Evan Augustine Peterson III, J.D. – 2006-01-14 10:31:55
On the Necessity of Impreachment:
All We Are Saying Is: ‘Give the Constitution a Chance.”
Evan Augustine Peterson III, J.D.
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
— Benjamin Franklin’s motto in the “Historical Review Of Pennsylvania” (1759). 
2006 began with Mr. Bush brazenly insisting that he can unilaterally order wiretaps on American citizens without judicial oversight, even if warrantless domestic wiretaps are explicitly prohibited by federal law. Under what rationale?
Mr. Bush claims the virtually unlimited presidential power to override any laws, and even to cancel our constitutionally-guaranteed civil liberties, because the US is at war. According to his legal advisors, this imperial presidential power supposedly comes from:
(a) an expansive interpretation of the Constitution’s commander-in-chief clause; and
(b) a post-9/11 Congressional resolution authorizing the use of armed force against terrorists. 
This raises a question: may the president abuse an ostensible state of war to curtail the people’s civil liberties? And that raises a sub-question: is the nation, in actual point of law, at war right now, Congress having made no formal declaration of war?
Not surprisingly, 2006 also began with everybody talking about impeachment: politicians; journalists; scholars; and lawyers. Their illuminating articles and discussions have put six important questions before us:
• I. Is the current talk about impeachment nothing more than quixotic tilting at windmills, or is it a substantively-serious constitutional crisis?
• II. Do sufficient legal grounds exist to warrant Messrs. Bush and Cheney’s impeachment by the House, conviction by the Senate, and removal from office?
• III. If sufficient legal grounds exist, will our Democratic Congresspersons file formal articles of impeachment in 2006?
• IV. If the Democrats file articles of impeachment, will the Republican majority leaders allow the House of Representatives to consider them in 2006?
• V. If not in 2006, will Messrs. Bush and Cheney undergo the constitutional process of impeachment after this November’s mid-term elections, in early 2007?
• VI. If not in 2007, who will hold Messrs. Bush and Cheney accountable to the rule of law?
I. IMPEACHMENT: QUIXOTIC TILTING AT WINDMILLS
OR A CONSTITUTIONAL CRISIS?
A large volume of competent scholarly and journalistic articles about impeachment has been generated in the last month, which militates against the conclusion that it’s merely quixotic tilting at windmills. For example, the author has found more than 70 recent articles addressing, and 14 websites advocating, the impeachment of Messrs. Bush and Cheney (see endnotes 2 through 90, below).
Even if the current discussion about impeachment isn’t dismissible as nonsense, does it rise to the substantive level of a constitutional crisis? Many scholars and pundits think it does. For instance, former Reagan administration official Paul Craig Roberts contends that we’re immersed in a constitutional crisis:
“Compared to Spygate, Watergate was a kindergarten picnic. The Bush administration’s lies, felonies, and illegalities have revealed it to be a criminal administration with a police state mentality and police state methods. Now Bush and his attorney general have gone the final step and declared Bush to be above the law. Bush aggressively mimics Hitler’s claim that defense of the realm entitles him to ignore the rule of law.” 
Dean Lawrence Velvel of the U. Massachusetts Law School agrees: Mr. Bush is attempting to consolidate power in the executive branch through an intellectually-dishonest interpretation of the Constitution’s commander-in-chief clause. Therefore, he correctly characterizes the Bush administration’s power-grab as a constitutional crisis:
“Almost daily it becomes ever more clear that we are faced with an attempted constitutional coup d’etat, an attempted constitutional revolution. … Led by Cheney, protected on his flanks by Fawkesian legal outriders, the ‘profoundly mediocre man’ who is president seeks to become all-powerful in the name of protecting his subjects, the citizens of the United States.” 
Any reader who still doubts that Mr. Bush’s power-grabs are based on unconstitutional sophistry should consult UCSD constitutional scholar Peter Irons’ book, “War Powers: How The Imperial Presidency Hijacked The Constitution” (New York: Metropolitan Books, 2005). Professor Irons presents powerful historical and legal evidence which proves:
(a) that the Framers drafted the commander-in-chief clause solely to rein in military authority by placing it under civilian control, and NOT to allow the president to gain additional powers during an “emergency”; and
(b) that the commander-in-chief clause has been interpreted in accordance with the Framers’ intent by every Supreme Court and every president, except the imperial presidents Richard M. Nixon and George W. Bush (unlike them, the earlier imperials – Abraham Lincoln, Woodrow Wilson, and Franklin Rooselvelt — were dealing with an ongoing civil war or a full-fledged world war).
Four decisions by the US Supreme Court imposed limits on presidents who’d invoked the commander-in-chief clause during wartime to expand their “emergency” powers:
(a) Ex Parte Milligan, 71 U.S. (4 Wall. 2) (1866) [President may not invoke commander-in-chief powers during wartime to try civilians in military courts, if civil courts exist.];
(b) Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) [President may not invoke commander-in-chief powers during wartime to nationalize the steel industry.];
(c) Rasul v. Bush, 124 S. Ct. 2686 (2004) [President may not invoke commander-in-chief powers during wartime to deny US courts the right to hear writs of habeus corpus from prisoners incarcerated overseas; however, the Senate recently passed the Graham-Levin Amendment to repudiate Bush v. Rasul, thus enabling Mr. Bush to ignore writs of habeus corpus and hold prisoners indefinitely, without a hearing, in his overseas gulags.];
(d) Hamdi v. Rumsfeld, 542 U.S. 597 (2004) [President may not invoke commande r-in-chief powers during wartime to claim the unchecked authority to imprison anyone he deems to be an “enemy combatant.”].
Finally, juxtapose these excerpts from US Supreme Court opinions against Mr. Bush’s notorious quest for unlimited presidential power during the undeclared “war on terror”:
1) “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” [Justice David Davis’ majority opinion in Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) at 120-121.]
2) “We have long since made clear that a state of war is not blank check for the president when it comes to the rights of the nation’s citizens.” [Justice Sandra Day O’Connor’s majority opinion in Hamdi v. Rumsfeld, (03-6696) 542 U.S. 547 (2004).]
Of course, Messrs. Bush and Cheney vehemently disagree with the aforementioned opinions. Hence, it should be clear that the USA is immersed in a constitutional crisis.
II. DO SUFFICIENT LEGAL GROUNDS EXIST TO SUPPORT IMPEACHMENT AND CONVICTION?
The short answer is “yes, sufficient legal grounds do exist.” First, let’s define the term “impeachment.” When the Framers distributed the Constitution’s checks and balances, they granted the legislative branch the right to conduct impeachment proceedings to remove members of the executive and judicial branches for egregious misconduct:
Article II, Section 4, states who can be impeached, and on what grounds: “The president, vice, president, and all civil officers of the United states, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
Legal commentators agree that impeachable misconduct need not necessarily be “criminal,” in the sense of the criminal law. Nevertheless, they have identified intelligible categories of “high crimes and misdemeanors.” [See Chapter II, pp. 67-78, in Harvard Law Professor Raoul Berger’s outstanding book, Impeachment: The Constitutional Problems (Cambridge: Harvard U. Press, 1973).]
Article I, Section 2 assigns the impeachment power: “The House of Representatives shall … have the sole power of impeachment.” Members of the House must submit articles of impeachment, debate the merits of their charges, and then vote. A simple majority vote in favor of impeachment sends the case to the Senate for trial.
Article I, Section 3, Paragraph 6, assigns the power to try impeachment cases and describes the trial: “The Senate shall have the sole power to try all impeachments. … When the president of the United States is tried, the chief justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.” Today, the two-thirds majority vote is called a “supermajority.”
Article I, Section 3, Paragraph 7, states the consequences of a conviction by the Senate: “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, but the party convicted shall nevertheless be liable and subject to [future] indictment, trial, judgment and punishment, according to law.”
In the case of President George W. Bush, the narrow legal issue is: whether Mr. Bush acted within the law when he overrode a law passed by Congress, thus bypassing its clear-cut requirement of judicial oversight, so he could authorize the National Security Agency (“NSA”) to conduct warrantless domestic wiretapping on American citizens?
The broader constitutional issue is: whether Mr. Bush committed an impeachable offense, such as abuse of executive power, attempting to subvert the fundamental laws and substitute arbitrary power, violating the constitutional system’s separation of powers by encroaching on Congressional prerogatives, or violating its checks and balances by encroaching on the judiciary’s prerogatives?
With all due respect to the many journalists who’ve already concluded, in their eloquent essays, that Mr. Bush has committed an impeachable offense, it nonetheless would be helpful to know what the legal experts are thinking. And the overwhelmingly consensus among constitutional scholars is that Mr. Bush has, indeed, committed serious felonies. For example, three distinguished law professors — U. Chicago Law Professor Geoffrey Stone, Georgetown U. Law Professor David Cole, and U. Massachusetts Law School Dean Lawrence Velvel — agree: “Some legal questions are hard. This one is not. Mr. Bush’s authorizing of the NSA to spy on Americans is blatantly unlawful and unconstitutional.”  
But is it an impeachable offense? George Washington U. Law Professor Jonathan Turley is one of our foremost experts on national-security law, and he agrees with Stone, Cole and Velvel. Professor Turley hastens to add that:
• (1) Mr. Bush has committed an impeachable offense;
• (2) Mr. Bush is the first president ever to admit that he committed an impeachable offense; and
• (3) the opposite opinion — that Mr. Bush’s warrantless domestic wiretapping program is legal, as contended by his lawyers — simply cannot be taken seriously. Indeed, it’s so erroneous that “it’s not even close.” 
Moreover, federal judges and prosecutors reject Mr. Bush’s chief defense – that the government must act quickly, without a warrant, in its pursuit of terrorists — because it’s legally-meritless poppycock. Here’s why: the 1978 Foreign Intelligence Surveillance Act (“FISA”) is quite flexible about its requirement that a warrant must be obtained for domestic wiretaps; so much so that it allows the government to retroactively obtain a court warrant within 72 hours after commencing a domestic wiretap.
Did you get that? FISA already provides for exigent circumstances, like stopping a terrorist cell, by allowing the NSA to wiretap any suspected terrorist immediately, and then get a court warrant three days later.
Hence, Mr. Bush’s ulterior motive for the ongoing evasion of FISA’s warrant requirement must be foreknowledge that the courts would deny the NSA’s warrant requests because it isn’t collecting foreign intelligence, but rather randomly spying on American citizens without adequate justification.
That’s why US District Court Judge James Robertson — who, as a member of the Foreign Intelligence Surveillance Courts (“FISC”), was responsible for adjudicating those domestic wiretap warrants — resigned last month in livid protest against Mr. Bush’s four-year-long violation of the FISA warrant requirement.  And that’s why AG Ashcroft’s Justice Department refused to sign off on Bush’s warrantless domestic spying program. 
Additionally, former Nixon White House Counsel John Dean states that more-than-sufficient legal grounds exist for Bush’s impeachment , and eminent New York trial attorney Martin Garbus agrees . As does conservative AEI scholar Norman Ornstein, who recently argued on a radio talk-show that Mr. Bush should be impeached if he continues to defiantly contend that he can authorize warrantless domestic spying. 
Finally, former Reagan administration Deputy AG and constitutional scholar Bruce Fein recently warned us that: “President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war on terrorism with a decent respect for civil liberties and checks against executive abuses.”  Therefore, Fein urges Americans to reject Bush’s unconstitutional claim of “wartime omnipotence.” 
These are only a few examples of the overwhelming consensus among legal experts that Mr. Bush has committed a highly-consequential and impeachable offense by defiantly violating a federal statute, and its underlying Fourth Amendment guarantee against warrantless searches. Furthermore, this is only the tip of the submerged evidentiary iceberg, because we haven’t considered Mr. Bush’s other impeachable offenses.
For instance, it’s the overwhelming consensus among international law jurists and scholars that Mr. Bush committed:
(a) the supreme war crime when he ordered the commencement of his elective war of aggression against Iraq ; and
(b) additional war crimes by encouraging and condoning the torture of civilian detainees and prisoners of war by US personnel and, through “extraordinary rendition,” by foreign personnel .
Although many Americans couldn’t care less what the world’s international law experts think, the author implores them to reconsider, as the law of nations and universal human rights are, quite rightly, held in high regard almost everywhere else on the globe.
Therefore, it’s fair to conclude that sufficient legal grounds exist to support the impeachment and conviction of Mr. Bush (and the shadow president, Mr. Cheney).
III. WILL DEMOCRATIC CONGRESSPERSONS
FILE ARTICLES OF IMPEACHMENT IN 2006?
US Representative John Conyers (D-NY) has already filed an “impeachment resolution” (H.R. 635), plus two motions for censure (H.R. 636 and 637), in the House Judiciary Committee. 
His impeachment resolution (H.R. 635) will create a select committee to investigate the Bush administration’s potentially-impeachable offenses:
intent to invade Iraq prior to Congressional authorization;
manipulation of pre-war intelligence to create a casus belli under false pretenses;
encouraging and countenancing torture;
vindictive retaliation against the administration’s critics;
to which he should add Mr. Bush’s authorization of the NSA’s warrantless domestic spying program.
Finally, the select committee will recommend grounds for possible impeachment.
Hence, the Conyers impeachment resolution lays the foundation for bipartisan impeachment proceedings, but should not be confused with formal articles of impeachment. One author contends that John Conyers’ impeachment resolution and motions for censure are the WRONG constitutional remedies; instead, she recommends that the Democrats promptly file formal articles of impeachment. 
Therefore, it remains to be seen whether the Conyers impeachment resolution will embolden timid Congressional Minority Leaders Harry Reid (D-NV) and Nancy Pelosi (D-CA) enough to file formal articles of impeachment. They appear to be reluctant to muddy the waters by commencing impeachment proceedings, perhaps because they believe the voters are poised to “throw the rascals out” in the 2006 mid-term elections.
IV. WILL THE REPUBLICANS ALLOW THE HOUSE
TO CONSIDER IMPEACHMENT IN 2006?
The answer is “no, they won’t,” for two reasons. First, the House Republican Majority Leaders are Bush ideologues who’ve rubber-stamped every move he’s made toward a police state. They’ll never allow articles of impeachment to be taken up by the House, even if they know the charges rest on rock-solid legal grounds.
Second, even if a minor miracle occurred and the articles were taken up, the lemming-like House Republican majority almost never breaks ranks to vote according to their conscience. So the Reps, unlike the Dems who voted for Bill Clinton’s impeachment, cannot be persuaded on the merits to cast honest votes in favor of impeachment.
Therefore, Messrs. Bush and Cheney deserve to be impeached in 2006, but simply cannot be impeached this year for practical reasons – that is, UNLESS the national impeachment movement swiftly snowballs into a massive avalanche which buries the Republicans’ misplaced Republican loyalty to Bush and Cheney over the Constitution.
V. WILL BUSH AND CHENEY UNDERGO
THE IMPEACHMENT PROCESS IN EARLY 2007?
Everyone knows that the impeachment process begins in the House of Representatives, which is under regressive Republican control. Therefore, the progressive Democrats cannot seriously hope to impeach Messrs. Bush and Cheney UNLESS they can retake majority control of the House.
If the 2006 mid-term elections produce a Democratic House majority, its new leaders should be amenable to filing articles of impeachment, so Bush and Cheney could end up being impeached in 2007.
If Bush and Cheney are impeached by the House, they must undergo a trial by the Senate, and they must be convicted by a two-thirds “supermajority” before they can be removed from office. However, the same analysis applies: this GOP-controlled Senate will never convict them; so Bush and Cheney simply cannot be removed from office — that is, UNLESS the Democrats retake majority control after the 2006 mid-term elections.
Therefore, the prospects for impeachment depend on the will of the people: is it foreseeable that the voters will elect a Dem majority in the House and Senate?
Yes, it’s foreseeable that the blue-state voters will elect a Democratic majority. They know that “Bush has deceived the public and Congress in order to invade Iraq, illegally detained Americans, illegally tortured detainees, and illegally spied on Americans. Bush has upheld neither the Constitution nor the law of the land.
A majority of Americans disapprove of what Bush has done.”  Yet they know the Democrats will be muted spectators so long as they’re the minority party. And they know we’re approaching the point of no return, where any minimally-diligent Congress already would have impeached this out-of-control president to defend our constitutional system’s checks and balances, separation of powers, and inalienable rights.
What will the red-state voters do? On the one hand, red-staters might vote for a Democratic majority if they’ve finally realized that:
(a) their supposedly “anti-Big Government” Republicans have cynically promoted the fearful overreaction to 9/11 as a pretext for granting the executive branch enormously expanded powers, like the intrusive power to secretly spy on the average American’s e-mail and phone calls without judicial oversight;
(b) even conservative scholars think the Republicans’ domestic spying program is “blatantly unconstitutional” because it’s a direct violation of the Fourth Amendment’s guarantee against warrantless government searches ; and
(c) Bush and Cheney are diametri cal opposites of freedom-loving Benjamin Franklin, for there is no freedom that they won’t sacrifice on the altar of “national security” . On the other hand, red-state voters might not vote for Democratic majority because they’re cynical about the kind of defense the milquetoast Dem leaders can muster against the Rep’s totalitarian encroachments on their civil liberties.
Red-staters must be convinced that the Dem leaders are kindred spirits – which is to say, principled and vigorous civil libertarians who’ll not only “talk the talk” but also “walk the walk.”  
Hence, the composition of Congress after the 2006 mid-term election cannot be foreseen with anything approaching clarity until the red-staters decide whether they want to reject one-party totalitarian rulership by voting in a Democratic majority, so they can impeach Bush and Cheney in 2007.
Meanwhile, the Dem leaders can help the red-staters to decide wisely by emphasizing:
(a) that we shouldn’t be squeamish about implementing the impeachment process, because it’s neither too cumbersome nor too acrimonious, but is the Framers’ intended remedy for precisely these circumstances; and
(b) even if the Senate ultimately cannot achieve the requisite supermajority for conviction, a successful impeachment by the House will constrain this president’s unconstitutional attempts to assume dictatorial powers.
VI. IF NOT US, WHO WILL HOLD BUSH-CHENEY
ACCOUNTABLE TO THE RULE OF LAW?
It’s certainly possible that we have a frightened Congress whose members will simply abdicate in this constitutional crisis, allowing the president to assume dictatorial “emergency” powers that are likely to be surrendered only in the distant future, when his undeclared “war on terror” has passed – or perhaps never wholly given up.
However, we can’t blame Congress alone. The public has been inexcusably tolerant of the Bush administration’s law-breaking. We don’t need patience. It’s time to call for impeachment.
We should be disgusted by Bush and Cheney’s deliberate lies, through which they got us to invade Iraq, allowed Osama Bin Laden to escape, keep our troops quagmired in a bloody guerrilla war, promulgate torture in our overseas prisons, strip the federal coffers of taxpayer monies for domestic programs, feed billions in cronyist payola to Cheney’s Halliburton, illegally suspend the writ of habeus corpus for thousands of people, trash our civil liberties with the Orwellian “Patriot Act,” and defiantly authorize warrantless domestic spying on ordinary American citizens.
When an imperial president intransigently asserts the legally-meritless claim that he can violate any clause in the Constitution because he holds dictatorial powers under the commander-in-chief clause, impeachment is the proper remedy.
Just as Richard Milhous Nixon was forced to resign under the looming threat of impeachment for his Watergate felonies, so too is impeachment the most effective remedy for George Walker Bush and Richard Bruce Cheney’s highly-consequential crimes in office.
Resorts to the finality of impeachment might seem harsh to some, but impeachment becomes necessary in circumstances like these, when the Constitution must be defended from a presidential usurper.
We, the people, can either check this unrestrained imperial president now or continue our headlong tumble into fascist dictatorship. We’re rapidly approaching the point of no return, but the choice is still ours to make, so we must promptly demand that Congress impeach, convict, and remove Messrs. Bush and Cheney. 
Evan Augustine Peterson III, J.D., is the Executive Director of the American Center for International Law (“ACIL”). His essays have been published worldwide by more than 30 websites.
© 2005 EAP III