"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
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
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
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,
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 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
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
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
We must not go gentle into that dark night that is directly ahead of us.
Copyright 2007 by Ernest Partridge
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". View his book in progress, "Conscience of a Progressive".
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Peace y'all
