So far I've only
noticed one good thing about President Bush's plan to escalate the
Iraq War: It's gotten a whole new group of people talking about
impeachment.
Remember the hopeful days of December? Remember
that white Time cover confidently announcing: "The Iraq
Study Group says it's time for an exit strategy. Why Bush will
listen"? It was a simpler, more innocent age. Now we know that
Bush won't listen to anybody: Not the voters. Not the Democratic
Congress. Not James Baker. Not General Casey. Not Colin Powell. Not
Republican Senators like Hagel, Brownback, Voinovich, Smith, Snowe,
Collins, or Coleman. Nobody. He's the Decider. He gets his marching
orders from God, and nobody knows what would happen if God started
telling him things he didn't want to hear.
But impeachment.
Has it really come to that? How do we even think about impeachment in
a way that builds the Republic up rather than tearing it down?
It's very tempting to
say, "The case for impeaching Bush is better than the one they
had against Clinton, so let's go for it." And it's true, the
case is better. But that is two-wrongs-make-a-right logic. We need to
stay far, far away from it.
The Clinton impeachment was one of
the Republican Congress' worst abuses of power. It cheapened
impeachment and weakened the Constitution. But if we use the Clinton
impeachment as a precedent, we ratify it. You wouldn't use slavery as
a precedent, or the genocide of the Native Americans. You wouldn't
justify something by pointing to Roosevelt's internment of
Japanese-Americans or to the Jim Crow laws. Those were shameful
moments in American history, not something we want to imitate. The
Clinton impeachment belongs in that category. No part of a Bush
impeachment should be justified by pointing to what they did to
Clinton.
We need to make sure
that any Bush impeachment lives up to the standards we set in
the Clinton years, not the ones the Republicans set. I remember what
I was saying then: The ordinary way to get rid of a bad president,
the one the Founders intended for general use, is to wait for his
term to expire and elect somebody else. In order to impeach a
president you need to argue that waiting isn't good enough. The
Constitution's two specific examples of impeachable offenses --
treason and bribery -- are like that. In each case the president is
working for someone other than the American people, and the power of
the presidency might be used against the Republic rather than for it.
Obviously you can't just sit around and wait for the next
election.
I also said that I could support a third and a
fourth cause for impeachment: If the president's abuses of power
undermine the electoral system itself, or if his illegal expansion of
power threatens Congress' role as an equal branch of government. The
third cause justified the Nixon impeachment: If a president uses his
power to spy on his political enemies and play "dirty tricks"
on them (or to protect non-government operatives who do), then
waiting for the next election may be hopeless. Incumbency may be too
great an electoral advantage to overcome. And the fourth cause is
necessary to maintain the separation of powers. In any constitutional
showdown, impeachment is the final arrow in Congress' quiver. Without
it, a president can just ignore Congress. Even the power of the purse
means nothing if the president decides to collect taxes and spend
money on his own.
Those are the standards by which I decided
that Clinton did not deserve impeachment. The two impeachment counts
voted against him were (1) he lied to a grand jury about which sexual
acts he performed with Monica Lewinsky, and (2) he conspired to
reward her for lying to a different grand jury about their affair.
Those two acts, even if completely true, constituted an embarrassment
to the Republic rather than a threat. The constitutionally proper
course for the Republicans would have been to use these events to
embarrass the Democrats in the next election, and possibly indict
Clinton after he left office.
Here's what we should
have learned both from the Lewinsky scandal and the Iran/Contra
affair: A successful impeachment has to have two tracks. First, you
need a legal case against the president, a broken law that can be
interpreted to meet the "high crimes and misdemeanors"
standard. But you also need a political case. The public has to
believe not only that this guy did something, but that they want him
gone.
In Iran/Contra the political case was missing, or at
best appealed only to the minority of the electorate that had never
liked President Reagan anyway. If that's the best you can do, it
doesn't matter how good your legal case is. Legal arguments are
complicated, and if the president remains popular, the defense will
always be able to make the legal case sound like a bunch of
technicalities.
The political case against President Clinton
was that he had illicit sex in the Oval Office. That's not illegal,
but it outraged about a third of the country so much that they were
willing to see any illegality as an impeachable offense. He
had to go -- it was that simple. But the other two-thirds of the
country saw the affair as merely tawdry, and not something worth
making into a national crisis. So Clinton's popularity actually went
up during his impeachment, and conviction was never a serious
possibility.
Over the past six
years, President Bush has been accused of all kinds of things that
could be impeachable: wiretapping without warrants, jailing American
citizens without charges, torture, deceiving Congress, breaking the
Geneva Conventions, and so on. What actually happened and how illegal
it was has stayed mostly in the realm of accusation, because the
Republican Congress didn't want to know whether or not President Bush
had committed impeachable offenses. So it didn't hold hearings,
interview witnesses under oath, subpoena documents, or do much of
anything to keep the President honest.
We won't know for sure
whether there's a smoking gun until someone tries to find one.
Personally, I believe the investigations were ignored or suppressed
because there is a smoking gun, probably a whole arsenal of them. I
expect this to become increasingly obvious as the Democratic Congress
starts asking reasonable questions and getting stonewalled by the
administration. I expect this to escalate into a full-scale
constitutional crisis, where Congress will either have to threaten
impeachment or admit that it isn't an equal branch of government any
more.
The legal case for impeachment will either be given to
Congress by administration refugees unwilling to go to jail to
protect the president, or it will arise out of the constitutional
showdown itself. At some point Congress will pass a law, and Bush
will ignore it and dare Congress to impeach him.
Whether
Congress will be able to take that dare depends on whether there's a
political case for impeachment. And that's where Iraq comes in.
Legally, Iraq has nothing to do with impeachment. Starting a foolish
war and prosecuting it incompetently is not an impeachable offense.
Incompetence in general is not grounds for getting rid of a
president. It would be if the Constitution had a recall process like
the one California used to get rid of Governor Davis a few years ago,
but it doesn't. Maybe that was an oversight on the part of the
Founders, but that's how it is.
Even so, Iraq most definitely
is the source of the growing feeling in the country that President
Bush must go. He's getting good people killed for nothing, and the
more obvious that becomes, the more of them he wants to send. This
can't be allowed to go on. And if he's also trying to get us into a
war with Iran, that provides the sense of urgency that impeachment
requires. We can't just watch and wait for two years while he breaks
another country and sinks us into the quagmire of its pacification
and reconstruction.
For now, the two tracks of impeachment
should go forward separately. The legal case requires Congress to
investigate past wrong-doing and to confront the administration in
ways that resolve ambiguities. Whenever Bush claims to have the
inherent constitutional power to act without Congress, Congress needs
to call his bluff, both in the courts and by passing new and sharper
legislation.
For now, none of that needs to happen in actual
impeachment hearings before the House Judiciary Committee. Speaker
Pelosi is right to soft-pedal immediate talk of impeachment, because
(as I admitted above), most of what we have so far are just
accusations and suspicions. The old Republican Congress assumed there
was nothing to it all. If the new Democratic Congress assumes that
there is something to it, they're falling into the same partisan
mold. The proper course is for investigations of all sorts to take
place all over Congress, and the proper line is: "We just want
to find out what's been going on in this government for the past six
years. We need that information to do our jobs." Eventually, the
legal case for impeachment will emerge.
What Congress can't do
is let itself be intimidated into not investigating and not
confronting the administration. The Right has a large and well-funded
network of propagandists, and manages to sound intimidating even as
its popularity goes into the 20s. We're seeing it at work now in the
"conventional wisdom" that it would be suicide for the
Democrats to cut off funding for the Iraq War, because the American
people would never support such a move. There's no way to know what
the American people will support until someone seriously proposes it
and makes the case. If you're afraid to make a case that the American
people don't already support, you can never move forward.
Everything
hangs on the political case for impeachment, and that revolves around
Iraq. To promote that case Congress must constantly be moving towards
ending the war. The escalation of the confrontation between Congress
and the President should be slow but relentless. When Congress does
cut off funding for the war, it should be obvious that they have
tried everything else. The President is simply unreasonable and can't
be dealt with in any other way. Either you're for cutting off funds,
or you're for the war continuing pointlessly into the indefinite
future.
Maybe it shakes out like this: Congress sets the
cut-off date some time in the summer, and Bush ignores it, opening up
the prospect that our troops in the field will suddenly have no
supplies. Congress relents, because they care about the lives of our
troops and aren't willing to play chicken with them. But Bush has
proved that he is willing to play chicken with the lives of
our troops. Congress votes another two months of funding and starts
impeachment hearings. Any legal case at all will be sufficient at
that point.
The rest of us can push the political case forward
by refusing to shut up. Talk to your friends, blog, write letters to
your newspapers and Congressmen, and participate in visible
demonstrations. If someone is tempted to think, "No one is for
ending the war right now" or "No one wants to see an
impeachment" their next thought should be "except for Doug
... and Susan ... and Kathy ... and Bill ... and ..."
For
the lives of our soldiers and the future of our country in the world,
we can't wait two more years for the next president, who will have
even fewer and less attractive options than exist now. And we can't
allow this president to start any more equally pointless, equally
wasteful, equally counterproductive wars. We have to act. And
ultimately, that means we have to impeach.
Doug
Muder
18 January 2007
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