As others have indicated either as an argument for their position or simply a dismissible consideration impeaching a president or vice president is, more than anything else, a political act taken to correct criminal or near-criminal wrongs; it is not a legal proceeding. Article 1; Section 2 places these proceedings in the House, not a court, and thereby removes from the equation any requirement that the indicting entity possess any special jurisdiction or competence to determine criminality per se. In so doing, it would appear that the Founders contemplated the circumstance where a federal officer could stand for impeachment for actions other than literal crimes, while simultaneously maintaining the political check that those vested with the power to impeach are themselves politically accountable for their actions. Carried to it ultimate end, the impeachment process is, after all, the ultimate political punishment, to wit; the immediate removal from political office. So, those who attempt to vaunt their arguments by removing from them the reality that they are arguing for something Constitutional—something beyond the mere political—are deluding themselves (or, if not themselves, then attempting to delude the rest of us) into believing that their arguments are more pure or laudatory than more pedestrian political calculators such as I.
This system thus places political accountability on both the accused and the potential accusers; a friction that should, by design, not be entered into lightly or without at least some degree of predictability as to a favorable outcome. By that, I do not mean to imply that an impeachment proceeding should only be commenced should the House believe that they have sufficient votes to approve Articles of Impeachment or that the Senate will have sufficient votes to order removal from office. Entering this process without a certain understanding of the political risks inherently involved may well be the epitome of political foolishness. Thus, as some pro-impeachment writers appear to recognize—some more recently than others—this ultimate political act should never be commenced without a thorough investigation of the actions of the potential accused (Bush, Cheney, Gonzales, whomever). I know that sounds a bit obvious, but there are those whose arguments sound more in rage and emotion than reason.
Some argue that hearings should be announced as commencing almost immediately, that Nancy Pelosi should stand at the microphone outside the House floor and announce that the Judiciary Committee has adopted a resolution to seek the approval of the House to commence an inquiry. Should that ever come to pass, it will not happen until the matters are (one would hope) thoroughly investigated. But, is that not what several committees and subcommittees are doing now: investigating? I know that some of you smell blood in the water, but need we call the hearings most notably conducted over the last several months by the House and Senate judiciary committees and the House government oversight committee "impeachment investigations"? It certainly seems that what Leahy, Conyers, and Waxman are doing is assembling the necessary information on Bush and his administration’s officials in order to determine if, once compiled, there will be sufficient cause to commence formal proceedings. (Recall that the Republicans in 1998 had no real reason to commence many such hearings in advance of the formal impeachment proceedings, as Ken Starr’s OIC essentially acted as the eventually impaneled committee’s investigative arm.)
So, while Nancy Pelosi may well have declared "impeachment" off the table (for electoral political reasons or otherwise), she surely has done noticeably little to reign in the significant investigations that, at the very least, Conyers and Waxman have invested thousands of hours of staff and committee time into. If it is the case that these hearings are a prelude to something more formal, they give the Democratic leadership the political cover needed to let the hearings go where they may: as ends in themselves (should insufficient evidence of malfeasance be uncovered), or as the process by which evidence of truly impeachable offenses is marshaled.
My drumbeat has been to take a less sanguine and more politically wise approach to this issue, and my reasons for doing so have been drawn out over the past months by me and by the relatively few here who urge a more cautious approach; this is a process, after all, not an event. It is a process that, if entered into with the "no matter the outcome" approach that has been urged by at least one writer (a position he seemingly backs away from now to some limited degree) can, and in my opinion will, do more damage to the country would dropping the idea in favor of making better legislative use of the time and resources available to us in the interim between now and the next election.
That is, I believe it best to allow the present hearings to continue and that the Democratic chairs and staff make these hearings as rigorous a process for this administration’s officials as is possible; make them sweat right down to their skivvies. I agree that we as a party have been too timid in pressing for compliance with legitimate requests for information and too slow to take threatened decisive action. Leahy should unholster and serve the subpoenas he’s drawn up, not only for Miers, but for Rove and all lesser officials who can offer relevant testimony on the issues that may form the basis of future impeachment articles. We are, as is evident, running low on time; the political season is here.
While not mandatory, it certainly inures to our benefit that anything close to a formal impeachment hearing be vested with as much political legitimacy as possible. The legitimacy of impeachment (in general or in the case of this administration) in all its various forms could form the content of any number of separate diaries, for legitimacy can be measured in numerous ways: sufficiency of charges, sufficiency of evidence, timing (lateness of term, while at "war," in the midst of a presidential election, etc.), and, frankly, whether the American public—with its headline mentality and nanosecond attention span—can understand what’s being charged. The last thing we need or can long endure without consequence is a legally technical impeachment of Bush or Cheney that the public will simply throw up their hands at and declare, Damned if I understand what the hell they’re doing. Isn’t he gone in another year, anyway?
I need not be exhaustive here, for I think we all agree, but at least in general we must recognize that without a significant plurality of public support for moving forward, we will do the damage to the Constitution (the same damage we saw the GOP do in the case of Bill Clinton) and our cause as Democrats and progressives that I spoke of earlier if we charge ahead without the political calculus that will lead to a better result than abandoning the process altogether. We cannot be seen as reckless, (something I do read in many of the pro-impeachment diaries); nor can we be seen as vengeful. We cannot be seen as using impeachment as a means for strictly partisan political gain—a charge, I admit, that will be made no matter what quantum of legitimacy we can prove—for if we are, we do damage to the Constitution we are attempting to defend and to our chances of obtaining the White House in the coming election. Again, I hasten to stress that there is nothing impure or improper in being politically strategic in proceeding, or not proceeding, with a presidential or vice presidential impeachment inquiry. (More about Gonzales later.)
The all too real prospect of a serious political backlash against us could do much more damage to the political future of this party and, more importantly, destroying the hope of realizing a better future for this country. At this time in our history, I submit, we cannot risk what is possible under yet another Republican administration and a delegitimized Democratic congress (assuming, of course, we don’t actually lose one or both houses). It is beyond cavil that while the handing down of Articles of Impeachment, while by no means is assured, remains a possibility given our numbers in the House—we will not be able to count upon more than a handful of Republican votes—Bush’s and Cheney’s actual removal from office is doomed to fail from the outset. (Note well that I do not argue that the failure to succeed in removal is not, in and of itself offered as a reason to resist moving forward.) The backlash from embarking on what will be deemed by many as a complete distraction from the very real and serious problems facing the country and the world can will be devastating if not accounted for now.
So, do we have a legitimate basis upon which to commence formal impeachment hearings?
I believe that the time to move on formally impeaching Gonzales is near. Let us see where Leahy gets with the subpoena he has thus far issued to Meirs and if he will do likewise for Rove first, but Gonzales’ is a legitimate and easy case to make. He is low-hanging fruit. Plainly and simply, he repeatedly lied to Congress on matters of significance to the ultimate purpose and operation of his office, and he should, if for no other reason, face the ultimate sanction for having done so. Moreover, he has lost his own legitimacy by the very political machinations he now seeks to hide, his office is appears in total disarray—no less than five top officials have resigned—and it is only because of the remorseless obstinance of George Bush that he remains in office. Obviously, moving against him carries several orders of magnitude less political risk than his boss.
But Bush? Cheney? Not in my opinion. Not yet. And likely not ever.
Most of the reasons for impaneling an impeachment committee for either of these two are, much as the pro-impeachment crowd would argue otherwise, inherently complex from a legal, constitutional, and therefore political standpoint. Again, it must be understood, seriously understood, that there is no legitimate means to impeach the president (or vice president) for misfeasance in office. Mere incompetence in performing the duties of his office will not land Bush in the dock. That’s what elections are designed to correct. So for all the damage that the administration did in New Orleans after Katrina, it is only by means of political rhetoric that any criminality will be found or that the standard set forth in Article 2; Section 4, of "high crimes and misdemeanors," will be satisfied. That people died directly as a result of the actions and inaction of administration officials and the policies of George W. Bush, is not sufficient to find him liable for an impeachable offense. (You may be tempted to pull out this statement, and with it accuse me of gross immorality, but the fact is that the death of citizens resulting from policy and/or the misapplication of it is not in and of itself grounds for impeachment.)
The same holds true for his innumerable misjudgments and incompetencies in auguring for, planning, lying about the reasons for, implementing, prosecuting, and failing to terminate the invasion and occupation of Iraq. His authority as commander-in-chief, especially when measured against the exacting standard of whether potential violations were committed to the extent that impeachment is warranted, are likely going to be deemed as almost pervasive. Most anything short of a clear-cut case of recklessly and belligerently invading a foreign country for no justifiable reason is going to be bandied back and forth as to whether such acts amount to improper, let alone the constitutionally proscribed standard of a high crime or misdemeanor.
Yes, Clinton lied about something far less significant than the reasons for leading a country into war, but—and I don’t want this to be read as anything approaching a defense of Bush’s actions—but in Clinton’s case, the lying occurred in the context of a sworn deposition and arguably (but not ultimately) rose to the level of perjury, itself a crime. Bush’s lies, while less defensible than Clinton’s, are nonetheless (sadly) not illegal.
There is, of course, another significant hurdle that must be cleared when attempting to bring impeachment articles premised upon Bush’s actions in taking the country to war. That, of course, is the Democratic Party. Where was it during the run-up? As you and I both know, with impotent little exception, it was sitting on its collective ass (pun absolutely intended), doing little more than whining about the situation we as a nation were put in by the administration. Recall Senator Byrd’s lonely moments on the floor giving speeches to the portraits: "This chamber is, for the most part silent—ominously, dreadfully silent. There is no debate, no discussion, no attempt to lay out for the nation the pro and cons of this particular war. There is nothing. We stand passively mute in the United States Senate, paralyzed by our on uncertainty, seemingly stunned by the sheer turmoil of events." And this is to say nothing of the fact that we were in large measure complicit in ceding to Bush the constitutional power to do what he did. That we would not have done what he did is of no moment. That we would not have done as he did isn’t, either.
Buhdydharma complains that if Bush escapes 2008 without being impeached, he will have "skated." It’s time to face the fact that as far as impeachment charges premised upon Iraq are concerned, short of some new and devastating revelations, Bush skated on October 11, 2002, when Congress—the whole Congress, including many in the Democratic Party—voted "Aye" on the Authorization for Use of Military Force Against Iraq Resolution, (a point in time when that same Democratic Party held at least a nominal majority in the Senate). One must wonder how the pro-impeachment writers will prevail in convincing the public that voting for this authorization by a significant number of Democrats does not provide Bush with a meaningful defense to impeachment, when claiming they were duped into voting "Aye" by bogus intelligence wasn’t even sufficient to convince the public to remove Bush in the more customary way in November 2004.
In short, unless the Constitution were to somehow sanction gross incompetence as a valid basis for a president’s forced removal from office, I do not believe that Iraq-based impeachment charges will prove to be very legitimate.
A technically stronger case can be made for Bush’s and Cheney’s unprecedented power grabs. Here, we can speak of all the abuses that accompany the unfortunately deceptively descriptive phrase "unitary executive." (And, by deceptively descriptive I mean to get across the idea that this phase is, at its literal core, quite accurate in that it does connote and intend almost unfettered (i.e.,unitary) powers in the president—and as recent events continue to marvelously demonstrate—the vice president, while simultaneously imbuing them with the perceived cloak of a legitimate descriptor for the certain defense to any such articles premised upon Bush’s thumbing of his nose at any attempted congressional check on his powers. That is, he will hide behind complex (to the average Joe) legal and quasi-constitutional arguments on such matters as his unfettered use and abuse of signing statements, warrantless wiretapping, unbridled secrecy and, perhaps to some extent, even his claimed "right" to destroy the written record of his malfeasance.
And you know the media; much of it will be all too happy to settle for legally and constitutionally imprecise and down-right wrong interpretations (i.e., sham explanations offered by right wing think tank scholars such as Douglas Kmiec) as plausible justifications for Bush’s and Cheney’s actions. For example, they will argue to considerable effect that, while Bush’s interpretation of the FISA statute is wrong, there is certainly a recognized constitutional argument for his position. That is, While he may have screwed up, it’s certainly nothing to get all impeached over. Or, more simply put: If Clinton can argue over the meaning of is, we can certainly argue over the legitimate and allowable statutory and constitutional interpretations of 50 U.S.C § 1802 (a)(1)(A). Just how much effort is Earl and Ida in Omaha (a characterization of Mr. and Mrs. Middle America, with no derogatory intent meant) going to put into unpacking that morass in order to make a keen determination of whether a violation occurred, let alone one serious enough to justify removal of a sitting president (whom they may or may not have voted for or continue to support)?
Here, folks, not only does the "tie go to the runner," but so too does anything remotely close. (Ironically, this was the singular genius of the Clinton Impeachment: as illegitimate as was, it was falling-down easy to, if nothing else, understand.)
I also spoke of legitimacy in terms of timing. I won’t dwell long here, as it’s not the primary focus of this piece and includes what I believe to be lesser reasons to refrain from heading down this path, but we must in pondering the decision to take action look at all this against the backdrop of the times and the unfortunate timing of impaneling a committee on impeachment.
First, we are at what many conclude to be a war. I don’t want to get into the precise legal definition of that word, but when our troops are dieing overseas, it’s at least legitimate to consider the probable effect that this particular time and the crises we face as impacting the decision to proceed. Many will argue to at least some effect that we have no reason other than partisan politics to even think of impeaching and removing the commander-in-chief—for he won’t be merely "the president" as such arguments are put forth—during a time of war. Democrats will be wrongly accused of endangering not only the country, but the untouchable and politically hallowed troops if they attempt impeachment during such a time of national crisis. (Yes, I’ve considered the argument that this is all the more justification for acting now, but ask yourself—and answer honestly—do you really believe that such explanation-heavy nuance is going to be discernable to those who consider such things for longer than it takes to read the lead paragraph of the average People magazine piece on Barron Hilton’s granddaughter?) The times are not on our side; neither is time.
Second, as we will be trying to impeach the second president in as many administrations, and one of the opposite party, we must convince the public that this is more than mere political revenge for what they did to Clinton. (Of course, if all other prerequisites are satisfied, this one, which does little more than slightly raise the bar of proving a legitimate case, will be similarly satisfied.)
This country is, as we are acutely aware, in the midst of a presidential primary season. We’re also a damn sight farther down the road in it than was the Clinton Impeachment of 1998. (To give this context, as the Clinton Hearings commenced in the House on November 11, 1998, and concluded with the adoption of two Articles of Impeachment on December 19, 1998. The Senate Hearings commenced January 7, 1999, and concluded with an "acquittal" on February 12, 1999, you may substitute 2006 for 1998 and 2007 for 1999.) That is, we are more than six months later on the calendar, but perhaps more importantly, we are approximately a year later when one considers that the presidential political season started about six months earlier than it did in the 2000 cycle. More than that—and I touched on this earlier—by the time Henry Hyde gaveled Clinton’s proceedings into life, the Judiciary Committee had at their disposal a blueprint for proceeding in the report of Ken Starr. He was appointed in 1994 (2002 in years equivalent to this election), and gave the impeachment managers a three-year head start on investigating, gathering, and compiling the information necessary to assemble a prima facie case for impeachment. We will have no such "luxury."
All things considered, though I do believe that impeachment of Bush, Cheney, and Gonzales is warranted, I have come to the conclusion that the impeachment of this president and this vice president at this time and with the fund of information available not to be a wise endeavor or one that we should undertake. I am similarly convinced that holding hearings on the attorney general is warranted and should proceed as soon as the necessary evidence can be assembled into a presentable case.
Judge it by the times or the timing, I don’t care, but judge it by the substantive arguments for and against, an attempt at impeaching Bush and/or Cheney will be a grotesquely divisive act; one that necessarily must be entered into for reasons better than simply because they deserve it. It is an act that must, if attempted, be carried out with an iron will and near perfect execution. Come to think of it, perhaps that’s the best argument against proceeding: Do you really believe that the Democrats of the 110th Congress are even up to the task?
