BRENDAN SMIALOWSKI/AFP/Getty ImagesShould he be impeached? The legal case is strong, and the political case is getting stronger.
The latest Bush administration scandalthe firing of eight U.S. attorneys under highly questionable circumstanceshas Washington abuzz with talk of a new Watergate. The question on everyones mind is: Could this be the presidents Saturday night massacrethe obstruction of justice that triggers impeachment?
Unless there is a sea change in Congress, talk of impeachment is largely a hypothetical exercise. That does not mean theres no legal case against the president. If a California prosecutor were fired to end an investigation of a Republican congressman, that might be a crime. If the others were fired for failing to prosecute Democrats without evidence, that would be a gross abuse of power. If President George W. Bush played any role, impeachment is a legal possibility.
We need not wait for the outcome of investigations of this scandal, however, to conclude that President Bush has so abused the powers of his office that he could be impeached and removed from office. There are already other substantial grounds.
The framers of the U.S. Constitution knew that despite powerful checks, presidents might still abuse their powers and damage the countrys democracy, so they created impeachment as the ultimate safeguard. Constitutional grounds for impeachment are treason, bribery or other high crimes and misdemeanors. During Nixons impeachment, the House Judiciary Committee determined that abuses did not have to violate the criminal code to meet this test. They simply needed to be, as the framers said in constitutional debates, great and dangerous offenses that subvert the Constitution. Several of the presidents actions already qualify.
The strongest legal argument for impeachmentbecause it is based on the Watergate precedentarises out of the fact that President Bush refused for years to seek court approval required under the Foreign Intelligence Surveillance Act for a special wiretapping program in the United States. After revelations that President Nixon illegally wiretapped journalists and White House staffers, Congress enacted FISA to prevent future such abuses, making them a federal crime. Illegal wiretapping was one of the grounds for articles of impeachment against Nixon.
But 30 years later, President Bush asserted that FISA hampered intelligence gathering in the war on terror, so as commander in chief he could ignore it. Actually, the FISA court overwhelmingly grants presidential requests (19,000 approvals since 1978 versus 5 rejections) and can grant approvals after wiretaps commence. But if President Bush still thought FISA too burdensome, he should have asked Congress to amend it. Since he didnt, he must obey it. After the 2006 elections, he reversed himself, announcing he would comply with FISA, but what about all the years he flouted it?
The Constitution plainly states the president shall take care that the laws be faithfully executed. The president must obey and uphold the law, not take it into his own hands. Case law on this is clear. When during the Korean War President Truman wanted to seize U.S. steel mills to keep them running despite a strike, the Supreme Court said no, noting in its decision that the president was commander in chief of the Army and Navy, not the country.
But the truth is, impeaching a president is not just about checking off legal boxes. There must be solid evidence of wrongdoing, but impeachment is an inherently political act. The legal case must resonate with the public, not just lawyers.
Thats why the strongest political ground for impeachment isnt Bushs illegal wiretapping program, but the fact that the country was driven into war in Iraqwhich most Americans now view as a disastrous mistakeunder false pretenses. The framers deliberately gave Congress war-making powers because the momentous decision to go to war should be reached only after the fullest consideration. They believed Congress would curb the historical tendency of executives to make war needlessly. If a president lies or deceives Congress about going to war, he negates its critical constitutional role.
President Bush and his team falsely implied that Saddam Hussein and al Qaeda were in cahoots, reiterating this suggestion so often that by the time of the invasion, most Americans thought Saddam was responsible for 9/11 and U.S. soldiers saw their deployment in Baghdad as payback. Yet shortly after 9/11 occurred, former White House counterterrorism expert Richard Clarke told the president that Saddam had nothing to do with it. President Bush undoubtedly also knew that U.S. intelligence agencies gave little credence to the possibility that Saddam Hussein would provide weapons of mass destruction to al Qaeda.
Moreover, the president either lied or was aware that something was seriously wrong when he told Congress in his 2003 State of the Union address that the British government discovered that Saddam tried to buy uranium in Africa, supposedly proof that Iraq was reconstituting its nuclear weapons capacity. But U.S. intelligence knew that claim was bogus at the time, and months after the invasion, the president acknowledged this.
If the president had been briefed on U.S. intelligence before his address, then he deliberately deceived Congress and the United States about the war, a great and dangerous offense that subverts the Constitution. In the unlikely event he was not briefed, he still took us to war based on British intelligence, without consulting U.S. intelligence, violating his responsibility to take care that the laws are faithfully executed. A full investigation would determine to what extent he and Vice President Dick Cheney deliberately deceived Congress and Americans about the war.
Facilitating mistreatment of detainees in violation of the Geneva Conventions and U.S. statutes (including the War Crimes Act of 1996) is another ground for impeachment. President Bushs directive effectively removed these protections from al Qaeda and Taliban detainees. After abuses at Abu Ghraib became public, President Bush failed to conduct thorough investigations or to ensure those responsible, including higher-ups, were brought to justice, further violating the Geneva Conventions and his constitutional obligation to faithfully execute the law.
Other potential grounds for impeachment exist, but in my judgment the pattern of this presidents failure to uphold the law and his subversion of the Constitution is sufficiently clear. The question now is, what to do about it?