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This diary began as a comment I drafted for kestrel9000's delightful plea for impeachment, but it ended up running over 1250 words, so I made it into a diary instead. kestrel's diary is superb -- great images, gorgeous passion, and best of all, he starts it off as an adaption of Julius Caesar, and I'm a sucker for Shakespeare. I also commend kestrel9k greatly for making a clear statement of the case by including draft Articles of Impeachment set forth on the Impeach Bush site. In the final analysis, I do indeed agree that the standards for impeaching and removing Dubya from office are fulfilled. So I'm terribly sorry that I'm about to be something of a party-pooper.

I love the impeachment diaries that come up so frequently on the Daily Kos, because of the great patriotic spirit that motivates them. But very often, including this time, I find that the legal and constitutional arguments advanced for impeachment in those diaries are poorly constructed. I don't think that the draft Articles of Impeachment quoted in kestrel's diary cut the mustard, and I explain why after the jump.

The proposed Articles of Impeachment from the Impeach Bush site, quoted in kestrel9000's diary, are:

Articles of Impeachment for
President George W. Bush and
Vice President Richard B. Cheney
for high crimes and misdemeanors.

[Last updated November 8, 2006.]

Resolved, that President George W. Bush and Richard B. Cheney be impeached for high crimes and misdemeanors, and that the following articles of impeachment be exhibited to the United States Senate:

Articles of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, in maintenance and support of its impeachment against President George W. Bush and his team for high crimes and misdemeanors.
Article I
In his conduct while President of the United States, George W. Bush, in violation of his constitutional 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 conspired to exceed his constitutional authority to wage war, in that:

On March 19, 2003, George W. Bush invaded the sovereign country of Iraq in direct defiance of the United Nations Security Council. This constitutes a violation of  Chapter 1, Article 2 of the United Nations Charter and a violation of Principal VI of the Nuremberg Charter. According to Article VI of the United States Constitution "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;". George W. Bush has thus acted in violation of the supreme Law of the Land by the following acts:

  1. Invading Iraq with United States military forces.
  2. Sacrificing the lives of thousands of American troops.
  3. Killing tens of thousands of Iraqi civilians and conscripts.
  4. Rejecting possibilities for peaceful resolution of the conflict by rejecting acts of compliance by Saddam Hussein with the United Nations Resolutions, and ignoring the findings by Hans Blix that inspections were working to disarm Iraq.
  5. Violating the Geneva Convention by abducting and transporting human beings to prisons in foreign countries where they can be tortured and subjected to inhumane treatment.

Article II
In his conduct while President of the United States, George W. Bush, in violation of his constitutional 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 subverted the principles of democracy, by the following acts:

  1. Providing misinformation to the United Nations Security Council, Congress, and the American people overstating the offensive capabilities of Iraq, including weapons of mass destruction, as justification for military action against Iraq.
  2. Repeatedly manipulating the sentiments of the American people by erroneously linking Iraq with the terrorist attacks of September 11th by Al-Qaeda.
  3. Repeatedly claiming that satellite photos of sites in Iraq depicted factories for weapons of mass destruction in contradiction with the results of ground inspections by United Nations teams.
  4. Stating that "Saddam Hussein recently sought significant quantities of uranium from Africa" in his State of the Union Address after being told by the CIA that this was untrue and that the supporting documents were forged.
  5. Influencing, manipulating and distorting intelligence related to Iraq with the intention of using that intelligence to support his goal of invading Iraq.
  6. Repeatedly ordering the NSA to place illegal wiretaps on American citizens without a court order from FISA.
  7. Retaliating against whistle-blowers who try to point out errors in statements made by President Bush.
  8. Directing millions of dollars in government funds to companies associated with White House officials in no-bid contracts that pose serious conflicts of interest. One example is Halliburton, of which Richard Cheney was once CEO.

Article III
In his conduct while President of the United States, George W. Bush, in violation of his constitutional 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 threatened the security of the American people, by the following acts:

  1. Diverting military resources from pursuing known terrorists such as Osama Bin Laden who have repeatedly attacked the United States of America.
  2. Generating ill will among the peoples of the world with an offensive and aggressive foreign policy.
  3. Weakening the effects of International Law by defying the United Nations thus encouraging other nations to violate International law by example.
  4. Diverting the National Guard to foreign wars where they are unavailable to serve the needs of American citizens at home who, for example, are suffering from Hurricane Katrina.
  5. Appointing unqualified personnel to critical government positions as political favors where their incompetence places American citizens at risk. An example being the appointment of Mike Brown as head of FEMA.
  6. Proposing military strategies involving the first use of tactical or low yield nuclear weapons in violation of the Nonproliferation Treaty, which is an inherently destabilizing strategy that encourages participants in a conflict to strike before the other side can do so.

Wherefore, George Bush, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States.

(As kestrel9000 notes, the Impeach Bush site grants permission to copy the text if you link back to them, as I hereby do.)

It is not incidental that the case for impeachment solidly, assiduously, and scrupulously meet the standards set for it in the Constitution. It is absolutely indispensable. The great affront of the Bush presidency has been the utter contempt that he has shown for the fundamental notions that the Constitution guards and enforces. It is crucial that the effort to remove him does not similarly run afoul of those principles. And it doesn't have to. The Constitution is robust enough to take care of itself, if we as a nation are willing to see it through. But we need not and should not reach beyond the Constitution to do that.

The Constitution says that the President (and other federal officers like, say, the Veep or the AG) can be impeached and removed for treason, bribery, high crimes or misdemeanors. As many have commented, the last two concepts are loosely defined, but there are historical and legal precedents that guide and constrain their meanings. We do not have free rein to impeach the Dubya for anything, even for some indisputably awful things. The impeachment of Clinton in 1998 was a monstrous farce; we cannot allow anything even remotely like that ever to happen again.

Above all, the constitutional standards require that the impeached person is a crook -- that is, it is a remedy against criminal activity. You can't be impeached for being incompetent, or even for being dishonest; not for bad judgment, even when the consequences are deadly; not for being an uncommonly stupid, immoral bastard, or even, as buhdydharma once put it (in one of his many similarly delightful impeachment diaries), for being an "out-of-control madman". No doubt about it, Dubya is all of those things, but elections are supposed to safeguard us against incompetent, stupid and immoral presidents; the Constitution does not allow Congress to second-guess the will of the voters, even if, well, the voters blew it.

The Founders foresaw more than just impeachment to protect us against terrible Presidents. There are also:

  • Elections, so the people can see to it that competent, moral leaders assume the office
  • The legislative and judicial branches to check and balance the President's power. In particular, the Founders expected Congress to have enough institutional pride to prevent his excesses.

Later on, we got the 25th Amendment, which gives us a mechanism for kicking out an incapacitated President, like say if he loses his marbles while in office.

Unfortunately, these things have not worked out so well:

  • In 2000, a corrupt majority in the Supreme Court threw the balance of the Electoral College to an incompetent, immoral moron, even though he hadn't won the majority of popular votes. Then in 2004, the moron won both the popular and electoral votes.
  • The Republican Congress, with more than a little help from Democrats. rubber-stamped many of his worst offenses; specfically, they authorized war in Iraq with the AUMF, and they retroactively legalized the Bush administration's war crimes with the Military Commissions Act.
  • IMHO we could make a good case for using the 25th Amendment to toss Bush, on the grounds that he has indeed lost his marbles. Unfortunately, it would require such a finding by the Vice President and a majority of the Cabinet; so fat chance of that.

Which has been my long-winded way of getting around to my problems with the proposed Articles of Impeachment.

First off, the part I agree with: Article 2, section 6. Bush's warrantless wiretapping is an open-and-shut, slam-dunk case for impeachment and removal, a clear violation of Federal law (FISA), the Fourth Amendment, and the doctrine of separation of powers. On this one, I'm in 101% agreement with the Impeach Bush site. I would add the Treasury Department's warrantless seizure of financial records, for the same reasons.

Article I, unfortunately, is wholly undermined by Congress' collusion with Bush's recklessness. Although sections 1 through 4 describe some truly awful things, Congress allowed it all by authorizing the Iraq War. Up until last October, section 5, would have been grounds for impeachment, for violation of the War Crimes Act (which used to prohibit violations of the Geneva Conventions); but then Congress passed the Military Commissions Act, which retroactively made it all legal. I know that many Kossacks love the idea, and I sure do understand it, but we cannot impeach Bush for the Iraq War, or for anything else that Congress permitted him to do. Congress cannot say the President can do something, and then turn around and throw him out for doing the same thing, not even -- especially not -- if the partisan majority in Congress changes.

Much of Article II fails to specify criminal behavior -- the treason, bribery, high crimes or misdemeanors that the Constitution requires. Sections 1 through 5 correctly point out that Bush is a pathological liar, but unfortunately, lying is not against the law, unless you do it under oath. To be sure, it's rotten, especially if you're President, but it's not illegal, not even if you lie to the Security Council, or in the State of the Union address, or right straight at the American people. Sections 7 and 8 are about unethical behavior, but AFAIK not crimes -- unless the favortism to companies like Halliburton is illegal, and I'll admit that I don't know that law well enough, so maybe it is, and it might even rise to the bribery standard. So maybe there's something here, but still the argument seems weak to me.

Article III, if I understand the gist correctly, declares that Bush is incompetent, exercises very bad judgment, appoints incompetent cronies, and makes for a lousy Commander-in-Chief. To all of which I'll jump out of my chair and shout "HELL YES", but unfortunately, being stupid and incompetent is not a crime and does not constitute grounds for impeachment.

Again, I'm sorry to be a party-pooper, because I love kestrel's diary and others like it (buhdydharma immediately springs to mind), and I do think that Bush can and should be impeached. But precisely because I want such an effort to succeed, I want the case to meet the constitutional standards, and I don't think that the proferred Articles do the job.

Like I said, I think there are some solid arguments for impeachment in here, and others may develop over time. The rampant corruption in the administration, which is still unfolding, could very well strengthen the case. If Bush defies congressional subpoenas, it would constitute contempt of Congress, which was the subject of one of the Articles of Impeachment that the House Judiciary Committee adopted against Nixon. And I suspect that Cheney is dirty on the Valerie Plame case; but we can't prove that, not yet anyway.

I believe that the Constitution can do the job of righting the wrongs that the Bush regime has wrought, but let's stay true to the Constitution as we do so. Bear in mind what Cicero said in Act I, scene 3 of Julius Caesar:

Indeed, it is a strange disposed time:
But men may construe things after their fashion,
Clean from the purpose of the things themselves.

Originally posted to Buckeye Hamburger on Sun May 13, 2007 at 03:58 PM PDT.

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Comment Preferences

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

    Glad that you agree that impeachment should happen.  However, this quote:

    As many have commented, the last two concepts are loosely defined, but there are historical and legal precedents that guide and constrain their meanings. We do not have free rein to impeach the Dubya for anything, even for some indisputably awful things.

    requires some backup.  The historical precedents for "high crimes and misdemeanors" come from English Common Law; the precedents there clearly indicate that impeachment is a political process, and that Congress is supposed to use it to keep other branches of government in check.  One of the earliest known uses of "high crimes and misdemeanors" comes from English parliament impeaching a minister simply for not executing parliamentary directive in a timely fashion.  

    For more on the historical precedents, refer to this excellent document.  I think you'll find, as I did, that impeachment is whatever the hell Congress says it is, and that that is for the best.

    •  Allows room for *restrained* judgment (1+ / 0-)
      Recommended by:
      Conservative Liberal

      I'm commenting on two threads at once about the same subject, so what I'll say here will be similar to another comment over on buhdydharma's diary.

      Right you are, the phrase "high crimes and misdemeanors" originates from 14th century English common law. And if you mean by a "political process" that a legislative body makes the decision, that too has always been the case. As a practical matter Congress could impeach anyone for anything, if they can raise the necessary majorities.

      But they shouldn't. As the text at your link discusses, historically impeachments have been used for crimes of a certain degree; it lists "misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament's prerogatives, corruption, and betrayal of trust."

      At the Constitutional Convention, the phrase was originally just "treason and bribery", but later "other high crimes and misdemeanors" was added. This has usually been interpreted as indicating that the Founders wanted to allow Congress some leeway in determining which crimes are similar in severity to treason and bribery; not every crime meets the standard, and not every act needs to be a strict violation of the law (although that is usually the standard). The little word "other" is very important; it tells us that treason and bribery are also high crimes and misdemeanors, and that the "others", whatever they may be, are similar to treason and bribery.

      History has also shown that legislatures have sometimes not applied those standards very scrupulously. It happened in England sometimes, and it happened both times when American presidents have been impeached. The dirty truth is that we've had two Presidents impeached who didn't deserve it, and the one who did resigned before it could happen. As I said, no one can stop Congress from abusing its power to impeach if there are enough votes to do so, but we are within our rights to criticize Congresses for having done so, and to call on the current and future Congresses not to do so.

      Absolute power corrupts absolutely.

      by Buckeye Hamburger on Sun May 13, 2007 at 05:30:44 PM PDT

      [ Parent ]

      •  Great post (1+ / 0-)
        Recommended by:
        Buckeye Hamburger

        I respect your opinion on this, and your focus on the word "other" is exactly where I would have placed mine, were I inclined to argue against myself--however, as a matter of governmental philosophy, I disagree about the "shouldn't" part.  

        There is no good reason to leave a highly unpopular official in office.  The argument can be made that sometimes, leaders have to do unpopular things because they are the right things--the practical applications of that paradigm earned us Bush.

        At any rate, removing the President from office does not and will not ever ruin the country, or destroy our democratic government.  We have a clearly outlined path of succession, and it has been followed several times in our history with no difficulties.  

        I guess what I'm saying is that the people being easily able to remove a sitting President doesn't seem to have many downsides.  It's ok by me if we remove a guy who was actually doing the right thing every once in the while--there are plenty of people capable of being President.  It is far more important to me that government be fully answerable to the people--this administration has disregarded the traditional deference to the will of the people that has made impeachment mostly unnecessary throughout our history.  And so they should be removed, just for that.  

        Finally, I will say this: the framers wanted impeachment to be a "living" tool.  Its provision in the Constitution is vague by design--what is there clearly gives Congress the authority to do it for whatever they want.  Saying that they intended for Congress not to abuse that authority is in some ways senseless--they were recreating government as they wanted it, after having thrown off the shackles of tyranny.  They knew that government would arrogate powers to itself unless explicitly limited--they didn't explicitly limit impeachment, and I submit to you that that was no mistake, no oversight.  

        •  You're describing a parliamentary system (1+ / 0-)
          Recommended by:
          Conservative Liberal

          I have to keep this short, for no better reason than the fact that it's after 3 AM where I am, and I have to get up for work in less than four hours (ugh).

          So I'll just argue that the governmental philosophy you describe is not what the Founders had in mind. What you're describing is a parliamentary system, common in Europe, where a sitting government can be removed in midterm by a legislature with devices like a constructive vote of no confidence, and for no other reason than just that -- loss of confidence. But the Founders established a system in which all officers are elected for a defined term, and then serve the entire term, except under very extraordinary circumstances. A term in office is not meant to be cut short if the officer becomes very unpopular.

          And in fact, historically all of our Presidents have served out their whole term, unless they died in office, with only one exception -- and that one exception resigned because he was almost certainly going to be impeached and removed. Some Presidents served out their term despite being extremely unpopular -- Buchanan, Johnson, Hoover, Truman, Carter and Bush Sr. come to mind.

          Perhaps the Founders wanted Presidents to have the freedom to take political risks in the interest of good government; or maybe they just wanted to be different from the Original Parliament Itself. But any rate, they designed a system where a President gets a whole term to govern as he sees fit, even if he becomes unpopular.

          So no, I don't agree that the Founders wanted Congress to be able to dismiss a President whenever it wants to. I think that they set standards, allowing some freedom of judgment, but limiting the grounds for removal to crimes and abuses of a severe degree. I think that it's proper to say that Congress would have been right to impeach Nixon (if they had the chance), but was wrong to impeach Johnson and Clinton (even though they did); because the standards were met in the one case, but not in the others.

          Good night.

          Absolute power corrupts absolutely.

          by Buckeye Hamburger on Sun May 13, 2007 at 06:28:51 PM PDT

          [ Parent ]

          •  Good night (0+ / 0-)

            I had a really long response to this typed up, and I killed it by clicking on a link by accident.  So, sorry if this response seems a bit hurried.

            they designed a system where a President gets a whole term to govern as he sees fit, even if he becomes unpopular.

            I don't think that's really what they designed, since they left authority for impeachment wide open to Congressional interpretation.  As I said before--if they had wanted to close that hole, they really could have.  

            Also, you mention a slew of Presidents who weren't impeached despite unpopularity, but they all came well after Andrew Jackson, who radically altered the nature of the Presidency.  Before him, the President's service was much more as an employee of Congress--an operations manager.  The State of the Union address was not, as it is now, a forum for him to lay out his legislative demands based on his political agenda--rather, it was his chance to explain his actions to Congress, report on his success in implementing their policies, and make suggestions for legislation solely from the perspective of his capacity to execute.  

            What AJ realized was that the President had a unique hold on the public's ear, and that if he wanted to, he could exert massive political/legislative influence, and generally represent himself as an elected monarch--without having to change a word of the Constitution.

            As such, Congress never lost the authority to rein the President in, they just lost the will, and the public lost perspective.  At this point I feel I owe a hat-tip to Garry Wills, whose excellent book "A Necessary Evil" explores this issue in far greater depth than I have or could.  He rightly points out that our government is not comprised of co-equal branches--Congress is sovereign, as they alone are direct representatives of the people.  If you haven't read it, I recommend it really highly.

            Either way, I have really enjoyed this exchange.  It has been very edifying for me, even though I may seem intransigent.  Thanks!

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