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Refocusing the Impeachment Movement on Administration Officials Below the President and Vice-President:
Why Not Have A Realistic Debate, with Charges that Could Actually Result in Convictions?


Friday, Dec. 15, 2006

There is a well-organized and growing movement to impeach President Bush and/or Vice President Cheney. On my bookshelf sit half a dozen books making the case for Bush's impeachment. I myself have no doubt that Bush has, in fact, committed impeachable offenses, and that for each Bush "high crime and misdemeanor," Cheney's culpability is ten or twenty times greater.

At the outset of the 2006 midterm election, Democratic Speaker-designate Nancy Pelosi, and Senator Majority Leader-designate Harry Reid, stated on behalf of the Democratic leadership that impeachment of Bush or Cheney would be off the table if they won control of Congress - as they have indeed done. But this position has angered many who want these men impeached.

"Impeachment is not optional. It's not something that Nancy Pelosi and Harry Reid can say is not on the table," Cindy Sheehan, who lost her soldier son in Iraq, said at a recent rally. "It is their duty as officers of the Constitution, who have sworn an oath to defend the Constitution, to carry out impeachment." Her anger is certainly understandable. Her relentless pursuit of this cause is highly commendable. But her energy and effort are misplaced, if not wasted.

Impeachment is a political process, and not only are the votes to remove either Bush or Cheney lacking, but it also would not be very good politics to do to them what was done to President Clinton.

There Is No Chance Either Bush or Cheney Will Be Removed From Office

The Republican Congress shamed itself when it impeached and tried President William Jefferson Clinton. It was a repeat of what an earlier Republican Congress had done to President Andrew Johnson, following the Civil War. Both proceedings were politics at their ugliest.

Democrats, when they undertook to impeach Richard Nixon, moved very slowly, building bipartisan support for the undertaking. Nixon, of course, resigned, when it became apparent that the House had the votes to impeach and the Senate had the votes to convict, with his removal supported by Democrats and Republicans, and conservatives and liberals alike.

Getting the necessary two-thirds supermajority in support of impeachment in today's Senate, which is virtually evenly-divided politically, is simply not possible. With forty-nine senators of the 110th Congress members in good standing with the Republican Party, and most of them rock-ribbed conservatives, even if the House produced evidence of Cheney personally water-boarding "Gitmo" detainees in the basement of his home at the Naval Observatory, with Bush looking on approvingly, there are more than thirty-three GOP Senators who still would not vote to convict. (Senate Republicans who have no problem with torture, or with removing the right to habeas corpus, and who refused to exercise any oversight whatsoever of Bush or Cheney, are hardly going to remove these men for actions in which they too are complicit.)

Pelosi and Reid have long understood this reality, and rather than do to Bush and/or Cheney what Republicans did to Clinton - impeach him in the House merely because they had the power to do so and they wanted to tarnish him, only to lose their battle decisively in the Senate - they are simply not going to play the same game. Politically, this is smart. Americans do not want another impeachment, particularly when Bush and Cheney will be out of office in January 2009.

The drive to impeach Bush and Cheney should, however, refocus its effort and energy into another undertaking - one that not only might succeed, but if it did, it would greatly benefit the nation and the well-being of all Americans. Allow me to explain:

Realistically Refocusing the Impeachment Movement

The Constitution's Impeachment Clause applies to all "civil officers of the United States" - not to mention the president, vice president and federal judges. It is not clear who, precisely, is among those considered "civil officers," but the group certainly includes a president's cabinet and sub-cabinet, as well as the senior department officials and the White House staff (those who are issued commissions by the president and serve the President and Vice President).

Quite obviously, Bush and Cheney have not acted alone in committing "high crimes and misdemeanors." Take a hypothetical (and there are many): Strong arguments have been made that many members of the Bush Administration - not merely Bush and Cheney -- have engaged in war crimes. If war crimes are not "high crimes and misdemeanors," it is difficult to imagine what might be. Jordan Paust, a well-know expert on the laws of war and a professor at University of Houston Law Center, has written a number of scholarly essays that mince few words about the war crimes of Bush's subordinates. For example, many of their names are on the "torture memos."

Why impeach lower-level officials, rather than the "big enchilada," as Nixon used to say? There are multiple reasons.

Focusing On Bush Administration Officials

Lowering the aim of an impeachment effort to focus on those who have aided and abetted, or directly engaged in, the commission of high crimes and misdemeanors, would have all the positives, and none of the negatives, of going after Bush and Cheney. It would not be an effort to overturn the 2004 election, but rather to rid the government of those who have participated, along with Bush and Cheney, in abuses and misuses of power; indeed, many among them have actually encouraged Bush and Cheney to undertake the offensive activities.

Many of these men (and a few women) are young enough that it is very likely that they will return to other posts in future Republican Administrations, and based on their experience in the Bush/Cheney Administration, they can be expected to make the offensive conduct of this presidency the baseline for the next president they serve. Impeachment, however, would prevent that from happening.

It will be recalled that Article I, Section 3 of the Constitution states: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." (Emphasis added.) After any civil officer has been impeached, under the rules of the Senate, it requires only a simple majority vote to add the disqualification from holding future office.

In addition, it is likely that the impeachment process of any official in a position below that of the president or vice president, would be treated the same as the impeachment of federal judges. The work is done in both the House and Senate by special subcommittees, so it does not consume the attention of the full bodies until the final votes.

The Belknap Precedent

Impeachment of Secretary of War William Belknap, in the aftermath of the Civil War, is the only precedent for using these proceedings against subordinate executive officers. Belknap was said to be involved in a kickback scheme involving military contracts. Just hours before the House was to vote to impeach him, Belknap resigned. Nonetheless, on March 2, 1876, the House impeached the former cabinet officer, and the five articles of impeachment were presented to the Senate.

The Senate trial lasted five months. (Today, such a trial would likely be handled by a trial committee of twelve senators, with a final debate and vote by the full Senate.) A central issue in the Belknap case was whether his resignation had terminated the jurisdiction of the Congress, and whether impeachment was still appropriate when his removal was no longer at issue. The Chairman of the House Judiciary Committee, Representative J. Proctor Knott, who was trying the case before the Senate, explained the controversy as follows:

"Was the only purpose of this disqualification simply to preserve the Government from the danger to be apprehended from the single convicted criminal?" Knott rhetorically asked. "Very far from it, sir. That in reality constituted but a very small part of the design. The great object, after all, was that his infamy might be rendered conspicuous, historic, eternal, in order to prevent the occurrence of like offenses in the future. The purpose was not simply to harass, to persecute, to wantonly degrade, or take vengeance upon a single individual; but it was that other officials through all time might profit by his punishment, might be warned by his political ostracism, by the ever-lasting stigma fixed upon his name by the most august tribunal on earth, to avoid the dangers upon which he wrecked, and withstand the temptations under which he fell; to teach them that if they should fall under like temptations they will fall, like Lucifer, never to rise again."

By two votes, Belknap escaped conviction in the Senate. Had he not resigned, however, there is little question he would have been found guilty, removed and disqualified. Belknap's proceedings are a clear precedent for impeaching and disqualifying "civil officers," but the case has not resolved the issue of merely disqualifying an official who has resigned from holding future office.

The House Judiciary Committee Should Undertake Appropriate Proceedings

Given the number of officials within the Bush Administration who may have been engaged in Constitutional high crimes or misdemeanors, and the nature of the impeachment process, there is no shortage of civil officers worthy of consideration. Where there is clear prima facie evidence of such constitutional misconduct, impeachment action should be commenced.

The way the process works is that a bill of impeachment is introduced in the House, where it is referred to the House Judiciary Committee. Acting as a grand jury, the Judiciary Committee then decides if there is sufficient evidence to warrant a full inquiry. If its members believe there is, they refer the matter to the full House for a vote, and if a majority of the House agrees, the matter is returned to the Judiciary Committee for fact-finding - compelling witnesses to testify, and compelling the production of documents. A simple majority of the Judiciary Committee can then send recommended articles of impeachment to the floor of the House, and a simple majority of the House can send them on to the Senate for trial. They are privileged, and the Senate must hold a trial.

If the movement to impeach Bush and Cheney, an outcome which simply is not going to happen, were to turn its attention to many of the other civil officers who have been involved in high crimes and misdemeanors, it might be very different. With strong prima facie evidence, the House Judiciary Committee at a minimum would have good reason to at least begin the process, and that in itself could send a powerful message.

While this is all possible in theory, it will only happen in practice if the Democrats have recovered from what CNN's Candy Crowley called their "wuss" phase, meaning, of course, their lack of backbone. The Republican Congress let Bush, Cheney & Company literally get away with murder and torture. We must all hope that the Democrats have recovered from their spinal problems, and that they will bring the invisible Congress back into play as what it is, and ought to act like: a constitutional co-equal. There would be no better way to do it than to commence impeachment proceedings against any on a potentially very long list of civil officers of the Bush Administration who should be removed from government, and disqualified from future opportunities to misuse government powers.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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