Impeachment Now?

I really have not been clamoring for the impeachment of Dick and George Cheney-Bush. I had held out hope that an opposition party in power in Congress might be able to offset the abuses of power wrought by the current administration. Unfortunately, the total disregard by this administration for the Constitution and systems of shared power and checks and balances has become egregious.

Attorney General Alberto Gonzales has told the Congress, under oath, that the Constitution does not guarantee the protection of habeas corpus to the citizens of the United States. If he believes this and acts accordingly, Gonzales has violated his oath of office. So too the President and Vice President if they endorse Gonzales’ opinion. Congress must demand that Bush, Cheney and Gonzales repudiate the Attorney General’s pronouncement and reaffirm their oath to protect and defend the Constitution of the United States. If they refuse, then they must be removed from office.

In addition, both Bush and Cheney have added more troops to the Iraqi occupation force, despite the opposition of the Joint Chiefs of Staff, an accumulating roster of the military, both active and retired, the Iraq Study Group, the American Public, and the Congress. By announcing that nothing, not even an act of Congress, will deter them, the Bush/Cheney team have, in effect, proclaimed themselves dictators (they couch it in terms of a “unitary executive, to which none of the founding documents of this country make reference). If this proclamation is to fall short of an implementation of rule by decree, the Congress must promptly and decisively reinstate its co-equal status with the Bush Administration, and it must send back that message to the White House with an explicit threat of impeachment.

Finally, over the past months it has become apparent that Bush and Cheney might launch an attack on Iran. Most informed observers agree that this would be an act of insanity, that would unite the world against the United States, probably sharply curtail the production and shipment of oil from the Persian Gulf throwing the US and the world into a depression, and just possibly igniting a third World War. This attack might be prevented by an act of Congress refusing to fund such an attack and proclaiming explicitly that the Congress, in accordance with its Constitutional authority, forbids the President to launch an attack against Iran. That act of Congress should state that failure of the President to obey this act would result in impeachment.

There is no need for the Congress to “build a case” against Bush and Cheney. I believed that if Bush and Cheney were to be impeached and convicted by the Senate, investigations would have to take place, with the amassing of evidence, testimony under oath, and extended debate in Congress. Such was the case with Nixon and with Clinton.

However, I have come to realize that the situation today is substantially different. The evidence is public, indisputable, and even, in some cases, freely admitted by Bush and Cheney. As John Dean has pointed out, when Bush announced that he had authorized secret wiretaps in direct violation of the FISA law, he had, in effect, confessed to an impeachable offense. In addition, the use of torture violates the Geneva Conventions, and the launching of an aggressive war against a nation, Iraq, that did not attack or threaten to attack us, constitutes a war crime in violation of the Nuremberg Accords. Both of these treaties have the force of law, and thus their violation merits impeachment. Bush’s “signing statements,” many of which state explicitly a Presidential prerogative to ignore acts of Congress at will, contradict the Constitutional requirement that the President “shall take care that the laws be faithfully executed.” Through the FBI, this government, under direction from the White House, has ignored the rule of low in obtaining National Security Letters.

There are many additional “high crimes and misdemeanors” that justify impeachment and conviction, but some of these require investigation and debate. However, those listed above are both indisputable and sufficient. All that remains, then, is the will of Congress to do its duty. While extended debate on all these issues might be desirable under ordinary circumstances, these are not ordinary circumstances. The Bush/Cheney administration has caused enormous damage to the American economy, to its international reputation, and to its Constitutional order.

Why not “impeachment now”? In a carefully articulated essay in The Nation, Professor Sanford Levinson of the University of Texas Law School argues against impeachment, not withstanding his belief that Bush is “quite possibly the worst President in our history.” He raises three essential points:

• The Constitution provides us with a language to get rid of a criminal President, but it provides us no language, or process, for terminating the tenure of an incompetent one.”
• There is simply no possibility that Bush will actually be removed from office in the twenty-four months that unfortunately remain to him.”
• There is a “highly legalistic” question as to “what exactly constitutes ?high crimes and misdemeanors,'” which the Constitution stipulates as grounds for impeachment.

I believe that all three objections can be successfully rebutted. If so, then given the gravity of the crimes and misdemeanors, only partially listed above, the impeachment of Bush and Cheney becomes both feasible and urgent.

First of all, Prof. Levinson appears to assume that there is a clear distinction between incompetence and criminality. But doesn’t criminal law recognize a crime of “depraved indifference” – which might amount to “voluntary incompetence”?

Granted that Bush is incompetent. But surely much of that incompetence is by his own choice – by his own culpable choice. Bush has spent an inordinate amount of time on vacation. He chooses not to study and deliberate about legislation and policy. He refuses to accept advice or listen to contrary opinions, and those who dare disagree with Bush’s “gut” are summarily dismissed. All of these are indicators of Bush’s incompetence, yet he freely chooses each of them. And those choices constitute a willful “depraved indifference” to the duties and responsibilities of his office. A “high crime and misdemeanor,” I would submit.

Cheney, on the other hand, is not incompetent: he has proved himself to be extraordinarily skillful in achieving his diabolical objectives. Thus he is even more culpable and vulnerable to impeachment than Bush.

As for the problem of “possibility:” I am reminded of a slogan from the World War II military: “The difficult can be done right away, the impossible takes a little longer.” And history testifies to the success of numerous hopeless causes, and of the heroes that led these struggles, persevered and prevailed: Washington, Gandhi, King, Mandella, Sakharov. And do not forget, that Richard Nixon’s eventual departure began with a “third-rate burglary,” and no expectation of impeachment. Then followed the firing of the Special Prosecutor, Archibald Cox and the disclosure of the White House taping system. In short, events often have a way of taking control, whereby “the impossible” may be transformed into “the inevitable.”

No President and Vice President in our history have been more deserving of impeachment and removal from office. The case is strong, valid, public and beyond dispute. If the public demands impeachment, as apparently more than half of the public does, and if the public makes this demand forcefully and persistently, it may eventually have its way.

Finally, there is the question of the “legalistic” question of just what constitutes the “high crimes and misdemeanors” that justify impeachment and conviction.

While I am not qualified to dispute the learned law professor, I can cite several lawyers and law professors of a contrary opinion. And as I vividly recall, from both the Nixon and the Clinton cases, the pronouncement by such experts was that “impeachment is a political, not a judicial, act.” The Constitutional grounds, “high crimes and misdemeanors” are vague and even, in a sense, contradictory. Perhaps deliberately, so that the Congress might be empowered to deal with extraordinary emergencies. In the body of law, “misdemeanor” means a petty crime, in contrast to a “felony.” So if misdemeanors are petty, how can there be a “high misdemeanor?” Is it not possible that the Framers of the Constitution meant by this phrase that a President might commit a grave offense against the Republic that does not fall directly under the body of law? If so, who better to judge the severity of that offense than the body authorized to make and enact the laws – the Congress?

Professor Levinson writes, “thanks to the Founders, we were given a Constitution that perversely makes us ?better off’ with a criminal in the White House instead of someone who is “merely” grotesquely incompetent.” He neglects to mention a third possibility: a megalomaniacal President who is deranged to the point of near insanity, who is detached from “the real world,” who claims to be an instrument of the Almighty, and who is convinced that he can, by his will, create a reality of his choosing. The Twenty-Fifth Amendment (1967) stipulates that the President’s cabinet and two-thirds of both houses of the Congress might declare such a President to be incompetent, over the objection of the President. But what if that cabinet refuses to initiate this action?

Put bluntly, is Professor Levinson telling us that the United States, through its Congress, has no defense against a President run amok? Or a President surrounded by skillful lawyers who manage to keep the Chief Executive within the letter of the law, as that Executive proceeds to dismantle the law?

As this layman understands it, impeachment is an extraordinary procedure – a political act with few precedents and outside the strict letter of the law. To some degree, the Congress makes the law as the process goes forth. As the House of Representatives draws up articles of impeachment, and as the Senate deliberates its vote, there is no judge to rule on the strict legality of the articles or the legal propriety of the Senate’s vote. Not the Chief Justice, who simply “presides” over the Senate trial. And there is no appeal to a decision of the Senate to remove a President, Vice President, or subordinate executive officials from their offices.

Perhaps the late Gerald Ford put it best: “…an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

As the nation approaches the calamity that must surely follow an illegal and unprovoked attack against Iran, is there no escape? Or are we about to discover that we have all booked passage on the Titanic, with a deranged captain locked in the bridge and determined to “stay the course”?

There is an escape, though it appears to be a long-shot.

The Congress must, without delay, draw a line in the sand, and send a clear message to the White House: “You are hereby forbidden by law to launch an attack on Iran without the permission of the Congress. And if you do so, you will immediately face impeachment, trial, and removal from office.”

We must not go gentle into that dark night that is directly ahead of us.