January 25, 2006
It's not just for radicals anymore
Rep. Nancy Pelosi, the
top Democrat in the House of Representatives, held a Jan. 14 town hall
meeting back home in San Francisco. It's the sort of thing
congressional representatives do routinely, and in safe districts it's
often more of a pep rally and love fest than anything else.
But on this day Pelosi was quickly confronted by a new political reality.
Antiwar protesters have already been dogging
Pelosi for some time now over her failure to push Democrats to support
withdrawal from Iraq. About 30 activists wielding antiwar signs filed
into the Marina Middle School auditorium shortly after Pelosi's
presentation began, first lining the walls, then moving up to stand
right in front of the stage.
But the real eruption came when a questioner
listed several war-related Bush misdeeds and asked, "Are these not high
crimes and misdemeanors?"
Both of the city's dominant political factions
the radical lefties and the loyal Democrats went nuts, the room
filling with sustained applause and chants of "Impeach! Impeach!"
Pelosi resisted this call for radical change.
"For those of you concerned about these issues," she told the crowd
after the roar had died down, "I urge you to channel your energies into
the 2006 elections."
But outside the beltway, in congressional
districts all over America, the "I" word is moving out of the margins.
In the wake of the revelation that federal officials have been
illegally eavesdropping on American citizens without required warrants
which President George W. Bush not only admitted approving, but
promised to continue under his expansive view of executive power has
propelled talk of impeachment into the political mainstream.
Although political leaders and major media
outlets have been slow to pick up on the trend, national polls now show
a majority of Americans support an impeachment inquiry.
And the sentiment is growing and getting
increasingly vocal. At one point in the meeting, Pelosi was asked
whether she will support a resolution by Rep. John Conyers to create a
committee with subpoena power to investigate whether members of the
Bush administration may have committed impeachable offenses. "I do not
intend to support Mr. Conyers's resolution," Pelosi replied.
The eight-term incumbent in one of the most Democratic districts in America was loudly booed.
"Listen to your constituents," someone yelled
at Pelosi, who waxed philosophical about how she takes her oath of
office seriously and how political change is best left to election
"We have a responsibility to try to bring this
country together," Pelosi said, to which an angry member of the
audience jeered, "You have a responsibility to uphold the
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.
Section 4, Article II, US Constitution
Impeachment is perhaps the most potent and
least used power of Congress. Just 16 officials mostly federal judges
have been impeached, and half of those were acquitted at trial by the
Senate (or in one case, the charges were dropped). It's only happened
to two presidents, Bill Clinton and Andrew Johnson, and neither was
ousted from office.
Richard Nixon escaped a likely impeachment
only by resigning after a long investigation into abuses of power that
are remarkably similar to those facing President Bush: illegal
wiretaps, war crimes and deceptions, crimes in retaliation against
perceived enemies, obstruction of justice, and other actions flowing
from extraconstitutional claims of executive authority.
After Bush last month confirmed he authorized
intercepting perhaps thousands of communications without required
Foreign Intelligence Surveillance Act (FISA) warrants which have
proven easy to obtain and can even be issued after the fact Nixon's
White House counsel John Dean concluded Bush was "the first American
president to admit to an impeachable offense."
That charge prompted Sen. Barbara Boxer to
seek the assessment of four of the country's leading constitutional
experts, scholars respected by both major parties, writing in her
letter to them, "This startling assertion by Mr. Dean is especially
poignant because he experienced first hand the executive abuse of power
and a presidential scandal arising from the surveillance of American
To get a perspective on whether this and other actions by Bush administration officials could be considered impeachable, the Guardian interviewed
three of those four scholars: Cass Sunstein of the University of
Chicago Law School, Susan Low Bloch of Georgetown Law, and Michael J.
Gerhardt of the University of North Carolina School of Law.
To say these three take impeachment seriously
is a huge understatement. All three agree the Clinton impeachment was a
gross misuse of the process, which they see as something the founders
intended to be used only in extreme cases. They are skeptical of
whether any of Bush's misdeeds at least what we know about them right
now rise to the level of impeachment.
"The impeachment provision is for truly
egregious wrongdoing, and we shouldn't repeat the unconstitutional
impeachment of President Clinton," Sunstein said.
"I think impeachment is the nuclear option and
should be talked about only rarely," Bloch said. "It's a weapon for
when you have to get someone out of office because he's dangerous."
Even in the case of Bush's admission of
warrantless spying, which Dean and other lawyers have argued could
present a prima facie case for impeachment, these experts say it's far
from the slam dunk case that it seems to some, mostly because of the
Bush administration argument that the post-9/11 congressional
authorization to go after al-Qaeda granted the president broad new
"On the facts thus far, the president has a
decent argument that he acted lawfully. There's also a decent argument
that he didn't. But if the president has a decent argument, he can't be
impeached for getting it wrong," Sunstein said.
Impeachment, the scholars all said, wasn't
intended to undo elections, settle ideological disputes, or even to
restore the proper balance of power. And it shouldn't be used as an
opening threat or to settle the score over the wrongful Clinton
impeachment. For those reasons, Bloch told us, "I think the talk of
impeachment is premature and counterproductive."
Is that the end of this story? Well, no, for two main reasons.
The first is that impeachment is more of a
process than a decision. Opening up an impeachment inquiry doesn't mean
the president is about to be evicted from the White House it just
means a congressional committee with the power to demand documents and
compel witnesses has taken up the case.
Gerhardt noted that Nixon's impeachment
inquiry lasted two years and that the most incriminating evidence
emerged along the way. "There is every reason to say that it should be
investigated even if we don't know whether that leads to impeachment,"
Most of the scandals critics say could lead to
impeachment such as how far up the military chain of command the
torture authorization went and whether Bush administration officials
intentionally misled Congress and the public about the case for war in
Iraq have yet to be fully investigated by Congress.
But the only investigation into Bush
administration misconduct by a prosecutor with subpoena power Patrick
Fitzgerald's probe into who leaked a CIA agent's identity has already
yielded an obstruction of justice indictment against Scooter Libby, who
was Vice President Dick Cheney's chief of staff, and could bring down
others before it's done.
"That's why I think all this stuff is worth
investigating," Bloch said. "I think the warrantless wiretapping is a
very serious issue, and I question the legality of what I've heard
The other reason not to let the constitutional
experts dismiss talk of impeachment is that all three scholars
confirmed that, in the end, impeachment is more of a political question
than a legal one. What's impeachable is ultimately whatever Congress
says is impeachable, a decision most scholars believe cannot be
reviewed by the courts.
Clinton was impeached when all the legal
experts say he shouldn't have been. So Bush could clearly be held to
account for crimes that are more serious than lying about an
extramarital blow job. What is being alleged against the Bush
administration are misdeeds that have resulted in tens of thousands of
deaths, the torture of people in US custody, blatant and unapologetic
violations of the Fourth Amendment, and the shredding of American
credibility around the world all of which are ongoing, claiming new
That's why the advocates of impeachment say we
can't afford to wait two years for another election. Besides, they say,
stopping the imperial ambitions of a president is precisely why the
founders created the tool of impeachment.
"If Tyranny and Oppression come to this land," warned James Madison, "it will be in the guise of fighting a foreign enemy."
THE POLITICS OF IMPEACHMENT
There's been scattered talk of impeaching Bush
since even before he took the oath of office in 2001, but most of it
was from partisans angry that Bush seemed to steal the tied election
then claim a mandate.
"I've been agitating for impeachment ever
since the Supreme Court appointed him," said Bob Fertik, a veteran
Democratic political consultant who started Democrats.org in 2000 and
later ImpeachPAC, a political action committee and Web site dedicated
to "electing a Congress to impeach Bush and Cheney."
But the list of constitutionally troubling
offenses by both Bush and Cheney started right away: Cheney's defiance
of congressional inquiries into his secret Energy Task Force meetings,
the appointment industry insiders to regulatory agencies, the refusal
to release public documents like Ronald Reagan's presidential papers,
the ignoring of warnings about the coming 9/11 attacks and then
obstructing investigations into it, the use of the attacks to create an
imperial presidency that defied congressional oversight and spied on
Yet the Bush administration was given wide
latitude to respond to 9/11, both legally and politically. Congress
granted the president the right to use "all necessary and appropriate
force" against "nations, organizations, or persons" associated with the
attacks, a resolution that the Bush administration has interpreted as a
blank check to launch wars, indefinitely detain anyone it deems an
enemy, torture detainees, assassinate alleged terrorists, and spy on
foreigners and Americans with almost no outside oversight.
Then came its decision to invade Iraq, which
led to most of the offenses that became the focus of impeachment
advocates. Critics say there is ample evidence that Bush administration
officials knowingly lied about the justifications for the war and then
violated US law and binding international treaties like the Geneva
Conventions in how it was conducted all of which could be considered
"Our primary issue is lying about the Iraq
war. We can show that he knowingly lied about the reasons for that
war," Fertik said. "The voters need to understand that the Democrats
are willing to hold them accountable and pursue this."
Constitutional scholars say the fact that Bush
was reelected last year hurts the case for impeachment. "You can't
discount the significance of the election and the fact that a lot of
these issues were raised before that," Gerhardt said. Yet critics
counter that the real smoking guns didn't emerge until after the
election, most notably the so-called Downing Street Memo, a leaked
British government document outlining Bush administration intentions to
manipulate intelligence data to sell the war.
That was certainly the case with Nixon, who
won a landslide victory before all the facts of the Watergate scandal
came to light.
David Swanson, a blogger and Democratic Party
activist who started the Web site AfterDowningStreet.org, said the
high-level memo confirmed that the administration was acting illegally.
That galvanized the impeachment movement.
"It is the central reason impeachment is in
the Constitution, the abuse of power," Swanson said. "I've never seen
the kind of public passions that there is on this, and that's been true
Both the House and Senate Committees on
Intelligence investigated prewar claims about Iraq, and the bipartisan
report found fundamental flaws and repeated misstatements by the Bush
administration, but Republicans in Congress have blocked efforts to
determine whether the intelligence was intentionally misrepresented.
Constitutional scholars agree that deceiving
Congress about the reasons for war or obstructing an investigation
into whether the executive branch did so would be impeachable. "A
deliberate attempt to obstruct a congressional investigation would
qualify as a classically impeachable offense," Gerhardt said.
Conyers, the ranking Democrat on the House
Intelligence Committee, commissioned his own report on Bush
administration actions surrounding the Iraq war and found impeachable
crimes relating to manipulation of intelligence, lying to Congress and
the public, condoning torture, and civil liberties violations.
"There is a prima facie case that these
actions by the President, Vice-President and other members of the Bush
Administration violated a number of federal laws," read the report,
titled "The Constitution in Crisis: The Downing Street Minutes and
Deception, Manipulation, Torture, Retribution, and Coverups in the Iraq
But it was the Dec. 16 revelation of the
warrantless wiretapping that propelled talk of impeachment into the
mainstream. Even the staid Editor and Publisher magazine noted
in a Dec. 22 article that "suddenly this week, scattered outposts in
the media have started mentioning the 'I' word, or at least the 'IO'
phrase: impeach or impeachable offense."
"The wiretapping really changed things,"
Fertik said. "I think we're one moderate-level scandal away from a
large outcry for impeachment."
AfterDowningStreet.org had commissioned a
Zogby poll on the war manipulations in June that found 42 percent of
Americans favored impeachment proceedings. They followed up this month
with an impeachment poll based on the spying and found support had
jumped to 52 percent.
"The spying issue has made impeachment
respectable to talk about in the mainstream media, and that opens up
the other areas of impeachable offenses," Swanson said, adding that he
still believes "the strongest case for impeachment is around the war."
At the very least, if the Democrats retake
either house of Congress, there's enough evidence to support formal
inquiries into conduct that could be considered impeachable.
Let's remember: Nixon and Clinton both got
into their deepest trouble not for specific official acts, but for
obstruction of justice that is, for lying and cover-ups.
And Bush administration officials are facing
many minefields that could trigger the same sort of charges criminal
probes into the CIA agent outing and the bribery scandal surrounding
lobbyist Jack Abramoff, next month's domestic spying hearings, myriad
inquires into cases of torture, a possible congressional inquiry into
prewar intelligence manipulation.
Yet the question remains whether Democrats
as well as maverick Republicans willing to challenge Bush
administration excesses, as Sen. John McCain did on torture and Sen.
Arlen Specter appears willing to do on the warrantless spying are
willing to aggressively push for this profound level of accountability.
Pelosi has so far taken a wait-and-see
approach, although she is pushing for hearings on the warrantless
spying. She acknowledged that "our founders did not want a king. They
wanted a president with a system of checks and balances."
But she stopped short of supporting an
impeachment inquiry. "Before we know how to hold the president
accountable, we have to know what he did, and I don't think we know
right now," she said in response to a question about domestic spying at
the Jan. 14 forum.
Pelosi's cautious approach is infuriating to
those who feel like both the facts on matters ranging from war to
abuse of power and the public sentiment are way ahead of the
"The Democratic leadership is afraid of all the popular positions of the Democratic base," Swanson said.
While questions of impeachment have been
discussed little in the halls of power political or media they have
spread across grassroots America like a wildfire over the last year.
ImpeachPAC hopes to fuel that flame and make impeachment an issue in
the midterm elections, hoping to trigger the impeachment of Bush and
Cheney and elevate the new speaker of the house into the presidency.
"We want to encourage candidates to raise the
issue, as Tony Trupiano is doing," Fertik said, referring to the
Michigan congressional candidate who won ImpeachPAC's first endorsement
late last year.
Trupiano hosted a popular, left-leaning radio
show for 11 years before deciding to run for Congress because of his
concern for the "politics of fear and paranoia and what's happened to
this country over the last five years, where good and decent people no
longer question their government."
After he was endorsed by ImpeachPAC, Trupiano
endured a firestorm of criticism from both the mainstream media and
Democratic Party leaders. "I took a lot of crap from the establishment
because I used the 'I' word," he told the Guardian. But he endured it, received support from across the country, and now appears to be the frontrunner in his race for Congress.
"We need to decide whether government runs who
we are or whether we rule our government. We need to take our country
back," Trupiano said. "We need to demand accountability."
At the very least, Trupiano said, Congress
needs to aggressively push for answers to troubling questions about why
the administration invaded Iraq and what the president's team is doing
under the guise of keeping the nation safe from terrorists. Call that
oversight, accountability, or impeachment, but Trupiano said it's a job
Congress has failed to do.
"Impeachment is a process, it's not an
indictment," he said. "We need to lay out the case, then we ask the
American people to sign on. We just want the truth. Is there anything
more nonpartisan than the truth?"
Here in San Francisco, the Democratic County
Central Committee was scheduled to consider approval of a resolution
calling for impeachment proceedings against Bush and Cheney on the same
day this issue hit the streets, Jan. 25.
Robert Haaland, who introduced the measure,
said Democrats have to start fighting back against the Bush
administration's extremist claims to absolute power, whether or not
impeachment proves to be a realistic option.
"Cowardice is not a winning strategy for the
Democrats, and we've learned that again and again," Haaland said,
noting that the warrantless spying has finally made impeachment a real
option. "If handled correctly, it resonates across the political
spectrum. It's not just about national security, but privacy rights."
Haaland said he understands why Pelosi and other party leaders have been reluctant to use the word impeachment,
fearing the backlash it might provoke, but said it's important they
aggressively push for accountability to Congress, the Constitution, and
"I really care about the Constitution and
believe it's getting to be like Germany in the 1930s here," Haaland
said. "If we turn a blind eye to such blatant violations of the
Constitution, I'm really scared where our country will be in five
Even Leslie Katz, a Pelosi ally who chairs the
DCCC, said she will support Haaland's resolution. "This regime has to
be stopped, and the people have to realize they've been duped," she
said. "They've committed crimes against the American people."
Said Katz, "Local parties should be calling
for it. The American people should be rising up and calling for this.
And the media should be picking up on it and articulating it so the
people begin to understand."
BALANCE OF POWER
The closest Congress has ever come to removing
a president was in 1868, when the House of Representatives impeached
Andrew Johnson and the Senate fell one vote short of the two-thirds
majority needed to remove him from office.
Gerhardt said the current debate about whether
to impeach Bush "does have echoes of Johnson." In that case, Johnson
claimed the right to ignore congressional oversight and certain laws,
such as the Tenure in Office Act, and held an expansive view of
If just one more senator had voted to impeach
Johnson, Gerhardt said he and other constitutional scholars might hold
a different view of the impeachment precedent. As it is, Gerhardt said,
"the notion of impeachment that corrects an imbalance [of power between
branches of government] makes me nervous." Yet he said that in some
ways Bush has pushed the envelope on executive power further than
During the Senate confirmation hearings on
Supreme Court nominee Samuel Alito, listeners got a lesson in an
obscure political philosophy that a small group of conservatives most
notably, Cheney and his followers and Supreme Court justices Clarence
Thomas and Antonin Scalia have been developing since the mid-1980s.
It's called unitary executive theory, and it essentially holds that the
presidency is the dominant branch of government, rather than one of
three coequal branches.
It is from that belief which has been
largely untested in the courts that the Bush administration claims
the authority to defy laws requiring warrants for searches, habeas
corpus rights for enemy combatants, prohibitions on torture, and the
congressional oversight that has been accepted by most previous
"I think their claims of executive authority
are overblown and wrong," said Bloch, the constitutional scholar from
Georgetown. "And there is an argument that what he's doing is
Another little-noticed Bush power grab is his
use of presidential signing statements attached to bills he approves.
Although he has never vetoed a bill, Bush has issued more than 500
signing statements challenging the constitutionality of provisions of
the bills, more than every previous president combined.
Gerhardt called the signing statements "a very
troubling development in constitutional law." The signing statements
often direct executive agencies to essentially ignore some laws,
possibly amounting to an illegal line item veto or assumption of powers
beyond those granted by the Constitution, Gerhardt said. "They might,
to an illegitimate extent, increase the president's power to make
The most notable recent example is when Bush
signed a bill that contained an outright ban on torture that McCain had
pushed through with overwhelming congressional approval over the
objections of Bush and Cheney. Bush's signing statement said he would
interpret the torture ban "in a manner consistent with the
constitutional authority of the President to supervise the unitary
executive branch and as Commander in Chief and consistent with the
constitutional limitations on the judicial power."
In other words, as several scholars and some
media reports have concluded, Bush announced he was retaining the right
to torture in defiance of Congress.
"If a president were to license torture, in
disregard of applicable laws, what are the avenues for keeping him in
check?" Gerhardt questioned, answering that impeachment may be the only
option for dealing with a president who refuses to abide by US and
international laws against torture, although he said that hasn't yet
been proved with Bush and Cheney.
The debate over the president's current powers
places Congress and the president on a collision course. In analyzing
the president's use of warrantless wiretaps, the nonpartisan
Congressional Research Service issued a report earlier this month
arguing it was illegal and unconstitutional, while the Justice
Department responded with a report last week claiming the post-9/11
congressional authorization of the use of force "places the president
at the zenith of his powers in authorizing the N.S.A. activities."
Official congressional hearings into the
matter are expected to begin Feb. 6, with Attorney General Alberto
Gonzalez expected to testify for the administration.
The administration now seems to be directly
attacking the system of checks and balances, with the Justice
Department report arguing that many presidential powers from the
right to indefinitely detain those it deems "enemy combatants," to
spying on American citizens are "beyond Congress's ability to
As long as the Republican-controlled Congress
is willing to play a subservient role to the president, this might not
be a problem. But if the public demands accountability and Bush and
Cheney refuse to give up their imperial stands, impeachment might not
just become an option. It may become the only option.