Water Man Spouts

Thursday, November 09, 2006

On Impeachment

{1} "The House of Representatives shall chuse their Speaker and other Officers, and shall have the sole Power of Impeachment." Article 1, Section 2.

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the Concurrence of two thirds of the Members present.

"Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Article 1, Section 3.

"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." Article 2, Section 4 of the US Constitution

In the first 24 hours that followed the ’06 elections, members of the Democratic Underground debated the issue of Congress beginning investigations of actions taken by members of the Bush administration that might lead to impeachment hearings. The democratic party’s victories in the House of Representatives will lead to progressive members being in the position to initiate investigations into things such as the purposeful misrepresenting intelligence on the "threat" posed by Saddam’s WMD programs. The administration’s lies – and they surely did lie – led to the US invasion of Iraq.

Clearly, the war in Iraq was one of the most significant factors in the democratic gains in the elections. It seems reasonable to ask that Congress look at the administration’s actions. Yet there were a number of DUers who claim that this would be wrong. They state that it would be an act of "revenge," and that the democratic party would be harmed in future elections as a result.

I’m confident that these people are sincere in their beliefs. But they are absolutely wrong. Their position indicates a lack of familiarity with the Founding Father’s intent, the Constitution itself, the history of impeachment at the federal level, as well as with the three recent cases involving considerations for impeaching presidents. Let’s take a closer look.

{2} "The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period." --Thomas Jefferson

Jefferson wrote those lines to James Madison six weeks before the inauguration of the first US President. As we all know, but all too often take for granted, the Founding Fathers were intent upon creating a separation of powers that would balance each other at the federal level. Thus, they created three co-equal branches of the federal government: the legislature, the executive, and the judicial branches are each defined in the Constitution of the United States of America.
Article 1 defines the legislative powers of the Congress. It is far longer than Article 2, which defines the executive powers, or Article 3, which defines the judicial powers. In fact, it is twice as long as those Articles combined. That is because the Founding Fathers intended the Congress to be first among the co-equal branches of government.

In creating the system of "checks and balances" of power, the Founding Fathers included a Congressional power to impeach members of either the executive or judicial branches of the federal government. Historians believe that it was originally conceived of as a check on the president, and that the inclusion of others was an afterthought. I think that this is worth debating, as the concept of impeachment appears to be traced to a 14th century method the House of Commons used to indict "high officials." But we can discuss that at another time. For the sake of this discussion, I think we can agree with Thomas Mann and Norman Ornstein’s "The Broken Branch: How Congress is Failing America and How to get it Back on Track" (Oxford; 2006) that the power to impeach is one of the most important functions of the legislative branch. (see pages 17-24 on Article1.)

{3} "A country preserved at the sacrifice of all cardinal principles of liberty, is not worth the cost of preserving."
--Abraham Lincoln

I believe that the ’06 elections were a clear indicator that the American people believe that this country and its Constitution are indeed worth preserving. I can appreciate that there are sincere democrats who are concerned that, at this time, we would risk the stability of the state if we were to advocate a Congressional investigation that might lead to the impeachment of one or more members of the executive branch. I strongly disagree. I think of a quote from Arthur Schlesinger, Jr., that is found in his book "The Imperial Presidency": " But what kept a strong President constitutional, in addition to checks and balances incorporated within his own breast, was the vigilance of the nation. Neither impeachment nor repentance would make much difference if the people themselves had come to an unconscious acceptance of the imperial Presidency. The Constitution could not hold the nation to ideals it was determined to betray. The reinvigoration of the written checks in the American Constitution depended on the reinvigoration of the unwritten checks in American society. The great institutions – Congress, the courts, the executive establishment, the press, the universities, public opinion – had to reclaim their own dignity and meet their own responsibilities. As Madison said long ago, the country could not trust to ‘parchment barriers’ to halt the encroaching spirit of power. In the end, the Constitution would only live if it embodied the spirit of the American people." (page 418)

The election was a reinvigoration of citizen participation in our democracy. People want the nation preserved. This is not a time to give in to fears that following the Constitutional process is somehow dangerous, or presents a threat to our democracy. Quite the opposite. It is the moving away from the Constitution that is the threat to democracy. Perhaps the illogical fear of the Constitution expressed by those who advocate not having congressional investigations comes from an ignorance of what the process entails. Thus, I will suggest reading three books from the Watergate era, which are of great value in understanding the concept of impeachment:

Impeachment: Trials and Errors; Irving Brant; New York; 1972.
Impeachment: The Constitutional Problems; Raoul Berger; Cambridge; 1973.
The Imperial Presidency; Arthur Schlesinger, Jr.; Houghton Mifflin; 1973.

{4} "The house of representatives … form the grand inquest of the state. They will diligently inquire into grievances, arising both from men and things."
--US Supreme Court Justice James Wilson; 1791

The Wilson quote comes from his famous lecture at the College of Philadelphia, and can be found in "Grand Inquest" by Telford Taylor (New York; rev.ed. 1961) It points out something that we tend to forget: that the Congress can impeach more officials than just the President. And we find that this is indeed the history of impeachment in our federal government. The first recorded case came in 1797, when the House was considering impeaching Senator William Blount . The Senate expelled him before the impeachment took place.

In 1804, Jefferson advocated impeachment to get rid of a senile and alcoholic federal judge. By the time of President Andrew Johnson’s impeachment, the process had been used five times, and four of these were with judges. Three were from the lower courts. (And three were convicted.) In the 1867 conflict over Johnson’s problems, there were people who believed that impeachment should be avoided because of the damage it could cause the nation. One senator wrote, "Better to submit to two (more) years of misrule … than subject the country, its institutions, and its credit, to the shock of impeachment."

Some advocated something less, such as a Congressional censure. Yet, in 1834, the Senate had censured Andrew Jackson. And he had responded by challenging them to impeach him if they believed he was guilty of a crime. For the sake of our discussion, the issues involved in these two cases are best when reduced to a couple simple concepts: a President has to obey the law of the land, and when he breaks the law, the Congress has the right and responsibility to confront him in the manner prescribed by the Constitution. And James Madison made clear that this includes the responsibility that the President and Vice President have for those whom they may encourage to commit crimes. (See Schlesinger, Chapter 11.)

In 1876, President Grant’s Secretary of War escaped impeachment by resigning shortly before the House would impeach him. In the next 60 years, impeachment would be confined to cases involving five federal district court judges. Two were convicted; two were acquitted; and one resigned. Thus, we can see that leading up to the Watergate era, the impeachment option was not abused: it was not reduced to a form of "revenge," nor was it over-used as what Schlesinger called a "quasi-parliamentary" process similar to the English vote of confidence.

{5} "Dean testified the White House feared the Senate hearing might force the Justice Department into further criminal investigations that would lead back to the White House. It was important, Dean said, that the President meet with Kleindienst and ‘bring (him) back into the family to protect the White House …. (and) solicit Kleindienst’s assistance during the hearings and if anything should develop during the hearings, to not let all hell break loose in a subsequent investigation’."
--Senate Watergate Report; 1974; page 145.

Two months after John Dean had advised President Nixon on issues involving Attorney General Richard Kleindienst, the issue of impeachment was brought to the public’s consciousness. Older readers will recall that this was a result of Kleindienst’s smug testimony to the Ervin Committee. When debating the merits of administration claims to executive privilege, the Attorney General stated that if the Congress was not satisfied with the president’s decisions, they could either cut off appropriations or begin impeachment hearings.

Looking back, one can safely conclude that this was not the approach that either Dean or Nixon had hoped for Kleindiesnst to take. But it led to a reinvigorated approach to the investigation. And, as Daniel Schorr noted in his original introduction to the Carrol & Graf book of the Senate Watergate Report, "It is debatable whether the re-invigorated prosecution and the impeachment inquiry would have happened at all had the Senate investigation not turned illegality, corruption and impropriety in high places into a national issue. It is hard to remember, looking now at the gashed investigation landscape, how hard it was to cut the first furrow. Now that we know so much, we can hardly recollect how it was when we knew so little."

Few people would argue that the nation was damaged by the Constitutional process that resulted in Nixon’s resignation. It was the Nixon administration’s crimes that posed the threat to our country. It might be the single example from recent history that we should use for a guide today. Yet, for the sake of this discussion, let’s look at two other recent events that relate to impeachment.

A decade after Watergate, the Reagan-Bush administration would engage in a series of criminal activities known as the Iran-Contra scandal. There came a point when the Congress uncovered evidence that President Reagan had likely committed crimes, and they debated if they should begin impeachment hearings. The democrats were convinced by republicans that the process would be damaging to our nation. It seems fair to say that this decision likely was the wrong one, considering that the full extent of the criminal activities was never made public, and the criminals were able to escape justice. Indeed, several would go on to serve in the Bush1 and Bush2 admministrations.

Then, in another decade, President Bill Clinton was impeached. I think that readers are familiar enough with the circumstances involved , that we need not review them here. The only thing we need to consider here is did the country gain any advantage by the democrats opting to not impeach Reagan? Was the Constitution form of government strengthened? Or made weaker? And were the republicans in Congress punished for impeaching Clinton? Did they lose control of the House as a result?

{6} "(Impeachment is) the main spring of the great machine of government. It is the pivot on which it turns … In this mode, the machine will be kept in motion by its own powers and on a proper balance."
--James Monroe; The People, The Sovereigns

The genius of impeachment, Schlesinger tells us, is that it can punish the man without punishing the office. The Founding Fathers recognized that it was essential for the country to remain democratic. "No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?" asked George Mason. And James Madison wrote that corruption "might be fatal to the Republic" if there was no manner of confronting it, and holding the offender responsible.

In the past six years, members of the Bush administration have participated in a number of activities that appear to be criminal. These include the purposeful distortion of the intelligence that led the nation to war in Iraq; the exposing of Valerie Plame; and a number of related issues. It is important that the new Congress begin to investigate these issues. Just as Daniel Schorr pointed out about Watergate, all that lies beneath the surface will not be exposed unless Congress cuts the furrows.

We need to lobby with the Congress to do so. We cannot afford to give in to the fear or the weakness that leads some to say doing so would be dangerous. For, as Walt Whitman warned, "There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves – and lose their roughness and spirit of defiance – Tyranny may always enter – there is no charm, no bar against it – the only bar against it is a large resolute breed of men." ("Notes for Lectures on Democracy")


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