There's a lot of discussion lately about the growing sentiment in the U.S. today that suggests that--contra Nancy Pelosi--impeachment is not only on the table, it is something that should be seriously considered. Steve Benen had a good post at TPM recently, addressing some important points to bear in mind:
- According to a Rasmussen poll, 39% of Americans believe that Bush should be impeached and removed from office. 49% disagree, while 12% are not sure. That's a shift from 2005, when the numbers were 32%/52%/14%. (Those under 30 are apparently less patient than their parents: 54% favor impeachment while 38% are opposed.) Nor is this poll an outlier: an InsiderAdvantage/Majority Opinion poll in May found numbers similar numbers, while an American Research Group poll from July 5 found that 45% of all adults favor impeachment while 46% oppose it.
- As Benen says, if 40% of the public support impeachment, it can't really be considered a fringe idea any more. (A historical note: in August-September 1998, before President Clinton's impeachment hearings began, an average of 10 polls found 26% in support of impeachment and removal; 36% supported hearings.)
So should the House impeach President Bush? Or Dick Cheney? Or both?
That isn't a question about whether there are adequate grounds for impeachment; my sense is that the Judiciary committeee has ample reason to begin hearings. Authorizing domestic spying on American citizens using the NSA violates the Foreign Intelligence Surveillance Act and is a Federal crime. Bush has never denied it--he simply asserts that the law doesn't apply. Condoning torture, and lying to gin up support for a war of choice, are arguably reasons for impeachment as well--though I think in both cases it's going to be hard to make the factual case that Bush was directly responsible, and in the case of the Iraq War, my personal feeling is that it's too close to being a political and policy issue to warrant impeachment. On the other hand there's that whole U.S. Attorney scandal thing, too, I suppose <shrug>. Oh, and the possibility that Bush's commutation of Scooter Libby's sentence might be obstruction of justice because it impedes an investigation into the Vice President's Office, and conceivably the President himself. Oh, and...well, you get the idea.
The most persuasive case for articles of impeachment, however, is not the specific crimes that have been committed. Rather, it's Bush's philosophy (well, Cheney's) of the unitary executive and the disregard for the constitutional separation of powers. That's most evident in the absurd privilege claims (for people who are no longer even employees of the government) to prevent them from testifying to Congress. Harriet Miers, former White House Counsel, didn't even bother to show up to the hearing--clearly demonstrating that the question of privilege really wasn't the issue (claims of executive privilege have to be evaluated against specific questions--there is no blanket privilege--so she had no possible legal right to refuse to even be called to testify). And this, of course, is the real danger that Bush poses and the reason that impeachment should be considered: the transparent and casual disregard for any accountability is a fundamental threat to a constitutional system of government.
To my mind, this is a compelling argument. Bruce Fein and John Nichols argued persuasively on Bill Moyer's Journal last night that Bush (well, Bush and Cheney both, I think) must be impeached because to do otherwise would be to admit tacitly that the expansive powers claimed by the administration were acceptable. Their argument is that unless Congress takes a firm stand to expose and discredit these moves, then the executive's illegitimate authority becomes institutionalized; lip service alone is not enough to prevent such abuses in the future. I agree completely with the sentiment. Congress should realize that its action or inaction in this situation carries at least some weight as precedent. How much weight depends on a number of factors, many of which are not under its control, but there is no question that in idly watching its continued emasculation Congress has done real damage to the system of checks and balances--so much so that the Bush administration has been emboldened to openly defy Congressional authority as part of an ongoing effort to shield itself and its activities from any legal oversight, and with only sixteen months seventeen months left in Bush's term, it may be too late to really do much about it. Impeachment and removal from office is not excessive for this situation--it is precisely the kind of thing the founders had in mind.
The problem is that a decision to impeach a President is a political decision, and the judgement by a vote of the House is a political vote, not a legal one. The precedent established by an impeachment is inextricably linked to the way the judgement is perceived. There is no principle of stare decisis in the case of impeachments. Clinton is actually a good example of that, I think: his impeachment didn't set a precedent that Presidents who lie should be impeached; if anything, the fact that he wasn't convicted suggests that while we may find a President's lying repugnant, we must be careful to use such a significant punishment only for the most serious offenses. And that is emphatically a political judgement, a result in part of the disgust the public felt with the overreaching of the Republican Congress. The Senate in 2007 or 2008 will also not vote to convict George Bush. And since it's the political spin that will determine how the historical judgement is interpreted, the fact that Bush was impeached on matters for which the public unquestionably condemns him won't be what sets the 'precedent': it will be that not enough senators (perhaps not even a majority, given the odious Joe Lieberman) voted to convict him.
If this were 1974, I think this would be less of an issue. The press was not so supine; the media in general was less corporatist; politicians (even Nixon) were not so shameless; the opposition was not so spineless. But I can't imagine that impeachment would be viewed as a check on the anti-democratic and anti-constitutional principles of this administration; rather, I think that the failure to convict would be viewed as a vindication, encourating future administrations to use the powers dreamed up by the Cheney administration.
We're playing for keeps on this one. As much as the clowns in this administration deserve to be impeached and thrown out of office, preserving the Constitution is the most important thing at stake here: and I'm afraid that impeachment may not be the best way to do it.
[Editor's note: I previously misstated the results of the American Research Group poll as 45% opposed to impeachment when in fact it's 46%. Not a big difference, granted, but those of us in the reality-based community like to get these things right.]
UPDATE: Here's a little more explanation on why Harriet Miers can't just refuse to show up in response to a Congressional subpoena. To quote John Conyers's letter to George Manning, Miers's attorney:
We are aware of absolutely no court decision that supports the notion that a former White House official has the option of refusing to even appear in response to a Congressional subpoena. ... We are prepared at the hearing tomorrow to consider and rule on any specific assertions of privilege in response to specific questions.
The implication is that claims of executive privilege can be made and negotiated in response to specific questions, but A) there is no legal right to claim executive privilege as an automatic, blanket response to any question asked by the committee; and B) there is absolutely no right for anyone to simply not show up to the hearing.
UPDATE 2: Reader JVW at Talking Points Memo suggests that communications between the President and the White House Counsel may not even be protected by executive privilege. That was all litigated during the Clinton administration (see In Re: Bruce Lindsey before the Court of Appeals for the D.C. circuit); the result seems to have been that privilege does not apply automatically and must be granted by the courts.
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