Taking Impeachment Seriously

Over the last year, I’ve gone from not wanting the Democrats to waste political capital on impeachment proceedings to feeling that the effort is critical to the health of our democracy.  I think I’m ready to articulate why, and more importantly, outline the issues for which I still believe that the normal electoral process is the more appropriate cure.  This "sea change" in my thinking on the issue corresponds roughly to a change from thinking tactically about the 2006 election to thinking more broadly about the health of our democratic progress, although that tactical thinking was simply wrong from a constitutional standpoint — no matter what the stakes in that election.  I’ll also recommend John Nichol’s excellent small book, The Genius of Impeachment:  The Founder’s Cure for Royalism.  I started writing this before I read Nichols, and in fact I bought his book precisely because it’s got great references to early English custom and American history that I hope to use in arguing my case, but I strongly recommend his treatment, which is obviously better documented, more detailed, and often much better written than my comments below.   

In short, I’ve become convinced that impeachment proceedings against President Bush and Vice President Cheney are not just the appropriate remedy for the massive executive overreach we’ve seen in the last eight years, but an essential corrective for ensuring that future administrations — Democrat or Republican — do not simply continue where Mr. Bush leaves off.  Given massive expansions of executive power during the 20th century, and especially from Nixon onward (including the Democratic Clinton Administration), we have ample evidence that normal electoral process is insufficient as a corrective to executive overreach.  Stronger medicine is required.  And fortunately, strong medicine is precisely what the Founders gave us, in the form of impeachment.

Up front, I want to note that the previous paragraph doesn’t claim that the entire list of things that Democrats (or indeed, Republicans) dislike about this administration are best handled through impeachment, only that certain critical issues are best handled this way.  For example, the Administration’s dismissal of scientific and expert advice from within their own Federal departments is a matter of policy, not constitutional fidelity.  I don’t like the Administration’s handling of science and expert opinion, and I think it’s dangerously short-sighted to ignore evidence, but they’re fully within their powers to disregard it for policy-making purposes (one caveat here is that the Administration is not within its powers, given previous legislation, to manipulate aspects of the government that are intended to be non-partisan, career bureaucracies, for PR or political gain.  Such manipulation would be important to investigate and consider when drawing up articles of impeachment or censure).  But in general, if I dislike much of the Administration’s policy directions, the appropriate remedy under our Constitution is to gear up to elect someone else, often someone of an opposing party.

Impeachment proceedings are specifically designed to be a remedy for removing elected (and appointed) officials that overstep their powers, engage in treasonous activity, or use their position for personal gain.  In 18th century "Founder-speak," this is what the traditional phrase "high crimes and misdemeanors" refers to.  Misdemeanors and crimes here doesn’t refer to criminal law, of course, because it’s well understood that a President or elected official that breaks criminal law is still subject to prosecution like any other citizen.  So the "misdemeanors" and "high crimes" mentioned in the Constitution’s impeachment clauses are inherently political crimes. 

In other words, impeachment was intended by the Founders of our country to be the Constitution’s principal remedy for willful transgressions against the Constitution’s principles, strictures, and traditions.  Crimes against the Constitution therefore being crimes against the Republic, and against the People.  In such cases, the Founders intended, the principles of our Republic, and of constitutional democracy demand more than simply waiting for the next election and choosing someone else.  Especially in the case of a lame-duck Administration, for whom no electoral defeat is possible. 

At the end of the Constitutional Convention in Philadelphia in 1787, as Benjamin Franklin left the building, a woman asked him directly: "Well Doctor, what have we got, a republic or a monarchy?" Franklin’s memorable response is especially relevant here:  "A republic, if you can keep it."  Franklin, as with many of the Founders, had no illusions that building and keeping a "republican form of government," or what we would now call a constitutional representative democracy, would be easy.  As reported by Madison, Executive authority was the second most hotly debated item at the Convention (right behind the formula for Congressional representation given slave vs. free states).  The Founders were anxious not to trade a hereditary King for one that differed only through being elected. And consequently, George Mason, Gouverneur Morris, and Madison ensured that impeachment was thoroughly woven into the fabric of our constitutional life.  Nor was the founding generation loath to employ this tool:  several impeachment discussions or proceedings occurred during the first several administrations (albeit none against the President).   

So the Founders gave us the right tool to use in cases of crimes and transgressions against the Constitution, and they plainly expected the tool to be used whenever required.  And it’s been amply documented that the current administration has engaged in many actions which might meet the required standard.  This Administration’s use of executive orders, signing statements, as well as outright dismissal of Federal law (1) to accomplish activities which normally are considered illegal or unconstitutional will form the principle charges in any articles of impeachment.  For all its impressive legal jargon, judicial rulings, and patina of constitutional scholarship, the doctrine of the "Unitary Executive" is nothing more than the "Imperial Presidency" tarted up for the 21st century; nothing more than an elected King who serves a limited term.  Those who stand on the sidelines and help justify the unitary executive theory should go back and read their Madison, their Federalist Papers, and indeed the history of England from the Magna Carta onwards, with special attention to the English Civil War. 

But those of our elected and appointed officials who make it their business to adopt and implement the doctrine of the unitary executive are guilty of "high crimes and misdemeanors" against our Constitution.  And if we expect future Presidents to act within their Constitutional authority, and if we expect future Congresses to enforce that this occurs, then this Congress has only one option:  holding the current Administration accountable for their transgressions against the Constitution.  Accountability is what private contracts are all about; accountability is what the criminal justice system is about.  And accountability, at root, is what the Constitution is about:  the principle that no elected official is above the law, no elected official gets to simply disregard the rules, regardless of imminence of threat, seriousness of situation, or plausibility of justification.

The need for the remedy is clear.  The prospects for its success, however, are not. 

The reality is that impeachment proceedings will likely fail.  The House will be able to muster sufficient support for investigation if enough Americans demand it, and it’s possible that Articles of Impeachment could be laid against the President and Vice-President.  But the Senate will never muster a 2/3rds supermajority to convict and remove Bush and Cheney from office.

And the prospects for failure don’t matter.  Americans — not just Democrats — need to stop worrying so much about the inability to convict that we don’t even try.  And here’s why. 

Historically, nobody succeeds at impeaching and removing a President.  We have never yet succeeded in removing a President by impeachment, but in several cases the attempt has been sufficient to secure lasting benefits to our democracy and political process.  When articles of impeachment were submitted against Mr. Nixon for a vote, Nixon (urged by Goldwater and others) decided to resign.  Moreover, in the aftermath of Watergate, a great deal of legislation was passed to strengthen oversight of intelligence, campaign finance, and other areas which Nixon and previous Administrations had abused.  When Andrew Johnson was impeached, but not convicted in the Senate, the power of the southern states to resist ratification of the 14th Amendment (perhaps the most critical amendment in the Constitution beyond the original Bill of Rights) was broken. 

In other words, we will more than likely fail in the actual attempt to convict and remove Mr. Bush and Mr. Cheney from office.  But we would accomplish two very important goals.  First, we will signal to future administrations, of both parties, that Congress and the public stand ready and willing to police the unwarranted expansion of executive power.  We send the message that Presidents are servants of the Republic, the Republic isn’t the servant of the President.  Democrats, Republicans, independents, and libertarians can all agree on the importance of this political principle.  Second, the mere attempt to impeach will serve as a powerful "backstop" for a variety of lesser but more achievable reforms.  Legislation can be passed and reforms accomplished under the "penumbra" of the impeachment proceedings, perhaps that cannot be accomplished in normal politics today given campaign finance and powerful special interests. 

Both of these goals are quite separate from simple disapproval of policies, up to and including the Administration’s general foreign policy and national security stance (I say general stance since specific actions might be impeachable, even if the general policy is not).  Elections are designed to force policy change through the dissatisfaction of the citizenry.  Impeachments serve a different function:  defending the core principles of our Constitution, in a very public and visible way.

So regardless of our chances of ultimate conviction, fidelity to our own principles and the need to drive real, concrete reforms before a future administration treats the Bush years as a source of "useful precedents" demands that we undertake the attempt. 

In order to make impeachment proceedings happen, we need to do two things:  step up pressure on our Representatives and Senators, and educate everyone we know about why impeachment isn’t just "sour grapes" or being a "sore loser" — i.e., that impeachment isn’t about disagreeing with policy.  It’s about standing up and defending our rights, as the Founders did, and as they expected future generations to do as well whenever the situation demands.

NOTES:

(1)  I include treaty and international obligations under the rubric of "Federal law" since the Constitution explicitly defines these as the "law of the land," along with enactments of Congress.  The Bush Administration’s stance that our treaty obligations are, at best, advisory and can be set aside by the Commander-in-Chief is just one more example of a blatant twisting of the Constitution’s actual structure and dictates.