Should Bush and Cheney Face Impeachment?
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.
Related Links
Bernard Weiner: The Roots of Disaster ... Impeachment As Remedy