Think Piece: Impeachment Anyone? – The Case for Taking the Tape Off Our Mouths

[This piece is based on seven new books on impeachment, all briefly discussed in a final note.]

Never before has the system of government established by the U.S. Constitution been as seriously threatened; never before has the built-in remedy for the sort of threat we face been as badly needed; never before have we had as good an opportunity to use that remedy exactly as it was intended.

Congress has never impeached a President and removed him from office. Once, with Richard M. Nixon, impeachment proceedings forced a resignation. Twice, with Andrew Johnson and Bill Clinton, impeachment proceedings led to acquittals. On a few other occasions, Congressional efforts to advance articles of impeachment have had legal and political results. These have always benefited the political party that advanced impeachment. This was even true in the case of the Republicans’ unpopular impeachment of Clinton, during which the Republicans lost far fewer seats than the norm for a majority party at that point in its tenure. Two years later, they lost seats in the Senate, which had acquitted, but maintained their strength in the House, with representatives who had led the impeachment charge winning big. (This point — little noted but important indeed — was made to me recently by John Nichols, author of the forthcoming book, The Genius of Impeachment.)

In every past case, impeachment efforts were driven by members of Congress or other Washington political players, sometimes with support from the media. The public got behind Nixon’s impeachment, but only after the proceedings had revealed massive presidential crimes. The public never got behind Clinton’s impeachment, despite saturation news coverage and widespread support among political power players. In the case of George W. Bush’s impeachment, with the media and both parties in Congress opposed to it, public support is just about all there is — so far.

In past cases, impeachment has either focused on trivial offenses or on crimes that were serious but not tied to the administration’s major foreign policy decisions or to policies in which Congress was complicit. Clinton was impeached for lying under oath about his sex life — clearly a crime but not bribery, treason, or a “high crime or misdemeanor” (an old British phrase meaning an abuse of the political system by a high office holder), and so not actually an impeachable offense. Nixon was nearly impeached for obstruction of justice, warrantless spying, refusing to produce information subpoenaed by Congress, lying to the public, and other abuses of power, but not for his secret and illegal bombing of Cambodia.

For all the reasons Nixon was nearly impeached, George W. Bush could be impeached too. He has openly engaged in illegal, unconstitutional, warrantless spying, and — while Congress has not yet used subpoenas — Bush has obstructed its investigations, refused to comply with Freedom of Information Act requests, and broken a variety of laws in the course of exacting retribution against whistleblowers, producing false reports, and establishing a regime of secrecy of a sort that Nixon could only dream about.

Bush has lied to the public about the warrantless spying program at the National Security Agency (NSA), the war in Iraq, the kinds of warnings he was given before hurricane Katrina arrived, and numerous other issues. While Nixon made secret audio tapes in the White House which, when discovered, doubled as evidence, this time there is video — of Bush being warned prior to Katrina and claiming he was not warned, of Bush assuring us he was not engaged in warrantless spying and brazenly asserting that he will continue to spy without warrants, of Bush warning us about Iraq’s weapons of mass destruction as well as Saddam’s supposed ties to the 9/11 attacks and of Bush claiming he did no such thing, of Bush claiming the U.S. does not condone torture and of the torture victims.

Bush’s administration has even bribed journalists and manufactured phony news stories at home as well as in Iraq in order to deceive the public. Congressman John Conyers has introduced bills to censure both the President and Vice President Cheney for their refusal to turn over information, while Senator Russ Feingold has introduced a bill to censure Bush for his illegal spying programs.

But charging Bush with such Nixonian offenses would only scrape the surface of the criminal record that is motivating the popular movement for impeachment — and impeachment was always meant to be a popular movement. The drafters of the Constitution placed impeachment in the hands of the House of Representatives because they considered that body — with its members facing reelection every two years — closest to the people.

In theory, a democratic system with impeachment at its heart creates an obvious conflict in the wake of any (honest and credible) presidential election. How could the people’s representatives impeach, and ask the Senate to consider removing from office, a president whom the people have just elected? In practice at present, quite a different conflict takes center stage: How can a Congress complicit in many of this President’s criminal acts be asked to impeach him? Perhaps by focusing on crimes Congress was not complicit in, by allowing Congressional representatives to plead ignorance or remorse, and by electing new representatives better tuned to the present will of the people.

And how do we get the media to cover investigations of crimes the media too have been complicit in? Same answer (minus, of course, the elections).

Let’s begin by considering the case for impeaching and removing from office George W. Bush and Dick Cheney. Quite a few organizations and individuals have, in fact, already drafted articles of impeachment. Though no two lists are the same, there is a great deal of overlap. There are some crimes that appear on almost every list and that seem to be driving the public demand for accountability. Many of the best lists are in recently published and forthcoming books. (See note at end of article.)

Impeachment for What?

Every list of impeachable offenses includes tangential references to other impeachable offenses. The list seems inexhaustible, but here’s a quick run-down of the main possible charges:

The illegal war in Iraq is at or near the top of everyone’s list. Sometimes, the emphasis is on the illegality of an aggressive war; sometimes, on the fraud used to sell the war to Congress and the public; sometimes, on the absence of a proper Congressional declaration of war.

Lying to Congress is a felony. Lying to the public is an impeachable offense — and one brought against Nixon. Initiating an aggressive war is the highest crime under treaties that are part of international and U.S. law. Launching a war without proper Congressional approval is a violation of the War Powers Act of 1973. Misusing government funds to launch a war is a separate crime, committed by Bush when he ordered troops moved to Iraq and began bombing raids prior to Congress’s dubious authorization to use force.

On some lists are the various war crimes that have accompanied the war, including the targeting of civilians, journalists, hospitals, and ambulances, the use of antipersonnel weapons in densely settled urban areas, and the use of illegal weapons, including white phosphorous, depleted uranium, and a new version of napalm used in Mark 77 firebombs.

High on most lists are also unlawful detentions and torture. The arbitrary detention of Americans, of legal residents, and of non-Americans without due process, without charge, and without access to counsel is illegal under U.S. and international law, and unconstitutional as well. In case anyone doubted this fact, the Supreme Court recently ruled on it. The highest body in our judicial branch of government has essentially declared Bush a criminal, and yet Congress recently acted, through the Military Commissions Act of 2006, to provide the President with retroactive immunity for some of his acts in these areas.

Bush has authorized the torture of thousands of captives, resulting in some cases in death, and sought to evade responsibility by redefining acts commonly considered torture out of the category of torture. He has agreed to let suspects be kidnapped off the streets of cities in other countries, allowed prisoners to be hidden from the International Committee of the Red Cross, shipped people under U.S. control to third nations or a network of secret U.S. prisons to be tortured. The Constitution, international treaties that are part of U.S. law, and other U.S. laws ban torture. When, in the McCain Amendment to a Department of Defense bill last January, Congress redundantly re-banned torture, the President signed the bill but added a signing statement explaining that he would not obey it.

On every impeachment list as well is the illegal National Security Agency spying to which Bush has publicly (and proudly) confessed, and which a federal court has ruled criminal. Yet, to this day, it goes on unchecked. Bush lied to the public and Congress about his illegal spying programs for years. Congress has passed bills cutting off funding for the programs, but Bush countermanded these with signing statements.

The spying, done without recourse to the secret FISA court set up in 1978 for exactly this purpose, is also in blatant violation of the FISA Act of 1978, of the Fourth Amendment, and — according to Congressman John Conyers’ report, George W. Bush versus the U.S. Constitution — of the Stored Communications Act of 1986 and the Communications Act of 1934. Congressman Conyers also cites Bush for violating the National Security Act and for failing to keep all members of the House and Senate Intelligence Committees “fully and currently informed” of intelligence activities, such as the warrantless surveillance programs.

On nearly every list of impeachable offenses is the President’s failure to protect New Orleans from Hurricane Katrina. Over a period of years, the administration undermined the city’s protection. In the days prior to the storm’s arrival, Bush was warned about just what might happen. Yet prior to the storm — and for days after it hit — he did nothing; the unqualified cronies he had put in charge of the Federal Emergency Management Agency did nothing; and the National Guard members from Louisiana, Mississippi and other states of the southeast whom he had dispatched to Iraq could not be called upon to help. Thousands of Americans died preventable deaths and a city was ruined, not so much by a storm as by the non-response to it. Even now, people who lost their homes in the Katrina debacle are being told there are no funds available to help them.

The Constitution requires that the President “take care that the laws be faithfully executed.” Former Congresswoman and Judiciary Committee Member Elizabeth Holtzman in her new book, The Impeachment of George W. Bush, argues that Bush’s neglect of New Orleans (and other presidential duties) violated this responsibility and so constitute high crimes and misdemeanors. Holtzman puts into this category as well the administration’s failure to provide U.S. troops in Iraq with proper body armor, and the failure of the President and his top officials to plan for the occupation of Iraq.

In their book, The Case for Impeachment, Dave Lindorff and Barbara Olshansky make a similar argument about Bush’s failure to attempt to prevent the attacks of September 11, 2001 and his obstruction of investigations into those crimes (as do Dennis Loo and Peter Phillips in their book Impeach the President).

The same two books, along with the Bush Crimes Commission in its “verdict,” also suggest that, by denying the existence of, enacting policies that increase, and failing to work to decrease global warming, Bush has committed perhaps the most serious offense possible — in the words of Loo and Phillips, “placing oil-industry profits over the long-term survival of the human race and the viability of the planet.”

The Bush Crimes Commission finds the President’s imposition of abstinence-only policies on countries being ravaged by AIDS to be a serious crime against humanity. Loo and Phillips charge Bush with “violating the constitutional principle of separation of church and state through the interlinking of theocratic ideologies in the decision-making process of the U.S. government.”

Three of the recent books on impeachment include as an impeachable offense Bush’s use of signing statements to announce his refusal to obey hundreds of laws passed by Congress. The American Bar Association has found the practice unconstitutional. It is, in fact, an open threat to the rule of law.

An official censure by Congress would do nothing to compel the President to obey laws he chooses not to obey. Impeachment would do nothing. Only impeachment followed by removal from office will cure this cancer on the American political system. The current situation is exactly what the authors of the Constitution had in mind when they made impeachment and removal from office the means of protection against tyranny.

Holtzman includes in her roster of impeachable offenses the selective and misleading leaking of classified information, especially on supposed Iraqi weapons of mass destruction (which Bush himself was directly involved in) to advance a dishonest case for war. Lindorff and Olshansky also include the leaking of CIA agent Valerie Plame’s identity.

Conyers cites violations of the following related laws: 1) Federal requirements concerning the leaking and misuse of intelligence, including failing to enforce an executive order that requires the disciplining of those who leak classified information, whether intentionally or not; 2) Federal laws forbidding retaliation against whistle-blowers of various sorts, an example being the demotion of Bunnatine Greenhouse, the chief contracting officer at the Army Corps of Engineers, who exposed secret, no-bid contracts awarded to Kellogg, Brown & Root, a subsidiary of Halliburton; 3) Federal regulations and ethical requirements governing conflicts of interest, including the briefing of then-Attorney General John Ashcroft on an FBI investigation of possible misconduct by Karl Rove, even though Mr. Rove had previously received nearly $750,000 in fees for political work on Mr. Ashcroft’s campaigns.

Loo and Phillips — rightly I think — bring up a number of offenses not found on most lists, including:

“Usurping the American people’s right to know the truth about governmental actions through the systematic use of propaganda and disinformation”;

“Overthrowing Haiti’s democratically elected president, Jean-Bertrand Aristide, and installing a highly repressive regime” in his place;

I would add one item not yet found on anybody’s list: the passage by Congress of the Military Commissions Act of 2006 that retroactively and unconstitutionally legalizes various Bush administration acts involving torture and illegal detention, and the passage of other bills doing the same on a number of the crimes listed above. Impeachment is not a criminal process. Legalizing impeachable offenses does not make them less impeachable. But proposing and lobbying to legalize illegal impeachable offenses are themselves additional impeachable offenses.

What Would It Take for Impeachment to Happen?

Believe it or not, the impeachment of George W. Bush and Dick Cheney is perfectly possible, although a number of factors will have to come together for it to happen. The public will is already there, and this is quite remarkable given the lack of action in Congress or mention in the mainstream media. The polling that has been done on impeachment is dramatic. The Washington Post finds that a third of the country wants Bush not just impeached but also removed from office. Zogby finds that, by a margin of 53% to 42%, Americans want Congress to impeach President Bush if he lied about the war in Iraq. When Americans were asked, “What 2 or 3 specific changes would have to take place in order to improve your trust in government today?” the winner by far was “personnel changes/impeachment proceedings.” When Pennsylvanians were asked whether they would be likely to vote for a congressional candidate who “supports having impeachment proceedings against President Bush,” 84.9% of Democrats said yes, while 7.0% said no. Among Independents, 49.3% said yes, while 40.6% said no.

The Republican National Committee got spooked this past summer and felt obliged to announce that impeachment would be good for Republicans in the coming elections. This claim is made without a shred of evidence, either in history or in present polling. Nothing excites non-Republicans today like impeachment, and “Vote for us or we’ll go to jail” is a lousy slogan. The Democratic base is aching for Democrats in Congress to get some spine and stand up to the criminals who are throwing away one of the most brilliant creations of the eighteenth century: our Constitution. Instead, Leader Nancy Pelosi has ordered Democrats in Congress to stay away from impeachment — though she did say that they would hold hearings and see where they went… if the Democrats win a majority in the House of Representatives.

To voters who are paying attention, the “let’s hold investigations and see where they go” approach looks disingenuous, given how many impeachable offenses are already public knowledge. I’ve heard reports from dozens of Congressional representatives, in both parties, who refused to sign onto Conyers’ bill for an investigation, and not once has anyone argued that there is too little evidence. The argument always focuses on the “extreme” nature of impeachment or the political agenda behind impeachment. As a result, the Democrats are, for the most part, steering clear even of talk of future investigations.

Quietly, however, Democrats do acknowledge that impeachment is coming. Following the triumphal 1972 election of Richard Nixon, had you raised the topic of impeachment, Democrats in Washington would have dismissed it as impossible. Today, on the other hand, they dismiss it as unacceptable — at least pre-election. When former director of the NSA, Lt. Gen. William Odom, suggested impeaching Bush last week at a forum on Iraq organized by progressive Democratic Congress members, the ensuing silence and shuffling in seats suggested a strong desire by our representatives to dive under the table. They resisted that urge and changed the subject. They did not, however, argue against impeachment.