Impeachment Now! – A Recantation.
Ernest Partridge, Co-Editor
The Crisis Papers.
February 6, 2007
"I am ... unwilling to endorse demands for immediate bills of impeachment
against Bush and Cheney, for the simple and compelling reason that such an
approach is less likely to succeed. Recent history teaches us that the
direct route to impeachment may not be the most effective.”
I wrote this, and believed this,
last December 5.
Intervening events, and some sober reflection, have convinced me that I was
wrong.
The intervening events. Since I wrote those words, 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 expressed their determination to add
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. 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 two 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. Two months ago, 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. Finally, 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.”
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. And it appears
quite likely that this administration is about to precipitate a calamity of
unimaginable severity upon the nation and the world. Time is of the essence.
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 proven 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 “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.
Copyright 2007 by Ernest Partridge
Ernest Partridge's Internet Publications
Conscience of a Progressive:
A book
in progress.
Partridge's Scholarly Publications. (The Online Gadfly)
Dr. Ernest Partridge is a consultant, writer and lecturer in the field
of Environmental Ethics and Public Policy. He has taught Philosophy at
the University of California, and in Utah, Colorado and Wisconsin. He
publishes the website, "The Online
Gadfly" and co-edits the progressive website,
"The Crisis Papers".
His e-mail is: [email protected] .
