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Published on Thursday, August 23, 2007 by Slate

The Heart of Queens

Can Nancy Pelosi single-handedly take impeachment off the table?

by Bruce Fein

House Speaker Nancy Pelosi is proving to be the surprise O. Henry ending to last November's elections. The American voters gave Democrats clear control of Congress, rebuked President George W. Bush, and voiced an unequivocal public craving to trade in customary narrow-minded politics for something more inspiring. Yet motivated by partisan concerns over the 2008 elections, the new speaker is following President Bush around like a sheep while he solidifies an imperial presidency and diminishes the Congress into irrelevancy. Just look at the latest ACLU advertisement targeting Pelosi and Senate Majority Leader Harry Reid. The only thing Pelosi has retained for the Congress is small-minded earmarks to attract political contributions.

If Pelosi persists in her imperious, mean-spirited, and myopic thinking in disregard of her oath to support and defend the Constitution, members of the House should replace her with Majority Leader Steny Hoyer, D-Md.

According to public opinion polling, the percentage of voters supporting the impeachments of both President Bush and Vice President Dick Cheney are now approximately 45 and 54 percent, respectively. Most Americans instinctively feel the president is an untrustworthy steward of the Constitution's checks and balances because, among other things, he flouts laws, prohibits White House aides from testifying before Congress, consistently defends an attorney general who is an inveterate liar, and detains citizens and noncitizens indefinitely as enemy combatants on his say-so alone. The prevailing barometer of acute public dissatisfaction with the White House surpasses the corresponding disaffection with President Richard M. Nixon when the Senate Watergate hearings began in May 1973. And Mr. Nixon had recently trounced Sen. George McGovern in the 1972 elections, winning 49 states.

The prospect of an impeachment inquiry by the House judiciary committee would concentrate the minds of the president and vice president wonderfully on obeying rather than sabotaging the Constitution. But Speaker Pelosi has at least figuratively joined hands with the White House in opposition. Emulating the Queen of Hearts in Alice in Wonderland, she has threatened the removal of Michigan Rep. John Conyers from his chairmanship of the House judiciary committee if an impeachment inquiry were even opened, according to reliable congressional chatter.

With more than four decades of service in the House, Chairman Conyers is a veteran of constitutional battles between the branches. The speaker, in contrast, is a novice on such matters. Unlike Conyers, she never experienced the Nixon impeachment travails that sobered and toughened the chairman against executive abuses and secrecy. If she had, she never would have emboldened President Bush and Vice President Cheney to intensify their assaults on congressional power by pronouncing that "impeachment is off the table."

Not surprisingly, after receiving that reassurance that there would be no consequences for their misconduct, the White House swiftly choked off the authority of Congress to expose executive lawlessness or maladministration by instructing current or former White House officials, including Karl Rove, Harriet Miers, and Joshua Bolton, to refuse to appear for testimony. And despite the recent enactment of the Protect America Act of 2007-which amended the Foreign Intelligence Surveillance Act of 1978 for the ninth time since 9/11 to suit the administration's fancy-President Bush continues to claim constitutional authority to ignore the law at will and in secret.

It would be one thing if the speaker had been able to articulate statesmanlike reasons to balk at impeaching the president or vice president for their multiple constitutional sins. Impeachment is, to be sure, fraught with prudential considerations. A president who confesses constitutional error or wrongdoing and pledges to turn a new leaf may be forgiven. The confession would derail a legal precedent that would lie around like a loaded weapon for successors in the White House to justify constitutional misbehavior.

Speaker Pelosi's argument against impeachment is not high-minded, however. It is the fortunes of the Democratic Party, not the fate of the Constitution and the strength of democracy, that animate her decision. She opines that Democrats would risk losing control of Congress and the occupancy of the White House in 2008 if impeachment efforts moved forward. Many Democrats dispute that opinion. They maintain that citizens voted for authentic change last November and will revolt if Democrats ape President Bush and maneuver for partisan advantage while the Constitution burns. If an impeachment inquiry is blocked by Pelosi, and the White House is left undisturbed in its constitutional usurpations and celebration of perpetual war, voters may turn against Democrats for their political spinelessness.

But even if the speaker's political and strategic impeachment worries were valid, the Constitution is beyond party. It has remained generally unscathed for more than two centuries only because our leaders have subordinated their parochial concerns when looking into a constitutional abyss. The speaker should not be permitted to frustrate the will of 434 co-equal members who collectively represent the entire nation and who are inspired by loftier motives when the Constitution and the relevance of Congress lie in the balance. Just as President Bush should not be a king, Speaker Pelosi should not be our queen. If she possessed a crumb of decency or respect for democracy, she would permit a "free" vote in the House to decide on an impeachment inquiry without any obligation to support her lead. It is certainly customary in parliamentary systems like Great Britain or Canada for party leaders to permit free votes on matters of conscience, like the death penalty or abortion. Deciding on whether to enforce the Constitution through impeachment is just as much a matter of moral scruple.

Speaker Pelosi is no constitutional expert. Neither is she an impeachment expert. She is no expert in discerning how President Bush and Vice President Cheney are slashing away at the sinews of Congress. Why should her voice be the final word on impeachment when it runs against the grain of the American people and the House of Representatives? Checks and balances and protections against government abuses are too important to be left to an imperious amateur with a Bush-like mental worldview. If House Democrats have any constitutional honor and dedication to the nation, they will force Speaker Pelosi out if she neglects to turn a new leaf with alacrity.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda. He is author of the forthcoming book Constitutional Peril: The Life and Death Struggle Over the Constitution and Democracy.

© 2007 Washingtonpost.Newsweek Interactive Co. LLC

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