Editor's note: With their party back in power for the first time
since 1994, some senior House Democrats who will be rising to
committee chairmanships are already planning to conduct
investigations into wrongdoings of the Bush administration in
everything thing from fraud and abuse in Iraq War contracting to
illegal domestic surveillance and detainee interrogations. Incoming
House Speaker Nancy Pelosi and other party leaders, however, are
signaling that any investigations will be kept on a tight leash. They
fear that scrutiny of the administration will make Democrats appear
excessively partisan and cost the party votes in 2008. As for the
possible impeachment of President George W. Bush, Pelosi has
explicitly declared it to be "off the table."
Attorney Elizabeth Holtzman is one wise legal thinker who says that,
whether or not it would be a political liability for the Democrats,
impeaching Bush is their constitutional duty. Holtzman served four
terms in Congress, where she played a key role in House impeachment
proceedings against President Richard Nixon. Holtzman's full brief on
this subject can be found in The Impeachment of George W. Bush: A
Practical Guide for Concerned Citizens (Nation Books), which she co-
wrote with Cynthia L. Cooper.
Impeachment is an essential tool for preserving democracy. The framers
of our Constitution, determined to provide protections against grave
abuses of power by a president, created the impeachment process as a
special procedure for citizens. Through their representatives,
citizens would be able to remove a president run amok.
Our founders created a new form of government that was designed to
preserve liberty by breaking up power among three co-equal branches
of government and instituting a system of checks and balances. But
they worried deeply about presidential misconduct. Left unchallenged,
it could be "fatal to the Republic," said James Madison. The new
democracy needed the ability to remove a president, if necessary.
Impeachment is the first step of a two-step process that can result
in the removal of a president from office. The House of
Representatives first decides whether to charge the president with
impeachable offenses. If a majority of the House votes to impeach,
articles of impeachment, which contain the charges, are forwarded to
the Senate. The Chief Justice of the Supreme Court presides over a
trial in the Senate, and if two-thirds of the senators vote for
conviction, the president is removed from office.
THE FOUNDERS SET A HIGH BAR
The grounds for removal of a president
are stated in the Constitution in a phrase of only eight words:
"treason, bribery and other high crimes and misdemeanors."
Understanding the meaning of this spare language is helped by looking
at the original debates on the Constitution. In adopting the
impeachment provision, the framers identified treason and bribery as
two key reasons for the removal of a president. Treason was defined
in the Constitution as providing "aid and comfort" to enemies or
"levying war" against the United States. Bribery is a well-
established concept that hasn't changed much over time.
But the framers believed that these grounds were not sufficient. A
president should also be removed for other "great and dangerous
offenses" or the "attempts to subvert the Constitution," in the words
of George Mason, a delegate from Virginia to the Constitutional
Convention. The grounds were expanded to include "high crimes and
misdemeanors"-an archaic phrase that the framers borrowed from
British terminology dating back to the fourteenth century. It was
defined as "an injury to the state or system of government."
Alexander Hamilton explained in No. 65 of the Federalist Papers that
impeachment reached "those offences which proceed from the misconduct
of public men or, in other words, from the abuse or violation of some
public trust. They are of a nature which may . . . be denominated
POLITICAL, as they relate chiefly to injuries done immediately to
society itself." In essence, "high crimes and misdemeanors" describe
a political crime, a serious and grave abuse of power or an abuse of
High crimes and misdemeanors are not limited to actual crimes. We
debated this in the Judiciary Committee during Watergate and reached
a firm conclusion. While commission of a crime may be grounds for
impeachment, the phrase also covers conduct that is not a violation
of the criminal code.
The key is whether the conduct is a grave abuse of power or a
subversion of the Constitution. Some presidential misdeeds we
encountered in the Nixon impeachment had a basis in the criminal law;
others did not. On the flip side, not all violations of the criminal
code are political crimes that rise to the standard of high crimes
THE ABC'S OF BUSH'S JOB
Under the Constitution, the president has
three central obligations.
First, the president must "faithfully execute the Office of President
of the United States." This is part of the oath of office, which is
itself mandated by the Constitution.
Second, the president must "preserve, protect, and defend the
Constitution of the United States," also part of the oath of office.
In other words, the president is required to respect the role of the
Congress and the courts, as well as the fundamental liberties
reserved to the citizens.
And third, the president is required "to take Care that the Laws be
faithfully executed," an affirmative duty imposed directly by the
Constitution. This presidential obligation carries great weight.
Involved are two responsibilities, similar but separate: first, the
president is required to "take care," or to be highly attentive, and,
second, the president must see that the laws are "faithfully
executed," or that the laws are fully followed. Combined, these
impose a very strict burden on the president to ensure the proper
implementation of the nation's laws.
A president cannot be impeached lightly. The framers rejected the
notion of presidential impeachment for "maladministration." The term
was, at one point, inserted in the impeachment provision but then
replaced by "high crimes and misdemeanors." The framers thought
maladministration was too vague and worried that it might put the
president at the mercy of an overreaching Congress.
What is expected is that the president will uphold the Constitution
and the laws and fulfill the oath of office. Carefully applying the
law is a requirement for holding office. The president may not avoid,
subvert, or undermine the law. Nothing excuses the president from
fulfilling his constitutional obligationsnot incompetence or
ignorance or lack of interest. The failure or the inability of a
president to fulfill these obligations, for whatever reason, causes
serious harm to democracy. Impeachment is the constitutional remedy
to protect the future health of the nation.
THE PRESIDENT'S IMPEACHABLE OFFENSES
President George W. Bush has
engaged in acts that violate his obligations as president on a range
of issues. These impeachable offenses include:
- Deceiving Congress and the people in taking the country to war in
- Directing an illegal domestic wiretapping program and other
surveillance of Americans.
- Permitting and condoning the use of torture or cruel treatment of
- Showing reckless indifference to human life in the face of
Hurricane Katrina, in inadequately equipping U.S. soldiers, and in
insufficiently planning for the occupation of Iraq.
- Covering up his war deceptions with the leak of misleading
classified information, an act that became entangled with the outing
of a CIA agent, a possible crime.
1. For Deceptions in Taking the Country into War in Iraq:
War, in the
view of the framers of the Constitution, would create one of the
greatest temptations for a president to abuse power. Edmund Randolph,
a member of the Constitutional Convention, noted, "The Executive will
have great opportunities for abusing his power; particularly in time
of war when the military force, and in some respects the public money
will be in his hands."
President Bush used false premises to drive the country to war,
insisting that Iraq was developing nuclear weapons and linking Saddam
Hussein to Al Qaeda and 9/11. The consequences have been enormous,
and there is no end point to the duration or to lives lost in Iraq.
Taking our country into war based on false information is a misuse of
presidential war-making power. Deceit nullifies the right and
obligation of Congress to understand the issues at stake and to
decide whether to support the war. The right of the American people
to participate in the decision is cast aside. The actions "subvert
the Constitution," under founder George Mason's definition of
James Iredell, a Justice on the first Supreme Court and a participant
in the North Carolina ratification debates on the Constitution,
commented that "the President must certainly be punishable for giving
false information to the Senate." In responding to a complaint that
the Senate would be too cozy with the president to vote for
impeachment, Iredell disagreed, insisting that the Senate would not
react kindly if a president "concealed important intelligence which
he ought to have communicated, and by that means induced them to
enter into measures injurious to their country."
Unless a clear message is sent, there is no way to ensure that the
use of deceptions to lead the country to war will not be repeated by
this president or another.
2. For Violating the Law on Wiretapping:
President Bush admitted that
he has not complied with the Foreign Intelligence Surveillance Act of
1978 and is engaging in domestic surveillance without seeking court
orders. He said he plans to continue this conduct, even though his
actions may invade the privacy and constitutional rights of thousands
of American citizens. The president's refusal to obey the wiretapping
statute, which carries a criminal penalty, violates his duty to take
care that the laws are faithfully executed. It contravenes his oath
of office, which requires him to obey the laws, and preserve,
protect, and defend the Constitution.
Over the years, the president has publicly misrepresented the
wiretapping programs, stating that no surveillance was being
undertaken without a court order. President Nixon's repeated lying to
the public formed the basis of one of the grounds for impeachment
against him. President Bush's deceptions may form the grounds for
impeachment, as well.
A second secret domestic-surveillance program, exposed in May 2006,
is engaged in collecting and tracking the telephone calls of millions
of Americans under the guise of foreign-intelligence surveillance.
This program, begun without the approval of Congress or the courts,
poses many potential violations of the law, and as details are
uncovered, further grounds for impeachment also may be identified.
President Bush has attempted to justify his illegal surveillance as
falling within his power as commander in chief. The president's
failure to recognize that he is bound by a constitutional system in
which he is only one of three players and his abuse of his role as
commander in chief threaten our democracy to its core, and are
grounds for impeachment and removal from office.
3. For Permitting and Condoning the Mistreatment of U.S. Detainees:
Congress has enacted laws prohibiting the mistreatment or torture of
prisoners in U.S. hands. The War Crimes Act of 1996 makes it a crime
to violate the ban in the Geneva Conventions regarding torture and
cruel or degrading treatment. Ratified by the United States in 1955,
the Geneva Conventions are the law of the land, as is the Convention
against Torture. The U.S. government has long adhered to the laws and
treaties that prevent mistreatment of prisoners.
President Bush unilaterally changed U.S. practice and policy by a
2002 memo rejecting the application of the Geneva Conventions and
enabling U.S. personnel to conduct brutal interrogations without fear
of prosecution. In so doing, the president voided a U.S. law and
permitted others to break it. The president may not violate treaties
or interpret them in ways designed to nullify their essential purpose.
In addition, when evidence emerged of abusive treatment of persons in
U.S. military detention facilities, the president had a duty to
institute a thorough investigation of everyone in the chain of
command, from top to bottom. He has not done so. This responsibility
is spelled out in the Geneva Conventions. The president is also
required to take care that the laws are faithfully executed,
including the War Crimes Act and the Anti-Torture Act. President Bush
failed to ensure a full investigation and to see that the responsible
parties, including higher-ups, were held accountable. These failures
are impeachable offenses.
When Congress reaffirmed its opposition to torture and cruel or
degrading treatment of detainees in a statute passed in 2005, the
president added a statement when he signed the bill, signaling that
he intended to violate it. Impeachment is the only way to prevent a
president from continuing to disregard his obligations to enforce the
law, not to break it.
4. For Reckless Indifference to Human Life during Hurricane Katrina:
President Bush showed a reckless indifference to human life in
failing to marshal emergency resources in response to Katrina. This
type of gross negligence is also apparent in his decision to invade
Iraq without providing protective equipment to soldiers and without
having an adequate post-invasion plan.
If the president's actions were simple negligence, they might not
amount to impeachable offenses. During the debates at the
Constitutional Convention, one of the grounds initially raised for
impeachment was "neglect of duty." At the convention, the Committee
on Detail changed that language to "treason and bribery," which was
in turn expanded by adding the term "high crimes and misdemeanors."
The framers were undoubtedly familiar with the history of that
British term. At least two noteworthy impeachments for neglect had
occurred in Britain: one involved the neglect of the commissioner of
the Navy to prepare adequately against an invasion; the other related
to neglect by an admiral who had failed to safeguard the seas. In a
classic nineteenth-century text on constitutional interpretation,
Thomas M. Cooley of the Michigan Supreme Court states that
impeachment can result from "inexcusable neglects of duty, which are
dangerous and criminal because of the immense interests involved and
the greatness of the trust which has not been kept."
Bush's actions during Katrina and in regard to Iraq are "inexcusable
neglects." When Hurricane Katrina threatened New Orleans, President
Bush was personally informed of an impending catastrophe, but did not
take the necessary actions to protect human lives. Under law, he
alone was empowered to mobilize additional federal resources. He did
not take care that the laws were faithfully executed.
In addition, the president's failure to provide sufficient body armor
and protective equipment for our troops in Iraq or to develop a
proper plan for the occupation of Iraq after the invasion are
violations of his obligation to "take care." U.S. soldiers and the
American people trusted the president to exercise special care in
making thorough preparations.
The president neglected his duty over matters of vast consequence and
in situations where the trust placed in him was great. This
conjunction of his failure to take care and his reckless indifference
to human life provides the basis for impeachment.
5. For Leaking Classified Information:
After the U.S. invaded Iraq,
Bush authorized a top White House aide to leak passages of a
classified document to key reporters. The leak came in response to
criticism that the president had deceived the country about Iraq's
nuclear weapons capability in his State of the Union address. The
criticism was accurate, but the leak had the effect of distorting the
The leak was intertwined with the "outing" of a covert CIA agent
married to the Bush critic. Declassifying information to mislead the
public and cover up presidential deceptions about war making is an
abuse of power. If the facts, as yet unknown, show that President
Bush had any role in releasing the identity of the CIA agent, a
potential violation of federal law, that would be an impeachable
President Bush has committed a great many grave and dangerous
offenses, and subverted the Constitution. The evidence is clear and
strong. Congress cannot shirk its responsibility to protect the
nation from tyranny. This is what the founders of this country
intended when they added presidential impeachment to the Constitution.
Copyright 2006 The Washington Spectator