The Case For Impeachment As I See It

UPDATE 4/18: I’m still waiting to see if I’ve met Rex’s standards. Boy, you pull out the stops for a guy and he pulls a fade…

I recently posted about Gabby’s timorous refusal to do anything proactive about advancing the issue of impeachment of Bush and/or Cheney.

In comments, I challenged a critic of my criticism of Gabby, Rex, to deny that Bush deserved to be impeached and to assert that he hadn’t actually done anything that warrants impeachment.

Me to Rex: "I dare you to deny that Bush deserves to be impeached, or that he hasn’t broken our laws and subverted our Constitution."

Rex to Me: "Michael, I’ll take your dare. It has yet to be definitively shown to me that Bush is guilty of the "high crimes and misdemeanors" that warrant impeachment. I have read what you have posted here and earlier about this issue. Whereas I concur wholeheartedly that Bush has been a disastrous president, it has not been shown to me that he should be impeached and then tried in the Senate."

So, that’s what this post is. A little clarification for those Democratic skeptics who still choose not to see the case for impeachment.

First, I would like to put to bed the idea that there is little public support for impeachment. There is far more public support for impeachment in advance of actual Congressional hearings than existed prior to hearings on Watergate. Hearings, exposing to the public the full venal corruption of their Presidency, are what brought public opinion to bear against Nixon. Those hearings and the public opinion they generated convinced even Republican Senators that they would have to convict Nixon, and that cratering of support in his own party finally forced Nixon to resign.

To expect full public support for impeachment in advance of even a formal inquiry into these matters is demanding an impossible standard. But even now, significant portions of the public support impeachment, and even more are convinced that abuses warranting investigation have taken place.

A total of 64% of American voters say that President George W. Bush has
abused his powers as president. Of the 64%, 14% (9% of all voters) say
the abuses are not serious enough to warrant impeachment, 33% (21% of
all voters) say the abuses rise to the level of impeachable offenses,
but he should not be impeached, and 53% (34% of all voters) say the
abuses rise to the level of impeachable offenses and Mr. Bush should be
impeached and removed from office. If you ask the question a little more pointedly, such as asking if Bush should be impeached if he intentionally lied about WMD in Iraq, the number supporting impeachment approaches or exceeds 50%.

This is a very large percentage of the public in favor of impeachment right now, even in advance public hearings on this Administration’s crimes. At 34% of the public, more citizens want Bush impeached right now than the 27% who continue to think he’s doing a good job as President. How much more public support do Democrats need to feel safe moving against a lame-duck, deeply despised President Bush?

But, on with the charges!

We need to start with the basic premise of what warrants an impeachment? The answer from Constitutional scholars boils down to, "Whatever Congress decides warrants impeachment."

However, that’s a little to broad and not very useful as a standard, so let’s just move to the safest ground: violations of the law. Everyone agrees that a President who violates the law is subject to impeachment.

But even that clear line can be problematic. We really don’t like impeaching Presidents for private behavior having nothing to do with his job (such as Clinton lying in a deposition for a civil suit about a sexual liason), even if it is a clear violation of the law. Nor do we really have the stomach for impeachment if the violation is de minimus or highly abstruse. We like impeachment-worthy offenses to have an element of moral turpitude and a clear violation of the public trust to execute the laws faithfully, maybe even a whiff of criminality or tyranny.

So what does that leave out? Lots. There are many things that Bush has done that might be against the law, or are clearly stretching the boundaries in unethical ways, but we can skip over all of them.

I don’t much care for the laundry lists of violations that many advocates of impeachment produce. I always feel that a few clear charges that are manifestly provable are better than kitchen sink indictments.

So, what are Bush’s impeachable crimes?

1. He authorized warrantless wiretapping of American citizens far in advance of 9/11 and in violation of FISA, which is the sole legal means designated by Congress for carrying out such surveillance.
2. It has recently emerged that Bush and/or Cheney very likely personally authorized the use of torture as defined by U.S. law and international treaties against persons in the custody of the U.S. government (leaving aside for the moment the issue of rendition to foreign governments for the purpose of torture).

What makes the proving these charges so easy? He’s admitted to both publicly.

Of course, he has some creative legal defenses (most of which are either outrageous, or clearly made in bad faith) and he has politically powerful justifications for his behavior, but he did them. And they are both serious violations of the law (felonies, the latter of which is even death penalty eligible), committed in the conduct of his duties as President, and carrying a serious aspect of moral turpitude, even criminality or tyranny (unless you are totally cool with spying on innocent Americans in violation of their constitutional rights and torturin’ some folks).

That doesn’t mean there’s not a heck of lot more—there certainly is. But to really dig down on many of the other crimes of this Administration would require information not currently in the public realm. I don’t have subpoena powers to get after those issues, but, of course, Congress does.

Now, let me try to anticipate the criticisms of the criticism critics.

"Well, how can be sure that the Senate would convict, even if the evidence of a violation of the law is clear?" We can’t. That’s something that each Senator will have to live with. And the point of impeachment isn’t always and only to actually convict. The fact that it is done is a tremendous demonstration of the political will to defend our Constitution and the rule of law. Conviction is not what ensures this—it is the fact of impeachment alone that speaks to history and our progeny.

"But the American people seem to support eavesdropping on themselves and torturin’s folks if it keeps them safe." So what? Wrong is wrong whether it’s popular or not. I’m not so liberal that I’m stuck in a moral relativism that doesn’t allow me to judge the moral failings of others. If you’re cool with torturin’ folks and spyin’ on innocent Americans, let me tactfully suggest that there is really no place for you in the Democratic Party. Big tent be damned.

"If the evidence were really so clear, why doesn’t impeachment have more support from Democrats?" This is essentially what a Gabby supporter told a friend of mine at a fund-raiser for Gabby last week. And it’s essentially the defense Rex uses. If it were really so bad as we impeachment advocates say, there’s no way Democrats would just do nothing as our Constitution is ripped to shreds – is there?

Well, actually, that’s why I, and those like me, are so pissed off and annoyingly self-righteous: we see our fellow Democrats doing nothing despite the clear and compelling case that something must be done before it’s too late. Only we’ve moved past any incredulity that our fellow Democrats would stand idly by as Bush and his pals drown our Constitution in the Grover Norquist’s bath tub – we’re on to the outrage. We’re horrified and stunned that our fellow Democrats could apply themselves so assiduously to remaining in denial and pretending that these political times are just business as usual.

"Let’s just move on and give ’em a licking at the polls and everything will be better." Bullshit. It’s not going to be better. If we let these abuses stand, and fail to use the only tool the Founders gave us to combat this royalism in the Presidency, then the Presidency may never be brought back under control. This isn’t about Bush and Cheney.

This abuse will rear up again. Maybe not in the next Presidency, but then in the next, or the next after that. When we fail as a nation to summon the political will to stand up and denounce such abuses, they quickly become precedent for the abuses of a future President, just as Bush has sought to justify his crimes in the context of ’emergency’ powers arrogated by Presidents past (who generally also had their political justifications—like civil war and a real world war).

Do you think there will never be a future crisis? Do you think a President won’t find it expedient to grab as much power as possible to face that crisis? Do you think that President will hesitate to arrogate extraordinary powers to him/herself seeing that Bush got away with so much with so little justification? The government should be in well-justified fear of the people and we’re not holding up our end.

There is much, much more material at any number of internet sites advocating impeachment that wouldn’t necessarily be part of my case for impeachment. In my view, they only add volume, not gravity, to the two very serious and wholly sufficient charges I’ve already stated. Anyone who is interested in exploring these charges further need merely use Google to find out much more. The marvel of the Internet Age is that ignorance is no longer an excuse—it’s a choice.

In any case, whether just the two charges I’ve spotlighted are pursued, or a broader investigation were undertaken, I have little doubt that any seriously determined investigation by a body with subpoena powers and the will to enforce that power would likely find further clear violations of the law. For grins and giggles, let’s look at a few of them after the flip…

Iraq War: I don’t think it’s useful or wise to contend that
lying to Congress in order to take us to war by Bush and his
Administration is a crime, though it may be. It comes a bit too close
to making political debate (no matter how reprehensible or dishonest one’s position)
a crime. And it’s a prosecutor’s nightmare to prove. Related is the
more salient charge (in my view) of conducting a war of aggression in
violation of the UN Charter. This could expose those involved to
charges of crimes against humanity. This is not the best basis for
articles of impeachment, but should instead by dealt with by the ICC
following the Administrations’ transition out of power. Also included
herein are the numerous crimes the Bush Administration likely committed against the people of Iraq
in the actual course of the war and occupation.

Outting a CIA Operative: I don’t know if Bush has a clear
connection to the outting of Valerie Plame, though one is likely to be
found by a committee armed with Congressional subpeonas and the balls
to enforce them. This is, however, a very serious and specific
violation of a federal law if proven. This would probably be the ace in the hole
that would do for Cheney nicely, as he seems to have been the motive force in this bit of outlawry.

Arrogation of Extra-Constitutional Powers: I think the usurpation
of Congressional power inherent in his "signing statements" would
certainly warrant impeachment by a Congress with any self-regard or
concern for Constitutional structure, but it is not a clear violation
of a specific statute or constitutional provision.

Black Sites and Renditions for Torture: The creation of secret
CIA prisons in foreign countries for the purpose of torture and
rendering people to foreign jurisdiction knowing they would be tortured
is ethically and legally suspect, and very well may be a predicate conspiracy for
the extra-judicial killing of a number of foreign nationals, but
its criminality is a very complex issue of national security and international law.

Extra-Judicial Detention: The detention of thousands of
Americans and foreign nationals without requisite due process such as
charges, access to council, etc. As bad as this is, most Americans have
been sufficiently terrified by this Administration to mindlessly accept
such behavior as long as it doesn’t affect "us." A political no-win unless Americans can be woken up from the fever-dream of the War on Terror. Much to much of a long-term project, I’m afraid.

Violations of the Geneva Conventions in Iraq and Afghanistan:
See above, although there is clearly a stronger case to be made that
this behavior has undermined our national security and the safety of our own deployed soldiers in conflict zones.

Attorney Gate: The firing of prosecutors for political purposes
and the politicization of the Justice Department are dangerous and
deplorable, and may have involved numerous violations of the Hatch Act
and other laws, but there is not a clear and documented violation here.
Investigation would likely locate several, however.

Misuse of a Pardon Power to Subvert Justice: The Commutation of Scooter Libby’s sentence was certainly an obstruction of justice, but it would be difficult of prove.

Ordering Congressional Subpoenas Defied, Thereby Obstructing Justice:
I saved this for last because of all of these "also-ran" charges, this
might be the clearest and most simple prove. This one almost made my
list of "slam dunk" impeachable offenses. The only reason it doesn’t is
that there is an missing link between the defiance of Administration
officials and any order to be defiant by the President. He’s not
admitted to ordering officials to defy their subpoenas, though it’s pretty
clear no member of the Administration would do so without the explicit
support of the President given that such behavior has the potential to
spark a constitutional show-down if Congressional Democrats had any
self-respect.

That’s a pretty impressive list of impeachable offenses, and it’s not nearly exhaustive. I daresay that no President has ever collected such a list of potentially impeachable offenses. The sheer number of abuses, scandals, and outright scofflawry boggles the mind. No wonder so many Democrats think there isn’t sufficient time. But I remind the reader; it only takes one. We don’t have to impeach for all of this, we only need to prove one or two choice charges and the deed is done.