Readings - Is There a Case for Impeachment?Is There a Case for Impeachment? Sources * Learn more about the participants. 1. The Elements of Impeachment SAM SEDER: Michael, you're a constitutional scholar. Tell us, what is impeachment? MICHAEL RATNER: Impeachment is the manner in which the House and the Senate remove a president from office. To impeach is to indict for treason, bribery, high crimes, or misdemeanors. After the indictment or impeachment, which can be done by a majority, the Senate then tries the president, or vice-president, or other officer. A lot of the dispute over impeachment has to do with the definition of not "treason and bribery" (which is not the normal means of impeachment )but "high crimes and misdemeanors." It's an ancient phrase that goes back to the Constitution. It sounds today like "high crimes and misdemeanors" means "criminal acts," but impeachment does not necessarily have to mean a criminal act. It was a means put into the Constitution, based on the experience of the colonists with the king. A term I like to use is executive tyranny - impeachment is a means of removing the president when there is executive tyranny. SAM SEDER: Now Lewis Lapham, in your most recent article in Harper's Magazine, your piece "The Case for Impeachment," you say the framers created impeachment not as a punishment, but as a remedy. What did you mean by that? LEWIS LAPHAM: Well, it's to protect the checks and balances of power. It's to protect the principle of our government: judiciary, executive and legislative. That is what Washington in his farewell address calls the wholesome arrangement of public administration which must be protected from the despotism of faction. Bush is not, in Michael's phrase, protecting and preserving the Constitution. There is an an attack of executive tyranny on our system of government, a despotism forced on the Congress. And therefore it is up to the Congress to uphold the principle of separation of powers to impeach Bush. To me it's a very clear obligation on the part of the Congress. It's not Democrat or Republican, it's the Congress as a whole - and if it doesn't impeach him, it seems to me, how does it retain its either (A) function, or (B) self-respect? REP. JOHN CONYERS: For the last number of months I've been asking myself: when are we going to begin to assert ourselves after this executive branch has eviscerated the powers of a three-partite government? The Congress has been ignored, demeaned, and diminished, and therefore our constitutional checks and balances can't work. And I began to think the simple question: how am I going to tell my kids or anybody else in the next two, four, ten years why the Congress didn't act? Can I say: They had more people than us and they outvoted us? Or They violated Parliamentary processes and nobody could get a handle on what's going on? We must act now. The Congress has to find its voice, regain its strength, and understand that these abuses of power might become a part of the way government works in America - and we can't allow that to happen on our watch. Nobody, not me, nor you. We've all got to really do something. SAM SEDER: Congresswoman Holtzman, you wrote recently in your piece in The Nation magazine that it was important that the impeachment go forward so that future presidents understood the parameters of their role. Why do you think the role to initiate impeachment proceedings starts in the Congress? Why do you think the framers structured it that way? ELIZABETH HOLTZMAN: Well, first of all, I explain some of this in my recent article, published in The Nation, which is called "The Impeachment of George W. Bush." The framers put the power to remove an executive first in the hands of the House of Representatives because that's the body of Congress that's closest to the people. It gets elected every two years, and so presumably it's more responsive - although our system of campaign financing has reduced the responsiveness of the Congress to the people. But the critical thing for us to remember is that the only presidential impeachment process that has withstood the test of time and the scrutiny of history, and has been respected for its fairness and the integrity of the process and the result, was the impeachment that was conducted of Richard Millhouse Nixon by the House Judiciary Committee. That impeachment process did not start in the Congress. It started because the people of the United States said enough is enough. SAM SEDER: Mr. Dean, you've said in the past that impeachment is a political procedure and only quasi-legal. What did you mean by that? JOHN DEAN: That is very much the case. [Pulling the microphone closer.] I'll move that forward, although I learned years ago that small microphones pick up my voice rather quickly and easily. Just to stay on that digression for a moment, I think I must have been standing over a mic in the Oval Office every time I went in there. Because my voice always seemed to come through very clearly - which was good for you on the Committee later - REP. JOHN CONYERS: - Very helpful. JOHN DEAN: The reason I say impeachment is a quasi-legal and very political process is because that's exactly the way it's designed. I think Gerry Ford was the first one to really cut through it all and say that a high crime and misdemeanor is whatever the House of Representatives and the Senate agrees is an impeachable offense. When you read the history, however, and look at the way the clause got into the Constitution, at one point James Madison used the term "mal-administration." I think that Madison very clearly realized that you could have a president who was not doing the job right, and was not administering well, and that would be a reason for impeachment. There was then a subsequent amendment on the floor of the Constitutional Convention which incorporated that term, so I wouldn't rule out mal-administration. But it is a very political proceeding and Elizabeth Holtzman has it absolutely right. It's not going to happen until the people of the United States say, we've had enough. And that's exactly what happened after the firing of Archibald Cox during Watergate. The people were outraged, and understandably so, when somebody like Carl Stern from NBC news came on and interrupted the ongoing program to say that the Special Counsel had been fired by the President. You could all but hear the boots marching in Washington. REP. JOHN CONYERS: We've got a situation that's a little bit different today. Nixon was at a high point of popularity. Today, the President of the United States has popular polling numbers from 34 to 37 and Vice President Cheney is at 18 - so that tells you that something is happening in this country. The support for the war has evaporated. There are now more people in the United States of America against the war in Iraq than there are supporting it. I think, Miss Holtzman, that that mood of the American people is now beginning to find itself. I have put forward a resolution for a select committee, House Resolution 635, which says, let's inquire into whether there have been acts and abuses of power that constitute high crimes or misdemeanors. The mood is coming more and more from the people to the Congress - just as it happened some 30 years ago - and people are saying, let's look into why everything is going wrong. The abuses of power, the wiretap laws - who's ever heard of domestic, warrantless surveillance in the United States? We've got a FISA court, we've got everything in writing, and the President says, I am above the law. No way and not much longer, Mr. President. * * * 2. Why Should Congress Impeach? SAM SEDER: Lewis Lapham, why don't you expand on the general reasons why Bush may warrant impeachment. LEWIS LAPHAM: John Conyers' report, which runs to 190 pages and 1,100 footnotes if I'm not mistaken, takes the argument through a number of details. The most apparent one to me was the notion that the Bush Administration's invasion of Iraq was the perpetration of a criminal fraud on the people of the United States. But then, throughout the report, there are instances where Bush is acting with what Michael calls - or what the framers called - executive tyranny: ignoring the Constitution, conducting illegal actions, torture, violation of international treaties, violation of our own domestic agreements, suppression of dissent on the democratic minority in the Congress, and so on. And there's a long list of very good reasons to get rid of the man. I mean, it's not just that he's a bad President, he's a dangerous President. SAM SEDER: Michael Ratner, you've written four articles of impeachment of George W. Bush. Tell us about those four. MICHAEL RATNER: It's called Articles of Impeachment Against George Bush. Right now there is warrantless wiretapping going on in the United States. Domestic to domestic, most likely. Certainly domestic to foreign. It's completely outside the law, it's outside the Fourth Amendment of the Constitution. What they're doing now, in the Administration, is throwing legal sand in our face. You see the complete and utter subversion of the Constitution. The President even went to Congress to have that law amended, and is asserting essentially tyrannical, or king-like, powers to do whatever he wants. Right now there are indefinite detentions and torture going on from Guantanamo to Baghram to places all over the world. With each one of those, first the President says Geneva Conventions don't apply, so that you can torture people and hold them indefinitely. You can bookend that with what the President did on November 13th, 2001, when he issued an order saying he could detain any non-citizen anywhere in the world and hold them forever. And you can bookend that with what he did on December 30th of last year, saying, when Congress tried to prevent torture and cruel and inhuman and degrading treatment, that he, as the President, can torture people despite what Congress says. So there you have an absolute example. This is a president who says the Judiciary makes no difference and the Congress makes no difference. We're talking really, about moving from a Republic to tyranny. JOHN DEAN: I don't know the politics of everybody on this panel, but I obviously have Republican roots. Some years ago I registered as an Independent when the Party moved so far to the right that I didn't recognize it, but I really don't come at this as a partisan. And what I'm about to say I don't say totally facetiously, but as I think about impeachment with Bush I really do wonder if ignorance is a defense. Now, I don't think Bush is stupid. I do think he is ignorant on a lot of these issues, and as somebody who has explored and dug into this, I can tell you there's no question in my mind where most of this activity is coming from, and it's coming from our Vice President. MICHAEL RATNER: I don't agree with that. Bush is the one who signed the order saying to pick people up everywhere in the world. Bush is the one who is defending the wiretappping and has signed 35 orders authorizing warrantless wiretapping. I mean, these are right at Bush's door. He's actually signed these documents, so I don't think there's an ignorance. JOHN DEAN: But Michael, what I'm saying is when he comes into an impeachment proceeding and says, Hey, I'm relying on the advice of people, I'm not a lawyer, I don't know any of these things - it's not a solid defense, but it's a realistic one in this case. ELIZABETH HOLTZMAN: I don't think that stupidity or ignorance are excuses. The President of the United States said that he was above the law with regard to the McCain Amendment, and has said that he's above the law with regard to the FISA wiretapping. But one thing you didn't mention, Michael, is that the President himself was told by Alberto Gonzales, then his White House counsel, now the Attorney General of the United States, that the War Crimes Act of 1996 prohibits torture and inhuman treatment and makes it a federal crime. He was told in a memorandum that Americans could be violating that law and were subject to prosecution. And what was the President's reaction? What did Mr. Gonzales recommend? He said listen, we can't let that happen. Let's reduce the possibility of prosecution and let's opt out of the Geneva Conventions. And what did Mr. Bush do? He opted out of the Geneva Conventions with respect, at least, to Al Qaeda. And his obligation under the War Crimes Act, which incorporates the Geneva Conventions, is to stop torture when he sees it and knows about it - and he did not do that. Instead, he went along with a gimmick to allow the torture, and to allow the inhuman treatment, and to allow the violation of the law to continue. President Bush has thrown down the gauntlet to the people of the United States, the Congress, and the Courts. He said, I am above the law, and we have to pick up that challenge because otherwise what is the democracy that we're handing to our children? * * * 3. Was it Illegal? SAM SEDER: What if the intelligence was simply mistaken? What if it's impossible to prove the state of mind of George Bush when he looked at this intelligence? What if, in regards to FISA, or in regards to the warrantless spying, it can't be established that what George Bush has done is, in fact, illegal or unconstitutional? REP. JOHN CONYERS: Well, that's why we have House Resolution 635 that calls for a select committee to investigate those questions. We've got a mountain of evidence. None of this is secret material. It's not classified. But it does not refute or meet the questions that you have raised - because we don't have subpoena power to get the people in front of us, under oath, to help confirm, deny, or exculpate the charges that are piling up so high here today. There's only one way to find out. Start a select committee like Sam Irving did, in which we ask these very same questions of the people that know the answers. And then, under oath, we will get to the truth. ELIZABETH HOLTZMAN: You seem to imply that unless the courts determine that the President has violated the laws or has acted unconstitutionally then the Congress can't act on an impeachment. The Congress is not bound by the court determination. Members of Congress also take an oath of office to uphold the Constitution. Impeachment does not require, technically, that any law be violated or that the Constitution be violated. Members of Congress have to make that determination on their own. SAM SEDER: Well, if it's not necessary that any law was broken, what is the danger inherent in bringing Articles of Impeachment against a President who has not clearly violated the law? ELIZABETH HOLTZMAN: I don't think you need the quantum of evidence in a criminal trial to convict the President beyond a reasonable doubt. You don't have to show that a specific law was broken. But that doesn't mean that you can just impeach a president because he's a bad president, or because he has not administered things properly. He has to have committed treason, bribery or other high crimes or misdemeanors. JOHN DEAN: I believe lying about sex in the office also applies. ELIZABETH HOLTZMAN: Impeachment should never be undertaken lightly, but that doesn't mean we have to create impossible hurdles. There's nothing in the Constitution that says that you have to have the President found guilty of criminal conduct by a court before you can impeach him. REP. JOHN CONYERS: Look, there is no reason for us to make it so that every time we're angry or disappointed or disagree with the President he should be subject to impeachment. Impeachment is a rarely-used tool. We have to move in a reasonable but steady fashion, coming up from the people. Everybody's member of Congress should be able to tell you why they believe we should have a select committee - not an impeachment committee - to build up and field out the kinds of questions that you originally asked, so that then we can determine whether we should move forward on an impeachment hearing. * * * 4. On the Media SAM SEDER: Why is this discussion of impeachment taboo? LEWIS LAPHAM: The media tends to be comfortable with the status quo. And there's also a confusion about the difference between the balance of powers, the three branches of government - I mean judiciary, executive and legislative. The media tends to believe that the branches of government are the Democratic and Republican parties, and there are too many people in the country who also believe that. The Administration clearly has no use for the notion of branches of government. It has equal contempt for the Judiciary as it does for the Congress; it makes no distinction. It looks at the world from the point of view of the master of the universe, the tyrannical executive. And then people think, well, it's up to the Democrats to punish the Republicans (or the Republicans to punish the Democrats when it was Clinton) - but that's not what political parties are set up to do. Political parties are simply set up to elect people to Congress. And the media, when they don't see an argument that they can frame in the Democratic/Republican opposition, they ignore it. I mean, that's my guess; I'm not running the networks. JOHN DEAN: I was stunned that the media didn't write more about the secrecy of this presidency, which became patently apparent even before 9/11. It only became exacerbated after 9/11, so I began to write columns, and I began doing a few columns thinking I was sending up a flare for people to be alert to these problems. I can't recall anybody telling me they had an editor kill a story that was negative towards Bush or the Administration. They said, our problem is our plate is so full. We're now under corporate ownership, it's bottom line. We couldn't do today what Woodword and Bernstein did back in 1972 and ‘73 because we don't have that kind of time, that kind of luxury. And there has never been a presidency that's more effective at stiff-arming and dealing with the press. They don't return their calls, they don't hold press conferences, they punish them when they write a negative story, and they play it as tough and rough as anybody ever has. And this is why you're not getting any news, and this is why you have the secrecy. SAM SEDER: You know, as strong-arming as President Bush and his Administration may be, I think this problem pre-dates the Bush Administration. We did have a rallying around the impeachment of Clinton when 70 percent of the people, 65 percent of the people, were not interested in it. JOHN DEAN: That's because it was a good story. If you look in the pre-Watergate years you'll see that the press really was very deferential towards the White House and the President. You look at the immediate post-Watergate years, up until about 2000, and you'll see that there was a real waltz between them. President Jimmy Carter was accused of doing all kinds of immoral activities. His Chief of Staff was snorting cocaine or pouring drinks down the front of some lady here or there - it just went on and on, these often senseless stories, along with a Special Counsel or an Independent Counsel being appointed as a result of the stories that were cracked. And it really wasn't until the Bush campaign that everything changed. Actually they were harder on the Gore campaign than they were on the Bush campaign because the Bush people were so much tougher. REP. JOHN CONYERS: But don't you attribute that to the fact that many of the media indulge in self-censorship? They know what their editors don't want. They tear up the story, they censor themselves, before they even start thinking about it. And because of the tyrannical attitude of this administration toward the media, that intimidates them even further. JOHN DEAN: I agree. LEWIS LAPHAM: I think we also have to make it clear - if this turns into a partisan thing, Democrat/Republican, I would think it would do more harm than good. The point is to get people to understand that this is a Constitutional question. If it becomes tit-for-tat, Republican/Democrat, it will subtract from the seriousness of what this Administration is doing. I also think we should get over the idea that impeachment is a big deal. I mean, we should use it more often. ELIZABETH HOLTZMAN: Well, I don't agree. LEWIS LAPHAM: We've had 43 presidents and only three impeachments. In European government, in a parliamentary system of government, you can dissolve the government when it is as incompetent as this one or as criminal - and so I would argue that we should. I'm not saying we should do it every six months, but it certainly can be used far more frequently than it is because it's a remedy. It's like going to a hospital for a check-up. * * * 5. Getting to Impeachment SAM SEDER: Let's stipulate that, come 2006, the disposition of those in Congress is such that the select committee is initiated. What will be the issues that the committee deals with? Do you begin to investigate everything from Katrina to the Mine Safety Administration? REP. JOHN CONYERS: Well that's why a select committee becomes so critically important. First of all, it's made up of the same number of men and women of each political party and the Vice Chairman is the opposite member of the Chairman's party, so that you have fairness, and you take out the unevenness that now controls the committee make-up - which is quite disparate in some committees. So we begin an inquiry, and the first thing on our agenda would be to determine the scope of the hearings. There are plenty of things that we could investigate this Administration for, but they're not impeachable offenses. We're talking about the ones that have crossed the line, that violate his oath of office, that constitute abuses of power. And the inquiry into them would be evenly composed, we would be calling in witnesses, we'd be able to subpoena people, everybody would be under oath. I think we've got the drift of what the problem is, but now we have to get down to the hard-core issues of whether there is a high crime or misdemeanor involved in any of these offenses. Which would then either lead to a consideration of impeachment proceedings or not, depending on the results. SAM SEDER: How many Congressmen do you believe would support this issue if there was a greater outpouring from the American public? REP. JOHN CONYERS: I think we would succeed. That's the whole reason I'm doing it. I'm not doing this to fail. I mean, this goes back to a little bit of my civil rights background. I've experienced all of the things between Rosa Parks and Martin King, who I think is probably one of the greatest Americans of the 20th century - and face it, we were in an impossible situation. The civil rights leaders came to Martin King and said, please, we hear you're going to start a civil rights movement in the South, you'll get all of us killed, Martin. Don't dothat. And Martin said, not only am I going to do it, but I'm going to use non-violent, direct action. They said, what in the heck is that? And he did it, and we wouldn't have ever gotten the Voter Rights Act of 1965 if they hadn't had the cameras there to film the police attacking non-violent protesters. And so Lyndon Johnson, after he had told King that they couldn't get a Voter Rights Act, when he saw protests he called back and said, I want the toughest Voter Rights Act we could ever get. We can't predict here all of the things that are going to happen. We've got to act under our belief system that this Constitution has got to be preserved - and that this President has gone way too far. My studies reveal we've lost more rights and Constitutional prerogatives in this short period of time than under any President that this country's been under. So, now's the time, and we have to work on faith. We have to believe that there are enough American people who will agree with us that, as Holtzman said, enough is enough. We've got to believe that, and we've got to work on that between now and November. And I think we'll win because it's already becoming clear that more and more people are waking up and saying that this was a mistake. We thought that Osama and Hussein were together, we thought we were defending our country. They told us there were mushroom clouds, that America was under serious attack. What we need to do is determine ourselves what this country needs and help wake up the American people. * * * About the Participants Representative John Conyers Jr., a Detroit Democrat, was re-elected to the 14th Congressional District in November 2002 to his 19th term in the U.S. House of Representatives. Having entered the House of Representatives in 1964, Mr. Conyers is the second most senior member in the House of Representatives and was elected by his congressional colleagues to lead the Democratic side of the pivotal House Committee on the Judiciary. In addition to its oversight of the Department of Justice, including the FBI and the federal courts, the Judiciary Committee has jurisdiction over copyright, constitutional, consumer protection, and civil rights issues. Congressman Conyers was also a member of the Judiciary Committee in its 1974 hearings on the Watergate Impeachment scandal and played a prominent role in the recent impeachment process, giving him the distinction as the only Judiciary Committee member to have served on both panels.[Back] John Dean, before he became counsel to the President of the United States in July of 1970 at age 31, was Chief Minority Counsel to the Judiciary Committee of the United States House of Representatives, the Associate Director of the Law Reform Commission and Associate Deputy Attorney General of the United States. He served as Richard Nixon's White House lawyer for a thousand days. John has written many articles on law, government and politics. He has recounted his days in the Nixon White House and Watergate in two books: Blind Ambition and Lost Honor. In 2001 he published The Renquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court. His newest book is Worse Than Watergate: the Secret Presidency of George W. Bush[Back] Former Congresswoman Elizabeth Holtzman served for eight years as U.S. Congresswoman and won national attention for her role on the House Judiciary Committee during Watergate. Congresswoman Holtzman was appointed by President Clinton to the Nazi and Japanese Imperial War Criminal Records Interagency Working Group, which is overseeing the declassification of U.S. government secret Nazi war crime files. She joined Herrick-Feinstein Attorneys after 20 years in the government. She concentrates her practice on government relations at the federal, state and local levels, and in litigation.[Back] Lewis Lapham was editor of Harper's Magazine from 1976 to 1981 and 1983 to the present, and a syndicated columnist from 1981 to 1987. Mr. Lapham is the author of several books of essays, most recently Gag Rule: On the Suppression of Dissent and the Stifling of Democracy, published by the Penguin Press in 2004, and With the Beatles, published by the Melville House.[Back] Michael Ratner is president of the Center for Constitutional Rights, a non-profit organization deeply involved in defending human rights. Most recently the Center for Constitutional Rights published Articles of Impeachment against George W. Bush and filed a case against the President and the NSA for warrantless wiretapping. During the post-9/11 period the Center's litigation has included representation of the Guantanamo detainees, challenges to the Patriot Act, lawsuits on behalf of the post-9/11 immigration detainees, criminal prosecutions in Germany against Rumsfeld and others for torture at Abu Ghraib, and the first case against the practice of rendition on behalf of Canadian citizen Maher Arar.[Back] Sam Seder is the host of "The Majority Report," broadcast on Air America Radio Network. He's also the co-author with Stephen Sherrill of the forthcoming book FUBAR: Waking from America's Right-Wing Nightmare.[Back] This is Is There a Case for Impeachment?, published Wednesday, March 22, 2006. It is part of Features, which is part of Harpers.org. Related |