Booman's diary today has pushed me over the edge. OK, you want to talk about the "inexorable logic" of impeachment? We'll talk. Because Booman's own position doesn't really warrant (or even allow for) refutation, I'll instead take on a serious effort to determine the possible basis for impeachment: the recent series of diaries by Vyan proposing articles of impeachment based on (1) intelligence fraud, (2) domestic espionage, and (3) war crimes torture and murder.
I think it's worth giving some thought to what Bush's defense to such charges might be. My making these arguments does not constitute endorsement of them, so don't bother accusing me of that. I think that Bush has done grievous harm to the Constitution that should be reversed by any just and available means. But only an idiotic lawyer wades into a fight without an idea of what the opposition would say. So, here goes.
1. Boo Boo
Before engaging the worthy work of Vyan, I'll address today's diary by Booman, whom I generally admire. Booman's own position is a combination of nihilism and bravado. The nihilism is evident in this response to Adam B's inquiry as to exactly what "high crimes and misdemeanors" are at issue:
A) finding them is definitional and should not be any problem whatsoever.
B) as Gerald Ford said, 'an impeachable offense is what, at any time, Congress says it is.'
C) the situation requires it and it is fully justified...even necessary.
Oh, finding the crimes is definitional, is it? We know he's guilty, and we just have to find any citation to suit our need? Where have I seen that before?
Clevinger was guilty, of course, or he would not have been accused, and since the only way to prove it was to find him guilty, it was their patriotic duty to do so.
-- Joseph Heller, Catch-22
No, no, no. In our constitutional system, people are not "guilty," they are guilty of something. Booman is apparently rallying to save the constitution through, in effect, a bill of attainder. While I admire a good irony as much as they next person, it won't fly. Saying that Congress can just conjure up any old pretext for impeachment and removal is ridiculous. It certainly won't work in the IOKIYAR world in which we still live; instead, it would likely backfire, and its lasting effect would be a horrible precedent that would be available for future use against progressives. Turning President Scheisskopf into President Clevinger is bad justice and worse politics.
The bravado comes in the certainty that -- once we get in our first good roundhouse punch -- the population of the Congress, the Gang of 500, and the nation generally will greet us with flowers and welcome us as liberators. (Where have I heard that before?) Yes, every day we see how much the media has reformed, don't we? And while the political wind s favor us, for every stammering Gordon Smith there are still plenty of Lee Hamiltons and Leon Panettas wondering who stole the pants off their butts. The goal of the GOP is to Grab Onto Power and never let go. They don't need to jettison Bush to stay in power; having Democrats do a public full-face pratfall, where every honest constitutional scholar would sadly have to agree that the case is not made and the precedent would be damning might do just as well in a IOKIYAR world. (Is the counterevidence that, after the failed attack on Clinton, Bush "won" in 2000? Well, trade Bush's media treatment for Gore's and vice versa and we'd have been talking about Bush enduring a Goldwater-style thumpin'.) Talk that impeachment is "inexorable" is a hothouse flower; it won't survive outside of the friendly confines of sites such as ours. Maybe it is possible, but it's hardly a -- choosing my words carefully here -- "slam dunk."
No -- we cannot get away with half-assed bravado as we approach impeachment. We'd need arguments that can stand up to pressure and attack; even if we're defeated for lack of 67 Senators, we need it to be known that our ends and means are righteous. So let's get on to that.
(2) Vyan's proposals
The overarching observation I begin with is that you impeach a person, not an administration. Every attempt at Presidential impeachment (and to my knowledge, all others) begins with the President voluntarily taking an action that he knew or should have known was wrong.
- Andrew Johnson intentionally provoked a Constitutional Crisis by firing Sec. Seward in contravention of the Tenure in Office Act, which he believed was unconstitutional. (Rightly, the Supreme Court later held.)
- Richard Nixon intentionally ordered that hush money be paid for people who had committed a burglary and committed espionage on behalf of his campaign.
- Bill Clinton was intentionally misleading (if not actually lying) under oath in his deposition regarding a civil case in which he was a defendant. (Yes, what he did wasn't technically illegal -- and to my mind not nearly impeachable -- but there was no doubt that he knew the truth and intended to conceal it for his own gain.)
So I take it as a given that we need to find similar personal knowledge, in advance of a crime, on Bush's part. Otherwise we may end up in the situation that we did with Iran-Contra where the investigation could not show that Reagan himself ever quite connected the dots -- due to his own incuriousity and feeble thinking -- to see that actions he ordered (or at least acquiesced to) were illegal. And that didn't work out so well.
The minimum requirements for fraud are that you (1) intentionally (2) represent to someone else (3) that something is true, (4) when it is not true and (5) when you know is not true, intending that (6) they will take some action (7) that benefits you.
For Bush to have committed the crime of fraud, a single act of his must have satisfied each of these conditions. We'll have particular problems -- more so than in the three previous impeachment cases -- proving that (1), (4), and (5) simultaneously apply to any particular act.
Here's what Bush's defense team might say to each of Vyan's points:
- PNAC wanted to "invade." Arguably relevant to "motive," but "motive" isn't at issue here.
- Bush said he wanted to invade Iraq "if I have the chance." Pretty much irrelevant to impeachment. The question is whether he did it by illegal means. If I want a Mercedes, and later you see me driving one, that doesn't mean that I stole it.
- About yellowcake: (a) Bush never said that the yellowcake story was true, but that the British government believed it to be true (so element (3) of the crime is not satisfied); (b) the questionable acts described are those of his advisors -- note where Vyan quotes people saying "*they* put it back in, they preferred to perpetuate a lie" (so element (1) isn't satisfied, and remember that you can't impeach the administration, just the man); (3) so there's no evidence on record to show that Bush himself did not believe the story to be true or, more to the point, that he believed it was not true (as opposed to, say, mostly but not entirely proven) based on his advisors' representations, (so element (5) of the crime is not met).
- Most of the other things "they" did or didn't know do not refer to Bush's own demonstrated knowledge; nor does the fact that any of these turned out not to be true, or that with hindsight turned out to be based on a weak premise, prove that the proponents of the information knew that it was false. Did the CIA say otherwise? All Bush has to say is that he didn't fully trust the CIA's position. If he knew that they were anti-war, he would have had reason for skepticism. Most of the stuff dealing with Powell, etc., doesn't implicate Bush's knowledge.
- Bush's 2003 SOTU can be defended against constituting fraud. When Bush said "This is a regime that agreed to international inspections -- then kicked out the inspectors," this is not literally untrue (element (4) not satisfied), though it's misleading as hell; as Vyan's diary shows, Saddam did kick out "the" inspectors, if by that one means American inspectors (a misleading but permissible construction) in 1997. His counsel will argue that even if that was misleading, it didn't matter, because Bush did believe that Saddam posed a serious danger and possessed WMDs and the additional puffery he ladled on to help make the political case for war doesn't constitute fraud. As for the fact that Saddam didn't violate the agreement -- if Saddam thought that he has a chemical and bio weapons program, then we certainly can't say that Bush knew for certain that he did not (element (5) unsatisfied.)
So then we get to the crux of Vyan's argument in point 1:
If Bush didn't know what he was claiming were complete falsehoods - he should have known. It's HIS JOB TO KNOW. Whether he personally initiated the fraud isn't the point, he helped perpetrate it. He legitimized it. He is the one ultimately responsible.
No. That is simply not the law of fraud, absent specific statutory language (such as you may see in some Sarbanes-Oxley requirements) to the contrary. Here's a perfectly good defense against fraud: Bush relief on the advice of competent advisors, the most senior of which were approved by the Senate, in these areas, and he believed in good faith that Saddam had at least some WMDs and therefore posed a threat to the U.S. It is not "his job to know"; it's his job to take the information he has, form an opinion, and promote a policy that is not, to his knowledge, opposed to the facts. We can't demand omniscience from the President, and for the President to worry about impeachment when making policy if it turns out that his assumptions are wrong would lead to paralysis. If Congress wanted more information before approving the use of force, it could have sought it. But it didn't. The President's actions were authorized. Without good evidence that the President had reason to know that Saddam did not have WMDs -- not simply that some pieces of information used to make the case for war were wrong in their particulars, if he truly should not have been able to trust his advisors, but that the whole damn premise of the war was wrong -- there is grounds for political rejection here but not for impeachment. And as many people as may say that they were sure that there were no WMDs -- bearing in mind that Saddam himself was evidently not of that belief -- the certainty of Bush's critics smacks of Monday Morning Quarterbacking. After all, these are many of the same critics who were convinced that Russia would intervene in the Balkans to save Milosevic and that an invasion of Afghanistan would topple the Pakistani government. If they got one right, good for them; it doesn't give them the right to impeach.
I emphasize again for the benefit of those who have forgotten: I am not presenting my own viewpoint here. I'm presenting the argument -- actually, the rudiments of the argument, as I'm sure they'll do much better than this -- that the President's counsel will likely make. Ask yourself: are we currently able to overcome this? Are we going to succeed in arguing for a President who must look over his shoulder at impeachment if his intelligence assumptions turn out wrong? Look around at the people who don't already fully agree with you, imagine a media hammering away at the Democrats for crippling the institution of the Presidency for their political gain, and ask yourself whether we are moving "inexorably" towards impeachment on this ground.
Vyan offers the following ground of impeachment:
President George W. Bush did, with malice aforethought, deceive the World and American people in order to secretly conduct Espionage Against Millions of Americans, repeatedly violating their 1st and 4th Amendment Rights as well as multiple Federal Laws.
[NOTE: This article is, I admit, near to my heart, and Vyan's diary does a good job. And yet I have some experience with how the Republicans will fight against it; John Ensign, in his campaign against my candidate Jack Carter, squirted gallons of ink into the water to argue that what Bush did was permissible. Here's how I would expect his counsel to proceed.
- - -
- Let's start by dispensing with the Constitutional argument. There is already no warrant needed. You can get authorization for a warrant after a call -- it's now three days; the Democratic Congress wants to make it a whole week. No one is still challenging the fact that you don't need a warrant in advance for surveillance. For "chasing down terrorists" -- as Vyan quotes the President -- then you do. But then we have probable cause, thanks to this surveillance -- a program that is highly supported by the American people, unlike, say, paying hush money or lying during depositions.
- FISA doesn't intend to tie the President's hands during wartime. Congress never intended FISA to prevent the Administration from defending against direct attack on the United States.
- If FISA does do so, it's an unconstitutional encroachment on the President's powers as the unitary executive. During wartime, the constitution demands deference to the President's authority as Commander-in-chief. Etc. If the unitary executive model is correct, then the President's actions are proper. "If the President does it, it's not a crime," some guy once said.
- AUMF authorized these actions. [OK, I can't write much to support the argument, but they will make it and some will buy it.]
- Much of what the Administration is accused of is not actual interception of the content of messages, but the equivalent of looking at the outsides of envelopes without opening them. This is legal.
- Most importantly, the President was relying on the advice of competent counsel, the leaders of which were approved by Congress, in all of these matters. It may be that the President's position was mistaken; Presidents win some court cases and lose them, but we don't talk about impeachment when they lose a case. (LBJ favored minority set-asides ruled unconstitutional in Adarand. Was his action impeachable?) Even if the President's actions were wrong here, he was acting on legal advice. To find an impeachable offense here, you have to include that not only was the advice he was given about FISA, the AUMF, and the unitary executive wrong, but that it was so obviously wrong that the President was unreasonable to accept it. The fact that the author of one such memo was approved by Congress to a lifetime appointment on the 9th Circuit Court of Appeals, and that another is a prominent professor at a leading law school, both positions being attained after their participation in these activities was known, shows that -- at worst -- the position was arguable. To say that the President risks impeachment for relying on the legal advice of counsel would weaken the Presidency irreparably. This is not the standard we would use when the penalty at issue was a mere fine, let alone the Presidency.
For what it's worth, I think that only #6 is a really troublesome argument here, but it's pretty troublesome. I'd argue that the President coluded in this advice and therefore had no basis to claim advice of counsel as a defense. But we don't have evidence of that yet. I also seriously doubt if the President would be impeached for an action that the American people by and large accept, even if it is unconstitutional.
Vyan proposes this third article of impeachment:
George W. Bush, Dick Cheney, Alberto Gonzales and Donald Rumsfeld did commit a series of Capital Crimes with malice aforethought, including grave breaches in the Geneva Conventions and the Laws of War - actions which have led to numerous counts of maltreatment of prisoners and torture up to and including over multiple murders under color of authority.
Here come's Bush's attorneys:
(A) Vyan argues that the Gonzales Memo suggesting exempting Taliban fighters from the protection of Geneva is prima facie evidence of a crime, stating that "We Are Signatories and as such we are required to abide by Geneva." But this doesn't contradict the memo, In fact, Vyan himself quotes the relevant portion:
In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
I've boldfaced the parts that Vyan did, but the critical section is what I've italicized: terrorists, including unrecognized governments, are not representatives or forces of states, and therefore they are not "High Contracting Parties" and the protections we have agreed to do not extend to them. Because of this mistake, Vyan raises a number of arguments related to treatment of "Prisoners of War" that are inapplicable to the Al Qaeda and Taliban fighters. They aren't Prisoner's of War because they aren't fighting for a Geneva signatory.
Furthermore, Congress has implicitly if not explicitly accepted this in numerous of its acts, by both commission and omission. Should the President now be impeached for a "crime" that Congress has agreed up until now is not a crime based on a fair interpretation of Geneva?
(B) Vyan next quibbles about the meaning of torture. This shows a basic lack of understanding of the checks and balances system. Congress passes laws and the Executive Branch puts them into effect -- a process that often involves a fair amount of interpretation. An agency's interpretation of a law deserves deference unless Congress unambiguously does not allow for that interpretation to hold sway. If Congress or anyone else felt that the definition of torture was wrong, it could challenge that definition in court, or pass a clarifying law. To impeach the President for his agency's definition of torture is ridiculous; there were means far less dramatic to resolve any conflict that existed.
(C) The Rumsfeld memo is subject to a similar analysis as the Bybee memo.
(D) Extraordinary rendition fell within the power of the President under the theory of the Unitary Executive. Again, impeachment on this point means fighting that out.
(E) If Hamdan did make previous Bush Administration actions potential war crimes, the Military Commissions Act settled that they are not, and impeachment will take place after passage of the MCA, not before. Many of the Bush Administration's actions have been retroactively "cleansed" by a bipartisan vote and cannot serve as a basis for impeachment.
(F) Again, consider the "advice of counsel" defense. The President is entitled to rely on the advice of his competent counsel. Taking away that right would be a disaster. This means that you must show not simply that the President was wrong, but that the President was not reasonable in accepting this advice. That's a high bar to clear.
Again, my views are much less favorable to Bush than I express here, but there are some good points to grapple with.
So the next time someone says that impeachment is easy or obvious or inexorable, please point them here. This is going to be the toughest political fight of our lives if it goes forward. Our leaders know it. Let's be no less wise and informed than they are.