Wednesday, January 31, 2007

Cage Match: For and Against Impeachment

The February 12 edition of The Nation squares off Former Congresswoman Elizabeth Holtzman, who sat on the House Judiciary Committee that tendered articles of impeachment against Richard Nixon in 1974, against Sanford Levinson, a professor of law at the University of Texas.

Ms. Holtzman:

Approximately a year ago, I wrote in this magazine that President George W. Bush had committed high crimes and misdemeanors and should be impeached and removed from office. His impeachable offenses include using lies and deceptions to drive the country into war in Iraq, deliberately and repeatedly violating the Foreign Intelligence Surveillance Act (FISA) on wiretapping in the United States, and facilitating the mistreatment of US detainees in violation of the Geneva Conventions and the War Crimes Act of 1996.

Since then, the case against President Bush has, if anything, been strengthened by reports that he personally authorized CIA abuse of detainees. In addition, courts have rejected some of his extreme assertions of executive power. The Supreme Court ruled that the Geneva Conventions apply to the treatment of detainees, and a federal judge ruled that the President could not legally ignore FISA. Even Attorney General Alberto Gonzales’s recent announcement that the wiretapping program would from now on operate under FISA court supervision strongly suggests that Bush’s prior claims that it could not were untrue.


Public anger at Bush has been mounting. On November 7 voters swept away Republican control of the House and Senate. The President’s poll numbers continue to drop.

These facts should signal a propitious moment for impeachment proceedings to start. Yet House Speaker Nancy Pelosi has taken impeachment “off the table.” (Impeachment proceedings must commence in the House of Representatives.) Her position doesn’t mean impeachment is dead; it simply means a different route to it has to be pursued. Congressional investigations must start, and public pressure must build to make the House act.

This is no different from what took place during Watergate. In 1973 impeachment was not “on the table” for many months while President Nixon’s cover-up unraveled, even though Democrats controlled the House and Senate. But when Nixon fired the special prosecutor to avoid making his White House tapes public, the American people were outraged and put impeachment on the table, demanding that Congress act. That can happen again.


Failure to impeach Bush would condone his actions. It would allow him to assume he can simply continue to violate the laws on wiretapping and torture and violate other laws as well without fear of punishment. He could keep the Iraq War going or expand it even further than he just has on the basis of more lies, deceptions and exaggerations. Remember, as recently as October 26, Bush said, “Absolutely, we are winning” the war in Iraq–a blatant falsehood. Worse still, if Congress fails to act, Bush might be emboldened to believe he may start another war, perhaps against Iran, again on the basis of lies, deceptions and exaggerations.

There is no remedy short of impeachment to protect us from this President, whose ability to cause damage in the next two years is enormous. If we do not act against Bush, we send a terrible message of impunity to him and to future Presidents and mark a clear path to despotism and tyranny. Succeeding generations of Americans will never forgive us for lacking the nerve to protect our democracy.

Mr. Levinson:

It would be wonderful to evict George W. Bush–quite possibly the worst President in our entire history–from the White House. Thus one can readily understand the temptation to talk about impeaching him. But we should recognize that this conversation is triggered not only by Bush’s own performance as President but also, and perhaps more important, by one of the greatest defects of the Constitution, the impeachment clause. 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. The reason is that 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. Unfortunately, this was a deliberate decision by the Framers, who rejected an altogether sensible proposal to make “maladministration” an impeachable offense for fear that this would give Congress too much power.

Only because of the Constitution are serious progressives engaging in an entirely fruitless campaign to impeach Bush by describing him as a criminal. It is fruitless for two quite different reasons. The first, and more practical, is that there is simply no possibility that Bush will actually be removed from office in the twenty-four months that unfortunately remain to him. One might well contemplate impeachment if there were a possibility of its being successful. But the House Democratic leadership has rejected the idea, not least because there is no possibility that the constitutionally required two-thirds of a nearly evenly divided Senate would vote to convict an impeached George W. Bush. Thus, advocates of impeachment are in effect supporting a strategy doomed not only to fail but also to be perceived by most of the country as a dangerous distraction from the pressing problems facing the country.

House Republicans in 1998, who knew for certain that Bill Clinton would never be convicted by the Senate, could behave with reckless abandon in part because much of the country did not perceive itself as facing grave problems. Democrats today do not have that luxury.


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.

Far better than a politically pointless–and almost certainly counterproductive–campaign to impeach George W. Bush would be the initiation of a serious discussion of the extent to which we are disserved, in 2007, by a political system devised for an entirely different era. 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. Perhaps that discussion, too, would be doomed, given both the preposterous reverence that Americans have for the Constitution and the near-impossibility of constitutional amendment because of the hurdles placed by Article V in the way of amendment. But at least such a discussion would focus on the most important feature of the Bush Administration–its gross incompetence–in a language that could readily be understood by any attentive citizen rather than quickly degenerate into an arcane (and acrimonious) discussion among constitutional lawyers.

When Bill Clinton was impeached, the Republican mob that did it recognized that Mr. Levinson’s point was well-taken; you can’t impeach a president for gross incompetence, and in the case of Mr. Clinton, it was never an issue because even Republicans grudgingly admit that Mr. Clinton was anything but incompetent. A horndog, yes, but not incompetent or wreckless in the administration of his dutes. (For that they’d have to impeach several other presidents, including Warren Harding, a Republican, who was both a horndog and incompetent.) The GOP also knew from the outset that they didn’t have the votes to go through with a conviction, but they had no problem with that: tying up the country for six months while they indulged in an orgy of pruient partisanship just because it meant more to them than actually accomplishing anything for the citizens. (See Eric Alterman’s excellent essay on William Kristol, the Don Quixote of the right wing.) So they had to whip up something, and catching Mr. Clinton in a lie was enough. (Ironically, I. Lewis “Scooter” Libby is on trial for the same thing, and the righties are calling him a hero. Isn’t that the “moral relativism” that the right wing is always accusing the left of practicing?) Therefore Mr. Clinton was dragged through the intricate kabuki of impeachment just so Newt Gingrich and Tom DeLay could get their jollies. But in true dramatic fashion, the impeachment of Mr. Clinton ended up doing more harm to the accusers; Mr. Clinton emerged even more popular than when it all started, and Newt Gingrich ended up being shitcanned by his own caucus. (Tom DeLay’s comeuppance followed in due time.)

In the Clinton case, the impeachment clause was tortured to fit the needs of the accusers, and Professor Levinson is arguing that instead of doing the same to remove Mr. Bush from office, we should consider redefining and updating the constitutional definition of what constitutes an impeachable offense while doing everything within the power of congressional oversight to rein him in. Until then, we will always be faced with the rather subjective model of 1998, and in this day and age, it’s not practical to stop the operation of the government to answer the nebulous question of what exactly are “high crimes and misdemeanors.”

Ms. Holtzman’s points are also compelling: the lies of President Bush and his abuses of power represents a clear and present danger to both the laws and the citizens of the nation, and recent events involving further intrusions into the privacy of American citizens, not to mention the disasterous conduct of the war (and the fuhrerbunker mentality of the vice president) make it imperative that something must be done before it is too late. It’s one thing to have to test the skills of diplomacy and parenting to explain to a child exactly what it was that President Clinton did with Ms. Lewinsky; it’s another thing to have to explain to that child why their father or mother had to go off to fight in a war.

In true liberal fashion, I see merit in both arguments. In practical terms, impeachment resulting in conviction would be very difficult to accomplish, it would take us away from the important matters such as education and health care, and it would be very hard not to have it seen as nothing but partisan revenge for the Bush presidency, much as the GOP tried to do in 1998. The Constitution has been abused enough. That said, if we don’t do something to curb this wreckless and dangerous path, we may not have much of a country or a Constitution left to defend.

So, what do you say?