Jack Rakove: Bush, Nader and the 'I' Word
Jack Rakove, in Salon.com (6-23-05):
[Mr. Rakove is the Coe Professor of History and American Studies at Stanford University]
Ralph Nader and Kevin Zeese have summoned Americans once again to utter those fearsome words that ordinarily dare not speak their name: "high crimes and misdemeanors" and, more provocative still, the I-word, impeachment. The objects of their incantations are President Bush and Vice President Cheney, and the occasion is the systematic misrepresentation of intelligence about WMD that provided the now-discredited pretext for the invasion of Iraq. Since the evidence of the administration's dissembling (or "disassembling," as a recent Bushism has it) failed to sway a majority of the electorate last fall, impeachment is the last option available for those who naively believe that every political wrong must have its remedy -- and sooner rather than later.
Why would anyone even bother to make this argument? One would have to suspend oodles -- nay, caboodles -- of disbelief to imagine a scenario under which impeachment proceedings could even begin, much less make any headway in a Republican House. And even with impeachment, how could a two-thirds vote for conviction in the Senate possibly be mustered (or maybe the word is really "mustarded")?
But let's suspend our disbelief for a moment. Politically unrealistic as Nader has repeatedly demonstrated himself to be, an abstract case could be made for uttering the I-word with the current administration in mind. For one thing, the impeachment of Bill Clinton in 1998 set the bar for "high crimes and misdemeanors" so low that any subsequent president could legitimately worry about this generally moribund provision of our Constitution being deployed against him whenever an opposition party controlling Congress found it convenient to do so.
For another, a decision to initiate a war that depended on the calculated misrepresentation of information on the scale alleged against this administration plausibly falls within the unspecified category of "high crimes and misdemeanors" that the framers of the Constitution belatedly added to their original list, limited to treason and bribery. The fact that this original deception was accompanied by a wholesale failure to plan for the occupation presumably compounds the case for impeachment.
It is worth noting, though, that the framers adopted "high crimes and misdemeanors" only after they had first rejected George Mason's proposal to add "maladministration" to the list of impeachable offenses. In James Madison's view, "So vague a term will be equivalent to a tenure during pleasure of the Senate." Gouverneur Morris added a further objection. "An election of [the president] every four years will prevent maladministration."
Doubtless Morris was overly optimistic in thinking that the promise of reelection would always persuade incumbents to avoid "maladministration" or offer the country relief in case they failed to do so. But his rationale for linking impeachment to the election cycle identifies another compelling reason for ignoring the Nader-Zeese proposal -- assuming, that is, that we're still taking it seriously.
Simply put, Americans know as much now about the defects in the administration's case for war as we did when we voted in November. True, some details have been added here and there. Additional months of insurgency and countless bombings have repeatedly confirmed how poorly our highest leaders planned for the aftermath of an initial battlefield victory. But the nation had as much information last fall as it needed to make an informed judgment about the rationale for war and the conduct of the occupation. And the challenger, John Kerry, certainly did the best he could to place these issues at the heart of his campaign. Even if large numbers of Bush supporters proved incapable of absorbing this information, their votes do not count any the less for having been cast in self-imposed ignorance.
There is, moreover, a deeper constitutional nexus between the regularity of the election cycle and the spasmodic history of presidential impeachments. Why do we have an impeachment clause at all in the Constitution? It was not because the practice was so well established and venerated in England that the framers simply adopted it uncritically. Though the English practice of impeachment arose in the Middle Ages (the phrase "high crimes and misdemeanors" dates to the 1380s), it had become so thoroughly politicized in the 17th century that it had essentially faded from use. (But it was being revived just about the time the framers were meeting, in Edmund Burke's campaign to impeach Warren Hastings, the governor-general of India.)
A better answer requires asking how the adoption of the impeachment clause reflects the general difficulties the framers faced in designing the presidency. Two reasons for the adoption of that clause stand out.
First, the presidency is the sole institution in which the Constitution vests the whole power of an entire branch of government in a single individual. In the other political branches, decision making is collective, and the capacity of individuals to subvert governance is greatly diminished. In the judiciary, the special circumstance of tenure during good behavior also made a mechanism for removal necessary. With the presidency, the concentration of power in a single person established its own rationale for a constitutional procedure for removal. (The same circumstance, by the way, satisfactorily explains why this is the one office reserved to natural-born citizens.)
But there was another reason why the peculiar problem of the presidency made something like the impeachment clause seemingly necessary. Of all the institutions the framers designed, this was the most novel, and the one whose political qualities and characteristics were most difficult to predict. There was simply no precedent in 18th century political science for a national executive elected on republican principles. The framers repeatedly looped around on the subject during their debates and fixed on the zany innovation of the Electoral College only at the last minute. Even then, few of them thought the electors would regularly produce a majority for any candidate.
Given their reigning uncertainty about how presidents would actually be chosen, it made a great deal of sense to adopt an impeachment clause for a system whose operations were so difficult to predict. The great irony here is that the election system has generally worked much better than the framers envisioned, usually producing decisive and unchallengeable results. The Y2K election that installed George W. Bush in the presidency is, of course, one of a handful of notable exceptions to this rule. The last election, however, was not. An informed electorate made its choice, and for better or worse, we are stuck with the consequences.