Sunday, March 16, 2014

The Importance of Impeachment: How the Tea Party is Abusing Constitutional Procedure

by Nomad

Since the first presidential impeachment in 1868,  the procedure has proved to be a terribly imperfect tool. However, even when not applied, its existence is essential for the Republic. 

David Stewart's book, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy is a fascinating study of a constitutional crisis. The book is set against the period immediately after the war of rebellion when the nation was attempting somehow to put the country back together. Just to show you how easily things can go terribly wrong, Lincoln's best intentions turned out to be a colossal misjudgment.

Not many historians have pointed out that Lincoln was, in fact, neither Republican nor Democrat in this second term. He was the candidate for the National Unity Party and he chose as his vice-president, Andrew Johnson, was a Southern Democrat. (Imagine that? A single ticket made of both parties?) 

Had Lincoln not been murdered, the constitutional crisis of presidential impeachment would have been avoided. However, the new president's suspected loyalty to the defeated South, his position that states had the right to their sovereignty- even after what most saw as outright sedition- were too much for some in Congress to bear. When faced with an unyielding Republican minority (every bit as querulous and uncompromising as today's Tea Party) determined to unseat the president by hook or crook, the 17th President's arrogance and stubbornness made impeachment unavoidable. 

It's a good read. And the story of how and why the Radical Republicans attempted to use the process of impeachment to remove President Johnson gives a lot of insight into the ways elected representative under partisan stress can lose track of their primary mission.

The Meaning of Impeachment

The impeachment process, in theory, allows a means of holding presidents (and judges) accountable to the people.  The Founding Fathers had no intention of creating an imperial kind of presidency. They had seen how that worked in the British Empire. Presidents would be held to account. This concern was the motive for the impeachment procedure. That was the theory anyway.

In some ways, oversight of the Executive branch  seems one of the vaguest parts of the Constitution. (As far as the Supreme Court, oversight doesn't really exist at all except for the confirmation process.)

The Constitutional clause for the impeachment is found  in Section 4 of Article Two of the United States Constitution,
"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."
But "high crimes and misdemeanors" has always been subject to wide interpretation. One source explains it this way:
Bribery and treason are among the least ambiguous reasons meriting impeachment, but the ocean of wrongdoing encompassed by the Constitution's stipulation of “high crimes and misdemeanors” is vast. Abuse of power and serious misconduct in office fit this category, but one act that is definitely not grounds for impeachment is partisan discord.
But that's part of the problem. With only two parties, partisanship is inevitable. And, conversely, if the president's party holds the House of Representatives- where the impeachment process must begin- then no matter what crimes the president commits, there is little hope for a impeachment. The Republican party, for example, held both the House and the Senate until the last year of both of Bush's terms. 

The increasingly confrontational relationship between Congress and the president has opened the door for a lot of partisanship. As we have seen, what was just shrugged over or frowned upon (or even ignored) during the Reagan or George Bush administrations sends shudders through the Republican spines and howls through the halls of Congress during Obama's presidency.

Even the least ambiguous justifications are a still little doubtful in practice.
Another source attempts to fill in some of the blanks:
The charge of high crimes and misdemeanors covers allegations of misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order.
That certainly covers a lot of ground. Does wearing flip-flops in the Oval Office constitute conduct unbecoming?  Exactly how particular should we be? Could any president nowadays actually be charged on the subjective basis of intimidation, or failure to supervise?

Such questions arose when Republicans launched the first impeachment of a president back in 1868. At the time of the impeachment of  President Johnson, it was completely uncharted waters. Before this, only a few federal judges had- with very mixed results- been impeached.

It was a process in need of testing and the impeachment of Johnson did just that. It served to establish once and for all time that the president was not above the law. Some presidents said that when the president does it, it isn't illegal at all. 

Nixon Ducks Impeachment

For his attempts to cover up the Watergate break-in, and for lying to Congress, President Nixon faced the real prospect of impeachment. It was revealing that Nixon chose not to attempt to vindicate himself by allowing the process to proceed.  By choosing to resign rather than be impeached, in the eyes of the public he had confessed to his guilt.  

There was a question of justice.  In that regard, Nixon had outsmarted his prosecutors. Not only had he escaped justice, Nixon walked away to an early retirement.  As a final insult to the American people, the Department of Justice decided that:
a President who resigns before his official term of office expires is entitled to the same lifetime pension and benefits that are authorized other former Presidents. However, a President who is removed from office by impeachment forfeits his pension and related benefits
His well-chosen successor, Gerald Ford- the only president that was never actually elected- pardoned him. That pardon at the time was contested on purely semantic grounds. How, it was asked, can you pardon anybody who has not been found guilty of anything?

Later an even better case for impeachment might well have been made in the Reagan administration, specifically with regards to lying to Congress (and on several occasions.) 

Prior to that, there had already been an excellent case for impeachment. The 1982 presidential order to send and maintain peace-keeping troops in Lebanon was questionable. But later it became a violation the War Powers Act.

The act forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war. American troops entered hostile territory in September 1982 and the bombing occurred October 23, 1983. The decision to place troops in imminent danger without the approval of Congress led to the deaths of 220 Marines, 18 sailors, and three soldiers when a suicide bomber destroyed the barracks.  

This could easily have led to an impeachment had Congress decided to act. 

Clinton and Bush

As we all know, President Clinton faced head-on the full impeachment inquiry, based entirely on charges that he lied to Congress about his involvement in a sex scandal.  It was admittedly a sordid mess that did no credit to the office but was it actually a high crime? The Senate did not think it warranted the president's removal and threw the matter out without much discussion.

The system had worked. But at what cost to the man and the office? And as far as the impeachment, there were still unresolved questions. For example, it failed to clarify the precise definition of impeachable offenses or to establish a reasonable length for the process.

Over the years, the term "impeachment" has come to mean both indictment and conviction. But, as the Clinton history showed, there can both successful and unsuccessful impeachments. As in any court procedure, there are two stages, the indictment and investigation, and the verdict.
Anybody can make an accusation. However, that's not proof of guilt.

When the Senate threw out the impeachment of Clinton as baseless, it should have meant vindication.  And yet, the long drawn-out well-publicized investigation was enough to permanently taint the Clinton presidency. Today, conservatives talk about the impeachment of Clinton but they speak less about the failure of their case. 

Clinton did lie to Congress but it was, the Senate decided, not a serious enough crime to warrant being removed from office. Clinton was not the first president to lie to Congress by any means.  

Was this much personal scrutiny into the president's personal life actually what the Founding Father's had in mind when they created the impeachment process? The American public did not think so. According to a Gallup poll in December 1998, Clinton had a staggering  73%  job approval rating from the American public while  54% of Americans agreed that the Republicans in Congress have abused their Constitutional authority.

A few years later, in the Bush administration, impeachment charges were discussed on much more serious charges. There was, in fact, a list of charges and all of them could legitimately be called "high crimes."

A resolution, H.Res. 1258, was introduced on June 11, 2008 and included a full 35 articles, involving a wide variety of alleged crimes. Among the charges listed in the resolution were the false justification for the invasion of Iraq, for spying and or wiretapping inside the United States, use of signing statements, failing to Comply with Congressional Subpoenas.
Despite the seriousness of the charges, the impeachment of George Bush went nowhere at all. A comparison between the two cases, Clinton and Bush, shows pretty clearly what is wrong with the impeachment process.

The Imaginary Impeachments of President Obama

The subject of impeachment has come up repeatedly come up starting as soon as Obama took office. Questions about his birth certificate kicked things off but soon enough the impeachment drum was banged for a series of allegations.

Some of the charges were even stranger than that. For example, in 2010, Republican Rep. Darrell Issa (Calif.) argued that offering Representative Joe Sestak (D-Penn.) a job to in the White House is an impeachable offense. Unfortunately for Rep. Issa, not only did the allegations never gain any traction with the media, but a few months later Issa was forced to take back his statement.

Never one to miss an opportunity, during the campaign, candidate Herman Cain claimed that the president's health care mandate was an impeachable offense. And he added the president order not to enforce the Defense of Marriage Act was also an offense. In both cases, the Supreme Court gave big thumbs down to Cain's assertions.

In 2013, Republican Senator Tom Coburn (Okla.)  made some nondescript allegations against the president not doing his job. When pressed to explain what he meant exactly he said that he didn't know if that rose to the level of 'high crimes and misdemeanors,' "but I think you're getting perilously close." 

Over the past years, Republicans have threatened- with what appears to be seriousness- to impeach the president on, for example, his handling of Libya.  It was claimed with absolutely no validity that Obama violated the War Powers Act. Later it was Benghazi and after a lengthy, well-publicized investigation, no wrongdoing could be found. 

The Job of Congress

Under the Constitution, Congress acts as a watchdog over abuse of power by the executive branch. Providing oversight is one of its many duties;  a vital but certainly not its primary duty. The Congress is paid to do other more important things.

Congress has five main responsibilities. The primary one is to create laws. Another is representing the will of the people and educating the public. Last year, the 113th Congress set a disgraceful record. Of all the previous sessions of Congress, this one has been the least productive in history, with the House and Senate passing only 57 bills that were signed into law by President Barack Obama.

What kind of laws did Congress pass? While gun control laws withered away despite horrendous school shootings, they did succeed in passing a law about National Baseball Hall of Fame commemorative coins. While the politically-troubling subject of immigration was dodged, Congress did manage to work out a plan to give more parking space to South Dakota's Minutemen Missile National Historic Site. There is, unfortunately for the American people, no procedure for impeaching the entire Congress.

Today the calls for the impeachment of Obama arise every practically every week. It has become a constant refrain from Tea Party radicals, like Ted Cruz, Darrell Issa and others. Despite this, nobody in Congress has actually dared to draw up a list of articles of impeachment. And nobody in the House- where the process is supposed to begin- has proposed articles to the Judiciary Committee.
Why not?
Perhaps because there is absolutely no substance to any of the charges. It is easier to make the claims than to find the evidence to support the allegations.  

The Dangerous Abuse

There are major problems with shouting "impeach him" at every turn. The important reason is the most obvious. It is a distraction.

But there is an even more important reason why monthly calls for impeachment are a threat to the nation. The impeachment process, when applied seriously, is vital to a republic. We only need to look around at the turmoil and blood-stained civil wars to see the reason.

The common denominator in countries like Egypt, Syria and now, Ukraine is there was no reasonable means- approved by all sides- to remove a leader who has abused his power. In one way or another, in each of the cases, the process was deeply flawed or non-existent.

The drafters of the Constitution were wise to consider this problem but they also expected a minimum of intelligence and goodwill between all parties.

While the Constitution was being drawn up, wise Ben Franklin advocated for the impeachment clause. His reasons were slightly different than just as a means of removing an unsuitable president.

He saw the process as only means for a president to confirm his constitutional legitimacy. Without impeachment- which is, it has to be stressed, only an indictment,  not a conviction - the only recourse was the assassination of the president- "in which he was not only deprived of his life but of the opportunity of vindicating his character."
It would be the best way, therefore, to provide in the Constitution for the regular punishment of the executive, where his misconduct should deserve it, and for his honorable acquittal, where he should be unjustly accused.
But when we look at the Clinton impeachment we could ask where is the honorable part of that acquittal? The long-drawn-out impeachment process, weighed-down with accusations and cheap demagoguery, may be quite enough to damage a president's authority.

In fact, nowadays, with the help of the conservative media, it's not even necessary to go through the impeachment process. The damage can be done by accusation alone. In fact, an unbiased examination of evidence is really the last thing they want. It is far better to talk about impeachment and make unfounded charges- the more hysterical the better. Few Tea Party voters- few Americans understand how the impeachment procedure works anyway. But go through with an attempt at impeachment? God forbid.

Unfortunately, there seems to be no desire to put an end to it, even though it has become a full-time preoccupation with too many members in the House. The only way to get the Congress functioning again, with serious folk to take their responsibilities seriously, is at the ballot box.

That's when it will be up to the voters to decide who will fit to keep their jobs.