Harpers, Scott Horton — As the final eleven months of the Bush Administration are being counted off in Washington, the accepted wisdom is that impeachment must be taken off the table. The end is now so close by — what’s the point? Moreover, the American people would, we are told, view it as an act of over zealous partisanship, and would strike back at the polls. But these responses reflect a misunderstanding of the role that impeachment has historically played in the American democracy, and the English roots of impeachment as a constitutional device. They see in impeachment a measure which is purely ad hominem in nature, and avoid the much more important institutional aspect.

I predict that before Bush leaves office, the case for his impeachment will and should be given a more careful hearing. It must not be pursued as a partisan remedy to force a transfer of power. Rather it should be used as an institutional remedy. Polling now shows that a large majority of Americans believe that President Bush and Vice President Cheney have committed serious transgressions against the Constitution which would merit consideration of the impeachment process. Impeaching President Bush and Vice President Cheney for their attempts to hijack the Constitution would make a clear statement about abuse of power. It would also serve to put reasonable constraints on the conduct of their successors”“who are likely to be Democrats. This is a step which genuine Conservatives and Republicans who adhere to their party’s former understanding of a government with an executive of carefully limited and checked powers should welcome and embrace.

But more importantly, the political stage in Washington will soon encounter facts that command the consideration of impeachment. Let me posit a scenario which I believe likely to appear before the end of this summer. The Justice Department’s Inspector General and Office of Professional Responsibility have concluded their joint investigation into the “Gonzales Eight,” namely the eight U.S. attorneys who were fired by Alberto Gonzales on December 7, 2006. The legal standard governing these terminations can probably be summarized this way: the U.S. attorneys could be fired for no reason, or for any reason, but not for an improper reason. But the inquiry has concluded, as I think it invariably must, that in several cases the firing occurred for an improper reason, to-wit: in order to corruptly influence a criminal investigation. In one case, relating to New Mexico U.S. attorney David Iglesias, the facts establishing an improper purpose lie right at the surface, and they implicate Alberto Gonzales, Karl Rove and George Bush. The Justice Department’s internal investigation will not address the White House’s involvement in the illegality””surely not President Bush’s and probably not even Karl Rove’s. But it will make a series of adverse conclusions concerning Alberto Gonzales and it will note that Karl Rove and George W. Bush were intimately involved in the whole process. This is because the jurisdictional remit of the investigation is limited”“it can only deal with employees and former employees of the Justice Department, so Rove and the president are off bounds. But among the charges it is likely to lay at Gonzales’s doorstep is that he failed to apprise the White House of the fact that their meddling with the U.S. attorneys for purposes of influencing criminal investigations connected to elections was a crime”“which it surely was. Gonzales recently engaged savvy criminal law counsel. He needs them. But the facts will point to more systematic and potentially deeper culpability within the White House than the Justice Department itself.

If things unfold this way, it will be incumbent on the Congressional oversight organs, and particularly the House Judiciary Committee, to pick up where the Justice Department’s investigation left off: it will need to scrutinize the role that President Bush, Vice President Cheney, Karl Rove and potentially others played in the whole affair, and generally in the corrupt influencing of criminal proceedings. It’s well settled at this point that if a criminal prosecution is manipulated for purposes of creating some partisan political benefit, that is a “corrupt influencing” under federal criminal law””a felony, and in the language of the Constitution, a “high crime and misdemeanor.” It’s very rarely charged because, of course, prosecutors make the decisions to bring charges, and prosecutors very rarely charge themselves. The key question of supervision of misbehaving prosecutors is rising to the top in Washington right now in a way it never has before in America’s history.

But let’s keep the focus for the moment on impeachment. It may not necessarily start its inquiry under the rubric of “impeachment,” but it may well be viewed as a preliminary to an impeachment. And if the past is a guide, American impeachment proceedings have often started as a general inquiry and developed into impeachment””particularly as facts are disclosed which generate public demand for stronger action.

In 1974, Prof. Raoul Berger, the conservative Harvard legal historian and Supreme Court scholar, addressed the impeachment issue in a brief essay in Harper’s. […]

Berger, in any event, studied and wrote about the notion of impeachment in English jurisprudence from the seventeenth century, and how it was incorporated into the American constitution. He felt Americans were far too reticent about using it. Impeachment, in his view, was an essential Constitutional safeguard”“it is an instrument for regeneration.

Impeachment, to most Americans today, seems to represent a dread mystery, an almost parricidal act, to be contemplated, if at all, with awe and alarm. It was not always so. Impeachment, said the House of Commons in 1679, was “the chief institution for the preservation of the government”; and chief among the impeachable offenses was “subversion of the Constitution.” In 1641, the House of Commons charged that the Earl of Strafford had subverted the fundamental law and introduced an arbitrary and tyrannical government. By his trial, which merged into a bill of attainder and resulted in his execution, and by a series of other seventeenth- century impeachments, Parliament made the ministers accountable to it rather than to the King and stemmed a tide of absolutism that swept the rest of Europe. Thereafter, impeachment fell into relative disuse during the eighteenth century because a ministry could now be toppled by the House of Commons on a vote of no confidence.



Anthony Van Dyck, Portrait of Thomas Wentworth, Earl of Strafford (1625). Strafford’s impeachment in 1641 set the terms for the concept incorporated into the American Constitution 158 years later.

Historians regularly reach back to the Strafford case for another purpose: it marks one of the early chapters of what we would know today as “parliamentary oversight.” The Commons used a probe of Strafford as a vehicle for challenging abuses in government by the monarch. The Stuart kings, including Charles I for whom Strafford was a favorite, claimed to be monarchs by divine right. For them the maxim was not that the “king is above the law,” but rather “the king is the law” (“rex est lex”). Strafford effectively served as a parliamentary whipping boy. His impeachment was a means for holding the monarch to account. And as Berger notes, the inclusion of the notion of impeachment in the U.S. Constitution was very plainly driven by the painful memory of parliament’s struggles with the monarchy in the seventeenth century.

The reason lies in the fact that the Founders vividly remembered the seventeenth-century experience of the mother country. They remembered the absolutist pretensions of the Stuarts; they were haunted by the greedy expansiveness of power; they dreaded usurpation and tyranny. And so they adopted impeachment as a means of displacing a usurper”“a President who exceeded the bounds of the executive’s authority. The colonists, after all, regarded the executive, in the words of Thomas Corwin, as “the natural enemy, the legislative assembly the natural friend of liberty.” Throughout the colonial period, they had elected their own assemblies and trusted them as their own representatives. The governors, on the other hand, were often upper-class Englishmen with little understanding of American aspirations, who had been foisted on the colonists by the Crown. Hence, Congress was given the power to remove the President. This power, it must be emphasized, constitutes a deliberate breach in the doctrine of separation of powers, so that no arguments drawn from that doctrine (such as executive privilege) may apply to the preliminary inquiry by the House or the subsequent trial by the Senate.

This last point is of vital importance for the present affair. The Bush White House has put up enormous battlements in anticipation of what is coming. They are asserting executive privilege in response to a series of outstanding Congressional subpoenas requiring Karl Rove, Harriet Miers and others to appear and testify and to produce documents. They also have been playing a historically unprecedented game of deceit with respect to documents, asserting executive privilege in the most preposterous way (for instance, claiming that emails on the servers of the Republican National Committee are shielded by executive privilege, as if the RNC were part of the White House, a claim which itself would support an impeachment count since it supposes an anti-constitutional restructuring of the government). But they also suggest that the documents have been destroyed, then withdraw that statement, and then raise it again, in a bewildering volley of conflicting assertions. All of this is done to one purpose, namely, to leave no doubt that the Bush Administration would view any probe of its dealings surrounding the U.S. attorneys and related scandals (most of which go to corrupt manipulation of the Justice Department) as an existential threat, to be challenged to the end. Justice Department officials, many of whom are implicated in the matter under investigation, produce their own highly implausible arguments in support of executive privilege. But the point to keep in mind is that the Congress holds all the aces in this struggle. If it proceeds on the basis of an inquiry into impeachment, then no claim of executive privilege can stand because this is, as Berger notes, outside of the separation of powers framework. More precisely it is the “ultimate check” given to the legislature.

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