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.