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On the suggestion of some fellow Kossacks, I'm posting an expanded version of my comment on the thread about Dubya's tantrum as a full diary.

Follow me over the fold to consider a little piece of history: The 3rd article of impeachment against Richard Nixon, adopted by the House Judiciary Committee on July 30, 1974; and see if it reminds you of anything.

RESOLVED, That Richard M. Nixon, President of the United States, is impeached for high crimes and misdemeanours, and that the following articles of impeachment to be exhibited to the Senate:

ARTICLES OF IMPEACHMENT EXHIBITED BY THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN THE NAME OF ITSELF AND OF ALL OF THE PEOPLE OF THE UNITED STATES OF AMERICA, AGAINST RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES OF AMERICA, IN MAINTENANCE AND SUPPORT OF ITS IMPEACHMENT AGAINST HIM FOR HIGH CRIMES AND MISDEMEANOURS.

[...]

Article 3

In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

The grounds for the 3rd article were referred to as "Contempt of Congress" -- the other two were for "Obstruction of Justice" and "Abuse of Power". The subpoenas mentioned in the text of the article were for documents and tapes from the White House, subpoeanaed by the Judiciary Committee after it was authorized by the full House to investigate whether grounds existed for the impeachment of the President. Nixon refused to comply with any of them, and he also defied subpoenas by Special Prosecutor Leon Jaworski for more or less the same material -- primarily, the tapes. He defied Congress' subpoenas on the grounds of "executive privilege", an application of separation of powers claiming that one branch of government (the executive) should be able to deliberate in confidence, without fear that another branch (the legislature) could examine its secrets. Shortly before the Articles of Impeachment were adopted, the Supreme Court had found unanimously that Nixon was obliged to comply with Jaworski's subpoenas, allowing that there is such a thing as executive privilege, but that it did not extend to letting him conceal evidence of crimes.

The Judiciary Committee submitted the three articles for consideration by the full House; but before the House got to a vote on impeachment, Nixon released the disputed tapes, which did in fact contain the damning evidence everyone expected. Support for Nixon in Congress withered away, and on the urging of Barry Goldwater and other Republican leaders in Congress, Nixon resigned before the House got the chance to impeach him.

In the law and particularly during constitutional crises, the American system of government loves a precedent -- officers of the government, such as members of Congress contemplating  their power to impeach, feel confident that they're not doing something crazy if they can point to history in which people with similar power did similar things under similar circumstances. So the 3rd Article of Impeachment against Nixon gives us the precedent to which we can point if Bush defies congressional subpoeanas, related to the US Attorney Purge or any other matter. If he refuses, then you can substitute the dates of the subpoenas and the name of the President in the text of the Article, and we're almost all set to go. Impeachment is the means that Congress has to compel Bush to do what he must; if he does not, then Congress can force him out of office. Bush and Cheney are famously obstinate and incorrigible, but we can't let those weaknesses of character corrupt the separation of powers that lies at the heart of our democracy. Congressional leaders better make it clear that the White House must comply or Bush will lose his job; and when (not if) he defies them, they better be prepared to follow through.

As I mentioned on the other thread, the current chairman of the House Judiciary Committee is John Conyers, who occasionally posts to the Daily Kos. Congressman, if you or one of your staffers is reading, you know what to do. You can go forward with confidence that I, and I presume many other participants on this site, will give you full and determined support.

There's something important worth mentioning about the 3rd article -- it justifies impeachment by the fact that the subpoenas in question were part of investigations regarding impeachment itself. As I mentioned, the Judiciary Committee was specifically authorized by the full House to investigate possible grounds for impeachment, and the subpoeanas were submitted to that end. By defying them, Nixon was doing what Patrick Fitzgerald recently described as Scooter Libby's crime -- "throwing sand in the umpire's face". Moreover, impeachment is a power that the Constitution specifically reserves to Congress. By deciding on his own whether or not the subpoenas were justified, Nixon was interfering with a prerogative that is solely reserved to the legislature, not to him.

The 3rd article was in fact the most controversial of the three that passed (two others were proposed that were not adopted), and it received fewer "Yea" votes than the other two (two Democrats on the Committee voted against it, although the Democrats were unanimous on the other two, and it received the least Republican support, with only two of them voting for it). Congressmen were a little cautious about taking their oversight power, which encompasses the power to subpoena, so far as to impeach a President for defying it. To be sure, any citizen who defies a congressional subpoena would be found in contempt of Congress and arrested; but some Congressmen wondered if the President did indeed have a separation of powers issue, that was at least strong enough that his defiance wouldn't rise to the level of "high crimes and misdemeanors".

It's possible, then, that the Nixon-era Congress would not have impeached him for defying just any subpoena; it mattered that the subpoenas were about impeachment itself. In their judgment, that truly went too far, because if the President can impede investigations related to impeachment, then Congress is effectively stripped of the power to impeach, and the President is forever protected from it.

That is likely to be the angle by which Bush and his supporters would argue that the Nixon precedent does not apply in current circumstances. The Judiciary Committee has not been authorized to examine the specific issue of impeachment; not yet anyway. If they just issue subpoenas to look into the Attorney Purge, then they're not clearly exercising the constitutional power to impeach, so Bush could argue that he can refuse without usurping that power.

What this all means, I think, is that sooner or later, impeachment will have to be back on the table. The separation of powers simply cannot tolerate a President's refusal to comply with Congress' power of oversight and investigation; and Congress must ultimately have the will to deal with a scofflaw President by impeaching him. Let Conyers announce right now that his investigations are related to the question of impeachment; or if he issues subpoenas and Bush refuses, then Conyers can say that Congress may have to impeach him for it, and subpoena him again. Or let the Judiciary Committee open a wide-ranging investigation into potentially impeachable offenses, including warrantless wiretapping (which in my view is the killer), FBI abuse of NSL's, extraordinary rendition, all of it. If the investigations are about impeachment, then thanks to the Nixon precedent, Bush will clearly be on perilous ground if he does not comply with them.

If Bush at some point gets a personality transplant and decides that he will co-operate with the other branches of government as the Constitution requires him to, then we might avoid the constitutional crisis. But let's be honest, we've been watching the petulant little man-child for six years and we know what he's going to do, especially after today. He's going to stamp his feet and refuse until the bitter end, and if Congress has the will (a very big if), they'll have to go all the way down the road of impeachment and removal to straighten him out. I don't see this playing out any other way.

(Cross-posted to my blog and Progressive Historians.)

Originally posted to Buckeye Hamburger on Tue Mar 20, 2007 at 06:11 PM PDT.

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Comment Preferences

    •  Wonderful (5+ / 0-)

      wonderful diary! Recommended!

      And please Congressman Conyers, pay attention to this diary!

    •  Do you accept mojo from Wolverine fans? (2+ / 0-)
      Recommended by:
      taylormattd, Buckeye Hamburger

      I was a second-year law student when the Judiciary Committee debated and voted on the articles of impeachment. My impression then was that abuse of power was the most serious of the three. Still is.

      "I would define a journalist as someone who brings news to the public."--First Amendment lawyer Martin Garbus.

      by Dump Terry McAuliffe on Tue Mar 20, 2007 at 06:20:46 PM PDT

      [ Parent ]

      •  For impeachment, I'd even shout M Go Blue (3+ / 0-)

        You're very gracious, friend from Up North. For a noble cause, we have to set aside even the most grievous differences. Well, until game time, anyway.

        I agree with you about abuse of power, and I also think it's currently the most serious. Above all, I think that the warrantless wiretappings are unequivocal grounds for impeachment.

        BTW, I was an undergrad at Duke while Tommy Amaker was there, used to see him around campus with books under his arm. So I had a spark of sympathy for the Wolverines that no Buckeye would never admit (so don't tell anyone, OK?). Sorry to see that things didn't go better for him.

        Absolute power corrupts absolutely.

        by Buckeye Hamburger on Tue Mar 20, 2007 at 06:31:03 PM PDT

        [ Parent ]

        •  Here's what they're saying about Amaker (0+ / 0-)

          Either (1) he never had a chance because Michigan's athletic department is stingy when it comes to men's basketball and/or (2) he didn't do enough to cultivate the alumni and the Ann Arbor community.

          Speaking of the Buckeyes, I rooted for them against Florida in January, and against Miami of Florida a few years ago. The Big 10 football season is the primaries, the BCS final is the general election.

          "I would define a journalist as someone who brings news to the public."--First Amendment lawyer Martin Garbus.

          by Dump Terry McAuliffe on Tue Mar 20, 2007 at 08:03:34 PM PDT

          [ Parent ]

          •  Never understood the animosity (0+ / 0-)

            When they fired Amaker, they cited the fact that he never got the team into the NCAAs. And I can follow that, it's a clear, objective goal.

            But in addition to that, there always seemed to be some kind of visceral dislike between Amaker and the Michigan community which I could never understand. He seemed to be a decent enough guy back when he was a student-athlete (not that I knew him personally). But for some reason, he just seemed to rub the people in Ann Arbor the wrong way.

            OSU fans always used to root for Michigan when they were the Big Ten team that got to go to the Rose Bowl -- back when it used to work that way.

            Absolute power corrupts absolutely.

            by Buckeye Hamburger on Tue Mar 20, 2007 at 08:24:13 PM PDT

            [ Parent ]

  •  Excellent! (4+ / 0-)
    Recommended by:
    cotterperson, mango, duha, CincNavWif

    Thanks for making it clear that there is no excuse-- none-- for not impeaching, trying, and hanging this criminal.

    If we would be the Land of the Free, we must again become the Home of the Brave.
    Justice Holmes: "When you strike at a King, you must kill him."

    by khereva on Tue Mar 20, 2007 at 06:12:47 PM PDT

      •  Agreed (3+ / 0-)
        Recommended by:
        jmart, taylormattd, khereva

        Prison, maybe; but rhetoric about "hanging" is over the top.

        But really, impeachment and removal would accomplish what I think matters most -- restoring the separation of powers, and hence the constitutional order that our whole democracy depends on.

        Absolute power corrupts absolutely.

        by Buckeye Hamburger on Tue Mar 20, 2007 at 06:18:25 PM PDT

        [ Parent ]

        •  He's lied his way into the deaths (2+ / 0-)

          of over three thousand Americans, and over half a million non-Americans... in addition to the crimes that will actually get us in the door on impeachment.

          I'm thinking life in prison isn't going to cut it.

          If we would be the Land of the Free, we must again become the Home of the Brave.
          Justice Holmes: "When you strike at a King, you must kill him."

          by khereva on Wed Mar 21, 2007 at 03:09:58 AM PDT

          [ Parent ]

          •  All true, but what's the charge? (3+ / 0-)
            Recommended by:
            Simplify, ellen, eastmt

            I should add to this that I'm opposed to the death penalty. but I certainly agree with you that he's responsible for countless deaths and horrible suffering, all of which should have been avoided. In a just world, he should be punished severely for that.

            But I also insist that the rule of law must prevail, and that means that we have to say what crime we're accusing him of, for which he should receive the punishment. That's what brings us to the other side of this moral catastrophe -- the United States Congress authorized his use of force in Iraq, and thus on legal and constitutional grounds, he was permitted to wage war, with all of its ghastly consequences. A President cannot be charged, tried or punished for doing that, even if we think that both his motives and those of Congress were wholly evil.

            Many people have suggested that he could be charged for lying to justify the war to Congress, but I think that's a very hard case to make. What exactly is the charge? And although we're all pretty certain that he was dishonest, lying -- knowledgeable and intentional acts of deception -- is a pretty hard thing to prove. He could pull a Hillary Clinton and claim that he didn't know better at the time. Moreover, as long as the war is still authorized, even though Congress could revoke the authorization, he could argue that Congress evidently does think that the war is still worth fighting, so Congress apparently thinks that he didn't lie, or that the lies were not significant enough for them to take back their vote.

            All of this stuff does matter, if we are going to use the constitutional procedure of impeachment to correct the wrongs that Bush has ravaged on the Constitution. We should have a solid legal case for removing him, otherwise we run the risk that Bush's anti-constitutional excesses are just being met by more of the same by Democrats in Congress.

            These considerations should remind us that not only was Bush an evil bastard, so were many members of the 109th Congress, including more than a few Democrats.

            I know how you feel, by rights we should just haul the sonofabitch away and to hell with the rules. But we can't do that if we want to leave a better future in which the laws and the system are allowed to work the way they're supposed to -- that's what I think is most important. Otherwise, I wouldn't be spending so much time worrying about the Constitution and the meaning for Bush of the precedents set by the Nixon impeachment; what I'd really like to be doing is punch his lights out.

            Absolute power corrupts absolutely.

            by Buckeye Hamburger on Wed Mar 21, 2007 at 07:14:13 AM PDT

            [ Parent ]

  •  Thank you. (3+ / 0-)
    Recommended by:
    cotterperson, duha, Buckeye Hamburger

    I greatly fear that we're likely to hear nothing from our current Democratic leadership but the sound of dry powder whimpering, but it is very worthwhile to recall that once we as a nation were able to effectively address gross abuse of the office of the President.

    I hope against hope that my fear will be proven unfounded- but I, along with a lot of others, am becoming uncomfortably accustomed to disappointment.

  •  Of course, this point has already been (4+ / 0-)
    Recommended by:
    jmart, LNK, slksfca, Buckeye Hamburger

    "sullied" to some extent by its adoption and abuse under the Republicans' impeachment of Clinton, which borrowed some of the same language for its article IV.

    The difference in the gravity of the situation is stark even though incomprehensible to right wingers.

    •  That point should be made over and over again (3+ / 0-)
      Recommended by:
      donnas, blueoasis, Buckeye Hamburger

      The difference in gravity.

      Clinton was impeached for lying about a personal act of indiscretion. Bush and his criminal gang are trying to cover up a case of obstruction of justice -- firing prosecutors who were going after Republican wrongdoers such as Duke Cunningham.

      For every baby boomer who remembers Watergate -- and who couldn't? -- that will resonate. So that has to be the frame.

      This isn't about a blow job. This is about interfering with criminal prosecutions. There's a huge difference.

  •  Change the names & dates (0+ / 0-)

    and run with it! That's all they'd need to do up there on the hill.
    Do they have the cajones?

    "Mankind must remember that peace is not God's gift to his creatures. It is our gift to each other." Elie Wiesel

    by witchamakallit on Tue Mar 20, 2007 at 07:19:54 PM PDT

  •  Bush will try to have it both ways (1+ / 0-)
    Recommended by:
    Buckeye Hamburger

    If there has been no authorization of an investigation into impeachment, Bush will argue that the subpoenas are just part of a fishing expedition.

    And if the House authorizes a committee to investigate impeachment at this juncture, before it has fully investigated, Bush will argue that the House is acting precipitously without having all the facts.

    It shouldn't matter.  There are allegations that the Attorney General and his top deputies lied to Congress.  There are allegations that the Attorney General, with the approval of the President, fired federal prosecutors because they were either investigating Republicans, not investigating Democrats, or not trying to disenfranchise minority voters.  Those are serious enough matters to warrant oversight and investigation regardless of when or whether impeachment is being considered.  Yet.

    Alberto Gonzalez: "I'd really like to see his diploma." Dick Cheney: "He scares the living crap out of me." -- Keith Olbermann

    by litigatormom on Tue Mar 20, 2007 at 09:20:23 PM PDT

    •  Impeach Gonzales first (0+ / 0-)

      That's the way around the dilemma.  If the investigation is into impeachable offenses by Gonzales then all the material relating to the matter (including the beginning of the conspiracy when he was still White House Counsel) must be provided if subpoenaed.  The evidence is, as you say, quite direct that he has been responsible or negligent in criminal behavior in the DoJ, and that is grounds for an impeachment investigation if ever there were ones.  Then the reasoning of the third impeachment article applies and BushCo is sunk.  We're back to precedent, and an iron-clad application of it.  

      History has a well known reality bias.

      by Stwriley on Thu Mar 22, 2007 at 09:44:29 AM PDT

      [ Parent ]

  •  As the proprietor (2+ / 0-)
    Recommended by:
    ellen, yoduuuh do or do not

    of ProgressiveHistorians, a community site dedicated to the intersection of history and politics, I would be honored if you would cross-post this excellent diary there.

  •  With impeachment off the table, (4+ / 0-)

    all we are left with is this:

    The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''

    Damn it to hell, Congresspeople, impeach.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Wed Mar 21, 2007 at 11:02:09 PM PDT

  •  A fine diary. (1+ / 0-)
    Recommended by:
    ellen

    Hopefully it will kick-start some members of Congress into doing the right thing and begin the Impeachment process without delay!

  •  Added (4+ / 0-)

    I added a reference to this diary on the Obligatory Impeachment Framing page.

    Thanks for the reminder.

  •  impeachment is mandatory (2+ / 0-)
    Recommended by:
    ellen, Stwriley
    There is no way anyone is going to prosecute those guys after they leave office, if they complete their terms normally.  But if they are not prosecuted, and if they do not go to jail, then the next Republicans to get elected will repeat all the same crimes.  It is vital for the country that Bush and Cheney are impeached, prosecuted, convicted, and imprisoned.  Otherwise there is no point in having laws.
  •  I will never vote again... (2+ / 0-)
    Recommended by:
    ellen, Stwriley

    I will never vote again for any member of Congress who does NOT vote to impeach and convict George W. Bush and Dick Cheney.  I am moderate about a lot of things - and I believe that impeachment and removal comprise a moderate response to the crimes of this administration.  A radical response would be to allow this nonsense to continue.

  •  What arewe waiting for?? (1+ / 0-)
    Recommended by:
    ellen

    Let's do it!!!

    I've been waiting for years.

    It doesn't really matter if I'm wrong I'm right Where I belong I'm right Where I belong.

    by Da Rock on Thu Mar 22, 2007 at 05:34:21 AM PDT

  •  Excellent! (1+ / 0-)
    Recommended by:
    Buckeye Hamburger

    Well reasoned and well written.  Thank you!

    There is one phrase that I can't stand or don't understand.  "Constitutional Crisis" Impeachment is not a problem with the Constitution - any more than the disputed 2000 election was.  

    The Constitution is well understood and functional, it is the application thereof, to which each member of Congress is sworn, that seems to constitute the "crisis".

    If they do their job, there is no crisis.

    •  I see your point, but ... (0+ / 0-)

      ... "constitutional crisis" is the term usually used when the major agents of government come into direct conflict over the powers that they wield, so that measures of "last resort" foreseen by the Constitution come into play. Impeachment counts as the classic example of a constitutional crisis.

      I see what you mean though, if the process of impeachment and removal is carried through in an orderly fashion, then it's the Constitution working the way it's supposed to. It's not as if the Constitution itself is in some kind of peril; on the contrary, we'd be using the process that was designed to keep us from chaos.

      I have always thought that the events leading up to Nixon's resignation followed the constitutional process as the Founders intended, when it turns out that we have a corrupt President. But "constitutional crisis" is the common term for that sort of thing.

      Absolute power corrupts absolutely.

      by Buckeye Hamburger on Thu Mar 22, 2007 at 05:13:37 PM PDT

      [ Parent ]

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