Published on Tuesday, November 14, 2006 by the Washington Spectator
by Elizabeth Holtzman
Editor's note: With their party back in power for the first time since
1994, some senior House Democrats who will be rising to committee
chairmanships are already planning to conduct investigations into
wrongdoings of the Bush administration in everything thing from fraud
and abuse in Iraq War contracting to illegal domestic surveillance and
detainee interrogations. Incoming House Speaker Nancy Pelosi and other
party leaders, however, are signaling that any investigations will be
kept on a tight leash. They fear that scrutiny of the administration
will make Democrats appear excessively partisan and cost the party votes
in 2008. As for the possible impeachment of President George W. Bush,
Pelosi has explicitly declared it to be "off the table."
Attorney Elizabeth Holtzman is one wise legal thinker who says that,
whether or not it would be a political liability for the Democrats,
impeaching Bush is their constitutional duty. Holtzman served four terms
in Congress, where she played a key role in House impeachment
proceedings against President Richard Nixon. Holtzman's full brief on
this subject can be found in The Impeachment of George W. Bush: A
Practical Guide for Concerned Citizens (Nation Books), which she co-
wrote with Cynthia L. Cooper.
Impeachment is an essential tool for preserving democracy. The framers
of our Constitution, determined to provide protections against grave
abuses of power by a president, created the impeachment process as a
special procedure for citizens. Through their representatives, citizens
would be able to remove a president run amok.
Our founders created a new form of government that was designed to
preserve liberty by breaking up power among three co-equal branches of
government and instituting a system of checks and balances. But they
worried deeply about presidential misconduct. Left unchallenged, it
could be "fatal to the Republic," said James Madison. The new democracy
needed the ability to remove a president, if necessary.
Impeachment is the first step of a two-step process that can result in
the removal of a president from office. The House of Representatives
first decides whether to charge the president with impeachable offenses.
If a majority of the House votes to impeach, articles of impeachment,
which contain the charges, are forwarded to the Senate. The Chief
Justice of the Supreme Court presides over a trial in the Senate, and if
two-thirds of the senators vote for conviction, the president is removed
from office.
THE FOUNDERS SET A HIGH BAR
The grounds for removal of a president are stated in the Constitution in
a phrase of only eight words: "treason, bribery and other high crimes
and misdemeanors." Understanding the meaning of this spare language is
helped by looking at the original debates on the Constitution. In
adopting the impeachment provision, the framers identified treason and
bribery as two key reasons for the removal of a president. Treason was
defined in the Constitution as providing "aid and comfort" to enemies or
"levying war" against the United States. Bribery is a well- established
concept that hasn't changed much over time.
But the framers believed that these grounds were not sufficient. A
president should also be removed for other "great and dangerous
offenses" or the "attempts to subvert the Constitution," in the words of
George Mason, a delegate from Virginia to the Constitutional Convention.
The grounds were expanded to include "high crimes and misdemeanors"-an
archaic phrase that the framers borrowed from British terminology dating
back to the fourteenth century. It was defined as "an injury to the
state or system of government."
Alexander Hamilton explained in No. 65 of the Federalist Papers that
impeachment reached "those offences which proceed from the misconduct of
public men or, in other words, from the abuse or violation of some
public trust. They are of a nature which may . . . be denominated
POLITICAL, as they relate chiefly to injuries done immediately to
society itself." In essence, "high crimes and misdemeanors" describe a
political crime, a serious and grave abuse of power or an abuse of
public trust.
High crimes and misdemeanors are not limited to actual crimes. We
debated this in the Judiciary Committee during Watergate and reached a
firm conclusion. While commission of a crime may be grounds for
impeachment, the phrase also covers conduct that is not a violation of
the criminal code.
The key is whether the conduct is a grave abuse of power or a subversion
of the Constitution. Some presidential misdeeds we encountered in the
Nixon impeachment had a basis in the criminal law; others did not. On
the flip side, not all violations of the criminal code are political
crimes that rise to the standard of high crimes and misdemeanors.
THE ABC'S OF BUSH'S JOB
Under the Constitution, the president has three central obligations.
First, the president must "faithfully execute the Office of President of
the United States." This is part of the oath of office, which is itself
mandated by the Constitution.
Second, the president must "preserve, protect, and defend the
Constitution of the United States," also part of the oath of office. In
other words, the president is required to respect the role of the
Congress and the courts, as well as the fundamental liberties reserved
to the citizens.
And third, the president is required "to take Care that the Laws be
faithfully executed," an affirmative duty imposed directly by the
Constitution. This presidential obligation carries great weight.
Involved are two responsibilities, similar but separate: first, the
president is required to "take care," or to be highly attentive, and,
second, the president must see that the laws are "faithfully executed,"
or that the laws are fully followed. Combined, these impose a very
strict burden on the president to ensure the proper implementation of
the nation's laws.
A president cannot be impeached lightly. The framers rejected the notion
of presidential impeachment for "maladministration." The term was, at
one point, inserted in the impeachment provision but then replaced by
"high crimes and misdemeanors." The framers thought maladministration
was too vague and worried that it might put the president at the mercy
of an overreaching Congress.
What is expected is that the president will uphold the Constitution and
the laws and fulfill the oath of office. Carefully applying the law is a
requirement for holding office. The president may not avoid, subvert, or
undermine the law. Nothing excuses the president from fulfilling his
constitutional obligationsnot incompetence or ignorance or lack of
interest. The failure or the inability of a president to fulfill these
obligations, for whatever reason, causes serious harm to democracy.
Impeachment is the constitutional remedy to protect the future health of
the nation.
THE PRESIDENT'S IMPEACHABLE OFFENSES
President George W. Bush has engaged in acts that violate his
obligations as president on a range of issues. These impeachable
offenses include:
* Deceiving Congress and the people in taking the country to war in
Iraq.
* Directing an illegal domestic wiretapping program and other
surveillance of Americans.
* Permitting and condoning the use of torture or cruel treatment of
detainees.
* Showing reckless indifference to human life in the face of
Hurricane Katrina, in inadequately equipping U.S. soldiers, and in
insufficiently planning for the occupation of Iraq.
* Covering up his war deceptions with the leak of misleading
classified information, an act that became entangled with the outing of
a CIA agent, a possible crime.
1. For Deceptions in Taking the Country into War in Iraq:
War, in the view of the framers of the Constitution, would create one of
the greatest temptations for a president to abuse power. Edmund
Randolph, a member of the Constitutional Convention, noted, "The
Executive will have great opportunities for abusing his power;
particularly in time of war when the military force, and in some
respects the public money will be in his hands."
President Bush used false premises to drive the country to war,
insisting that Iraq was developing nuclear weapons and linking Saddam
Hussein to Al Qaeda and 9/11. The consequences have been enormous, and
there is no end point to the duration or to lives lost in Iraq.
Taking our country into war based on false information is a misuse of
presidential war-making power. Deceit nullifies the right and obligation
of Congress to understand the issues at stake and to decide whether to
support the war. The right of the American people to participate in the
decision is cast aside. The actions "subvert the Constitution," under
founder George Mason's definition of impeachable offenses.
James Iredell, a Justice on the first Supreme Court and a participant in
the North Carolina ratification debates on the Constitution, commented
that "the President must certainly be punishable for giving false
information to the Senate." In responding to a complaint that the Senate
would be too cozy with the president to vote for impeachment, Iredell
disagreed, insisting that the Senate would not react kindly if a
president "concealed important intelligence which he ought to have
communicated, and by that means induced them to enter into measures
injurious to their country."
Unless a clear message is sent, there is no way to ensure that the use
of deceptions to lead the country to war will not be repeated by this
president or another.
2. For Violating the Law on Wiretapping:
President Bush admitted that he has not complied with the Foreign
Intelligence Surveillance Act of 1978 and is engaging in domestic
surveillance without seeking court orders. He said he plans to continue
this conduct, even though his actions may invade the privacy and
constitutional rights of thousands of American citizens. The president's
refusal to obey the wiretapping statute, which carries a criminal
penalty, violates his duty to take care that the laws are faithfully
executed. It contravenes his oath of office, which requires him to obey
the laws, and preserve, protect, and defend the Constitution.
Over the years, the president has publicly misrepresented the
wiretapping programs, stating that no surveillance was being undertaken
without a court order. President Nixon's repeated lying to the public
formed the basis of one of the grounds for impeachment against him.
President Bush's deceptions may form the grounds for impeachment, as well.
A second secret domestic-surveillance program, exposed in May 2006, is
engaged in collecting and tracking the telephone calls of millions of
Americans under the guise of foreign-intelligence surveillance. This
program, begun without the approval of Congress or the courts, poses
many potential violations of the law, and as details are uncovered,
further grounds for impeachment also may be identified.
President Bush has attempted to justify his illegal surveillance as
falling within his power as commander in chief. The president's failure
to recognize that he is bound by a constitutional system in which he is
only one of three players and his abuse of his role as commander in
chief threaten our democracy to its core, and are grounds for
impeachment and removal from office.
3. For Permitting and Condoning the Mistreatment of U.S. Detainees:
Congress has enacted laws prohibiting the mistreatment or torture of
prisoners in U.S. hands. The War Crimes Act of 1996 makes it a crime to
violate the ban in the Geneva Conventions regarding torture and cruel or
degrading treatment. Ratified by the United States in 1955, the Geneva
Conventions are the law of the land, as is the Convention against
Torture. The U.S. government has long adhered to the laws and treaties
that prevent mistreatment of prisoners.
President Bush unilaterally changed U.S. practice and policy by a 2002
memo rejecting the application of the Geneva Conventions and enabling
U.S. personnel to conduct brutal interrogations without fear of
prosecution. In so doing, the president voided a U.S. law and permitted
others to break it. The president may not violate treaties or interpret
them in ways designed to nullify their essential purpose.
In addition, when evidence emerged of abusive treatment of persons in
U.S. military detention facilities, the president had a duty to
institute a thorough investigation of everyone in the chain of command,
from top to bottom. He has not done so. This responsibility is spelled
out in the Geneva Conventions. The president is also required to take
care that the laws are faithfully executed, including the War Crimes Act
and the Anti-Torture Act. President Bush failed to ensure a full
investigation and to see that the responsible parties, including
higher-ups, were held accountable. These failures are impeachable offenses.
When Congress reaffirmed its opposition to torture and cruel or
degrading treatment of detainees in a statute passed in 2005, the
president added a statement when he signed the bill, signaling that he
intended to violate it. Impeachment is the only way to prevent a
president from continuing to disregard his obligations to enforce the
law, not to break it.
4. For Reckless Indifference to Human Life during Hurricane Katrina:
President Bush showed a reckless indifference to human life in failing
to marshal emergency resources in response to Katrina. This type of
gross negligence is also apparent in his decision to invade Iraq without
providing protective equipment to soldiers and without having an
adequate post-invasion plan. If the president's actions were simple
negligence, they might not amount to impeachable offenses. During the
debates at the Constitutional Convention, one of the grounds initially
raised for impeachment was "neglect of duty." At the convention, the
Committee on Detail changed that language to "treason and bribery,"
which was in turn expanded by adding the term "high crimes and
misdemeanors."
The framers were undoubtedly familiar with the history of that British
term. At least two noteworthy impeachments for neglect had occurred in
Britain: one involved the neglect of the commissioner of the Navy to
prepare adequately against an invasion; the other related to neglect by
an admiral who had failed to safeguard the seas. In a classic
nineteenth-century text on constitutional interpretation, Thomas M.
Cooley of the Michigan Supreme Court states that impeachment can result
from "inexcusable neglects of duty, which are dangerous and criminal
because of the immense interests involved and the greatness of the trust
which has not been kept."
Bush's actions during Katrina and in regard to Iraq are "inexcusable
neglects." When Hurricane Katrina threatened New Orleans, President Bush
was personally informed of an impending catastrophe, but did not take
the necessary actions to protect human lives. Under law, he alone was
empowered to mobilize additional federal resources. He did not take care
that the laws were faithfully executed.
In addition, the president's failure to provide sufficient body armor
and protective equipment for our troops in Iraq or to develop a proper
plan for the occupation of Iraq after the invasion are violations of his
obligation to "take care." U.S. soldiers and the American people trusted
the president to exercise special care in making thorough preparations.
The president neglected his duty over matters of vast consequence and in
situations where the trust placed in him was great. This conjunction of
his failure to take care and his reckless indifference to human life
provides the basis for impeachment.
5. For Leaking Classified Information:
After the U.S. invaded Iraq, Bush authorized a top White House aide to
leak passages of a classified document to key reporters. The leak came
in response to criticism that the president had deceived the country
about Iraq's nuclear weapons capability in his State of the Union
address. The criticism was accurate, but the leak had the effect of
distorting the truth.
The leak was intertwined with the "outing" of a covert CIA agent married
to the Bush critic. Declassifying information to mislead the public and
cover up presidential deceptions about war making is an abuse of power.
If the facts, as yet unknown, show that President Bush had any role in
releasing the identity of the CIA agent, a potential violation of
federal law, that would be an impeachable offense.
President Bush has committed a great many grave and dangerous offenses,
and subverted the Constitution. The evidence is clear and strong.
Congress cannot shirk its responsibility to protect the nation from
tyranny. This is what the founders of this country intended when they
added presidential impeachment to the Constitution.
Copyright 2006 The Washington Spectator
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