no access to a lawyer, a trial, or your family, not
to be sent into an aggressive war for greed and power? Of course, there are
many pressing areas in which we need to pass legislation. But all good bills
and vetoed, all mixed bills are signing-statemented, and all horrendous
bills become law. There is nothing for impeachment to distract from.
Impeachment is the one action that cannot be vetoed.
Why not just wait for the next election?
The authors of our Constitution established the schedule for elections, but
devoted a lot more attention to the mechanism of impeachment as a check on
elected despotism in between elections. They had recently thrown off a king
and had no interest in electing temporary kings every four years. Neither
should we.
Bush and Cheney can still do a great deal of damage before the end of their
term. People are dying every day as a result of their policies. There is an
urgent need to remove them from office in order to end the brutal occupation
of Iraq and prevent an attack on Iran.
But we would need to impeach them were this January 2009 or had they already
left office. The purpose of impeachment is to set standards for future
administrations. We cannot give the powers assumed by this administration
(to mislead the Congress and the public into wars, spy in violation of the
law, detain without charge, torture, operate in secrecy, and rewrite laws
with signing statements) to future presidents and vice presidents without
expecting similar or worse abuses.
In a December 31, 2007, editorial, the New York Times faulted the current
president and vice president of the United States for kidnapping innocent
people, denying justice to prisoners, torturing, murdering, circumventing
U.S. and international law, spying in violation of the Fourth Amendment, and
basing their actions on "imperial fantasies."
Um, thanks for finally noticing. What would you suggest we do about it?
"We can only hope," concludes the New York Times, quite disempoweringly,
"that this time, unlike 2004, American voters will have the wisdom to grant
the awesome powers of the presidency to someone who has the integrity,
principle, and decency to use them honorably. Then when we look in the
mirror as a nation, we will see, once again, the reflection of the United
States of America."
But here's the problem (other than the pretended certainty that Bush won the
2004 election):
The United States of America, as established by its Constitution, simply
does not have a presidency with awesome powers. And the powers that Bush and
Cheney have newly bestowed on the presidency, unchallenged by Congress or
the media, are not powers that any human being can be expected to use with
decency.
Now, it is possible to make a serious argument that impeachment is difficult
and the election is almost certain, so we ought to put our energies into
getting the best possible new president and then insisting on reforms and
reversals of policy. But, remember, this strategy failed when the Democrats
used it in letting Reagan off the hook. And, imagine the landslide Obama
could win if the House Judiciary Committee were holding impeachment hearings
on all the worst topics for John McCain, starting with torture and signing
statements! Personally, I'm far more concerned with imposing the rule of law
on the next president than on who that president is, but most Democrats
think differently. They think about John McCain all the time, but they don't
seem to think about how to put him on the defensive.
Why would we want a President Cheney? Or why would we want a new Republican
who could run as an incumbent? Or why would we want a President Pelosi?
I propose impeaching Cheney first or together with Bush. The first Articles
of Impeachment to be introduced (H Res 333) (not counting Rep. Cynthia
McKinney's articles introduced the last day of the previous Congress) are
addressed only to Cheney. Impeaching Cheney first ought to put the fear of a
President Cheney to rest. But there remains the possibility of fearing his
replacement or even of not wanting Nancy Pelosi to be president or not
wanting her to become president in this way. She won't. We will never
succeed in removing Bush and Cheney from office simultaneously and by
surprise. We will remove them, but they will be replaced by a new President
Ford, who will operate within the rule of law and lose the next election.
But this whole discussion misses the point. The question of who holds which
office for the next year or six months, as well as the question of who wins
the next election, is of very minor importance in comparison with the
question of whether future administrations will be compelled to operate
within the limitations of the law. If we do not impeach Cheney and Bush, we
will establish that it is permitted for future presidents and vice
presidents to mislead the Congress and the public into wars, spy in
violation of the law, detain without charge, torture, operate in secrecy,
and rewrite laws with signing statements. Those powers in the wrong hands
could do far more serious damage than Bush and Cheney have done.
So, if we keep this in perspective, the fear of Cheney appears trivial. It
appears even more so when we consider that impeachment and removal from
office are two separate steps and that we're only working on the first one
so far, and when we recognize the extent to which Cheney has been running
the country already for years. Were Cheney officially president, most
policies would remain unchanged, but the public face of the White House and
of the Republican party would be that of a man whose approval rating has
been unable to top 20 percent. The Republicans will never allow this, so it
would be rather foolish for the Democrats to retreat out of fear of it.
Whoever is president next will have to operate under fear of being impeached
next. That is the point of impeachment. In the case of Cheney, he would be
operating under the high probability of being impeached. No serious
discussion of the evidence can incriminate Bush or Cheney but not the other.
And, in any event, we will be impeaching Cheney first.
Wouldn't impeachment split the Democrats? That's a question that some find
important.
Impeachment is splitting Democrats now, but wouldn't if they united behind
it. At least 80 percent of Democrats outside Capitol Hill want impeachment.
If 80 percent of Democratic elected representatives were pushing for
impeachment, the Bush presidency would be over quite quickly. The Democrats
in Congress tried to avoid the topic of the war, for fear it would split
them. Iraq went unmentioned in Pelosi's plan for her first 100 hours. But
the majority of the country wants to see the issues it cares about dealt
with, and there are some Democrats who will stand with the people. The
Democratic Party could unite by supporting peace and impeachment.
Why not do investigations and see where they lead?
They have led to the Bush administration refusing to comply with a growing
list of subpoenas: http://democrats.com/subpoenas [2] . The House Judiciary
Committee passed three articles of impeachment against Nixon. Article 3 was
for refusal to comply with subpoenas.
And they've led to Bush ordering a former staffer not to comply with
subpoenas, and to Bush announcing that the Justice Department will not
enforce congressional contempt citations. Where do you go from there, other
than impeachment?
Impeachment is an investigation, leading to an indictment. A preliminary
investigation is not possible when subpoenas are ignored, and is not needed
when indisputable evidence is already public knowledge.
Isn't impeachment an extreme remedy? Doesn't there have to be an actual
crime committed? Doesn't there have to be perjury?
There's nothing extreme about it. One of the better lists of the specific
criminal violations is found in Congressman John Conyers' report:
http://www.afterdowningstreet.org/downloads/crisis/summary.pdf [3]
This report is also a book. Yes, the chairman of the House Judiciary
Committee is selling books on Bush and Cheney's impeachable offenses while
refusing to impeach them.
Impeachment is the penalty for treason, bribery, or other high crimes and
misdemeanors. The Constitution says nothing about perjury as a ground for
impeachment. And it is a crime to mislead or to defraud Congress, whether or
not you do so under oath.
When Diane Sawyer asked Bush on television why he had made the claims he had
about Iraq's supposed weapons of mass destruction, he replied:
"What's the difference? The possibility that [Saddam] could acquire weapons,
if he were to acquire weapons, he would be the danger."
What's the difference? The difference is that had the President merely said
that Saddam Hussein could conceivably acquire weapons someday, many people
would have opposed his war who supported it. They supported it because Bush
said that Saddam had nuclear, chemical, and biological weapons and was
behind the attacks of 9-11. Bush and his subordinates (for whom he is
legally responsible) made these claims in the clearest language. In every
such case, fraud was committed. And instances of implying and omitting are
legally fraud as much as lying is.
When Bush lies, he is well aware of what he is doing. The day after the 2004
elections, he told reporters that he had lied to them about keeping Rumsfeld
on as Secretary of Defense so that they wouldn't write anything about it.
It is illegal to spy in violation of the Foreign Intelligence Surveillance
Act. It is illegal to detain without charge and to torture. It is illegal to
take funds from other projects to begin a war before it has been authorized.
It is illegal to target civilians and hospitals and journalists, and to use
white phosphorous and napalm as weapons. It is a fundamental violation of
the U.S. Constitution to alter laws with signing statements. Congressman
John Conyers' report lists numerous other laws violated by Bush.
Isn't impeachment divisive and unpleasant and traumatic and catastrophic and
unsettling and partisan?
No. Impeachment is a remedy for trauma, and one that the majority of
Americans long for. Here are the polls:
http://www.afterdowningstreet.org/polling [4]
As my friend John Nichols says, impeachment is only a constitutional crisis
if aspirin is a headache crisis.
Our President belongs to a political party, it's true. But that does not
make him any less of a threat to our system of government. Voters in 2006
rejected his party overwhelmingly. Not a single new Republican was elected,
and enough new Democrats won to achieve a substantial majority in the House
and a slim one in the Senate. Voters opposed the party of Bush and Cheney,
who are incredibly unpopular. Even some Republicans who spoke against the
war lost, primarily because they were Republicans. But Republican Ron Paul
of Texas, who had spoken in support of impeaching Bush, won.
If Paul and other Republicans manage to put their country ahead of their
party's president, as Republicans did during Nixon's presidency, impeachment
will not look so partisan. But if Republicans fail to stand for impeachment,
then Democrats must do it alone, and doing so will be partisan in the best
sense. It will build the Democratic Party into a powerful force for years to
come, and it will be divisive primarily on Capitol Hill and in the world of
media pundits.
Around the country it will bring us together. Hearings that expose Bush and
Cheney's abuses of power will serve to educate many of those who still
support them, including those who believe there really were WMDs, there
really was a tie to 9-11, Bush was honestly mistaken but meant well, illegal
spying is saving us from terrorists, nobody has been tortured, and a signing
statement is just something a deaf person tells you with his hands.
Wouldn't impeachment be depicted as revenge and attacked on TV?
Probably. But would you believe that depiction? Do you think everyone else
is dumber than you are and would fall for it? The coverage thus far of the
initial push for impeachment in Congress does not depict it as revenge.
How did we get where we are? From the publication of the Downing Street
Minutes in May 2005 to May 2006, Democrats in Congress, led by John Conyers,
behaved as though they would impeach if we gave them a majority. But in May
2006, the Republican National Committee announced, based on no evidence and
contrary to all evidence, that talking about impeachment would benefit
Republicans in the 2006 elections. Of course it didn't, but within a few
days of the RNC's statement, Speaker-to-be Nancy Pelosi obediently announced
that impeachment was off the table. And Conyers has since then obeyed
Pelosi.
Dozens of congress members have pushed back, led by Dennis Kucinich and
Robert Wexler. And we may very well yet succeed.
For what you can do to help, go to http://impeachcheney.org [5]
To join a public event near you this month or create one, go to
http://iraqtownhalls.com [6]
Join the many places that have passed resolutions urging impeachment or
committing to arrest Bush and Cheney should they set foot in a given town:
http://afterdowningstreet.org/resolutions-list [7]
The state legislature in New Hampshire will vote on April 16th on a
resolution to petition Congress to impeach Bush and Cheney.
Without impeachment, what is the best possible scenario? Presidents with
complete integrity for a number of terms, and then a real dictator who
chooses to seize on the Bush-Cheney precedents.
Urgency comes from Iraq, Iran, and global warming.
Also from the erosion of the rule of law and of our Bill of Rights. The
First Amendment has been locked up in a chain-link Free Speech Zone. The
Fourth Amendment is under warrantless surveillance and scared for its life.
The Fifth, Sixth, and Seventh Amendments have been detained without charge.
And the Eighth Amendment is presently undergoing waterboarding. Restoring
our Bill of Rights would be a positive step, not personal, not revenge, not
punishment, not backward looking.
Ben Franklin said: "Those who would give up Essential Liberty to purchase a
little Temporary Safety, deserve neither Liberty nor Safety."
When asked what sort of a government the Constitutional Convention had
created, Franklin said: "A Republic if you can keep it."
Let's keep it.
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson
By David Swanson
Created Apr 15 2008 - 9:56am
Presented at George Mason University on April 14, 2008
Dedicated to Betty Hall and the New Hampshire State Legislature.
John Adams, who was later the second president of the United States, wrote
some words in the Constitution of Massachusetts that have been quoted
approvingly by the U.S. Supreme Court and every state supreme court in the
United States. He described a separation of powers among three branches of
government and said that this would be done
"to the end it may be a government of laws and not of men."
Thomas Paine in his "Common Sense" pamphlets that helped launch the American
war for independence, wrote that
"so far as we approve of monarchy, ... in America THE LAW IS KING. For as in
absolute governments the King is law, so in free countries the law OUGHT to
be King; and there ought to be no other."
I raise this point in order to suggest that the question of whether the US
Constitution requires impeaching Bush and Cheney is not an academic one and
is very closely tied to the straightforward question of whether we should
impeach Bush and Cheney. The Constitution is the highest law of this land.
If it requires that something be done, then a failure to do it amounts to
moving the country in the direction of lawlessness, and possibly in the
direction of the rule of men and women, not of laws.
This is the case unless, of course, we amend the Constitution to fit our
chosen behavior. The Constitution is not infallible. There are sections of
the original text that I'm pleased have been removed through the amendment
process. There are other sections that I think should be changed, things
that should be added that are not there, etc. But there is a great danger in
sidestepping the democratic process of amending the law and proceeding to
simply violate it.
There are cases in which we do that. For example, for over 50 years the
United States has fought wars without Congress ever declaring war, as
required by the Constitution. But these are policies that should, in fact,
be reversed and be brought back under the rule of law. If you believe a
president should have the power to declare wars, then you should work to
amend the Constitution to provide that power. Otherwise some president you
disapprove of may decide to grant him or herself the power to do something
else not found in the Constitution, and it may be something you don't like,
but there won't be much you can say about it.
The Constitution, of course, gives the three branches of the national
government different powers, and provides each with checks on abuses of
power by the others.
The president is to execute the laws created by Congress. He, or she, serves
as commander in chief of the military. He can pardon crimes (but not
impeachments). If he consults with and gets the support of the Senate, the
president can negotiate treaties and appoint officials, ambassadors, and
judges. That's about it. There is no constitutional presidential power to
write or alter or violate laws, to act in secret, to abridge the judicial
system, to violate the Bill of Rights, to violate existing treaties, to
build an empire, or to launch a war. Oh, and the Vice President under the
Constitution has no particular powers at all, other than serving as the
president of the Senate, where he or she only gets to vote if there's a tie.
In contrast, the legislative branch of our government, historically and even
today in the version students are still taught in schools, has much greater
power. The Congress, to which the first half of the entire Constitution is
devoted, has the exclusive power to enact laws. Congress also has the sole
power to raise and spend money. It has the power to declare war and to fund
and oversee the military. It has the power to regulate international and
interstate trade. Congress handles immigration, bankruptcies, the printing
and valuing of money, the post offices, copyrights. Congress has the power
to "constitute tribunals inferior to the supreme court," and "to define and
punish piracies and felonies committed on the high seas, and offenses
against the law of nations." But the first power that the Constitution
grants the House of Representatives is the power of impeachment. The first
power it grants the Senate is the power to try all impeachments.
In school we learn about the "Separation of Powers" and about something
called "Checks and Balances." Our three branches of government are supposed
to be separately elected, none of them created by any other. The Supreme
Court is constituted by both the executive and legislative branches, not one
alone. And the power to run the nation is supposed to be divided. Congress
has certain powers. The courts have other powers. The president has others.
Congress, as the most powerful branch, is further divided into two houses
with somewhat separate powers. It's important to understand that Congress is
more powerful than the other branches, which is one reason the phrases
"balance of power" and "checks and balances" can be misleading. There is not
supposed to be anything evenly balanced about it.
Under the U.S. system, the executive branch is understood to have the
following checks on legislative power, and it still has them, plus some:
1. The veto. Bush does still have this power, but it is overshadowed by his
newly created signing-statement power. No longer must he choose between
signing a bill and vetoing it. Now, he can choose to sign it and rewrite it.
While signing statements are not new, this use of them is, and twice studies
by the GAO have found that in a significant percentage of cases the laws
Bush announces the power to violate he has proceeded to violate.
2. Commanding the military. Bush does still have this power, but he has
added to it the power to declare war in violation of Article I of the
Constitution and in violation of the UN Charter which under Article VI is
the law of the land, plus the power to misappropriate funds for wars that
were not approved for them, and the power to take state militias (also known
as the National Guard) away from the states to join the US military in
fighting foreign wars.
3. The vice president's vote in the Senate. He does still have this power.
4. Recess appointments. Bush makes use of this power.
5. Calling Congress into session in emergencies and determining adjournments
when the two houses cannot agree. This is less relevant now that Congress
hardly ever goes home.
And the President is understood to have these checks on the judicial branch,
which he indeed still has:
1. Appointing judges. Bush still has this power.
2. Pardoning convicts. Bush still has this power. He has even commuted the
sentence of a White House staffer convicted of obstructing justice in a case
Bush himself is involved in (an act that James Madison and George Mason
deemed an impeachable offense). Bush also has taken unto himself the power
to order former staffers to obstruct justice, the power to refuse subpoenas,
and the power to refuse to testify under oath or without the vice president
at his side.
The executive branch also has a check on itself. The vice president and
cabinet can vote that the president is unable to discharge his duties.
The judicial branch has an important check on Congress and the president in
that it can rule laws to be unconstitutional. The chief justice of the
supreme court also serves as president of the Senate during a presidential
impeachment. But that power depends on the House of Representatives first
impeaching.
The legislative branch is supposed to have an array of checks on the
president and vice president, including various minor powers of oversight.
Congress can override a presidential veto, but that power is rendered
meaningless by the new presidential power of the signing statement. The
Senate has the power to approve or reject appointments and treaties. Both
houses of Congress can approve or reject a new vice president, but that
power depends on removing the current one.
Congress has the power to put a halt to any activity of the executive branch
by defunding it, but the current president has misappropriated funds to
engage in activities never approved by Congress, such as the secret initial
steps in the invasion of Iraq or the secret warrantless spying programs, as
well as activities for which Congress has banned the use of funds, such as
the construction of permanent military bases in Iraq. (In the president's
defense he says the bases are not permanent, but only enduring, but no one
has successfully explained what that means or how it gets around the
language in the various congressional bans signed into law by Bush.) The
Democrats in Congress claim to oppose continuing the occupation of Iraq, but
they're about to throw another $102 billion at it. They will do so, (unless
the public rises up and stops them), in part out of fear of the media
calling them silly names, but in part out of fear of Bush misappropriating
funds and continuing the occupation anyway. In that situation, they would be
obliged to impeach the president or look even more foolish than usual. Last
September during General David Petraeus's first round of testimony,
Congressman Brad Sherman asked him what he would do if Congress stopped
funding the occupation and Bush ordered him to continue it anyway. Petraeus
said he could not answer without checking with his lawyer.
Congress has the power to request or subpoena witnesses or documents, to
file Freedom of Information Act requests, and to issue contempt citations to
desired witnesses who fail to comply with subpoenas. But those are all
powers that evaporate if the power of impeachment is removed. In the current
Congress, the Speaker of the House has promised never to impeach. As a
result, the executive branch simply ignores FOIA requests, subpoenas, and
contempt citations. Condoleezza Rice gave the most straightforward
explanation of this practice when she refused to comply with a subpoena last
year. She said that she would not comply because she was "not inclined to do
so."
Impeachment is not just the power on which all the other intra-governmental
powers of the legislative branch depend. It is the central power through
which the framers of the Constitution expected the legislative branch to be
able to hold the other two branches in check. Impeachment was given to the
House as the part of our government closest to the people. Unlike almost
anything else, impeachment is mentioned in six separate places in the
Constitution. The Constitution is considerably shorter than this paper I'm
reading you today. It is a very concise document that tells us nothing about
how to run elections, that makes no mention of political parties or
primaries, that has not one word about corporations, that describes the
process of impeachment in some detail and gives it prominence and central
importance in every way. The initial discussion of the House of
Representatives in Article I Section 2 is one-sentence:
"The House of Representatives shall chuse their Speaker and other Officers
and shall have the sole Power of Impeachment."
In Article I, Section 3, the role of the Senate is discussed purely in terms
of impeachment trials, and six sentences are devoted to explaining the
process.
Article II, which covers the executive branch, has four sections, and the
fourth consists of this one sentence:
"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."
George Mason remarked that: "No point is of more importance than that the
right of impeachment should be continued. Shall any man be above Justice?
Above all shall that man be above it, who can commit the most extensive
injustice?"
That is to say, if we are going to give anyone leeway to act above the law,
the last person it should be is the person to whom we have entrusted the
greatest power.
To the extent that I've looked at the discussions of impeachment at the
Constitutional Convention and the states' ratifying conventions and in later
remarks of the founders, one thing becomes clear:
They considered impeachment of the utmost importance. They had risked their
lives in a bloody struggle to overthrow a king. The last thing they wanted
was a new one. And the fact that any new king might be voted out after four
years did not alter their insistence that what they called "an elected
despot" be subject to premature removal. Jefferson in particular, but others
as well, expected and hoped that impeachment would be used at least once a
generation. They did not believe that the threat of it would be sufficient
to hold presidents or justices in check without its routine use.
To the extent that I've looked at the history of impeachment in this country
(and I rely above all on John Nichol's book "The Genius of Impeachment"), a
few things become clear:
1. Impeachments and movements in Congress toward impeachment have in fact
been much more common than many people realize.
2. Impeachments tend to be very popular with the public, and congress
members who impeach tend to be viewed as standing up for the Constitution.
3. Impeachment movements that fall short of actual impeachment in the House
or of removal from office following a trial in the Senate have served
nonetheless to substantially restore the rule of law.
Let me give you a few examples to illustrate each of those three statements.
How common is impeachment?
The U.S. House of Representatives has initiated impeachments 62 times and
impeached 17 people, including 13 federal judges, one supreme court justice,
one secretary of war, one U.S. senator, and two presidents. Of the 17, seven
were convicted in the Senate. Articles of Impeachment have been filed
against 10 presidents: Tyler, Johnson, Cleveland, Hoover, Truman, Nixon,
Reagan, Bush, Clinton, and Bush. Two were impeached and acquitted. One
resigned, as did the secretary of war. If the Elliot Spitzer scandal on top
of the Bill Clinton impeachment gave you the idea that threats of
impeachment are only for Democrats and only for sex, you were not completely
off. More impeachments have been filed by Republicans and Whigs than by
Democrats.
Republicans moved to impeach Republican Herbert Hoover and Democrat Harry
Truman. Truman's abuses of power were very quickly reined in by the Supreme
Court, and the impeachment was dropped, but the Republicans looked good and
won the next elections. Democrats led the effort to impeach Richard Nixon,
but Republicans joined in, backed impeachment, and persuaded Nixon to
resign. Gerald Ford stepped in and ran as an incumbent but lost, and the
Democrats in Congress won the biggest victories in Congress anyone
remembers.
How popular is impeachment?
In contrast to the post-Nixon elections, when the Democratic leadership
chose not to impeach Ronald Reagan, arguing that it was more important to
win elections, they proceeded to lose the elections. When the Republicans
impeached and tried Bill Clinton against the will of a huge majority of the
public, they held both houses of Congress and took the White House, losing a
few seats in the Senate which had acquitted. Some of the impeachment leaders
won with bigger margins than they had before, and Al Gore was put on the
defensive to such an extent that he chose impeachment-advocate Joe Lieberman
as a running mate and pretended he'd never met Bill Clinton.
After the Whigs attempted to impeach Tyler, they picked up seven seats, and
Tyler left politics.
Weeks after he lobbied for Johnson's impeachment, Grant was nominated for
President.
After pushing toward impeachment for Polk, Lincoln was elected president.
Keith Ellison, who introduced a resolution to impeach Bush and Cheney into
the Minnesota state legislature in 2006, was subsequently elected to
Congress.
With Bush and Cheney in office we've seen polling companies refuse to poll
on impeachment because it's not in the news or expected to happen, at the
same time that other polling companies find a majority in support of
impeachment. Bush and Cheney have broken Nixon's and Truman's unpopularity
records, and the Congress that refuses to impeach them is even more
unpopular.
Is a failed impeachment necessarily a failure?
Not always. Nixon's resignation was a success for the rule of law. The
effort to impeach Truman led to a reigning in of his abuses. Impeachment
hearings even short of an impeachment vote in the House have a tremendous
educational and political value.
I'd like to get a gauge of who I'm talking to. Can you please raise your
hand if you consider yourself more than any other designation including
independent, to be a Democrat? A Republican? A Green? A Libertarian? An
Independent?
I suspect the show of hands from Independents would give hope to the
founders of this nation if they could see us. They tended to fear greatly
the acquisition of power by political parties, which they called factions.
They did not write political parties into the Constitution, and they did not
expect impeachment to be understood as in any way partisan. We've come so
far now, however, in the direction of the rise of Factions, that Congressman
Jerrold Nadler, a Democrat from New York who chairs the Constitution
Subcommittee of the House Judiciary Committee, says that impeachments are no
longer possible because of party loyalties. In other words, unless the
Senate suddenly becomes two-thirds Democratic in order to make possible a
conviction without a single Republican vote, Nadler won't bother to support
even an impeachment inquiry in the House, although he did so in 2006. And
nonprofit organizations routinely and mistakenly tell their members that
they cannot advocate for impeachment because their tax status won't allow
them to do partisan work. Of course we saw Republicans support the
impeachment of Nixon, and Democrats support the impeachment or conviction of
Clinton, but partisan madness today does not get distracted by mere facts.
Neither the Democratic Party nor the Republican Party supports impeachment,
but the first thing an impeachment advocate is called is partisan.
The founders of the country may be partly to blame for the rise of
partisanship. They gave us a system modeled on the old British system, not
the new one. They replaced a king with a president, but did not make the
president the leader of the majority in the legislature. Instead the
president is elected independently, and the election is winner-take-all. As
more power shifts from the Congress to the president, this fact takes on
greater importance, third parties are seen more than ever as spoilers, and
two major parties begin to demand the loyalties that properly ought to
belong to a branch of government. Most congress members today have almost no
concern for what powers the Congress maintains as against the White House,
but have extreme concern for whether the next president will be a Democrat
or a Republican. This mindset facilitates the transferring of still more
power from the legislature to the now misnamed executive, with the danger of
dictatorship on the horizon.
The weakness of our system of government is winner-take-all presidential
elections. The strength of it is the checks that each branch can impose on
the others. But without impeachment, that all falls apart. So, the question
arises: Can impeachment be taken out of the Constitution temporarily and be
restored to it?
Please raise your hand again if you are a Republican or a Libertarian or a
right-leaning independent.
Now please keep your hand up if you would like Hillary Clinton or Barack
Obama to have the power to spy without warrants, to detain without charges,
to torture, to murder, to mislead Congress and the nation into wars, to
rewrite laws, and to violate laws with no consequences?
Now please put your hand back up if you oppose impeaching Cheney and Bush.
You guys want to have your cake and eat it too, and I don't think you can.
Here's another question: Can the impeachment process be abused and then be
restored to its proper role?
Please raise your hand if you are a Democrat or a Green or a left-leaning
Independent.
Now please keep it up if you think that the Bill Clinton impeachment was
appropriate and that digging into a president's sex life is what the
founders intended Congress to work on.
Now please put your hand back up if you oppose impeaching Cheney and Bush.
You guys seem to me to be allowing one misuse of a vital tool to compel you
to never use it correctly. But you should keep one thing in mind, President
Obama, if there is a President Obama, will not last six months without
Republicans pushing for his impeachment aggressively and unapologetically.
Think about that. Think about the likelihood that a Democrat could be caught
approving torture and not end up in jail. You Democrats claim to oppose the
Republicans' agenda, yet you grant them a license to kill.
Sometimes being a Republican means never having to say you were wrong.
President Bush is on film being warned about Hurricane Katrina and on film
swearing he wasn't warned and could not possibly have been expected to
imagine such a thing was coming. Bush was warned by the CIA of possible al
Qaeda attacks a month before 9-11, took no steps to prevent them, and now
says he had no earthly way of imagining what was coming. We know that top
Iraqis, including Saddam Hussein's son-in-law filled the United States in on
the truth, but Bush tells us he had no way of possibly imagining that all
those mythical stockpiles of weapons of mass destruction didn't really
exist. Generals warned that hundreds of thousands of troops would be needed
to occupy Iraq, and economists warned that it would cost hundreds of
billions of dollars. They lost their jobs, and Bush now tells us he had no
humanly possible way of imagining that such things were true. So, somebody
ought to have told Bill Clinton. You don't go out there and say "I did not
have sex with that woman" and get yourself impeached. You go out there and
say "I had no way of imagining what might happen when she crawled under my
desk."
What exactly is an impeachable offense? Essentially it is an abuse of power.
A crime can be an impeachable offense and cannot be. And an action can be an
impeachable offense without being a crime. If the president cheats on his
taxes, that may not be impeachable. You or I could do that. It's not an
abuse of his power. But if he lies to the public about serious national
policy matters, that may be impeachable, without being a crime. Shooting
your hunting buddy in the face: not impeachable. Outing an undercover agent:
impeachable. Lying about sex is arguably not a proper impeachable offense.
Anyone can do THAT. Firing U.S. Attorneys because they won't pervert the
justice system to serve your partisan electoral interests is probably
impeachable. In the end, of course, what's impeachable is simply whatever
the House of Representatives decides is impeachable. The founders discussed
more than anything else, I think, the need to have the power of impeachment
in case a president took the nation into an unnecessary war.
When President Polk misled the nation into an aggressive war on Mexico with
the intention of stealing Mexican land, a young Republican congressman named
Abraham Lincoln challenged him. Last year, Republican Alaska Congressman Don
Young attempted on the floor of the House to quote Abraham Lincoln's opinion
on opposition to presidents' war plans. Young failed rather dramatically.
Here's his misquote of Lincoln:
"Congressmen who willfully take actions during wartime that damage morale
and undermine the military are saboteurs and should be arrested, exiled, or
hanged."
That was close. You can see how Young could have made the mistake. Here's
what Lincoln actually said:
"Allow the President to invade a neighboring nation, whenever he shall deem
it necessary to repel an invasion, and you allow him to do so, whenever he
may choose to say he deems it necessary for such purpose - and you allow him
to make war at pleasure. Study to see if you can fix any limit to his power
in this respect, after you have given him so much as you propose. If, today,
he should choose to say he thinks it necessary to invade Canada, to prevent
the British from invading us, how could you stop him? You may say to him, 'I
see no probability of the British invading us' but he will say to you 'be
silent; I see it, if you don't.' The provision of the Constitution giving
the war-making power to Congress, was dictated, as I understand it, by the
following reasons: Kings had always been involving and impoverishing their
people in wars, pretending generally, if not always, that the good of the
people was the object. This, our Convention understood to be the most
oppressive of all Kingly oppressions; and they resolved to so frame the
Constitution that no one man should hold the power of bringing this
oppression upon us."
Lincoln wrote these words while America was at war with Mexico, under the
presidency of James Polk, and while Lincoln was a member of Congress. But
Lincoln did more than talk about the fraud that had been used to launch that
illegal and imperialistic war. He introduced a resolution demanding that
Polk provide proof. Polk claimed to have launched that war only after
American blood had been shed on American soil. Lincoln's resolution required
Polk to identify the spot where that blood had been shed.
"Let him answer fully, fairly, and candidly," Lincoln said of the wartime
President. "Let him answer with facts and not with arguments. Let him
attempt no evasion, no equivocation."
When President Polk did not answer, Lincoln and John Quincy Adams sought a
formal investigation of the president's pre-war intelligence claims, and of
his use of secret funds to launch his fraudulent and illegal war. Under this
pressure, Polk announced that he would not seek reelection. Lincoln, Adams,
and their allies in Congress then passed a resolution honoring the service
of Major General Zachary Taylor "in a war unnecessarily and
unconstitutionally begun by the President of the United States."
Which brings us to the question of exactly what Bush's and Cheney's
impeachable offenses are. An exhaustive list would take us all day, so I'll
give you my top 12 for the president and my top 12 for his boss.
And by the way, the founders intentionally chose a single executive, not a
pair, not a triumvirate, not a council, in order to hold that one person
responsible for the executive branch. The Cheney co-presidency and groups
like the secret energy task force deny us the ability to know who the
decider is, but under our Constitution it really is Bush, regardless of what
you may think of his mental abilities.
BUSH:
1. Refusal to comply with subpoenas (not disputable, and passed by the
Judiciary Committee against Nixon)
2. Routine violation of numerous laws, preceded by announcement of intention
to do so in signing statements (White House website and GAO studies)
3. Violating U.S. law and the Constitution through widespread wiretapping of
the phone calls and emails of Americans without a warrant. (Confessed to.)
4. Commuting the sentence of I Lewis Scooter Libby.
5. Violating the United Nations Charter by launching an illegal "War of
Aggression" against Iraq without cause, using fraud to sell the war to
Congress and the public, and misusing government funds to begin bombing
without Congressional authorization.
6. Violating U.S. and international law by authorizing the torture of
thousands of captives, resulting in dozens of deaths, and keeping prisoners
hidden from the International Committee of the Red Cross.
7. Violating the Constitution by arbitrarily detaining Americans, legal
residents, and non-Americans, without due process, without charge, and
without access to counsel.
8. Violating the Geneva Conventions by targeting civilians, journalists,
hospitals, and ambulances, and using illegal weapons, including white
phosphorous, depleted uranium, and a new type of napalm.
9. Violating U.S. law by using paid propaganda and disinformation,
selectively and misleadingly leaking classified information, and exposing
for political retribution the identity of a covert CIA operative working on
sensitive WMD proliferation.
10. Violating U.S. and state law by obstructing honest elections in 2000,
2002, 2004, and 2006.
11. Gross negligence in failing to assist New Orleans residents after
Hurricane Katrina.
12. (This one is happening right now.) Negotiating with the president of
Iraq an agreement of a sort that heretofore has always been called a treaty,
but doing so without the constitutionally required advice and consent of the
US Senate, or for that matter the Iraqi Parliament. The power to negotiate
such treaties would logically include the power to negotiate the same sort
of treaty in reverse: that is to say, an agreement to station Iraqi troops
in the United States with the license to kill Americans with impunity.
CHENEY:
1. Refusal to comply with subpoenas.
2. Creating and advocating the "Unitary Executive Theory" which is used by
the White House to defy laws duly enacted by Congress and thereby justify
dictatorial action. Cheney's office has drafted many if not all of the
signing statements.
3. Cheney played a key role in setting up illegal spying programs.
4. Coordinating campaign to obstruct the investigation conducted by Patrick
Fitzgerald.
5. Coordinating a campaign of retribution against whistleblower Joseph
Wilson, including the outing of a covert CIA operative.
6. Leading efforts to institute routine use of torture.
7. Leading campaign to manipulate pre-war intelligence.
8. Creating a secret Energy Task Force which operated in defiance of
open-government laws.
9. Directing massive no-bid contracts to his company, Halliburton, and
profiting from the same illegal war he defrauded the American public to
launch.
10-12. The charges found in H Res 333, also known as H Res 799.
For some of these impeachable offenses, the evidence is not even disputable.
They simply have refused to comply with subpoenas, for example. The subpoena
that Nixon refused to comply with was part of an impeachment investigation,
but the equivalent could be generated in a week by simply opening an
impeachment hearing and subpoenaing testimony or evidence from Bush or
Cheney.
The signing statements, for example, are completely public. And while
Congress should impeach regardless of its own level of complicity in the
offenses being addressed, there are plenty of offenses like refusing
subpoenas and releasing signing statements that Congress is not complicit in
at all.
Violations of FISA and the 4th Amendment are not in dispute. Bush is on
videotape lying about the warrantless spying programs for years. He's also
on videotape openly confessing to violating FISA. John Dean, Nixon's lawyer,
calls Bush the first president to confess to an impeachable offense.
Have Bush and Cheney threatened an aggressive war on Iran? They're both on
videotape doing so. Cheney has done so from a ship off the coast of Iran.
Remember that in the 1950s our CIA overthrew Iran's democracy and installed
a dictator. We have labeled Iran evil and criminal. We have invaded and
occupied the nations to its east and west (Afghanistan and Iraq). So threats
to Iran are taken seriously by the Iranians. If anything could drive Iran
further toward dictatorship it would be an attack by the United States.
Was Bush criminally negligent during Hurricane Katrina? He's on videotape
being warned of the danger. He's on videotape claiming he was never warned.
Have Bush and Cheney used unlawful detentions and torture? The Supreme Court
in Rosul v. George W. Bush ruled detainees were being wrongfully imprisoned
at Guantanamo Bay Detention Center in Cuba. The Bush Administration's
detainment policies and actions were ruled unconstitutional and illegal - in
violation of Amendments V, VI &VII. The use of torture, legally justified by
Attorney General Alberto Gonzales and thus condoned by President Bush and
Vice President Cheney is an additional violation to the 8th Amendment. The
Supreme Court again in Hamdan v. Donald Rumsfeld, George W. Bush, et al.
ruled that the Military Commissions instituted by the Bush Administration
violate the Universal Code of Military Justice and the Geneva Conventions to
which we are bound by American law. Again, the Bush Administration's actions
were found by the highest court of the land to be illegal and
unconstitutional - violating Amendments V, VI, VII . Bush and Cheney and
their staffs have defended these policies on video and in writing. The
practice of detaining without charge and the numerous victims of it are
undisputed public knowledge. Evidence of torture is voluminous and
indisputable and includes public photographs. Bush's signature is on a
February 2002 authorization to torture.
Bush openly admits it, but claims that certain torture techniques are not
torture, techniques like waterboarding for which Americans have gone to
prison, for which Americans have prosecuted Japanese as war criminals,
techniques our founders hoped to leave behind in England through the Eighth
Amendment.
Did Bush and Cheney intentionally mislead the Congress and the public into
the invasion and occupation of Iraq? They are on videotape doing so, and the
evidence that they knew exactly what they were doing is overwhelming and has
been collected on my website at http://afterdowningstreet.org/keydocuments
[1]
Impeachment hearings could be dragged out for as long as desired, or could
be over and done with in an hour. No new information is needed.
Ah, but isn't it too late for impeachment?
It is never too late to establish that future presidents and vice presidents
will be required to obey laws and the Constitution.
It is far from too late to try to prevent the damage Bush and Cheney can
still do in the next 9.5 months, which DO exist.
There is nothing else for Congress to do that impeachment could distract
from. All good bills are vetoed and all partially good bills are signing
statemented.
Impeachment in this case could be very quick because of the overwhelming
evidence.
If your preference is to focus on the next election, think about how that
election would look were John McCain forced to choose between the
Constitution and Dick Cheney.
Most impeachments happen late. The movements to impeach Truman and Hoover,
and the impeachment of Johnson, happened later than where we are now.
Most impeachment movements achieve useful results in restoring the rule of
law without getting all the way to impeachment, much less removal from
office.
If there is time for endless hours of grilling steroid-popping baseball
players, there is time for impeachment.
If Congress is sincere about wanting Bush and Cheney to obey its laws and
comply with its subpoenas it will impeach. If it does not impeach, it is not
sincere, and no non-impeachment investigations will get anywhere.
But isn't this all beside the point when we should not dare to impeach a
president during a time of war? No, I side with the last great Republican
president on this one: Abraham Lincoln. When a president takes us into an
unnecessary war, and people are dying for no good reason, that is the most
important time to challenge the president. And this current so-called war,
we are told, will last for decades or forever. If announcing eternal war
provides immunity from impeachment, can you guess what percentage of
presidents will make that announcement? James Madison saw war as the tool
through which a president might seize inappropriate powers. "War," he said,
"is the true wet-nurse of executive aggrandizement."
Remember, we are borrowing from China to spend our grandchildren's
hard-earned pay to fund an illegal occupation of a distant land, an
operation that our own intelligence agencies say is boosting terrorist
recruitment, an operation opposed by about 80 percent of Americans, 90
percent of Iraqis, and 70 percent of active-duty US troops. If we can't
challenge THAT, what can we challenge?
Well then, you might ask, isn't it more important to end the occupation, the
so-called war?
Ending the war is a task that could best be accomplished by inaction, by
Congress refusing to provide any more funding. Or it could be accomplished
by a bill created by one committee. It is not a full-time task for the
entire Congress.
However, this Congress has already demonstrated that it has no intention of
ending the war. Pelosi has sworn that cutting off the funding is "off the
table."
What could help move Congress would be the same thing that helped a previous
Congress find the nerve to finally cut off the funding for the Vietnam War
(once the troops were already home) and convinced Nixon not to veto the
cut-off in funding: impeachment. In this case, even more so than Nixon's,
impeachment would drive the war debate in the right direction, because
impeachment would be for offenses either directly connected to the war or
offenses that have been justified by "war on terror" propaganda.
In addition, should Congress actually cut off the funding and end the war,
it is very likely that Bush and Cheney would misappropriate funds from the
Pentagon to keep the occupation going. They did so in order to secretly
begin the war, and they have never been held accountable for it. So,
removing them from office is not only needed in order to give Congress the
nerve to end the war, but is also needed if the war is to actually end.
Won't impeachment take up too much time and distract from other goals?
Nixon's impeachment took three months. Clinton's impeachment and trial
combined took four months. The current Congress has wasted more than that
amount of time already in avoiding impeachment, and has almost nothing to
show for it (a minimal partial and gradual correction to the plummeting
minimum wage). Congress has taken no serious steps toward ending the
occupation of Iraq, and has in fact provided major new funding for it.
During Nixon's impeachment and the lead up to it, in contrast, the threat of
impeachment allowed Congress to raise the minimum wage, create the
Endangered Species Act, and end a war.
Important as stem cell research and immigration policy may be, when did the
Bill of Rights become a distraction? What is more important than restoring
the right to not be spied on, to not be picked up without charge and locked
away to be tortured with no access to a lawyer, a trial, or your family, not
to be sent into an aggressive war for greed and power? Of course, there are
many pressing areas in which we need to pass legislation. But all good bills
and vetoed, all mixed bills are signing-statemented, and all horrendous
bills become law. There is nothing for impeachment to distract from.
Impeachment is the one action that cannot be vetoed.
Why not just wait for the next election?
The authors of our Constitution established the schedule for elections, but
devoted a lot more attention to the mechanism of impeachment as a check on
elected despotism in between elections. They had recently thrown off a king
and had no interest in electing temporary kings every four years. Neither
should we.
Bush and Cheney can still do a great deal of damage before the end of their
term. People are dying every day as a result of their policies. There is an
urgent need to remove them from office in order to end the brutal occupation
of Iraq and prevent an attack on Iran.
But we would need to impeach them were this January 2009 or had they already
left office. The purpose of impeachment is to set standards for future
administrations. We cannot give the powers assumed by this administration
(to mislead the Congress and the public into wars, spy in violation of the
law, detain without charge, torture, operate in secrecy, and rewrite laws
with signing statements) to future presidents and vice presidents without
expecting similar or worse abuses.
In a December 31, 2007, editorial, the New York Times faulted the current
president and vice president of the United States for kidnapping innocent
people, denying justice to prisoners, torturing, murdering, circumventing
U.S. and international law, spying in violation of the Fourth Amendment, and
basing their actions on "imperial fantasies."
Um, thanks for finally noticing. What would you suggest we do about it?
"We can only hope," concludes the New York Times, quite disempoweringly,
"that this time, unlike 2004, American voters will have the wisdom to grant
the awesome powers of the presidency to someone who has the integrity,
principle, and decency to use them honorably. Then when we look in the
mirror as a nation, we will see, once again, the reflection of the United
States of America."
But here's the problem (other than the pretended certainty that Bush won the
2004 election):
The United States of America, as established by its Constitution, simply
does not have a presidency with awesome powers. And the powers that Bush and
Cheney have newly bestowed on the presidency, unchallenged by Congress or
the media, are not powers that any human being can be expected to use with
decency.
Now, it is possible to make a serious argument that impeachment is difficult
and the election is almost certain, so we ought to put our energies into
getting the best possible new president and then insisting on reforms and
reversals of policy. But, remember, this strategy failed when the Democrats
used it in letting Reagan off the hook. And, imagine the landslide Obama
could win if the House Judiciary Committee were holding impeachment hearings
on all the worst topics for John McCain, starting with torture and signing
statements! Personally, I'm far more concerned with imposing the rule of law
on the next president than on who that president is, but most Democrats
think differently. They think about John McCain all the time, but they don't
seem to think about how to put him on the defensive.
Why would we want a President Cheney? Or why would we want a new Republican
who could run as an incumbent? Or why would we want a President Pelosi?
I propose impeaching Cheney first or together with Bush. The first Articles
of Impeachment to be introduced (H Res 333) (not counting Rep. Cynthia
McKinney's articles introduced the last day of the previous Congress) are
addressed only to Cheney. Impeaching Cheney first ought to put the fear of a
President Cheney to rest. But there remains the possibility of fearing his
replacement or even of not wanting Nancy Pelosi to be president or not
wanting her to become president in this way. She won't. We will never
succeed in removing Bush and Cheney from office simultaneously and by
surprise. We will remove them, but they will be replaced by a new President
Ford, who will operate within the rule of law and lose the next election.
But this whole discussion misses the point. The question of who holds which
office for the next year or six months, as well as the question of who wins
the next election, is of very minor importance in comparison with the
question of whether future administrations will be compelled to operate
within the limitations of the law. If we do not impeach Cheney and Bush, we
will establish that it is permitted for future presidents and vice
presidents to mislead the Congress and the public into wars, spy in
violation of the law, detain without charge, torture, operate in secrecy,
and rewrite laws with signing statements. Those powers in the wrong hands
could do far more serious damage than Bush and Cheney have done.
So, if we keep this in perspective, the fear of Cheney appears trivial. It
appears even more so when we consider that impeachment and removal from
office are two separate steps and that we're only working on the first one
so far, and when we recognize the extent to which Cheney has been running
the country already for years. Were Cheney officially president, most
policies would remain unchanged, but the public face of the White House and
of the Republican party would be that of a man whose approval rating has
been unable to top 20 percent. The Republicans will never allow this, so it
would be rather foolish for the Democrats to retreat out of fear of it.
Whoever is president next will have to operate under fear of being impeached
next. That is the point of impeachment. In the case of Cheney, he would be
operating under the high probability of being impeached. No serious
discussion of the evidence can incriminate Bush or Cheney but not the other.
And, in any event, we will be impeaching Cheney first.
Wouldn't impeachment split the Democrats? That's a question that some find
important.
Impeachment is splitting Democrats now, but wouldn't if they united behind
it. At least 80 percent of Democrats outside Capitol Hill want impeachment.
If 80 percent of Democratic elected representatives were pushing for
impeachment, the Bush presidency would be over quite quickly. The Democrats
in Congress tried to avoid the topic of the war, for fear it would split
them. Iraq went unmentioned in Pelosi's plan for her first 100 hours. But
the majority of the country wants to see the issues it cares about dealt
with, and there are some Democrats who will stand with the people. The
Democratic Party could unite by supporting peace and impeachment.
Why not do investigations and see where they lead?
They have led to the Bush administration refusing to comply with a growing
list of subpoenas: http://democrats.com/subpoenas [2] . The House Judiciary
Committee passed three articles of impeachment against Nixon. Article 3 was
for refusal to comply with subpoenas.
And they've led to Bush ordering a former staffer not to comply with
subpoenas, and to Bush announcing that the Justice Department will not
enforce congressional contempt citations. Where do you go from there, other
than impeachment?
Impeachment is an investigation, leading to an indictment. A preliminary
investigation is not possible when subpoenas are ignored, and is not needed
when indisputable evidence is already public knowledge.
Isn't impeachment an extreme remedy? Doesn't there have to be an actual
crime committed? Doesn't there have to be perjury?
There's nothing extreme about it. One of the better lists of the specific
criminal violations is found in Congressman John Conyers' report:
http://www.afterdowningstreet.org/downloads/crisis/summary.pdf [3]
This report is also a book. Yes, the chairman of the House Judiciary
Committee is selling books on Bush and Cheney's impeachable offenses while
refusing to impeach them.
Impeachment is the penalty for treason, bribery, or other high crimes and
misdemeanors. The Constitution says nothing about perjury as a ground for
impeachment. And it is a crime to mislead or to defraud Congress, whether or
not you do so under oath.
When Diane Sawyer asked Bush on television why he had made the claims he had
about Iraq's supposed weapons of mass destruction, he replied:
"What's the difference? The possibility that [Saddam] could acquire weapons,
if he were to acquire weapons, he would be the danger."
What's the difference? The difference is that had the President merely said
that Saddam Hussein could conceivably acquire weapons someday, many people
would have opposed his war who supported it. They supported it because Bush
said that Saddam had nuclear, chemical, and biological weapons and was
behind the attacks of 9-11. Bush and his subordinates (for whom he is
legally responsible) made these claims in the clearest language. In every
such case, fraud was committed. And instances of implying and omitting are
legally fraud as much as lying is.
When Bush lies, he is well aware of what he is doing. The day after the 2004
elections, he told reporters that he had lied to them about keeping Rumsfeld
on as Secretary of Defense so that they wouldn't write anything about it.
It is illegal to spy in violation of the Foreign Intelligence Surveillance
Act. It is illegal to detain without charge and to torture. It is illegal to
take funds from other projects to begin a war before it has been authorized.
It is illegal to target civilians and hospitals and journalists, and to use
white phosphorous and napalm as weapons. It is a fundamental violation of
the U.S. Constitution to alter laws with signing statements. Congressman
John Conyers' report lists numerous other laws violated by Bush.
Isn't impeachment divisive and unpleasant and traumatic and catastrophic and
unsettling and partisan?
No. Impeachment is a remedy for trauma, and one that the majority of
Americans long for. Here are the polls:
http://www.afterdowningstreet.org/polling [4]
As my friend John Nichols says, impeachment is only a constitutional crisis
if aspirin is a headache crisis.
Our President belongs to a political party, it's true. But that does not
make him any less of a threat to our system of government. Voters in 2006
rejected his party overwhelmingly. Not a single new Republican was elected,
and enough new Democrats won to achieve a substantial majority in the House
and a slim one in the Senate. Voters opposed the party of Bush and Cheney,
who are incredibly unpopular. Even some Republicans who spoke against the
war lost, primarily because they were Republicans. But Republican Ron Paul
of Texas, who had spoken in support of impeaching Bush, won.
If Paul and other Republicans manage to put their country ahead of their
party's president, as Republicans did during Nixon's presidency, impeachment
will not look so partisan. But if Republicans fail to stand for impeachment,
then Democrats must do it alone, and doing so will be partisan in the best
sense. It will build the Democratic Party into a powerful force for years to
come, and it will be divisive primarily on Capitol Hill and in the world of
media pundits.
Around the country it will bring us together. Hearings that expose Bush and
Cheney's abuses of power will serve to educate many of those who still
support them, including those who believe there really were WMDs, there
really was a tie to 9-11, Bush was honestly mistaken but meant well, illegal
spying is saving us from terrorists, nobody has been tortured, and a signing
statement is just something a deaf person tells you with his hands.
Wouldn't impeachment be depicted as revenge and attacked on TV?
Probably. But would you believe that depiction? Do you think everyone else
is dumber than you are and would fall for it? The coverage thus far of the
initial push for impeachment in Congress does not depict it as revenge.
How did we get where we are? From the publication of the Downing Street
Minutes in May 2005 to May 2006, Democrats in Congress, led by John Conyers,
behaved as though they would impeach if we gave them a majority. But in May
2006, the Republican National Committee announced, based on no evidence and
contrary to all evidence, that talking about impeachment would benefit
Republicans in the 2006 elections. Of course it didn't, but within a few
days of the RNC's statement, Speaker-to-be Nancy Pelosi obediently announced
that impeachment was off the table. And Conyers has since then obeyed
Pelosi.
Dozens of congress members have pushed back, led by Dennis Kucinich and
Robert Wexler. And we may very well yet succeed.
For what you can do to help, go to http://impeachcheney.org [5]
To join a public event near you this month or create one, go to
http://iraqtownhalls.com [6]
Join the many places that have passed resolutions urging impeachment or
committing to arrest Bush and Cheney should they set foot in a given town:
http://afterdowningstreet.org/resolutions-list [7]
The state legislature in New Hampshire will vote on April 16th on a
resolution to petition Congress to impeach Bush and Cheney.
Without impeachment, what is the best possible scenario? Presidents with
complete integrity for a number of terms, and then a real dictator who
chooses to seize on the Bush-Cheney precedents.
Urgency comes from Iraq, Iran, and global warming.
Also from the erosion of the rule of law and of our Bill of Rights. The
First Amendment has been locked up in a chain-link Free Speech Zone. The
Fourth Amendment is under warrantless surveillance and scared for its life.
The Fifth, Sixth, and Seventh Amendments have been detained without charge.
And the Eighth Amendment is presently undergoing waterboarding. Restoring
our Bill of Rights would be a positive step, not personal, not revenge, not
punishment, not backward looking.
Ben Franklin said: "Those who would give up Essential Liberty to purchase a
little Temporary Safety, deserve neither Liberty nor Safety."
When asked what sort of a government the Constitutional Convention had
created, Franklin said: "A Republic if you can keep it."
Let's keep it.
--
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"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson