The case for impeachment

It's not just for radicals anymore

By Steven T. Jones

steve@sfbg.com

Rep. Nancy Pelosi, the top Democrat in the House of Representatives, held a Jan. 14 town hall meeting back home in San Francisco. It's the sort of thing congressional representatives do routinely, and in safe districts it's often more of a pep rally and love fest than anything else.

But on this day Pelosi was quickly confronted by a new political reality.

Antiwar protesters have already been dogging Pelosi for some time now over her failure to push Democrats to support withdrawal from Iraq. About 30 activists wielding antiwar signs filed into the Marina Middle School auditorium shortly after Pelosi's presentation began, first lining the walls, then moving up to stand right in front of the stage.

But the real eruption came when a questioner listed several war-related Bush misdeeds and asked, "Are these not high crimes and misdemeanors?"

Both of the city's dominant political factions – the radical lefties and the loyal Democrats – went nuts, the room filling with sustained applause and chants of "Impeach! Impeach!"

Pelosi resisted this call for radical change. "For those of you concerned about these issues," she told the crowd after the roar had died down, "I urge you to channel your energies into the 2006 elections."

But outside the beltway, in congressional districts all over America, the "I" word is moving out of the margins. In the wake of the revelation that federal officials have been illegally eavesdropping on American citizens without required warrants – which President George W. Bush not only admitted approving, but promised to continue under his expansive view of executive power – has propelled talk of impeachment into the political mainstream.

Although political leaders and major media outlets have been slow to pick up on the trend, national polls now show a majority of Americans support an impeachment inquiry.

And the sentiment is growing – and getting increasingly vocal. At one point in the meeting, Pelosi was asked whether she will support a resolution by Rep. John Conyers to create a committee with subpoena power to investigate whether members of the Bush administration may have committed impeachable offenses. "I do not intend to support Mr. Conyers's resolution," Pelosi replied.

The eight-term incumbent in one of the most Democratic districts in America was loudly booed.

"Listen to your constituents," someone yelled at Pelosi, who waxed philosophical about how she takes her oath of office seriously and how political change is best left to election time.

"We have a responsibility to try to bring this country together," Pelosi said, to which an angry member of the audience jeered, "You have a responsibility to uphold the Constitution!"

SERIOUS BUSINESS

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.

Section 4, Article II, US Constitution

Impeachment is perhaps the most potent and least used power of Congress. Just 16 officials – mostly federal judges – have been impeached, and half of those were acquitted at trial by the Senate (or in one case, the charges were dropped). It's only happened to two presidents, Bill Clinton and Andrew Johnson, and neither was ousted from office.

Richard Nixon escaped a likely impeachment only by resigning after a long investigation into abuses of power that are remarkably similar to those facing President Bush: illegal wiretaps, war crimes and deceptions, crimes in retaliation against perceived enemies, obstruction of justice, and other actions flowing from extraconstitutional claims of executive authority.

After Bush last month confirmed he authorized intercepting perhaps thousands of communications without required Foreign Intelligence Surveillance Act (FISA) warrants – which have proven easy to obtain and can even be issued after the fact – Nixon's White House counsel John Dean concluded Bush was "the first American president to admit to an impeachable offense."

That charge prompted Sen. Barbara Boxer to seek the assessment of four of the country's leading constitutional experts, scholars respected by both major parties, writing in her letter to them, "This startling assertion by Mr. Dean is especially poignant because he experienced first hand the executive abuse of power and a presidential scandal arising from the surveillance of American citizens."

To get a perspective on whether this and other actions by Bush administration officials could be considered impeachable, the Guardian interviewed three of those four scholars: Cass Sunstein of the University of Chicago Law School, Susan Low Bloch of Georgetown Law, and Michael J. Gerhardt of the University of North Carolina School of Law.

To say these three take impeachment seriously is a huge understatement. All three agree the Clinton impeachment was a gross misuse of the process, which they see as something the founders intended to be used only in extreme cases. They are skeptical of whether any of Bush's misdeeds – at least what we know about them right now – rise to the level of impeachment.

"The impeachment provision is for truly egregious wrongdoing, and we shouldn't repeat the unconstitutional impeachment of President Clinton," Sunstein said.

"I think impeachment is the nuclear option and should be talked about only rarely," Bloch said. "It's a weapon for when you have to get someone out of office because he's dangerous."

Even in the case of Bush's admission of warrantless spying, which Dean and other lawyers have argued could present a prima facie case for impeachment, these experts say it's far from the slam dunk case that it seems to some, mostly because of the Bush administration argument that the post-9/11 congressional authorization to go after al-Qaeda granted the president broad new powers.

"On the facts thus far, the president has a decent argument that he acted lawfully. There's also a decent argument that he didn't. But if the president has a decent argument, he can't be impeached for getting it wrong," Sunstein said.

Impeachment, the scholars all said, wasn't intended to undo elections, settle ideological disputes, or even to restore the proper balance of power. And it shouldn't be used as an opening threat or to settle the score over the wrongful Clinton impeachment. For those reasons, Bloch told us, "I think the talk of impeachment is premature and counterproductive."

Is that the end of this story? Well, no, for two main reasons.

The first is that impeachment is more of a process than a decision. Opening up an impeachment inquiry doesn't mean the president is about to be evicted from the White House – it just means a congressional committee with the power to demand documents and compel witnesses has taken up the case.

Gerhardt noted that Nixon's impeachment inquiry lasted two years – and that the most incriminating evidence emerged along the way. "There is every reason to say that it should be investigated even if we don't know whether that leads to impeachment," Gerhardt said.

Most of the scandals critics say could lead to impeachment – such as how far up the military chain of command the torture authorization went and whether Bush administration officials intentionally misled Congress and the public about the case for war in Iraq – have yet to be fully investigated by Congress.

But the only investigation into Bush administration misconduct by a prosecutor with subpoena power – Patrick Fitzgerald's probe into who leaked a CIA agent's identity – has already yielded an obstruction of justice indictment against Scooter Libby, who was Vice President Dick Cheney's chief of staff, and could bring down others before it's done.

"That's why I think all this stuff is worth investigating," Bloch said. "I think the warrantless wiretapping is a very serious issue, and I question the legality of what I've heard about it."

The other reason not to let the constitutional experts dismiss talk of impeachment is that all three scholars confirmed that, in the end, impeachment is more of a political question than a legal one. What's impeachable is ultimately whatever Congress says is impeachable, a decision most scholars believe cannot be reviewed by the courts.

Clinton was impeached when all the legal experts say he shouldn't have been. So Bush could clearly be held to account for crimes that are more serious than lying about an extramarital blow job. What is being alleged against the Bush administration are misdeeds that have resulted in tens of thousands of deaths, the torture of people in US custody, blatant and unapologetic violations of the Fourth Amendment, and the shredding of American credibility around the world – all of which are ongoing, claiming new victims everyday.

That's why the advocates of impeachment say we can't afford to wait two years for another election. Besides, they say, stopping the imperial ambitions of a president is precisely why the founders created the tool of impeachment.

"If Tyranny and Oppression come to this land," warned James Madison, "it will be in the guise of fighting a foreign enemy."

THE POLITICS OF IMPEACHMENT

There's been scattered talk of impeaching Bush since even before he took the oath of office in 2001, but most of it was from partisans angry that Bush seemed to steal the tied election then claim a mandate.

"I've been agitating for impeachment ever since the Supreme Court appointed him," said Bob Fertik, a veteran Democratic political consultant who started Democrats.org in 2000 and later ImpeachPAC, a political action committee and Web site dedicated to "electing a Congress to impeach Bush and Cheney."

But the list of constitutionally troubling offenses by both Bush and Cheney started right away: Cheney's defiance of congressional inquiries into his secret Energy Task Force meetings, the appointment industry insiders to regulatory agencies, the refusal to release public documents like Ronald Reagan's presidential papers, the ignoring of warnings about the coming 9/11 attacks and then obstructing investigations into it, the use of the attacks to create an imperial presidency that defied congressional oversight and spied on Americans.

Yet the Bush administration was given wide latitude to respond to 9/11, both legally and politically. Congress granted the president the right to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the attacks, a resolution that the Bush administration has interpreted as a blank check to launch wars, indefinitely detain anyone it deems an enemy, torture detainees, assassinate alleged terrorists, and spy on foreigners and Americans with almost no outside oversight.

Then came its decision to invade Iraq, which led to most of the offenses that became the focus of impeachment advocates. Critics say there is ample evidence that Bush administration officials knowingly lied about the justifications for the war and then violated US law and binding international treaties like the Geneva Conventions in how it was conducted – all of which could be considered impeachable offenses.

"Our primary issue is lying about the Iraq war. We can show that he knowingly lied about the reasons for that war," Fertik said. "The voters need to understand that the Democrats are willing to hold them accountable and pursue this."

Constitutional scholars say the fact that Bush was reelected last year hurts the case for impeachment. "You can't discount the significance of the election and the fact that a lot of these issues were raised before that," Gerhardt said. Yet critics counter that the real smoking guns didn't emerge until after the election, most notably the so-called Downing Street Memo, a leaked British government document outlining Bush administration intentions to manipulate intelligence data to sell the war.

That was certainly the case with Nixon, who won a landslide victory before all the facts of the Watergate scandal came to light.

David Swanson, a blogger and Democratic Party activist who started the Web site AfterDowningStreet.org, said the high-level memo confirmed that the administration was acting illegally. That galvanized the impeachment movement.

"It is the central reason impeachment is in the Constitution, the abuse of power," Swanson said. "I've never seen the kind of public passions that there is on this, and that's been true for months."

Both the House and Senate Committees on Intelligence investigated prewar claims about Iraq, and the bipartisan report found fundamental flaws and repeated misstatements by the Bush administration, but Republicans in Congress have blocked efforts to determine whether the intelligence was intentionally misrepresented.

Constitutional scholars agree that deceiving Congress about the reasons for war – or obstructing an investigation into whether the executive branch did so – would be impeachable. "A deliberate attempt to obstruct a congressional investigation would qualify as a classically impeachable offense," Gerhardt said.

Conyers, the ranking Democrat on the House Intelligence Committee, commissioned his own report on Bush administration actions surrounding the Iraq war and found impeachable crimes relating to manipulation of intelligence, lying to Congress and the public, condoning torture, and civil liberties violations.

"There is a prima facie case that these actions by the President, Vice-President and other members of the Bush Administration violated a number of federal laws," read the report, titled "The Constitution in Crisis: The Downing Street Minutes and Deception, Manipulation, Torture, Retribution, and Coverups in the Iraq War."

But it was the Dec. 16 revelation of the warrantless wiretapping that propelled talk of impeachment into the mainstream. Even the staid Editor and Publisher magazine noted in a Dec. 22 article that "suddenly this week, scattered outposts in the media have started mentioning the 'I' word, or at least the 'IO' phrase: impeach or impeachable offense."

"The wiretapping really changed things," Fertik said. "I think we're one moderate-level scandal away from a large outcry for impeachment."

AfterDowningStreet.org had commissioned a Zogby poll on the war manipulations in June that found 42 percent of Americans favored impeachment proceedings. They followed up this month with an impeachment poll based on the spying and found support had jumped to 52 percent.

"The spying issue has made impeachment respectable to talk about in the mainstream media, and that opens up the other areas of impeachable offenses," Swanson said, adding that he still believes "the strongest case for impeachment is around the war."

BUILDING SUPPORT

At the very least, if the Democrats retake either house of Congress, there's enough evidence to support formal inquiries into conduct that could be considered impeachable.

Let's remember: Nixon and Clinton both got into their deepest trouble not for specific official acts, but for obstruction of justice – that is, for lying and cover-ups.

And Bush administration officials are facing many minefields that could trigger the same sort of charges – criminal probes into the CIA agent outing and the bribery scandal surrounding lobbyist Jack Abramoff, next month's domestic spying hearings, myriad inquires into cases of torture, a possible congressional inquiry into prewar intelligence manipulation.

Yet the question remains whether Democrats – as well as maverick Republicans willing to challenge Bush administration excesses, as Sen. John McCain did on torture and Sen. Arlen Specter appears willing to do on the warrantless spying – are willing to aggressively push for this profound level of accountability.

Pelosi has so far taken a wait-and-see approach, although she is pushing for hearings on the warrantless spying. She acknowledged that "our founders did not want a king. They wanted a president with a system of checks and balances."

But she stopped short of supporting an impeachment inquiry. "Before we know how to hold the president accountable, we have to know what he did, and I don't think we know right now," she said in response to a question about domestic spying at the Jan. 14 forum.

Pelosi's cautious approach is infuriating to those who feel like both the facts – on matters ranging from war to abuse of power – and the public sentiment are way ahead of the political leadership.

"The Democratic leadership is afraid of all the popular positions of the Democratic base," Swanson said.

While questions of impeachment have been discussed little in the halls of power – political or media – they have spread across grassroots America like a wildfire over the last year. ImpeachPAC hopes to fuel that flame and make impeachment an issue in the midterm elections, hoping to trigger the impeachment of Bush and Cheney and elevate the new speaker of the house into the presidency.

"We want to encourage candidates to raise the issue, as Tony Trupiano is doing," Fertik said, referring to the Michigan congressional candidate who won ImpeachPAC's first endorsement late last year.

Trupiano hosted a popular, left-leaning radio show for 11 years before deciding to run for Congress because of his concern for the "politics of fear and paranoia and what's happened to this country over the last five years, where good and decent people no longer question their government."

After he was endorsed by ImpeachPAC, Trupiano endured a firestorm of criticism from both the mainstream media and Democratic Party leaders. "I took a lot of crap from the establishment because I used the 'I' word," he told the Guardian. But he endured it, received support from across the country, and now appears to be the frontrunner in his race for Congress.

"We need to decide whether government runs who we are or whether we rule our government. We need to take our country back," Trupiano said. "We need to demand accountability."

At the very least, Trupiano said, Congress needs to aggressively push for answers to troubling questions about why the administration invaded Iraq and what the president's team is doing under the guise of keeping the nation safe from terrorists. Call that oversight, accountability, or impeachment, but Trupiano said it's a job Congress has failed to do.

"Impeachment is a process, it's not an indictment," he said. "We need to lay out the case, then we ask the American people to sign on. We just want the truth. Is there anything more nonpartisan than the truth?"

Here in San Francisco, the Democratic County Central Committee was scheduled to consider approval of a resolution calling for impeachment proceedings against Bush and Cheney on the same day this issue hit the streets, Jan. 25.

Robert Haaland, who introduced the measure, said Democrats have to start fighting back against the Bush administration's extremist claims to absolute power, whether or not impeachment proves to be a realistic option.

"Cowardice is not a winning strategy for the Democrats, and we've learned that again and again," Haaland said, noting that the warrantless spying has finally made impeachment a real option. "If handled correctly, it resonates across the political spectrum. It's not just about national security, but privacy rights."

Haaland said he understands why Pelosi and other party leaders have been reluctant to use the word impeachment, fearing the backlash it might provoke, but said it's important they aggressively push for accountability to Congress, the Constitution, and the people.

"I really care about the Constitution and believe it's getting to be like Germany in the 1930s here," Haaland said. "If we turn a blind eye to such blatant violations of the Constitution, I'm really scared where our country will be in five years."

Even Leslie Katz, a Pelosi ally who chairs the DCCC, said she will support Haaland's resolution. "This regime has to be stopped, and the people have to realize they've been duped," she said. "They've committed crimes against the American people."

Said Katz, "Local parties should be calling for it. The American people should be rising up and calling for this. And the media should be picking up on it and articulating it so the people begin to understand."

BALANCE OF POWER

The closest Congress has ever come to removing a president was in 1868, when the House of Representatives impeached Andrew Johnson and the Senate fell one vote short of the two-thirds majority needed to remove him from office.

Gerhardt said the current debate about whether to impeach Bush "does have echoes of Johnson." In that case, Johnson claimed the right to ignore congressional oversight and certain laws, such as the Tenure in Office Act, and held an expansive view of executive power.

If just one more senator had voted to impeach Johnson, Gerhardt said he and other constitutional scholars might hold a different view of the impeachment precedent. As it is, Gerhardt said, "the notion of impeachment that corrects an imbalance [of power between branches of government] makes me nervous." Yet he said that in some ways Bush has pushed the envelope on executive power further than Johnson did.

During the Senate confirmation hearings on Supreme Court nominee Samuel Alito, listeners got a lesson in an obscure political philosophy that a small group of conservatives – most notably, Cheney and his followers and Supreme Court justices Clarence Thomas and Antonin Scalia – have been developing since the mid-1980s. It's called unitary executive theory, and it essentially holds that the presidency is the dominant branch of government, rather than one of three coequal branches.

It is from that belief – which has been largely untested in the courts – that the Bush administration claims the authority to defy laws requiring warrants for searches, habeas corpus rights for enemy combatants, prohibitions on torture, and the congressional oversight that has been accepted by most previous presidents.

"I think their claims of executive authority are overblown and wrong," said Bloch, the constitutional scholar from Georgetown. "And there is an argument that what he's doing is impeachable."

Another little-noticed Bush power grab is his use of presidential signing statements attached to bills he approves. Although he has never vetoed a bill, Bush has issued more than 500 signing statements challenging the constitutionality of provisions of the bills, more than every previous president combined.

Gerhardt called the signing statements "a very troubling development in constitutional law." The signing statements often direct executive agencies to essentially ignore some laws, possibly amounting to an illegal line item veto or assumption of powers beyond those granted by the Constitution, Gerhardt said. "They might, to an illegitimate extent, increase the president's power to make laws."

The most notable recent example is when Bush signed a bill that contained an outright ban on torture that McCain had pushed through with overwhelming congressional approval over the objections of Bush and Cheney. Bush's signing statement said he would interpret the torture ban "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

In other words, as several scholars and some media reports have concluded, Bush announced he was retaining the right to torture in defiance of Congress.

"If a president were to license torture, in disregard of applicable laws, what are the avenues for keeping him in check?" Gerhardt questioned, answering that impeachment may be the only option for dealing with a president who refuses to abide by US and international laws against torture, although he said that hasn't yet been proved with Bush and Cheney.

The debate over the president's current powers places Congress and the president on a collision course. In analyzing the president's use of warrantless wiretaps, the nonpartisan Congressional Research Service issued a report earlier this month arguing it was illegal and unconstitutional, while the Justice Department responded with a report last week claiming the post-9/11 congressional authorization of the use of force "places the president at the zenith of his powers in authorizing the N.S.A. activities."

Official congressional hearings into the matter are expected to begin Feb. 6, with Attorney General Alberto Gonzalez expected to testify for the administration.

The administration now seems to be directly attacking the system of checks and balances, with the Justice Department report arguing that many presidential powers – from the right to indefinitely detain those it deems "enemy combatants," to spying on American citizens – are "beyond Congress's ability to regulate."

As long as the Republican-controlled Congress is willing to play a subservient role to the president, this might not be a problem. But if the public demands accountability and Bush and Cheney refuse to give up their imperial stands, impeachment might not just become an option. It may become the only option.