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January 29, 2007
On Impeachment
Sanford Levinson, writing in The Nation:
Although I admire some of those calling for impeachment, one should recognize that some of their ostensibly legal claims are all too dubious. Consider the charge that Bush lied to the country during the run-up to the war, which may well be true. If lying to the public about matters of grave importance were an impeachable offense, however, almost no President--including, for starters, Franklin Roosevelt and his deceptions regarding lend-lease--would survive. It is even more difficult to construct criminality out of Bush's reckless disregard of the consequences of Katrina. It is not, however, at all difficult to accuse him of maladministration and disqualifying incompetence.
American politics would be infinitely better if we could avoid legalistic mumbo-jumbo and accusations of criminality and cut to what is surely the central reality: The American people have exhibited a fundamental loss of confidence in a wartime President/Commander in Chief. In most political systems around the world, the response to such a stinging rebuke would be resignation or removal. But we are trapped in a constitutional iron cage devised by eighteenth-century Framers who, however wise, had no conception of the role the presidency would come to play in American (and world) politics. The US President should be treated as what Ross Perot aptly called an "employee" of the American people, vulnerable to being fired for gross incompetence in office. Instead, he is given the prerogatives of a feudal lord of the manor who owns the White House as his personal property until the end of the presidential term, with almost dictatorial power over decisions of foreign and military policy.
That's largely true. One of the great failures in American political life is that incompetence and poor performance don't set off media feeding frenzies, they're not treated as scandals or dangers to the incumbent. Bush languished in the 30s for a year before Democrats finally took over and the Press realized Americans were unhappy. Levinson believes that "however divided we might be, most Americans might be persuaded that we would all be better off if future Presidents could face the possibility of a Congressional vote of "no confidence" that would trigger eviction from the White House." That seems wrong to me, and dangerous. Clinton, for instance, would surely have been evicted post-1994, and the country wouldn't be better off for it. But maybe a Congressional vote of no confidence could trigger a national referendum or recall election?
Meanwhile, Levinson just wrote an important book on the many failures and inadequacies of the Constitution, a quick review of which you can find here.
January 29, 2007 | Permalink
Comments
But we are trapped in a constitutional iron cage devised by eighteenth-century Framers who, however wise, had no conception of the role the presidency would come to play in American (and world) politics.
Two words: Recall Amendment.
It's particularly annoying that certain aspects of American political culture have been foisted on systems where there is a swift (and brutal) way of dispatching a head of government. Blair may not get to choose his departure date quite so easily, thanks to the cash-for-peerages investigation, but he's still the first lame duck PM in living memory.
Levinson's pretty much right, of course, and the constitutional framework whereby a president gets to serve out a term is a throwback to the nineteenth century model of the responsive (rather than active) chief executive. Trouble is, that meant impeachment had the time to become a rare and exceptional thing, just as the president's role began to change into one where it had a purpose. As such, the GOP's impeachment of Clinton inoculated Bush. Still, I'd like to see Bush impeached -- even if it's as late as January 2009 -- just to make the point that it can and should be done.
Posted by: pseudonymous in nc | Jan 29, 2007 10:56:12 AM
My opinion on impeaching Bush is that serious, meaningful investigations would almost certainly result in either criminal charges once all the details come out — at the very least, obstruction of justice from all the stuff that has been shredded — or a Constitutional crisis, with Bush sure to stand steadfast in defense of executive privilege. In other words, on the immoral, undemocratic, wrong side.
If we actually get such investigations somehow but they don't turn up anything, or if a Constitutional crisis looms but Bush does the right thing (hah!), I, personally, would not want to see him impeached. The appropriate punishment for incompetence, if that's really all there is, is being made a lame duck. I don't disagree with the current impeachment system as such, it just looks to me like we should be a lot further along in the process.
Posted by: Cyrus | Jan 29, 2007 11:28:45 AM
Yes, but the warrantless wiretapping charge is cut and dried. The program was a blatant violation of both the letter and the spirit of the law. He admitted to it. As such, he should be impeached.
Posted by: Wells. | Jan 29, 2007 11:53:33 AM
Rewrite the whole Constitution? Never. gonna. happen.
You might however be successful in calling for a limited Constitutional Convention to take on election reform and that might just solve most of the other problems.
Posted by: Emma Zahn | Jan 29, 2007 11:59:00 AM
It has never been clear to me what the 'misdemeanors' part of 'high crimes and misdeameanors' actually means. Whatever it means, it would seem to include the wide variety of, shall we say, unusual actions of the Bush administration. Things like claims that he isn't bound by the law, but has unwritten but actual powers 'protect the nation'.
Anyway, impeachment is always going to be a nearly impossible task given the supermajorities it takes to accomplish it - given our current two party system (and the party loyalty that goes with it) that clearly wasn't encompassed in the Constitution.
And Constitutional amendments to provide for recall (including Senators and Congressmen, one would hope - given Joe Lieberman's rejection of his own campaign promises and positions) is not in the cards either, for the same reasons that impeachment won't work.
So, the best that Congress could do it seems is to require posting of an appropriate sized sign on the White House lawn near Pennsylvania Ave. that says:
"Lame Duck Resides Here. Don't feed the wildlife".
Seriously, the real power resides in the legislative appropriation, and I'd favor some real hardball in this area. For starters, defund the Office of Vice President staff except for a secretary, and prohibit funds or people transfers from other agencies, including from the Office of the President. Use one's imagination and lots of control possibilities will come to mind.
One that I'd like to see this week: prohibit payment of salaries of the newly appointed US Attorneys that are replaced those fired in recent weeks until they are approved by the Senate after their nominations are submitted by the President.
Posted by: JimPortlandOR | Jan 29, 2007 12:07:00 PM
It's not entirely clear to me, but I feel there is a perception (right or wrong) that campaigning for impeachment is one of the few ways to add clout to investigation of an uncooperative Executive branch.
As an example, Cheney's discussion with the oil men about energy policy is almost certainly not impeachment material. But he ain't releasing it without being forced.
What else can ordinary people campaign for to create the pressure for more investigations? I'm sure there must be something, but I'm not sure it has the media power that (for example) working on getting an impeachment resolution in New Mexico might generate.
Another issue is the constitution, which clearly deserves a little less veneration and a bit more critical examination with a view to constructive changes.
The problem with straight no-confidence voting is that you basically end up with a parliamentary system. Still, this might reflect larger ongoing changes in the political climate, like the rise in party power.
If Congressmen/Senators were as independent of their party as envisioned by the framers, then the Bush admin would be due a lot more scrutiny than they are likely to get. As it is, Republicans have to be loyal, not only because of "image" but also because if they offend the wrong people, central party support and funding will be withdrawn and they'll face a well funded central backed primary challenger next time around. Money is so important that this is a big problem.
As a result, the checks and balances are slowly failing. (It's not just a republican issue either, the structural changes have the potential to affect the Dems in the same way.)
Posted by: Meh | Jan 29, 2007 12:08:43 PM
I'd point out that some of what the Founding Fathers got wrong has actually been caused by the evolution of politics in this country. I'm speaking, in particular, of the War Powers act, AUMF, and similar mechanisms that have left Presidents with far more power to do mischief than the Founders intended. While the Founders might not have guessed about the speed of modern life, certainly they understood human nature.
As for impeachment, I see it as a way to publicly disclose behaviors that are either improper or illegal and let the public decide. It's a political act. With a Democratic Congress, impeachment should be on the table. But it should be pursued with issues that are legally questionable and narrowly defined, like the NSA spying scandal. Impeachment also should be a way to set precendent for what's acceptable in future Presidents.
Nixon was never impeached but the threat of impeachment helped lead to a lot of public disclosures and the public decided he was a loser and dangerous. Same happened, in a way, with Clinton and his escapades (I think people feel he was a good administrator, lousy husband, probably lousy human being morally). Hopefully it will happen with Bush. Certainly it should.
If impeachment is a political act (rather than just a legal way to remove a President), then the Democrats in Congress also should pursue the parallel track of investigating everything in this Administration so the public can have a full picture to make their judgement.
Posted by: Fred | Jan 29, 2007 12:09:59 PM
The real problem with impeachment is that in the current Congress, it's guaranteed to fail. A successful impeachment sends a powerful message; a failed impeachment sends the exact opposite message. The Bushistas would claim 'exoneration' and even 'vindication'.
The way to go is to investigate and hold hearings without designating them as 'impeachment'-related from the start. If it gets to a point where enough Republicans are potentially on board to form a 2/3 majority, then Congress can talk about 'impeachment'--reluctantly, of course, even sorrowfully, as if forced to discharge an unpleasant but solemn duty.
And if we never get the Republican support...well, the investigations are an end in themselves.
Posted by: Tom Hilton | Jan 29, 2007 12:27:42 PM
I don't think impeachment is a realistic expectation or goal at this point; but it's indicative of just how much of a failure this Presidency is that one can raise the subject and examine the possibilities and implications without it being a really far out idea. The message, it strikes me is clear: as long as the Bush Administration contents itself with saying dopey things, but failing to make any more bad moves, they will be atolerated if loathsome failure. However, if they actually do things, or if Iraq gets substantialy worse (and it can), then all bets are off. I think it would behoove serious Democrats to contemplate just what the implications of that really are, because a worsening could be really unsettling.
Posted by: weboy | Jan 29, 2007 12:29:58 PM
Deliberately flouting the Constitution would seem to be a High Misdemeanor for someone who is a sworn officer of the Constitution.
Indeed, while I am skeptical about the benefit of a recall for an elected official, Cabinet Officers that gained their position as a result of Congressional confirmation should be open to having that confirmation rescinded. If it was an ordinary bill rescinding the confirmation, then it would be a simple majority if the President agreed, and a supermajority if the President vetoed.
Posted by: BruceMcF | Jan 29, 2007 12:35:37 PM
"impeachment" is a lot of hot air.
Never gonna happen.
It's just fun for the far left wack-o's to bounce this off the 'echo chamber' in partisan masturbation.
Posted by: Fred Jones | Jan 29, 2007 1:01:31 PM
Why the scare quotes for "impeachment" while the home of partisan masturbation gets only the single quotes, 'echo chamber'? I've never known what the exact difference between the two is.
As far as impeachment, I think it should be brought to a vote after Padilla hearings. I thought Clinton shoud've/could've been impeached for bombing an aspirin factory, and I think locking up an American citizen for 3 and a half years without charges while he goes insane is deserving of hearings and then a vote.
Posted by: keatssycamore | Jan 29, 2007 1:41:14 PM
Bush hasn't admitted doing anything illegal or violating the Constitution, and I doubt he thinks he has done either. He has admitted doing things that others see as illegal and unconstitutional. Any effort at impeachment would hang on controversial legal claims that, as the Bush Administration has often pointed out, are flatly contradicted by the practices of former administrations, even if in lesser degrees. I don't think there's any clearly legitimate ground for impeachment.
The idea of using impeachment for political purposes seems attractive superficially, but I think the actual consequences would be bad on the whole. Removing the President is a very serious thing in our system, and playing around with the mechanism designed for that will be dangerous. It will also tie the nation up in knots.
Tom's point about failed impeachments viewed as exonerations is also a good one. Clinton had more sympathy after than before, even though his bad behavior came out clearly enough.
A recall provision for presidents doesn't appeal to me. It would add another way to disrupt the stability of government, and make bold actions less likely for perhaps the wrong reasons. I like the balance between democratic checks and stability and protection for leaders we currently have.
Posted by: Sanpete | Jan 29, 2007 2:04:07 PM
That seems wrong to me, and dangerous. Clinton, for instance, would surely have been evicted post-1994, and the country wouldn't be better off for it.
Instead, President Clinton was impeached, ostensibly for lying. I really don't see this leaving the bar set particularly high.
Any effort at impeachment would hang on controversial legal claims
The President admitted violating FISA, and asserted that he would continue to do so. The "controversial" legal theories at work are ones that pit checks and balances and a straight reading of the Constitution against a "unilateral executive" who states that he is not going to abide by laws even as he is signing them into effect. Gee, it's so hard to navigate the legal subtleties of flagrantly violating the law of the land at presidential whim. Beware of confusing spin for substantive legal and constitutional issues. Just because John Yoo believes that, e.g., Article I, Section 8 and Article II, Section 3 are null and void, doesn't mean he's a serious legal or Constitutional argument. Silent enim leges inter arma does not become less pernicious when recast as "the Constitution is not a suicide pact."
Posted by: mds | Jan 29, 2007 2:18:44 PM
Posted by: Sanpete | Jan 29, 2007 11:04:07 AM
Bush hasn't admitted doing anything illegal or violating the Constitution, and I doubt he thinks he has done either. He has admitted doing things that others see as illegal and unconstitutional. Any effort at impeachment would hang on controversial legal claims that, as the Bush Administration has often pointed out, are flatly contradicted by the practices of former administrations, even if in lesser degrees.
While it is true that previous administrations have acted in ways that are questionable in terms of the Constitution, I do not think that this is a legal defense that holds much water.
And the idea that Bush has to admit to doing things that he sees as unConstitutional to be up for impeachment is just plain silly. If he admits that he has behaved in ways that he sees as unConstitutional, he ought to resign ... by the Constitution is clear that the final decision on whether a President has done something that warrents removal from office rests with the House as grand jury and Senate as court and jury.
If they decide that the President has done something that is clearly unConstitutional, and that it is a High Misdemeanor, then he's not President anymore.
I do not want to see impeachment of the President at the moment because I want to see the Republican minority put under pressure to cave in to popular Democratic legislation or to back the President in vetoing it. If impeachment gets underway, that process sucks all the oxygen out of the room for any other activities.
Impeaching Gonzales, now ... that would be OK, it would not monopolize the political process nearly as much.
Posted by: BruceMcF | Jan 29, 2007 2:29:41 PM
MDS, if you pay more attention to the part of my sentence you don't quote, I think you'll see the weakness of your argument. There are some bad legal aguments for what Bush has done, but there are also somewhat stronger ones that aren't new, and have been made by past administrations of both parties. The proper venue for this kind of issue is the courts.
Posted by: Sanpete | Jan 29, 2007 2:30:20 PM
While it is true that previous administrations have acted in ways that are questionable in terms of the Constitution, I do not think that this is a legal defense that holds much water.
The defense isn't that others have done bad things too; the defense is that these are well established, proper legal doctrines as shown by decades, even centuries, of legal practice.
And the idea that Bush has to admit to doing things that he sees as unConstitutional to be up for impeachment is just plain silly.
Indeed, and no one has said such a silly thing. Some have said, however, that Bush has admitted breaking the law. Not really true.
The case against Gonzales is no better than that against Bush, but it would still be very disruptive.
Posted by: Sanpete | Jan 29, 2007 2:37:34 PM
"Consider the charge that Bush lied to the country during the run-up to the war, which may well be true."
Then so did Hillary Clinton, John Kerry, Jay Rockefeller, Al Gore, The UN, Russian intell, French intell, etc. As a matter of fact, if you compare what the president said about the reasons for war and what the Dems said about the reason for war, the Dems make a stronger case for going into Iraq than Bush did.
"It is even more difficult to construct criminality out of Bush's reckless disregard of the consequences of Katrina."
Any reasonable person would hold Blanco or Nagin more culpable than Bush. Blanco and Nagin refused to call for an evacuation of NO until it was too late, and everyone remembers the picture of the school buses under water, school buses that could have been used to evacuate NO citizens.
But most of you clowns(like the protesters this weekend) are not reasonable people.
Posted by: Captain Toke | Jan 29, 2007 2:46:30 PM
But most of you clowns(like the protesters this weekend) are not reasonable people.
Show us the way, Toke.
Posted by: Sanpete | Jan 29, 2007 3:07:53 PM
Toke,
The problem with the hard left is they are looking for revenge instead of putting forth ideas and plans.
Posted by: Fred Jones | Jan 29, 2007 3:11:36 PM
If impeachment gets underway, that process sucks all the oxygen out of the room for any other activities.
Yes, exactly--the other key reason I think impeachment would be a terrible idea right now. (On the other hand, it's not a bad idea for bloggers et al to keep talking about impeachment. We should just keep in mind that we don't actually expect it to happen.)
The problem with the hard left is they are looking for revenge instead of putting forth ideas and plans.
So true. Why aren't the Democrats (which is, of course, synonymous with 'hard left'--right, Fred?) trying to get bills passed instead of pursuing their vendetta against Bush? Bills like--oh, I don't know--a minimum wage increase, or loosening restrictions on stem cell research, or ethics reform? Those darned vengeance-crazy Demoncrats...
Posted by: Tom Hilton | Jan 29, 2007 4:23:32 PM
Impeachment is not the issue. War Criminality is the issue. And it is not a revenge issue. It is an international justice issue. Over 100,000 Iraqis, 3,000 American soldiers -- and many others -- are dead because of the machinations of this Administration and the NeoCon war plans. These people are criminals. Bush, Cheney, Perle, Kristol, et al. If the U.S. is ever to regain its stature in the world, supporting the prosecution of these people for war crimes is a must.
Posted by: thersitz | Jan 29, 2007 4:26:35 PM
Some have said, however, that Bush has admitted breaking the law. Not really true.
From the President's Radio Address to the nation, 12/17/2005 (as posted at whitehouse.gov):
"In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.
This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday [12/16/2005] the existence of this secret program was revealed in media reports, after being improperly provided to news organizations."
"As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad."
"The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups."
"The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general."
Domestic wiretapping is subject to FISA. FISA requires retroactive approval from the secret FISA court; internal approval "every 45 days" by members of the executive branch is irrelevant to compliance with the law. This program, as revealed in those "improper" media reports, bypasses the FISA court. The President went on the radio and claimed the right to continue a warrantless surveillance program that does not comply with FISA. This is known as violating a federal law. This is known as repeatedly authorizing violation of a federal law. This is known as vowing to continue authorizing a program that violates a federal law. I suppose there's some "controversy" there over whether the President's Constitutional duty to faithfully execute the laws is suspended by yelling "Commander-in-chief!" and writing signing statements asserting that neither the legislative nor the judicial branch shall have the authority to restrict his powers, but I'm really not seeing it.
Posted by: mds | Jan 29, 2007 4:33:14 PM
MDS, the remarks from Bush you posted are obviously not intended as an admission of illegal actions, but rather as a defense of their legality. It isn't Bush admitting that he's done anything illegal; it's Bush admitting that he's done things you and many others think are illegal. The courts, so far, have struck down some of Bush's defenses and upheld others. The courts are the place to settle this.
Posted by: Sanpete | Jan 29, 2007 4:54:22 PM
Over 100,000 Iraqis, 3,000 American soldiers -- and many others -- are dead because of the machinations of this Administration and the NeoCon war plans. These people are criminals.
Now *THAT'S* the kind of entertainment that I come here for! Sunnis murder Shias and Shias murder Sunnis and it's all Bush's fault! That's the same think-lite as someone murders someone else with a firearm so all-of-a-sudden it's the manfacturer's fault!
But I do appreciate the post and the humor I have found in it.
Posted by: Fred Jones | Jan 29, 2007 5:59:30 PM
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