Should Bush and Cheney Face Impeachment?

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Mr. Hoffer, Distinguished Research Professor, Department of History, University of Georgia, is the author of Impeachment in America, 1635-1805 (Yale University Press, 1984).

Should the House of Representatives impeach President George W. Bush and Vice President Richard Cheney? My own preferences to one side (where they belong) the answer is no. But the explanation of the short answer requires a little more detail.

While it would be tempting indeed to hoist the Republican Party by its own petard, the immediate precedent--the impeachment of President William Jefferson Clinton–is not apposite. That episode was a naked abuse of congressional power, by a willful and partisan majority in the lower house, with no precedent in the language of the Constitution or the case law of congressional impeachment. Clinton’s offense, if properly so termed, was close to perjury, but not perjury. He had minced words, intentionally misleading his interlocutors in a deposition regarding a civil suit having nothing to do with his official duties as president. The question in the deposition did not address the suit but later conduct. The suit, Jones v. Clinton, was (it seems to me) frivolously pursued for highly questionable purposes. While not necessarily part of a grand conspiracy, the named plaintiff was more a puppet than a plaintiff seeking justice. The suit was dismissed and, in what must be seen as an example of a true “high tech lynching,” a monetary settlement was extorted from the president.

At trial, the Senate acquitted, again along almost purely partisan lines. The president’s counsel had argued first that the senators were not just jurors, but judges, capable of deciding what the law and precedent of impeachable offenses was. Second, Clinton’s conduct might have been censurable, but it was not illegal in any sense of the word. Third, even if he might have been found civilly liable, nothing that he had done touched his duties in office, as an officer of the United States.

And that last is the key to understanding what the framers, and their successors, wanted from impeachment and trial. It was a process to make accountable political officeholders and their appointees. It entered the federal Constitution not from English precedent (in which impeachment lay for any offense the Commons wanted, might lie against anyone in or out of office, and punishment was not limited to removal and disqualification) but from state constitutions. The original understanding of the framers was that impeachment was part of the checks and balances in separation of powers. At the same time, by specifying that it lay only for certain types of offenses including the catchall “high crimes and misdemeanors” the framers restricted impeachment and trial to misconduct in office that abused the trust of the people. Impeachment, despite the claims of some, should not be voted for anything the lower house wants to vote for–it is not a political decision. It is a legal one, bound by text and precedent.

There is no doubt that a world court could indict Bush and Cheney for crimes against humanity in the bombing and other offenses against the people of Afghanistan and Iraq. Neither of those governments carried on acts of aggression against the United States. They might also be indicted for violating the international laws of war. The occupation of Iraq is illegal. The confinement of suspected political enemies of the administration in a prison camp in Cuba is illegal. Collusion in the transportation of suspected enemies of the country to third countries in order that the individuals be tortured is illegal.

But these are not offenses that violate the constitutional powers vested in the chief executive and the vice president. Their power to conduct war or near war was approved by the Congress and by the majority of the voting public is fully within the admittedly vague language of the Constitution. The so-called imperial presidency knows little legal limitation as the hearing and proceedings on the Iran-Contra scandal demonstrated.

The decision to wiretap suspected terrorists (and political opponents) at home without using the courts established for that step may be assigned as grounds for impeachment, but it is not without precedent, and may be regarded as within the war powers of a president in a time of war. World War I era precedents, treason and spying cases during World War II, and Cold War cases may be precedent as well.

Other political activities, for example self-dealing in the Halliburton billing question, and most recent round of political dirty tricks, dismissing federal attorneys because they would not proceed with bogus indictments of Democratic candidates, may be a firmer ground for impeachment inquiries, but they are not likely to engender the kind of passion that a misconceived and illegal war has engendered.

Of course, we do not know everything about this administration, and as Congress’s newly invigorated willingness to investigate and oversee the executive gains momentum, new information may come to light. Impeachment should never be undertaken lightly. It is a formidable weapon–the grand inquest of the people.

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    omar ibrahim baker - 10/19/2007

    The point IS:
    Will the USA, under the huge variety and diversity of presidents it has been electing ranging, lately, from the Regans and a Bush to a Kennedy, go on, periodically, replicating Al Capone policies and methods when dealing with the rest of the world?

    OR would the USA ever come to realize and accept that being preeminent DOES NOT have to entail being arrogantly and brutishly predominant?

    The governance of the USA has been as much of a disappointment to, and has actually FAILED, the (US)American people, by failing to provide them with decent social security and medical security systems etc etc etc despite the fact that those and more are easily within its reach, as much of a disappointment to the rest of the world !

    When the American electorate manages to overcome the brain washing it has been subjected to and offsets the role of MONEY in American politics AND elections then, and only then, will it elect leaders that would serve better the American people and, possibly, the rest of the world by, at least, refraining from arrogantly and brutishly periodically wielding its awesome military powers.

    Until such a day dawns I will NOT be surprised if, and when, the USA elects a Schwarzenegger or, being NOT American born, a Rambo or, better still, a Wolfowitz ( with a Rumsfeld for VP ?) for President!

    And the dual tragedy will continue!

    Peter K. Clarke - 10/9/2007

    Whether JFK sent 20,000 and LBJ 530,000 troops to Indochina, or vice versa, and how many US lives were wasted there by Ike and Nixon 35-55 years ago makes zero difference to the betrayal of America by Dick Cheney and George W. Bush. We are half a trillion dollars poorer and Al Qaeda is stronger thanks to their deceit-laden asinine foolishness in Iraq. In Vietnam we could leave, and cut our losses. The Iraq folly of the chickenhawks and their spineless Congressional rubberstampers in both parties will hurt America for years to come.

    Peter K. Clarke - 10/9/2007

    Honor, integrity and George W. Bush sit oddly in the same sentence.

    The endless parade of one bogus cover line after another, re Iraq, is not about honor or integrity. It is about stringing things out in order to tar the next Democratic president with the responsibility for the "war" which was actually lost the moment the we-don't-do-nation-building corporate welfareist was foolishly put in charge of it. The Congressional Democrats whose cowardice made that foolishness possible are playing a game of smoke and mirrors to try to hide their continued refusal to face up to the monstrosity they helped create.

    Peter K. Clarke - 10/9/2007

    Can prosecution for "war crimes" be effectively applied to a "war" where there is no identified enemy, or, at best, some shadowy mixture of dozens of constantly shifting overlapping enemy groups?

    The main missed opportunity, it seems to me, is the opportunity to question the Orwellian designation of a futile attempt at nation-building-at-the-point-of-a-gun as a "war."

    We appear to have here a case here where "liberal" dumbing-down has been fully co-opted by "conservative" ignorance-by-design. It's a "war", we have to "support the troops," "support the commander in chief," etc., which reduces the opposition against the Cheney-Bush administration to political-ass-covering by Democrats in Congress and meaningless feel-good protest marches by the "peace movement."

    Peter K. Clarke - 10/9/2007

    Directly defy the UN the Cheneyites did not. They trashed the UN inspection process, however, for no good reason. After waiting 12 years without doing jacksh-- about Saddam, what would another 6 months of waiting for the UN inspections have cost? The idea, even in early 2003, that any above average IQ person in his right mind thought that Saddam was 6 months away from nuking US cities is too idiotic for words.

    We could use that inspection process now with Iran and North Korea.

    Crying wolf only helps the wolf.

    Peter K. Clarke - 10/9/2007

    The summary of the youthfully indiscreet hypocrites' farcical impeachment of Bill Clinton in this piece is interesting but not central to the question of how to deal with the overseas transgressions of the Cheney-Bush administration.

    Their main transgression is the Orwellianly mislabeled "war in Iraq," one of the all-time greatest American foreign policy disasters, and almost totally self-inflicted.

    The bogusly conceived, predictably inept, and foolishly ill-planned occupation of Iraq could have been, and WAS, widely anticipated, in advanced, to give a significant boost to Al Qaeda and the fanatical fringe of Islamic fundamentalists in general. See today's New York Times article below for the latest confirmation of the unheeded warnings.

    Knowingly inflicting such a disaster on America is not some miscellaneous "high crime or misdemeanor", it is treason. Hoffer, like most other observers, has focused on the wrong phrase in the Constitution.

    But, if treason has been committed (which WOULD have been the purpose of an impeachment trial to determine), it was treason aided and abetted by a spineless and witless Congress that has rubberstamped this deliberate wounding of the USA at every key juncture. And that Congressional cravenness has been and is still being endorsed every time another fool of a reporter or lazy historian talks about the "war in Iraq."

    REAL (not metaphorical) wars have identifiable contestants and identifiable aims. The only such identification that can be made in Iraq nowadays is that a bunch of US military sitting ducks are stuck in a quagmire because the politicians that sent them there cannot figure out an ass-covering way to withdraw them, and Al Qaeda and its ilk are exploiting this idiocy for recruitment and training purposes.

    R. Cheney and his less experienced colleague G.W. Bush are guilty of mass manslaughter at a minimum, but so indirectly is most of the US electorate. Until America wakes up from its collective sleepwalk, there is little point in pushing for an impeachment that most voters, and most of Congress, are not only steadfast against, but complicit in the underlying crimes of. The last such opportunity came and went, unseized, in the 2006 elections. Absent major new revelations, it is too late now for an impeachment of Cheney and Bush, who have gotten away with a reckless and myopic, though personally self-serving, weakening of America’s national security. The questions for 2008 remain: Will America compound this stupidity by electing as president, for example, a Hillary Clinton or a John McCain, who could have taken, but utterly failed to take, any meaningful action to prevent it? And will the other Congressional rubberstampers’ serial cowardly follies be similarly overlooked (again)?



    Militants Widen Reach as Terror Seeps Out of Iraq


    Published: May 28, 2007

    The Iraq war, which for years has drawn militants from around the world, is beginning to export fighters and the tactics they have honed in the insurgency to neighboring countries and beyond, according to American, European and Middle Eastern government officials and interviews with militant leaders in Lebanon, Jordan and London.

    Some of the fighters appear to be leaving as part of the waves of Iraqi refugees crossing borders that government officials acknowledge they struggle to control. But others are dispatched from Iraq for specific missions. In the Jordanian airport plot, the authorities said they believed that the bomb maker flew from Baghdad to prepare the explosives for Mr. Darsi.

    Estimating the number of fighters leaving Iraq is at least as difficult as it has been to count foreign militants joining the insurgency. But early signs of an exodus are clear, and officials in the United States and the Middle East say the potential for veterans of the insurgency to spread far beyond Iraq is significant.

    Maj. Gen. Achraf Rifi, general director of the Internal Security Forces in Lebanon, said in a recent interview that “if any country says it is safe from this, they are putting their heads in the sand.”

    Last week, the Lebanese Army found itself in a furious battle against a militant group, Fatah al Islam, whose ranks included as many as 50 veterans of the war in Iraq, according to General Rifi. More than 30 Lebanese soldiers were killed fighting the group at a refugee camp near Tripoli.

    The army called for outside support. By Friday, the first of eight planeloads of military supplies had arrived from the United States, which called Fatah al Islam “a brutal group of violent extremists.”

    The group’s leader, Shakir al-Abssi, was an associate of Abu Musab al-Zarqawi, the leader of Al Qaeda in Mesopotamia who was killed last summer. In an interview with The New York Times earlier this month, Mr. Abssi confirmed reports that Syrian government forces had killed his son-in-law as he tried crossing into Iraq to collaborate with insurgents.

    Militant leaders warn that the situation in Lebanon is indicative of the spread of fighters. “You have 50 fighters from Iraq in Lebanon now, but with good caution I can say there are a hundred times that many, 5,000 or higher, who are just waiting for the right moment to act,” Dr. Mohammad al-Massari, a Saudi dissident in Britain who runs the jihadist Internet forum, Tajdeed.net, said in an interview on Friday. “The flow of fighters is already going back and forth, and the fight will be everywhere until the United States is willing to cease and desist.”

    There are signs of that traffic in and out of Iraq in other places.

    In Saudi Arabia last month, government officials said they had arrested 172 men who had plans to attack oil installations, public officials and military posts, and some of the men appeared to have trained in Iraq.

    Officials in Europe have said in interviews that they are trying to monitor small numbers of Muslim men who have returned home after traveling for short periods to Iraq, where they were likely to have fought alongside insurgents.

    …A top American military official who tracks terrorism in Iraq and the surrounding region, and who spoke on condition of anonymity because of the sensitive nature of the topic, said: “Do I think in the future the jihad will be fueled from the battlefield of Iraq? Yes. More so than the battlefield of Afghanistan.”

    Militants in Iraq are turning out instructional videos and electronic newsletters on the Internet that lay out their playbook for a startling array of techniques, from encryption to booby-trapped bombs to surface-to-air missiles, and those manuals are circulating freely in cyberspace.

    And tactics common in Iraq are showing up in other parts of the world. In Somalia and Algeria, for example, recent suicide bombings have been accompanied by the release of taped testimonials by the bombers, a longtime terrorist practice embraced by insurgents in Iraq.

    It is perhaps not surprising that Jordan, the site of the failed airport plot, would be among the first countries to feel the effect of an expansion of the war beyond Iraq. The countries share a border, and Jordan is an American ally. Mr. Zarqawi, who was Jordanian, is believed to have been behind a failed rocket attack on two United States Navy ships anchored off the coast of Jordan in 2005 and, later that year, suicide bombings at three hotels in Amman that killed 60 people.

    …The plot, pieced together from a 130-page record in Jordan’s secret security court, along with interviews with intelligence officials and defense attorneys, shows why intelligence officials are concerned about the reverberations from Iraq…The airport plot got under way in Zarqa — the birthplace of Mr. Zarqawi…

    Peter K. Clarke - 10/9/2007

    FDR, HST, and LBJ helped get America involved in pre-existing major wars. They did not send American troops to invade a country at peace with its neighbors.

    You might recall the question "who started it?" from a grade school playground somewhere, Mr. C. Unless, like government-welfare-handouts-based "businessman" George W. Bush, you were sheltered from the real world, and having to think straight, since birth.

    Peter K. Clarke - 10/9/2007

    In your attempt to deflect attention from what is arguably the dumbest U.S. presidency ever (put in office by Republicans who abandoned every laudable principle their party ever stood for in order worship ignorance über Alles) by maligning Democratic presidents wholesale, you are evidently trying to blame two presidents for one war. I "left out" JFK, because Vietnam is much more directly associated with LBJ than with JFK, Ike, or even Nixon.

    An example of such ignorance, or perhaps just of a penchant for trashing history or maybe just simple fibbing: the Iraq-Iran war was over by the late 1980s, long before the chickenhawks' failed cakewalk of March, 2003, fifteen years later.

    Peter K. Clarke - 10/9/2007

    By your latest pitiful excuse for logic, we have been at war with Islamic countries with centuries, and always will be until they all embrace TV-based-FakeChristianity or whatever it is that has fundamentally warped your brain. When do you and your fellow volunteers in this "war" against the contra-infidels deploy to the Mideast, Mr. C? Or do you just want more hundreds of billions of Americans' tax dollars in order to sucker a few more 18 year olds into getting their butts blown up in Baghdad, in order to delay the inevitable cut-and-run from your chickenhawks' bogus "war" in Iraq long enough that it can be blamed (using some third-grade contortion of illogic) on the next Democratic president?

    Peter K. Clarke - 10/9/2007

    I am not sure which "order" you refer to, Lisa. Maybe you'd like to be a bit more specific?

    For all his stubbornness, "W" is at any rate fundamentally a waffle. He will be gone in less than two years, furthermore, and then America will perhaps begin to really face up to the mess it has let him, his inept handlers and his fellow-bunglers (in both political parties) create.

    Vernon Clayson - 6/11/2007

    If anything, Bush and Cheney should be faulted for their timid response to a threat more dangerous than this nation has ever faced. We play by juggling rules while our Muslim enemies juggle dynamite. Haven't you wondered why we don't respond in kind?

    Vernon Clayson - 6/11/2007

    Mr. Benson has a narrow sense of the world and reality. Impeach Cheney? Might as well say impeach the American people who elected him to office. A little late in the game to second guess our selection of Cheney as VP, isn't it? History will eventually say that Bush and Cheney were right, that the Muslims mean us evil. If anything history will judge them, and us, as too timid in our response to their attacks on us.

    Jason Blake Keuter - 6/6/2007

    wihout doing jacksh--? what about all those clinton missile strikes? the continual patrols and hostilities in the no-fly zone? the repeated attempts at inspections themselves. manipulated and obstructed by Sadaam?

    Further, Sadaam was delivered the ultimatum of fully complying with the inspections process and he refused. The idea that he would have nuked anyone within those 6 months was closer to absurd than plausible, but the likelihood that he would've developed and used WMD's was very believable, especially under the so-called "regime" of UN inspections. The idea that he wouldn't cooperate with terrorists because he was some kind of ba'athist secular purist is an absurd projection of a kind of scrupulous ideological consistency one worries about as a Nation reader, not a psychopathic criminal and mass murderer.

    N. Friedman - 6/5/2007


    Your argument would make more sense if you did not insist on using a narrow definition of war, one that, as I pointed out long ago, is one of many definitions - and, quite obviously, given how the word is used in newspapers, magazines, journals and everyday life, not the most common usage.

    I think what you are saying is that you oppose nation building - if that is really what the Bush administration is up to -. I am not quite sure about the discussion about supporting the troops. Would you rather that they go unsupported so that they might be massacred? Obviously not. So, in that sense, you also support the troops although you might - and, it would be nice if you would tell us your view - support their early withdrawal.

    DeWayne Edward Benson - 6/3/2007

    Understand I do not want revenge against vice-Pres Cheney (seeking impeachment), however as long as the man was involved in war crimes against humanity, it does seem logical under these circumstances.

    Bob Snodgrass - 6/3/2007

    We can pontificate about what should be or we can face our brave new world. Our Constitution is a poor guide for a powerful 21st century nation. It might work for Switzerland or Costa Rica. The framers didn’t foresee the rise of organized political parties or the great power of advertising and multinational corporations. They couldn’t imagine a legislative branch that campaigns 24/365 and “considers” thousands of bills each year, often without reading them. They couldn’t foresee the US-Israel relationship; many Americans automatically feel that we should fight any time Israel is attacked or at war. They spoke of treason and bribery as major crimes. All of our Congress earmark and tilt government contracts toward their donors, which is genteel bribery.

    Large countries (US, Russia and China) are always tempted to solve their domestic problems by annexing or exploiting other countries. Since we have the biggest military, we are the ones that threaten bombing; Russia moves to strangle Europe via oil and gas prices and China grabs African and central Asian oil and gas and exercises a veto on the Korean peninsula.

    We have seen the alst Congressional declaration of War. There will be only vague and dysfunctional resolutions of support for executive adventures. Only six Senators read the full Intelligence report prepared for Congress in 2002. Future Iraq fiascos will continue until we have an elected bipartisan executive council that oversees military and foreign affairs (not Congress with its 800 impotent committees). Suppose that Clinton, Edwards or Obama were President. Would they intervene militarily on Israel’s behalf? Yes, they would and current Israeli policies guarantee more wars.

    Bush told us what we wanted to hear: there is no petroleum problem, we can build new democracies (except in Africa) and evil foreigners surround us. Senators didn’t need to read any report: their minders told them that US military expansionism was as popular as it was in 1900. Democracies don’t make war? What a joke. The US and Iran are semi-democracies thirsting for a glorious and painless war (no existe).

    Bush, Cheney, Rice and Rumsfeld are war criminals. Impeachment will tear the country apart and prevent political reform, which is difficult at best. Massive war is not inevitable- the US and China are becoming so economically interdependent that war would be insane. Neither can erase the Islamic problem. We can work together to replace oil and gas, to limit our actions in the Middle East and pressure Israel to moderate its suicidal policies. What politician dares to say this? Continuing US military adventurism will bring a second civil war.

    Carl Becker - 6/3/2007

    Shifting the argument to a more convenient subject instead seems to be your style. Unless you reside in the Bush Bubble, your difficulty in conceiving why Bush and Cheney should be impeached over this war is extraordinary. Who set the precedents is immaterial. That you continue to apologize for this administration by citing examples of they-did-it-too doesn’t make the argument that they shouldn’t be impeached.

    Andrew D. Todd - 6/2/2007

    An impeachment is not a criminal trial. Its powers are explicitly confined to removal from office, and there is no right to hold a public office. The President himself is entitled to dismiss the Secretary of Defense, for no better reason than that he finds the Secretary's conduct, in retrospect, to be unacceptable, or because the Secretary has not been able to deliver on his promises about the behavior of foreign potentates, or the progress of foreign wars, matters which are, prima facie, beyond his control. That is not an ex post facto proceeding-- it is simply a belated recognition that the Secretary is unsuited for his office. It is not a crime to be a village idiot-- but that does not mean that a village idiot is fit for public office.

    I found as early as 2002 that if I sat the man on the street down and explained to him just what war is all about, he generally said "Hell no, I won't go," or words to that effect. But of course one can only do that with one man on the street at the time. There was never anything resembling informed consent-- it was simply that people did not grasp that war meant _their_ son coming home in a rubber bag.

    Jason Blake Keuter - 6/2/2007

    everything you've said sounds like the makings of a political trial dressed up as a constitutional exercise, a thankfully unlikely occurence from which the constitution would emerge meaningless.

    to repeat, there isn't much more info. out there regarding the process of going to war than there was when Bush was re-elected. the polled presently do not like the war that a majority of the voters did not consider criminal in origin in 2004. to impeach Bush right now wouldn't even rise to the degraded level of ex-post facto justice.

    Andrew D. Todd - 6/2/2007

    There has never been a case in which a sitting president was successfully impeached and then attempted to contest the finding in the courts. Richard Nixon resigned voluntarily when it became apparent that sixty-seven senators were willing to convict, and his popular approval rating was about twenty percent. Andrew Johnson and Bill Clinton were acquitted in the senate, and therefore had no grounds for appeal.

    The case of Adam Clayton Powell, cited by Lowry, is, as I would argue, not a valid precedent for judicial review of presidential impeachment. John Locke, in the Second Treatise, makes the point that the test of the legitimacy of the Royal Prerogative is whether it tends to increase or decrease democratic government. This applies for other kinds of borderline-extralegal actions of government. For example, a decision to schedule new elections, to seek a new mandate, is almost axiomatically not an abuse of prerogative. This has application to impeachment, where there is very little case law to rely on. Quite apart from the fact that Powell was removed from office under a different section of the constitution (determination of qualifications), there is the more important fact that he promptly contested and won the special election conducted to fill the vacancy. In short, he demonstrated that he still possessed the confidence of his constituents. The Supreme Court opinion draws heavily on the case of John Wilkes, back in the eighteenth century. The dominant note of concern is that a majority might "exfranchise" the minority. This concern is restrictively applicable to legislators representing particular districts, or, by extension, to judges appointed at different times to form a collegial panel. Something approaching "court-packing" would presumably be required to activate judicial review of the impeachment of judges.

    Presidents are different from legislators or judges. There is not a collegial presidency, with provision for minority representation. A popular majority has an undoubted right to vote a president out of office if the reasons for doing so should become apparent in an election year. There is no provision in the constitution to protect against the people imprudently and under the influence of sudden passions voting the president out of office. Our tradition of government is designed to prevent the President from proclaiming himself king. When administration lawyers use phrases such as "king-in-wartime," they are talking treason.

    Alan Hirsh, drawing upon the writings of the framers George Mason, James Madison and Alexander Hamilton, argues that "High Crimes and Misdemeanors" should be understood to mean "great and dangerous offenses," which "arise from 'the abuse or violation of some public trust,'" and further points out that "needless to say, the public trust can be abused short of an actual crime." Hirsh stresses that impeachment is not merely political, but the vote of no confidence is not merely political either. I think one may safely say that a president ventures into abuse when he undertakes radical measures which are both strikingly at variance with his electoral platform, and at variance with the standards of prudence embodied in his electoral platform. The President came very close to failing to be re-elected in 2004. It is a fair surmise that if the President had been more candid about matters which have since come to light, in despite of his efforts to keep them secret, the result might well have been sufficient to change the outcome of the election.

    In military law, there is an offense known as "Dereliction of Duty." The Japanese general Yamashita was hanged for Dereliction of Duty, that is for failing to impose such discipline on his troops as would effectually prevent them from committing war crimes. Dereliction of Duty is not a civil criminal offense, but I suggest it might well be an impeachable offense, at least for such portion of the President's duties as fall within the role of Commander-in-Chief.


    POWELL v. McCORMACK, 395 U.S. 486 (1969)

    Ronald Arthur Lowry, Presidential Impeachment: The Legal Standard and Procedure


    John M Shaw - 6/2/2007

    I certainly admire Professor Hoffer’s legal history of the Salem Witchcraft trials. But his History News Network posting Should Bush and Cheney Face Impeachment? does not hold up on historical or legal grounds.
    Similar to one of the articles of impeachment brought against President Richard Nixon by the House Judiciary Committee in 1974, President George W Bush should be impeached for abuse of power.

    Such an indictment would be based on the indisputable fact (acknowledged by the President and various executive branch officials) that the National Security Agency (NSA) is engaged in the domestic wiretapping of American citizens in the United States without first obtaining warrants. In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA). To correct prior presidential abuses of power while acknowledging vital national security interests, it permitted the government to conduct electronic surveillance on citizens in the United States if it first gets a warrant from the special FISA court. These requests have almost never been denied by the FISA court. But the NSA has repeatedly conducted such surveillance without going to the FISA court for warrants. It continues to do so because President Bush has been issuing Executive Orders stating that he has the authority to bypass the FISA law and court, and no statute passed by Congress can place any limits on the president's powers regarding national security.

    This qualifies, in Hoffer’s words, as an “offense[] that violate[s] the constitutional powers vested in the chief executive.” There is not a single Supreme Court case that suggests a President can violate a federal law to gather foreign intelligence. So there is no defensible “precedent” as Professor Hoffer maintains. This flagrant violation of the Constitution is against the law. There is nothing really to debate. Federal judge Anna Diggs Taylor has ruled that President Bush's NSA surveillance program violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution.

    The only question is whether such law-breaking rises to the level of an impeachable “high crime or misdemeanor.” Hoffer does not tell us anything new by recounting the highly partisan political decision to impeach Bill Clinton. It is true that “the framers restricted impeachment and trial to misconduct in office that abused the trust of the people.” But that only tells us about part of the constitutional nature and purpose of impeachment. The “power to conduct war or near war ... approved by the Congress” does not authorize the president to knowingly break the FISA law, and then proclaim the right to continue such unlawful activity indefinitely.

    The “legal decision” Congress should make for impeaching President Bush stems from the true nature of the phrase “high crimes.” It does not only refer to the seriousness or level of executive wrongdoing. When it comes to the “rule of law,” and the fundamental constitutional principle that nobody (even the President) is above the law, elected officials given the privilege of office-holding by the people are to be held to a “high” standard. The reason President Bush should be impeached is because an executive official is ultimately responsible for any breach of the oath he took, which means violations of the Constitution and the rights of citizens under the Constitution.

    The naked assertion and abuse of power by the Bush Administration is a “high crime” and impeachable offense. As noted in Federalist 69, the framers most feared unchecked executive power. Unlike the British King, the President of the United States does not possess the absolute power to nullify duly enacted laws, no matter how many of his own lawyers say he can.

    Elections and investigations will not restore this core constitutional principle. Only a “legal decision” by Congress to impeach the President can restore the constitutional balance. For legal scholars and historians like Professor Hoffer to obfuscate rather than acquaint these facts to the American people is disappointing.

    Mark A. LeVine (UC Irvine History Professor) - 6/1/2007

    I have been working on the issue of indicting bush and cheney for the last three years, ever since i came back from iraq in the spring of 2004, having seen first hand the destruction wrought by this administration on iraqis and on our soldiers forced to serve there as well. in conjunction with code pink we retained the services of an attorney working in international law to prepare an indictment of bush for war crimes and crimes against humanity under US federal law, which has statutes covering such activities.

    for reasons that i have never understood, the peace movement, which rarely if ever misses and oppurtinity to miss an opportunity, had absolutely zero interest in taking this issue up when we brought the indictment to them, ready to be brought to the justice department to demand an investigation be commenced.

    for those interested in this issue, you can go to www.indictpresidentbush.org, which should have the text of the indictment linkable from the home page. one thing is for sure, bush, cheney and their senior advisors are war criminals who deserve to spend the rest of their lives in jail. and the indictment shows--and this has been vetted by several constitutional law experts--that they are indictable WHILE IN OFFICE.

    Tim Matthewson - 6/1/2007

    Has the war in Iraq devolved into a war for the honor and legacy of George Bush? Has the President decided to needlessly extend the war to run out the clock and leave an unwinnable war to his successor? How many soldiers' lives are the American people willing to expend to protect and honor and integrity of George Bush?

    Jason Blake Keuter - 6/1/2007

    no, impeachment cannot be changed from what it is : a decision that there is suffficient evidence for the senate to try a president for high crimes and misdemeanors.....

    using faulty intelligence doesn't fit...especially since the bush administration made no bones about its approach to intelligence in light of 9 11 and the reality of chemical and biological weapons: namely, that waiting for a clear cut certainty (a gigantic smoking gun) before acting could lead to the slaughter of 100,000's of Americans. Thus, the intelligence must be actionable. This policy was articulated PRIOR to the invasion and it was a matter of public record BEFORE the election of 2004. Thus, impeachment would be the ultimate testament to how fickle the people are (house of representatives), which is why the more conservative and judicious senate would not vote to find Bush guilty.

    The reasons for going to war were sound:

    1. sadaam hussein had a record of seeking wmd.

    2. in the hands of terrorists, wmd could wipe out whole american cities....

    3. sadaam hussein was purposefully evading the weapons inspection program precisely because he wanted his regional enemies and his own people to believe he HAD wmd...his pseudo-compliance was designed to enrich himself on the food for oil program and keeep the U.S at bay.

    4. the U.S. didn't not defy the UN, rather, it actually put some teeth into UN resolutions, which are intended to be token sanctimonious statements of outrage against the US and Israel approved wholeheartedly by the liberal pseduo-intellgientsia willfully blind to the blood dripping from the hands raised in condemnation of american hegemony and international jewry. voting against military action was a vote against taking the un seriously.

    5. that said, it would be better if the US did ignore the UN and any pseudo-liberal professing any values even remotely humanitarian or democratic while simultaneoously saying that the un is a legitimate body is a gross hypocrit and a friend of tyranny.

    Jason Blake Keuter - 6/1/2007

    not giving the un enough time.....i've been searching around in the constitution for the un and i can't find it anywhere...i think making treaties is the president's job, then the senate signs off on them and declarations of war are congress's job....

    Jason Blake Keuter - 6/1/2007

    the temptation to impeach is called the totalitarian temptation, or, i'm so right and they're so wrong that they should be put in jail

    Lawrence Brooks Hughes - 5/31/2007

    Eisenhower explains in his book, "Mandate for Change," that he found it necessary to threaten the use of nuclear weapons to make the truce talks come to a conclusion at Panmunjam. He said the enemy was not sure whether to believe him, but since he was a newly elected president and a military man, they decided it would be prudent not to take any chances. His nuclear weapons threat was hushed up at the time, and has been suppressed from the history books since because liberals don't want people to know that bellicosity and "brinksmanship" sometimes works. Eisenhower also went on television jointly with Omar Bradley early in the Vietnam War to urge the President either to withdraw from Vietnam or to use our full force there, and not to do what of course we did, which was fight a long and inconclusive war, with less than our full force. Eisenhower sent only a few military "advisors" to the French in Indochina, I think 300 or so. The crucial escalation was when Kennedy dispatched 18,000 or 20,000 troops, following his acquiescence in the coup d'etat which included the murder of the South Vietnamese leader Diem.

    Douglas M. Charles - 5/30/2007

    I love the pass you give Nixon. It took him 3 years and 15,000+ American deaths to extricate, as you say, from Vietnam. I suppose it was honorable to you to sacrafice 15,000 lives for, well, nothing.

    You also give Eisenhower a pass on Vietnam yet it was his administration that began the American involvement there. But no, in your hack liberal vs conservative partisaniship it was the Democrats who started it.

    What is this utter lack of fact and logic with your crowd? Instead it's distortion and ignorance.

    Vernon Clayson - 5/29/2007

    Arnold, you have a simplistic view of government. I bet you believed that a Vietnamese motor boat endangered our fleet because LBJ said it. DId you even one time during Clinton's tenure suspect he lied about anything?

    Vernon Clayson - 5/29/2007

    Prof. Hoffer sounds like he believes the governments of Iraq and Afghanistan were governments as we define governments. Hussein controlled Iraq by brutality, there was none of the freedoms the professors enjoys in his sheltered little world. On the other hand, brutality is the only way to control the citizens of Iraq, they are not a civil population. Afghanistan hasn't had what one could call a government since ancient times, the citizens are fractious and intractable, it can hardly be called a nation with all of its tribal affiliations and divisions. Afghanistan will never have a stable or civil population or government.

    Vernon Clayson - 5/29/2007

    Mr. Todd, the only time a senator is answerable to his/her constituents is the few months before election. From the day they take office until shortly before an election they are incapable of concern for their constituents, their every day is spent in manipulating others or being manipulated. They are far too busy basking in their glory to worry about commoners. It is more important that they get a 20 second sound bite than that they move legislation. The Democrats have a bare majority and have failed miserably, they have no agenda or suggestions for anything so they just flay the air about the president's actions. Impeachment? They are too busy covering their own behinds to worry about impeachment. On top of all this, Cindy Sheehan has turned on them.

    Jeffrey Campbell - 5/29/2007

    Professor Hoffer writes "There is no doubt that a world court could indict Bush and Cheney for crimes against humanity in the bombing and other offenses against the people of Afghanistan and Iraq. Neither of those governments carried on acts of aggression against the United States." To state that the government of Afghanistan carried out no aggression towards the United States is imagination-based thinking worthy of the most prolific Holocaust deniers. The government of Afghanistan knownly provided a safe haven and operational center to known terrorists who bombed our embassies, ships, and ultimately our homeland. If "act of aggression" does not encompass that, then the phrase has lost all meaning.

    Vernon Clayson - 5/29/2007

    Good lord, Ms. Kazmier, this isn't Venezuela and George Bush isn't HUgo Chevez. Whatever are you talking about?

    Vernon Clayson - 5/29/2007

    Mr. Clarke, I'm too old by far but I did serve during the Korean War, HST put us there and Ike pulled our fat out of the fire. My mother was thrilled when Ike said he would go to Korea, she was naive enough to think that mattered, we are still there, well, I'm not, but we have people there yet, but that was long ago and now innocents such as yourself believe that a Democrat remindful of JFK would pull our fat out of this fire. JFK is dead, neither Hillary Clinton or Barak Obama have even the little ability he had. LBJ's 530,000 belies the total number, millions came and went to maintain that 530,000 on site. Oh, most were draftees.

    Lawrence Brooks Hughes - 5/29/2007

    Ike and Nixon both extricated the United States from wars started under Democratic administrations. In the present war there have been 3,000 Americans killed, versus 55,000 killed in the Vietnam War, and I think you will find none of those soldiers died in Vietnam when Dwight Eisenhower was president. Your allegation that we "cut our losses" when leaving Vietnam is analogous to Jefferson Davis saying the fall of Richmond was a blessing in disguise because it left Gen. Lee free to manoeuvre his army.

    Arnold A Offner - 5/29/2007

    I would think that lying the country into war--regarding so-called WMD and alleged ties between al Qaeda and Iraq--is an impeachable offence. And certainly US actions are illegal, under the UN Charter and Nuremberg tribunals, namely, reventive war is a crime.

    And although the President and Vice President did not get "sworn in" each time they spoke of WMD and Iraq-Al Qaeda ties, aren't their bald-faced lies a form of perjury? Hasn't the public the right to assume that when these two officials speak, they are "under oath"?

    Lawrence Brooks Hughes - 5/29/2007

    No matter how you slice it, JFK sent the first 20,000 U.S. troops to Vietnam, and Johnson came along refusing to accept a defeat and believing in the ersatz "wisdom" of the previous administration. It's high time the liberal establishment stopped giving Kennedy a pass. He was every bit as responsible for the Vietnam disaster as Johnson, if not more so.

    Vernon Clayson - 5/28/2007

    JFK put advisers in Vietnam, propping up and taking down various South Vietnames governments, LBJ accelerated our participation after making an outlandish claim that a motorboat attacked our fleet but then held our forces back for fear of offending Russian and China. No one sang that LBJ lied and boys died. Regardless of the timing of the Iran-Iraq war, they were not singing kumbiyah around their campfires between its cessation and attacking Kuwait. You mention 15 years, 15 years means nothing to the Islamists, their factions have been fighting among themselves and against infidels for centuries and they will be up and they will be down but they will continue for centuries. Didn't like that bit about JFK, did you? He's as dead as Elvis, get over him.

    Vernon Clayson - 5/28/2007

    Sorry, Mr. C., but the peace with neighbors you speak of was non-existent. Iraq had a ten year war with Iran prior to attacking Kuwait. JFK and LBJ put us into the middle of a civil war that arose when the French were chased from Indo-China and HST put us in the middle of a civil war in Korea. FDR, the old socialist, promised that no American boys would engage in a foreign war but apparently had his fingers crossed, there are still a few old men around who were boys at the time that would attest he lied. I notice you left out JFK, still hard to find fault with a Kennedy, isn't it?

    Robert Pierce Forbes - 5/28/2007

    Most importantly, IMPEACH CHENEY FIRST!

    Lisa Kazmier - 5/28/2007

    If Bush uses Iran or a hurricane etc. as a pretext for suspending the '08 elections or that person taking office, is he then impeachable (even though he'd be dismissing Congress)? Any of you read his order giving himself such power?

    Vernon Clayson - 5/28/2007

    Granting that Bill Clinton was wonderful and his conduct merely titilating, his impeachment was wrong as is proved by his red carpet treatment wherever he goes, it is still difficult to conceive why Bush and Cheney should be impeached over this war. FDR, HST, JFK and LBJ set the most recent precedents for lighting powder kegs, what should be done about their sterling records in history? This war is a disaster but it's the only one we have, we can't hope for the terrible losses of the their wars. In this regard, the two Bushes did break a precedent, they were the first Republicans in a century to get us engaged in a war, tsk, tsk.

    Charlie Tonk - 5/28/2007

    On 9/11/2001 Richard Cheney was in charge of NORAD, the very fact that ANYTHING hit the PENTAGON indicates that Mr. Cheney either intended for the PENTAGON to be hit, or he is unfit for the office that he holds.
    In any case he should NOT be employed by WE_THE_PEOPLE in any capacity at all!

    Andrew D. Todd - 5/28/2007

    I would argue that impeachment is something like a vote of no confidence in the British parliamentary system. The specific rules differ, but the net effect is that to make the process work, legislators have to look beyond their personal or party interest. They have to decide that the head of government is so disastrous that they would ultimately be prepared to retire from politics in order to be rid of him.

    You can theorize all you want about what constitutes an impeachable offence, but in the end, an impeachable offense is whatever sixty-seven senators say it is. A senator is answerable only to his constituents, not to any kind of judicial review. Unlike a juryman, a senator is not required to sequester himself, and can in fact send his aides out to discover whatever facts he considers material. For practical purposes, there are no rules of evidence in an impeachment.

    I have prepared a list of nineteen Republican senators who might potentially vote for impeachment, with the year they are due for re-election.

    Finely Balanced Transitional States:

    Florida 2010 Mel Martinez
    Missouri 2010 Christopher S. Bond
    Virginia 2008 John Warner

    Northern Europe in America:

    Maine 2012 Olympia J. Snowe
    2008 Susan M. Collins
    Minnesota 2008 Norm Coleman
    New Hampshire 2010 Judd Gregg
    2008 John E. Sununu
    Oregon 2008 Gordon H. Smith

    California Overflow:

    Colorado 2008 Wayne Allard
    Nevada 2012 John Ensign
    New Mexico 2008 Pete V. Domenici

    The Declining Farm Belt:

    Iowa 2010 Charles E. Grassley
    Nebraska 2008 Charles Hagel
    South Dakota 2010 John R. Thune

    The Collapsed Rust Belt:

    Indiana 2012 Richard G. Lugar
    Ohio 2010 George Voinovich
    Pennsylvania 2010 Arlen Specter


    Louisiana 2010 David Vitter
    Information Please Almanac
    2006 Midterm Elections: The Senate

    Mike Schoenberg - 5/28/2007

    Not giving the U.N. time to finish their inspection for weapons would be another point. Rumsfeld's famous saying that you fight with the army you have, as our soldiers were being blown up in unprotected Humvee's. The fact that Bush has increased the military budget by huge amounts but it still isn't enough as we still need off the budget increases for this war.
    As for Afghanistan, most people can remember that is where Bin Laden was holed up. He is still there as our focus has drifted to Iraq. A needless war which will be with us for a very long time.

    Jeffery Ewener - 5/28/2007

    Prof. Hoffer asserts that none of the crimes committed by the Administration pursuant to its wars were illegal under the Constitution. (Although I wish someone would explain to me why Article VI, which makes "all treaties ... which shall be made ... the supreme law of the land" -- on an exactly equal legal footing with the Constitution itself -- doesn't make the Geneva Conventions, to take one out of a million examples, Consitutionally binding upon the President AND Commander-in-Chief.)

    But if those wars were entered into fraudulently, as it were, that is if that crucial approval "by the Congress and by the majority of the voting public" was obtained through deliberate deceit, false intelligence and outright lies, wouldn't that -- in itself, and regardless of what followed -- constitute Consitutional high crimes and misdemeanours? And if not, why not?