Impeaching Bush-Cheney is not a good idea

Post No. 8, The Sunday Evening Post, Nov. 15, 2009

By Neal Q. Herrick

There is no statute of limitations on impeachment. Further. Sen. Leahy, Rep. Conyers and many others have made a strong case that it is important to impeach miscreants who commit the kind of offenses committed by Bush-Cheney. It is true that they violated both their oaths of office and our Constitution and that these are the most serious crimes that civil officers can commit. But would impeaching them help or harm our chances at reforming our lawless federal government? If there were a reasonable chance of convicting and disqualifying them, it should certainly be done. However, there is no such chance. This short essay comments on the history of the impeachment provisions and suggests that – however beneficial it might be to convict and disqualify Bush and Cheney – we must first reform the impeachment provisions themselves. Trying and failing to convict and disqualify Bush and Cheney would simply strengthen the belief of civil officers that they are above the law.

Our impeachment provisions are unworkable

The framers were unanimous in their belief that we needed an impartial (and, therefore, a judicial) impeachment process. Hamilton emphasized its “judicial character” and the need that it be regulated by “the real demonstrations of innocence or guilt” and not by “the comparative strength of parties” (Federalist Paper No. 65). He and his fellow framers thought our freedom depended on our ability to keep our civil officers within the bounds of our law. They discussed the matter at length and agreed on our present impeachment provisions. Time and events, however, have made the impeachment process they agreed upon political and legislative rather than impartial and judicial. This has rendered it, not only useless, but a danger to our Republic. While the impeachment provisions are consistent with the letter of the Constitution, they are inconsistent with its tenor.

The Bush-Cheney exploits are symptoms – not causes

First, we must realize that our present predicament has not been caused by either political parties or by presidents. It has been caused by what has proved to be a near-fatal flaw in our Constitution. It is now time to go back to basics. Let’s consider the intent of the impeachment provisions, their history, and our present predicament. These considerations might well shed some light on the question of what we should do about presidents and other civil officers who exceed their constitutional powers. More specifically, it might help us think about whether attempting to impeach Mr. Bush and Mr. Cheney would be a good idea. .

Our freedom depends on dealing with causes, not symptoms

James Monroe. in The People, the Sovereigns (p. 16), called the impeachment provisions the “mainspring of the great machine of government” and “the pivot on which it turns,” (reference) The framers intended this “pivot” to establish a judicial process that would deter our presidents, members of Congress, federal judges and subordinate members of the executive branch from violating the Constitution and otherwise breaking the law. They explicitly declared that impeachment, removal and disqualification should be impartial judicial judgments. They should be arrived at, neither by the people nor by their elected representatives, but by an impartial court of law. Civil officers should not be impeached because they make mistakes or because we disagree with their policies. Framer James Iredell of North Carolina said, “God forbid that a man . . . should be punished for want of judgment.” Civil officers should be impeached and removed for “treason, bribery, or other high crimes and misdemeanors.”

We must reform impeachment if we are to deter executive usurpation

The most serious impeachable offenses are those committed in violation of our supreme law (the Constitution) and those that attack our system of statutory law. The former offenses would include treason and the usurping, abdicating or exceeding of constitutionally assigned powers. The latter would include bribery, perjury, and the obstruction of justice. Preventing the former offenses would maintain our balance of powers, thus forestalling tyranny. Preventing the latter offenses would strengthen the integrity of all three branches of government, thus assuring us of a Congress and president that respond to the needs of the people – as well as assuring us of an impartial judiciary. Madison wrote, during Washington’s presidency, that the “wisest” part of the Constitution was “the clause that confides the question of war and peace to the legislature, and not to the executive department.” He continued “In war, our public treasures are to be unlocked; and is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed.” (quoted in Fisher’s Presidential War Power, 1995). Clearly, any action that conflicts with Congress’s power to declare war is an impeachable offense of the first waters.

The way impeachment has (not) worked in the past

The framers assigned our most critical judicial power (the power to try impeachments) to the body of government they believed would have the greatest credibility and the greatest capacity for rendering impartial justice. There were only two non-elective bodies available: the Supreme Court and the Senate. They chose the Senate. The Senate was both credible and impartial until the 1830’s. During that decade it became de facto politicized.

In 1846, Polk precipitated a war with Mexico, thus usurping Congress’s war powers. He was not impeached. In 1854, Pierce followed the precedent set by Polk and bombarded Greytown, Nicaragua for failing to respect the dignity of our Central American ambassador. Instead of impeaching Pierce, Congress commended him. In 1868 Andrew Johnson was impeached for taking it upon himself to fire his secretary of war without seeking a court interpretation of the Tenure of Office Act. He was acquitted. In 1913, the 17th Amendment made the Senate elective, thus putting its seal of approval on the politicization of that body. In 1999, Mr. Clinton was acquitted of perjury and obstruction by 100 senators who admitted (some explicitly, some tacitly) to a virtually unanimous belief in his guilt. At this point, the impeachment provisions lost any remnants of their deterrent value

Although the framers intended the impeachment provisions for all Members of Congress and
subordinate officers of the executive, as well as for the president, vice-president and federal
judges, only one senator and one cabinet officer have ever been impeached. Neither was removed. Only seven judges have been convicted in our 227 year history.

Our predicament in 2009

Impeachment was designed to be swift and certain, with neither the due process nor the technicalities that encumber criminal law. In recent years, impeachment has become virtually useless and there has been nothing to stand between us and chaos but criminal law. Since criminal law is slow, uncertain, and subject to presidential pardons, our president is now out-of-control and we have no way to keep our Congress honest. This governmental lawlessness knows neither party nor person. Democrat Clinton was more promiscuous in his use of air strikes and missiles than was Republican Bush. Mr Bush, however, laid force on with a heavier hand. Democratic and Republican members of Congress are equally inclined to venal corruption.
While Mr. Obama seems less inclined to lawlessness than were his predecessors, our governmental culture of lawlessness has not been created by presidents and cannot be solved by presidents.

Charles Pinckney of South Carolina said that, if his fellow framers were to extend the powers of the president to peace and war, it would “render the executive a monarchy, of the worst kind, to with an elective one.” We now fit that description. Congress has abdicated its powers of peace and war and Mr. Bush has usurped them. The framers said that it would be up to the people to keep their government honest. Iredell wrote that, “. . the only real security of liberty in any country is the jealousy and circumspection of the people.” Yet the FBI finds $80,000 in the freezer of William Jefferson (D-LA) and he still sits in our House of Representatives. Even when civil officers are indicted and convicted, as in the Espy case under Mr. Clinton and in the Libby case under Mr. G.W. Bush, they receive presidential pardons.

We the people caused the problem and we the people must solve it

Because we, the people, have failed to exercise “jealousy and circumspection,” the civil officers of Congress and the executive branch, including presidents past and present, have committed the full gamut of impeachable offenses and remain unscathed, impervious and arrogant. This can be easily explained. The power to keep the civil officers of our government honest is in the hands of (Congress) a body that is incapable of using it against other branches of government and disinclined to use it against its own members.

Clearly, an elective body is incapable of rendering impartial justice. Just as clearly, Congress will not voluntarily surrender the power to try impeachments – lest that power be used against its members. Yet, almost a century after the Senate became officially elective, we, the people, have done nothing to “jealously” guard ourselves against this threat to our liberty. Instead we propose still another political means of controlling our president or suggest that another Clinton-style impeachment and acquittal (this time involving Mr. Bush) would keep our future presidents in line.

Unless the root cause of our governmental lawlessness is removed, all three branches of our government will be free to continue acting lawlessly: both exceeding their constitutional powers and yielding to the temptations of venal corruption. This root cause is that we have not amended our impeachment provisions to take into account the politicization of the Senate. We need a 28th amendment transferring the power to try non-judicial impeachments from the Senate to the judiciary. This would put teeth in the impeachment provisions and deter our civil officers from committing impeachable offenses. Without such a system, we are on a slippery slope leading to tyranny and venal corruption at all levels of our society..

Conclusions

A constitutional amendment is needed to transfer the power to try impeached Members of Congress and civil officers of the executive to the Supreme Court and to set strict rules for impeachments and impeachment trials. . Since Members of Congress and other civil officers would naturally oppose such an amendment, we cannot rely on Congress to propose it. Fortunately, the framers provided us with an alternative path. Article V empowers state legislatures (or state conventions) to amend the Constitution over the objections of Congress. In this way, the framers anticipated our present dilemma. In short, it is up to us to persuade our state legislators to act under Article V. Given the natural opposition of the federal government to any genuine reform and given the lack of any interest in changing the status quo on the part of the establishment media, this task falls upon the shoulders of grass roots America. University students calling for a 28th Amendment (supported by a coalition of churches, non-governmental organizations, and community media) could provide the spark and the energy for a reform movement. For a book-length discussion of power, corruption and society in America, see After Patrick Henry: A Second American Revolution, Black Rose Books, 2009.