Does the Constitution Require Impeaching Bush and Cheney? ~ Part 1 of 2

Submitted by SadInAmerica on Wed, 04/16/2008 - 7:12pm.

John Adams, who was later the second president of the United States, wrote some words in the Constitution of Massachusetts that have been quoted approvingly by the U.S. Supreme Court and every state supreme court in the United States.

He described a separation of powers among three branches of government and said that this would be done

"to the end it may be a government of laws and not of men."

Thomas Paine in his "Common Sense" pamphlets that helped launch the American war for independence, wrote that

"so far as we approve of monarchy, ... in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other."

I raise this point in order to suggest that the question of whether the US Constitution requires impeaching Bush and Cheney is not an academic one and is very closely tied to the straightforward question of whether we should impeach Bush and Cheney. The Constitution is the highest law of this land. If it requires that something be done, then a failure to do it amounts to moving the country in the direction of lawlessness, and possibly in the direction of the rule of men and women, not of laws.

This is the case unless, of course, we amend the Constitution to fit our chosen behavior. The Constitution is not infallible. There are sections of the original text that I'm pleased have been removed through the amendment process. There are other sections that I think should be changed, things that should be added that are not there, etc. But there is a great danger in sidestepping the democratic process of amending the law and proceeding to simply violate it.

There are cases in which we do that. For example, for over 50 years the United States has fought wars without Congress ever declaring war, as required by the Constitution. But these are policies that should, in fact, be reversed and be brought back under the rule of law. If you believe a president should have the power to declare wars, then you should work to amend the Constitution to provide that power. Otherwise some president you disapprove of may decide to grant him or herself the power to do something else not found in the Constitution, and it may be something you don't like, but there won't be much you can say about it.

The Constitution, of course, gives the three branches of the national government different powers, and provides each with checks on abuses of power by the others.

The president is to execute the laws created by Congress. He, or she, serves as commander in chief of the military. He can pardon crimes (but not impeachments). If he consults with and gets the support of the Senate, the president can negotiate treaties and appoint officials, ambassadors, and judges. That's about it. There is no constitutional presidential power to write or alter or violate laws, to act in secret, to abridge the judicial system, to violate the Bill of Rights, to violate existing treaties, to build an empire, or to launch a war. Oh, and the Vice President under the Constitution has no particular powers at all, other than serving as the president of the Senate, where he or she only gets to vote if there's a tie.

In contrast, the legislative branch of our government, historically and even today in the version students are still taught in schools, has much greater power. The Congress, to which the first half of the entire Constitution is devoted, has the exclusive power to enact laws. Congress also has the sole power to raise and spend money. It has the power to declare war and to fund and oversee the military. It has the power to regulate international and interstate trade. Congress handles immigration, bankruptcies, the printing and valuing of money, the post offices, copyrights. Congress has the power to "constitute tribunals inferior to the supreme court," and "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." But the first power that the Constitution grants the House of Representatives is the power of impeachment. The first power it grants the Senate is the power to try all impeachments.

In school we learn about the "Separation of Powers" and about something called "Checks and Balances." Our three branches of government are supposed to be separately elected, none of them created by any other. The Supreme Court is constituted by both the executive and legislative branches, not one alone. And the power to run the nation is supposed to be divided. Congress has certain powers. The courts have other powers. The president has others. Congress, as the most powerful branch, is further divided into two houses with somewhat separate powers. It's important to understand that Congress is more powerful than the other branches, which is one reason the phrases "balance of power" and "checks and balances" can be misleading. There is not supposed to be anything evenly balanced about it.

Under the U.S. system, the executive branch is understood to have the following checks on legislative power, and it still has them, plus some:

1. The veto. Bush does still have this power, but it is overshadowed by his newly created signing-statement power. No longer must he choose between signing a bill and vetoing it. Now, he can choose to sign it and rewrite it. While signing statements are not new, this use of them is, and twice studies by the GAO have found that in a significant percentage of cases the laws Bush announces the power to violate he has proceeded to violate.

2. Commanding the military. Bush does still have this power, but he has added to it the power to declare war in violation of Article I of the Constitution and in violation of the UN Charter which under Article VI is the law of the land, plus the power to misappropriate funds for wars that were not approved for them, and the power to take state militias (also known as the National Guard) away from the states to join the US military in fighting foreign wars.

3. The vice president's vote in the Senate. He does still have this power.

4. Recess appointments. Bush makes use of this power.

5. Calling Congress into session in emergencies and determining adjournments when the two houses cannot agree. This is less relevant now that Congress hardly ever goes home.

And the President is understood to have these checks on the judicial branch, which he indeed still has:

1. Appointing judges. Bush still has this power.

2. Pardoning convicts. Bush still has this power. He has even commuted the sentence of a White House staffer convicted of obstructing justice in a case Bush himself is involved in (an act that James Madison and George Mason deemed an impeachable offense). Bush also has taken unto himself the power to order former staffers to obstruct justice, the power to refuse subpoenas, and the power to refuse to testify under oath or without the vice president at his side.

The executive branch also has a check on itself. The vice president and cabinet can vote that the president is unable to discharge his duties.

The judicial branch has an important check on Congress and the president in that it can rule laws to be unconstitutional. The chief justice of the supreme court also serves as president of the Senate during a presidential impeachment. But that power depends on the House of Representatives first impeaching.

The legislative branch is supposed to have an array of checks on the president and vice president, including various minor powers of oversight. Congress can override a presidential veto, but that power is rendered meaningless by the new presidential power of the signing statement. The Senate has the power to approve or reject appointments and treaties. Both houses of Congress can approve or reject a new vice president, but that power depends on removing the current one.

Congress has the power to put a halt to any activity of the executive branch by defunding it, but the current president has misappropriated funds to engage in activities never approved by Congress, such as the secret initial steps in the invasion of Iraq or the secret warrantless spying programs, as well as activities for which Congress has banned the use of funds, such as the construction of permanent military bases in Iraq. (In the president's defense he says the bases are not permanent, but only enduring, but no one has successfully explained what that means or how it gets around the language in the various congressional bans signed into law by Bush.) The Democrats in Congress claim to oppose continuing the occupation of Iraq, but they're about to throw another $102 billion at it. They will do so, (unless the public rises up and stops them), in part out of fear of the media calling them silly names, but in part out of fear of Bush misappropriating funds and continuing the occupation anyway. In that situation, they would be obliged to impeach the president or look even more foolish than usual. Last September during General David Petraeus's first round of testimony, Congressman Brad Sherman asked him what he would do if Congress stopped funding the occupation and Bush ordered him to continue it anyway. Petraeus said he could not answer without checking with his lawyer.

Congress has the power to request or subpoena witnesses or documents, to file Freedom of Information Act requests, and to issue contempt citations to desired witnesses who fail to comply with subpoenas. But those are all powers that evaporate if the power of impeachment is removed. In the current Congress, the Speaker of the House has promised never to impeach. As a result, the executive branch simply ignores FOIA requests, subpoenas, and contempt citations. Condoleezza Rice gave the most straightforward explanation of this practice when she refused to comply with a subpoena last year. She said that she would not comply because she was "not inclined to do so."

Impeachment is not just the power on which all the other intra-governmental powers of the legislative branch depend. It is the central power through which the framers of the Constitution expected the legislative branch to be able to hold the other two branches in check. Impeachment was given to the House as the part of our government closest to the people. Unlike almost anything else, impeachment is mentioned in six separate places in the Constitution. The Constitution is considerably shorter than this paper I'm reading you today. It is a very concise document that tells us nothing about how to run elections, that makes no mention of political parties or primaries, that has not one word about corporations, that describes the process of impeachment in some detail and gives it prominence and central importance in every way. The initial discussion of the House of Representatives in Article I Section 2 is one-sentence:

"The House of Representatives shall chuse their Speaker and other Officers and shall have the sole Power of Impeachment."

In Article I, Section 3, the role of the Senate is discussed purely in terms of impeachment trials, and six sentences are devoted to explaining the process.

Article II, which covers the executive branch, has four sections, and the fourth consists of this one sentence:

"The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

George Mason remarked that: "No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?"

That is to say, if we are going to give anyone leeway to act above the law, the last person it should be is the person to whom we have entrusted the greatest power.

To the extent that I've looked at the discussions of impeachment at the Constitutional Convention and the states' ratifying conventions and in later remarks of the founders, one thing becomes clear:

They considered impeachment of the utmost importance. They had risked their lives in a bloody struggle to overthrow a king. The last thing they wanted was a new one. And the fact that any new king might be voted out after four years did not alter their insistence that what they called "an elected despot" be subject to premature removal. Jefferson in particular, but others as well, expected and hoped that impeachment would be used at least once a generation. They did not believe that the threat of it would be sufficient to hold presidents or justices in check without its routine use.

To the extent that I've looked at the history of impeachment in this country (and I rely above all on John Nichol's book "The Genius of Impeachment"), a few things become clear:

1. Impeachments and movements in Congress toward impeachment have in fact been much more common than many people realize.

2. Impeachments tend to be very popular with the public, and congress members who impeach tend to be viewed as standing up for the Constitution.

3. Impeachment movements that fall short of actual impeachment in the House or of removal from office following a trial in the Senate have served nonetheless to substantially restore the rule of law.

Let me give you a few examples to illustrate each of those three statements.

How common is impeachment?

The U.S. House of Representatives has initiated impeachments 62 times and impeached 17 people, including 13 federal judges, one supreme court justice, one secretary of war, one U.S. senator, and two presidents. Of the 17, seven were convicted in the Senate. Articles of Impeachment have been filed against 10 presidents: Tyler, Johnson, Cleveland, Hoover, Truman, Nixon, Reagan, Bush, Clinton, and Bush. Two were impeached and acquitted. One resigned, as did the secretary of war. If the Elliot Spitzer scandal on top of the Bill Clinton impeachment gave you the idea that threats of impeachment are only for Democrats and only for sex, you were not completely off. More impeachments have been filed by Republicans and Whigs than by Democrats.

Republicans moved to impeach Republican Herbert Hoover and Democrat Harry Truman. Truman's abuses of power were very quickly reined in by the Supreme Court, and the impeachment was dropped, but the Republicans looked good and won the next elections. Democrats led the effort to impeach Richard Nixon, but Republicans joined in, backed impeachment, and persuaded Nixon to resign. Gerald Ford stepped in and ran as an incumbent but lost, and the Democrats in Congress won the biggest victories in Congress anyone remembers.

How popular is impeachment?

In contrast to the post-Nixon elections, when the Democratic leadership chose not to impeach Ronald Reagan, arguing that it was more important to win elections, they proceeded to lose the elections. When the Republicans impeached and tried Bill Clinton against the will of a huge majority of the public, they held both houses of Congress and took the White House, losing a few seats in the Senate which had acquitted. Some of the impeachment leaders won with bigger margins than they had before, and Al Gore was put on the defensive to such an extent that he chose impeachment-advocate Joe Lieberman as a running mate and pretended he'd never met Bill Clinton.

After the Whigs attempted to impeach Tyler, they picked up seven seats, and Tyler left politics.

Weeks after he lobbied for Johnson's impeachment, Grant was nominated for President.

After pushing toward impeachment for Polk, Lincoln was elected president.

Keith Ellison, who introduced a resolution to impeach Bush and Cheney into the Minnesota state legislature in 2006, was subsequently elected to Congress.

With Bush and Cheney in office we've seen polling companies refuse to poll on impeachment because it's not in the news or expected to happen, at the same time that other polling companies find a majority in support of impeachment. Bush and Cheney have broken Nixon's and Truman's unpopularity records, and the Congress that refuses to impeach them is even more unpopular.

Is a failed impeachment necessarily a failure?

Not always. Nixon's resignation was a success for the rule of law. The effort to impeach Truman led to a reigning in of his abuses. Impeachment hearings even short of an impeachment vote in the House have a tremendous educational and political value.

I'd like to get a gauge of who I'm talking to. Can you please raise your hand if you consider yourself more than any other designation including independent, to be a Democrat? A Republican? A Green? A Libertarian? An Independent?

I suspect the show of hands from Independents would give hope to the founders of this nation if they could see us. They tended to fear greatly the acquisition of power by political parties, which they called factions. They did not write political parties into the Constitution, and they did not expect impeachment to be understood as in any way partisan. We've come so far now, however, in the direction of the rise of Factions, that Congressman Jerrold Nadler, a Democrat from New York who chairs the Constitution Subcommittee of the House Judiciary Committee, says that impeachments are no longer possible because of party loyalties. In other words, unless the Senate suddenly becomes two-thirds Democratic in order to make possible a conviction without a single Republican vote, Nadler won't bother to support even an impeachment inquiry in the House, although he did so in 2006. And nonprofit organizations routinely and mistakenly tell their members that they cannot advocate for impeachment because their tax status won't allow them to do partisan work. Of course we saw Republicans support the impeachment of Nixon, and Democrats support the impeachment or conviction of Clinton, but partisan madness today does not get distracted by mere facts. Neither the Democratic Party nor the Republican Party supports impeachment, but the first thing an impeachment advocate is called is partisan.

The founders of the country may be partly to blame for the rise of partisanship. They gave us a system modeled on the old British system, not the new one. They replaced a king with a president, but did not make the president the leader of the majority in the legislature. Instead the president is elected independently, and the election is winner-take-all. As more power shifts from the Congress to the president, this fact takes on greater importance, third parties are seen more than ever as spoilers, and two major parties begin to demand the loyalties that properly ought to belong to a branch of government. Most congress members today have almost no concern for what powers the Congress maintains as against the White House, but have extreme concern for whether the next president will be a Democrat or a Republican. This mindset facilitates the transferring of still more power from the legislature to the now misnamed executive, with the danger of dictatorship on the horizon.

The weakness of our system of government is winner-take-all presidential elections. The strength of it is the checks that each branch can impose on the others. But without impeachment, that all falls apart. So, the question arises: Can impeachment be taken out of the Constitution temporarily and be restored to it?

Please raise your hand again if you are a Republican or a Libertarian or a right-leaning independent.

Now please keep your hand up if you would like Hillary Clinton or Barack Obama to have the power to spy without warrants, to detain without charges, to torture, to murder, to mislead Congress and the nation into wars, to rewrite laws, and to violate laws with no consequences?

Now please put your hand back up if you oppose impeaching Cheney and Bush.

You guys want to have your cake and eat it too, and I don't think you can.

Here's another question: Can the impeachment process be abused and then be restored to its proper role?

Please raise your hand if you are a Democrat or a Green or a left-leaning Independent.

Now please keep it up if you think that the Bill Clinton impeachment was appropriate and that digging into a president's sex life is what the founders intended Congress to work on.

Now please put your hand back up if you oppose impeaching Cheney and Bush.

You guys seem to me to be allowing one misuse of a vital tool to compel you to never use it correctly. But you should keep one thing in mind, President Obama, if there is a President Obama, will not last six months without Republicans pushing for his impeachment aggressively and unapologetically. Think about that. Think about the likelihood that a Democrat could be caught approving torture and not end up in jail. You Democrats claim to oppose the Republicans' agenda, yet you grant them a license to kill.

Sometimes being a Republican means never having to say you were wrong. President Bush is on film being warned about Hurricane Katrina and on film swearing he wasn't warned and could not possibly have been expected to imagine such a thing was coming. Bush was warned by the CIA of possible al Qaeda attacks a month before 9-11, took no steps to prevent them, and now says he had no earthly way of imagining what was coming. We know that top Iraqis, including Saddam Hussein's son-in-law filled the United States in on the truth, but Bush tells us he had no way of possibly imagining that all those mythical stockpiles of weapons of mass destruction didn't really exist. Generals warned that hundreds of thousands of troops would be needed to occupy Iraq, and economists warned that it would cost hundreds of billions of dollars. They lost their jobs, and Bush now tells us he had no humanly possible way of imagining that such things were true. So, somebody ought to have told Bill Clinton. You don't go out there and say "I did not have sex with that woman" and get yourself impeached. You go out there and say "I had no way of imagining what might happen when she crawled under my desk."

What exactly is an impeachable offense? Essentially it is an abuse of power. A crime can be an impeachable offense and cannot be. And an action can be an impeachable offense without being a crime. If the president cheats on his taxes, that may not be impeachable. You or I could do that. It's not an abuse of his power. But if he lies to the public about serious national policy matters, that may be impeachable, without being a crime. Shooting your hunting buddy in the face: not impeachable. Outing an undercover agent: impeachable. Lying about sex is arguably not a proper impeachable offense. Anyone can do THAT. Firing U.S. Attorneys because they won't pervert the justice system to serve your partisan electoral interests is probably impeachable. In the end, of course, what's impeachable is simply whatever the House of Representatives decides is impeachable. The founders discussed more than anything else, I think, the need to have the power of impeachment in case a president took the nation into an unnecessary war.

When President Polk misled the nation into an aggressive war on Mexico with the intention of stealing Mexican land, a young Republican congressman named Abraham Lincoln challenged him. Last year, Republican Alaska Congressman Don Young attempted on the floor of the House to quote Abraham Lincoln's opinion on opposition to presidents' war plans. Young failed rather dramatically. Here's his misquote of Lincoln:

"Congressmen who willfully take actions during wartime that damage morale and undermine the military are saboteurs and should be arrested, exiled, or hanged."

That was close. You can see how Young could have made the mistake. Here's what Lincoln actually said:

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose - and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, 'I see no probability of the British invading us' but he will say to you 'be silent; I see it, if you don't.' The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."

Lincoln wrote these words while America was at war with Mexico, under the presidency of James Polk, and while Lincoln was a member of Congress. But Lincoln did more than talk about the fraud that had been used to launch that illegal and imperialistic war. He introduced a resolution demanding that Polk provide proof. Polk claimed to have launched that war only after American blood had been shed on American soil. Lincoln's resolution required Polk to identify the spot where that blood had been shed.

"Let him answer fully, fairly, and candidly," Lincoln said of the wartime President. "Let him answer with facts and not with arguments. Let him attempt no evasion, no equivocation."

When President Polk did not answer, Lincoln and John Quincy Adams sought a formal investigation of the president's pre-war intelligence claims, and of his use of secret funds to launch his fraudulent and illegal war. Under this pressure, Polk announced that he would not seek reelection. Lincoln, Adams, and their allies in Congress then passed a resolution honoring the service of Major General Zachary Taylor "in a war unnecessarily and unconstitutionally begun by the President of the United States."



Does the Constitution Require Impeaching Bush and Cheney? ~ Part 2 of 2

 Presented at George Mason University on April 14, 2008

Dedicated to Betty Hall and the New Hampshire State Legislature.

David Swanson - April 14, 2008 - posted at

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Submitted by SadInAmerica on Wed, 04/16/2008 - 7:12pm.