Mark Tushnet (Law, Georgetown) writes:
I don't want to engage the factual claims about the meaning of the Downing Street memo. Let's assume that the memo accurately reports the facts and that a reasonable person could conclude that Bush administration officials lied so that they could lead the nation into a war with Iraq. Would those facts justify impeaching them?
On its face, that question is laughable -- because the answer is so obviously yes. If we could ask any of the leaders of the movement to get the Constitution adopted, "Could a president be impeached for lying to the American people in order to get their support for a foreign war?" he would say, "Of course. That's exactly what the impeachment provision is all about."
Impeachment was designed as a mechanism for removing from office a person who had demonstrated the kind of political irresponsibility that seriously threatened the nation's political institutions -- and whose continuation in office was so dangerous that waiting until the next election couldn't be tolerated. Why would anyone think that the kinds of misrepresentations [Bush made] believe the administration made shouldn't trigger the impeachment provision?
Mostly because we've been misled by our contemporary understanding of the words the Constitution uses to describe the preconditions for impeachment, having forgotten what those words meant when the Constitution was adopted.
Professor Tushnet is a "man of the Left," as they say, so the fact that he argues in this fashion betrays something deep about constitutional culture in the United States. Why is a "contemporary understanding of the words the Constitution uses" a basis for misunderstanding as opposed to correct understanding? Why is it even remotely relevant what those words meant when the Constitution was adopted? The right has been pushing this non-sequitur for a couple of decades now, but they still have no answers to the simplest questions about the legal or moral relevance of the "original meaning" or "original intent" of Constitutional provisions. Those who produced the "original" meanings have no claim of democratically sanctioned authority over us; they have no claim of special moral expertise or insight; to make the meaning of Constitutional provisions turn on historical details invisible in the text itself undermines rule of law values like the need for public and intelligible legal standards; and so on. [Note: see "Another Update" at the end for Professor Tushnet's useful explanation of the work the originalist argument is doing.]
The Constitution says that the president and other civil officers, like the vice president and secretary of defense, can be impeached for treason, bribery or "other high crimes and misdemeanors."
Today we think that these provisions refer only to criminal behavior. The House of Representatives impeached President Clinton because it concluded that he had perjured himself. (Technically, "impeachment" refers to the decision by the House to submit a case to the Senate, where the impeachment charges are tried; if the Senate convicts, the person -- already impeached by the House -- is removed from office.) The constitutional dispute in the Clinton impeachment was over whether the reference to "high crimes and misdemeanors" included all serious crimes, not whether a president could be impeached for non-criminal behavior.
But, to the Founders, the answer to that question was obvious. The impeachment provisions referred to behavior that amounted to extraordinarily serious political misconduct -- selling out the country to a foreign nation (treason), selling out the national interest for private gain (bribery), and similar political misconduct. You can have arguments around the edges of the category -- could a president be impeached for murdering his wife's paramour? (Sure, because even though the misconduct is not in itself political, it demonstrates an inability to lead sufficiently serious to justify removal prior to the next election) -- but lying to the American people to gain support for a foreign adventure that they wouldn't otherwise endorse isn't even a close case.
One of the interesting aspects of the four commentaries is that none of the other "eminent" scholars are able to see this quite so clearly. (Professors Gerhardt and Sunstein, remarkably, deny it.)
Still, there are a couple of complications. Impeachment has its origins in the British system of the 1700s, where the king appointed the prime minister. Impeachment gave the Parliament a means of removing an unfit leader who somehow retained the king's confidence. The U.S. Constitution gives us a different way of getting rid of unfit leaders -- we can throw them out of office at the next election. (Or, in the case of a second-term president, we simply can wait a few years and he'll be gone, along with his team.)
So, for us, impeachment should be reserved for situations in which two conditions are met -- unfitness as demonstrated by serious political misconduct, and a need to replace the president so urgent that we can't put up with waiting until the next election.
During the last election, there was no clear perception (outside this blog, of course!) of the extent of the malfeasance by Bush & co. in tricking the nation into war; the "official" response prior to the election to the revelation that there were no WMDs in Iraq was hand-wringing about how the intelligence agencies could have failed us. The documentary record emerging from London makes it far more likely that this hand-wringing was nonsense. How could it not be urgent to remove from office public officials whose conduct is as duplicitous and dangerous as theirs has proven to be?
Our next "analysis"--it might be more aptly described as "irrelevant sanctimonious condescension"--comes from constitutional historian Jack Rakove (Stanford):
Since the evidence of the administration's dissembling (or "disassembling," as a recent Bushism has it) failed to sway a majority of the electorate last fall, impeachment is the last option available for those who naively believe that every political wrong must have its remedy -- and sooner rather than later.
There was no evidence of Bush's "dissembling" at the time of the last election as clear as the recent London memos, and what evidence of dissembling there was was hardly front-and-center in the campaign. (One might have thought historians would have somewhat better historical memory when it comes to events of such recent vintage!) Unfortunately for Professor Rakove, he conjoins this odd factual inaccuracy with his first irrelevant display of condescension: why does Professor Rakove suppose that anyone calling for "impeachment" would be committed to the proposition that "every political wrong must have its remedy"? This irrelevant, and baseless, speculation tells us all we need to know about Professor Rakove's biases in this matter.
Why would anyone even bother to make this argument? One would have to suspend oodles -- nay, caboodles -- of disbelief to imagine a scenario under which impeachment proceedings could even begin, much less make any headway in a Republican House. And even with impeachment, how could a two-thirds vote for conviction in the Senate possibly be mustered (or maybe the word is really "mustarded")?
Is Professor Rakove so naive (or so self-important?) as to believe that he is the only one aware of the political situation in the Congress? Again, one might have imagined an historian, of all people, would be sensitive to the ways in which political rhetoric--such as calls for impeachment--can have quite disparate effects. Certainly the venal Republicans in the Congress will not vote to impeach their Dear Leader; but if talk of impeachment moves to center stage in public discourse, the Republicans will be put on the defensive, in ways that may have both electoral ramifications and effects on the kinds of harmful legislation they can get through Congress.
But let's suspend our disbelief for a moment. Politically unrealistic as Nader has repeatedly demonstrated himself to be, an abstract case could be made for uttering the I-word with the current administration in mind....
It has been said that, "Patrioism is the last refuge of scoundrels." (In America, it is now the first.) Might we add that, "Political 'realism' is the first refuge of complacent cowards"?
For one thing, the impeachment of Bill Clinton in 1998 set the bar for "high crimes and misdemeanors" so low that any subsequent president could legitimately worry about this generally moribund provision of our Constitution being deployed against him whenever an opposition party controlling Congress found it convenient to do so.
For another, a decision to initiate a war that depended on the calculated misrepresentation of information on the scale alleged against this administration plausibly falls within the unspecified category of "high crimes and misdemeanors" that the framers of the Constitution belatedly added to their original list, limited to treason and bribery. The fact that this original deception was accompanied by a wholesale failure to plan for the occupation presumably compounds the case for impeachment.
The preceding is the one pertinent paragraph in Professor Rakove's monologue. Alas, he did not stop here.
It is worth noting, though, that the framers adopted "high crimes and misdemeanors" only after they had first rejected George Mason's proposal to add "maladministration" to the list of impeachable offenses. In James Madison's view, "So vague a term will be equivalent to a tenure during pleasure of the Senate." Gouverneur Morris added a further objection. "An election of [the president] every four years will prevent maladministration."
Why is it worth noting? Who cares what James Madison (or George Mason) thought? No one alive today voted for James Madison. James Madison has no special moral expertise. The meaning of public standards of conduct can not, consistent with the rule of law, turn on what was in the head of some man more than two hundred years ago.
Simply put, Americans know as much now about the defects in the administration's case for war as we did when we voted in November.
This is so obviously false, that one wonders (1) whether Professor Rakove was residing in the United States last year, and (2) whether he has actually read any of the memos coming out of London. Since the rest of his "analysis" depends on this false assertion, there is no point in continuing.
Michael Gerhardt (Law, North Carolina) is apparently the designated shill for the Bush Administration in this quartet of monologues (though Professors Rakove and Sunstein do their parts, to be sure). His opening paragraph suggests as much:
If the Downing Street memo had not been publicized last month, President George W. Bush's critics would have had to invent it. No sooner had the world discovered that Saddam Hussein did not have the weapons of mass destruction whose existence had been claimed as the basis for the Iraq war than Bush was charged with deliberately misleading the American public.
"No sooner"? Assuming one accepted the "official" rationale for the invasion, then it is perfectly reasonable to raise questions when that rationale evaporates. But contrary to Professor Gerhardt's weirdly revisionist history, the predominant reaction to the revelation that there were no WMDs in Iraq was wringing-of-hands about how the intelligence could have been so faulty; only on the margins of the public discussion did anyone dare to call Bush a liar, and those declarations were generally muted and, when not muted, dismissed with contempt by the "talking heads" and other (mis-)shapers of public opinion. As with Professor Rakove, it is not clear where Professor Gerhardt has been for the last two years.
Most of the rest of Professor Gerhardt's analysis involves demonstrating how the case for impeachment based on the Downing Street Memo is inferior to the case for impeaching Richard Nixon. Why this is relevant is a bit mysterious; the best Professor Gerhardt can do is the assertion that "the case for Nixon's impeachment and removal is widely viewed as paradigmatic." Even if that were true, showing that X [e.g., the case against Bush] is not a paradigmatic instance of Y [e.g., a constitutional case for impeachment] doesn't show that X isn't a Y. So the rest of Professor Gerhardt's analysis is, at best, beside the point and, at worst, highly misleading (he continues repeating the fiction that the Downing Street Memos contain no new information, and that they only reveal that Bush & co. made "mistaken judgments"!).
That brings us to the final analysis by Cass Sunstein (Law, Chicago), a "sort-of-sometimes" liberal, who tends to be fair-to-a-fault with right-wing points of view. He gets off, alas, to a bad start:
Having helped to elect President George W. Bush in 2000, Ralph Nader now seems to be calling for his impeachment. It would be funny, except that it's not funny.
This, for those keeping track, is an actual ad hominem, and not even a relevant one (and not only because it is false). On to substance:
The Constitution allows for impeachment of the president in exceedingly narrow circumstances, involving "high crimes and misdemeanors." The constitutional background demonstrates that the framers of the Constitution were thinking first and foremost of two things: treason and bribery.
Need I say it again? Why is what the framers thought even relevant? They left us a text, written with words that have meaning, sometimes contestable, sometimes clear. It would take a principled explanation as to why we are bound by anything more than that text and its words. But originalism is the pathology of our current constitutional culture, so deeply embedded that the quasi-liberals and those on the left genuflect before it. (Read Andrei Marmor on the topic.)
At a late stage, they concluded that other egregious actions, falling short of treason and bribery, could also be a basis for impeachment -- as, for example, where the president attempts to subvert the Constitution itself. The framers wanted to ensure that impeachment could not be used as a political weapon.
It follows that uses of presidential authority for corrupt purposes, or in ways that patently and persistently undermine the constitutional order, provide a legitimate basis for impeachment. We might even conclude that a president is guilty of a "misdemeanor" if he refuses to do his constitutional duty, for example, by going to the beach for a year or two. But under the Constitution, it is extremely difficult to make out legitimate grounds for impeachment.
True enough, but as Professor Tushnet noted at the start, lying to get the nation to support a foreign war surely qualifies. Professor Sunstein, however, goes off on a tangent, discussing what he calls "the patently unconstitutional impeachment of President Clinton in 1998." He writes:
[P]erjury about sexual behavior doesn't come close to meeting the legal standard for impeachment....It is clear that those who impeached Clinton were really motivated by their obsessive disapproval of him and his presidency. At a minimum, they hoped to damage him politically, so as to weaken his presidency and the next Democratic nominee as well. They succeeded beyond their hopes. Without the impeachment, it's a good bet that Vice President Gore would have been elected in 2000.
I thought it was supposed to be Ralph Nader's fault that the lifeless and spineless Al Gore lost in 2000, but never mind. Professor Sunstein is really setting the stage for a different, and meritless argument:
But Democrats shouldn't return the favor. Let's suppose that Bush did mislead the country. For the last year and more, it has been argued, plausibly, that the White House "hyped" the war effort by exaggerating its information about the actual threat from Saddam Hussein. Of course this is a legitimate and quite serious political complaint. And because the complaint involves official behavior, it is at least in the general domain of the impeachable (as Clinton's misconduct was not). Nonetheless, exaggerating a foreign threat, even intentionally, is hardly a legitimate basis for impeachment.
How can conduct be in "the general domain of the impeachable" but not a "legitimate basis for impeachment"? Words are being used in strange ways here, and, once again, the content of the London memos are being mischaracterized (the London memos don't suggest Bush "exaggerated" a foreign threat, they suggest he made a threat up in order to rationalize a pre-ordained course of conduct). Unlike Professors Gerhardt and Rakove, though, Professor Sunstein seems to realize the odd reading he is giving to the documents, so he turns to an explicit characterization of their import:
Little is added by the Downing Street memo. What we learn from that memo is that according to the chief of the British intelligence agency M16, Bush wanted to remove Saddam at an early stage, with military action "justified by the conjunction of terrorism and WMD," with the suggestion that "the intelligence and facts were being fixed around the policy." We also learn that England's foreign secretary said that "Saddam was not threatening his neighbors, and his WMD capacity was less than that of Libya, North Korea or Iran."
Fine. Is the president of the United States to be impeachable because Britain's foreign secretary believed, in 2002, that Saddam was less capable of using weapons of mass destruction than Libya, North Korea or Iran? Is the president impeachable because of an interpretation of his motivations by the chief of a British intelligence agency?
"Interpretation" of "motives"? This was not an excercise in psychoanalysis; on a natural reading of the memo, the British are simply reporting what they were explicitly told by Bush Administration offficials. Here's the crucial portion of the Downing Street Memo from July of 2002 (at a time when nothing like this was being stated publically--indeed, the opposite):
C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy....
The Defence Secretary said that the US had already begun "spikes of activity" to put pressure on the regime. No decisions had been taken, but he thought the most likely timing in US minds for military action to begin was January, with the timeline beginning 30 days before the US Congressional elections.
The Foreign Secretary said he would discuss this with Colin Powell this week. It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran. We should work up a plan for an ultimatum to Saddam to allow back in the UN weapons inspectors. This would also help with the legal justification for the use of force.
So the memo reports that Bush & co. intended to invade Iraq as of July 2002, and the only issue was what rationale to produce for cover. That is, as even Professor Sunstein must realize, a fair reading of the actual document. And the emergence of this document shows that the Administration's public statements at this time were false and, in some cases, obviously lies. This useful chart helps make the point rather clearly.
Professor Sunstein continues:
To be sure, it would be more than objectionable to find a clear demonstration that "intelligence and facts" were, in fact, "fixed" to support a predetermined course of war. We could even imagine circumstances in which such a demonstration would be a plausible basis for considering impeachment. But it is ludicrous to suppose that these words from a 2002 memorandum, representing a judgment from the chief of a British intelligence agency, make it reasonable to call for an impeachment inquiry.
The question here is whether there are adequate evidential grounds for impeachment proceedings, not what the findings of such proceedings ought to be. But Professor Sunstein has already substituted his judgment on the merits--based on an odd reading of the documentary record, and without any reference, of course, to other pertinent evidence that has emerged (for example, this other document from London and the evidence that the military assault on Iraq began long before March 2003, consistent, of course, with the Dowing Street Memo)--for the actual issue, which is whether there is enough here to merit impeachment proceedings. Again, only Professor Tushnet proves able to answer this simple question clearly and plausibly.
Even more bizarrely, Professor Sunstein continues:
At the very worst, Bush was committed, early on and for multiple reasons, to using force to remove a brutal dictator from office, and he hyped and distorted the evidence to convince the American public of the need for imminent military action. (In my own view, by the way, Bush believed in good faith that Saddam posed a genuine threat to American security, partly because of Saddam's willingness to support terror, partly because of Saddam's own military goals.)
Sadly, the parenthetical about Professor Sunstein's "own view" may be the most important, and revealing, line in the whole analysis. It may also explain how his "very worst" scenario isn't close to the very worst scenario actually supported by the new evidence: namely, that Bush & co. intended to oust Saddam very early on; they then lied to the public about their actual intentions, and cooked up what they knew to be flimsy rationales for the criminal and immoral invasion. That is, quite obviously, the "worst" scenario suggested by the evidence, and it is, of course, why there should be at a minimum a Congressional investigation. Professor Sunstein's "very worst" scenario would be more aptly described as a realistic Republican's "best-case" scenario.
Professor Sunstein continues:
Compare the behavior of President Franklin Delano Roosevelt in World War II, who secretly and unlawfully transferred arms -- including more than 20,000 airplanes -- to England. Roosevelt deceived both Congress and the American public about what he was doing. It would have been preposterous to claim that Roosevelt thereby committed an impeachable offense.
Like cases should be treated alike, if they are alike. Even if we suspend judgment (as we should not!) on the substantive merits, there is a difference between "secretly and unlawfully" transferring arms to an ally and committing the country to war, through deceit, with the consequence that tens of thousands in America and the victim country die. And then if we attend to the merits, there is all the difference in the world between providing military aid to an ally under assault by a genuinely dangerous fascist regime and launching a military assault on a decimated country half of whose population were children.
Professor Sunstein continues:
So too for Bush. In any four-year period, the nation's leader is highly likely to deceive the public on a serious matter at least once -- sometimes inadvertently, sometimes for legitimate reasons, sometimes for illegitimate ones. Of course presidents should not exaggerate evidence, and it's perfectly proper to ask whether Bush got us into war under false pretenses. But there isn't anything close to a sufficient basis for impeachment.
That's lovely, we can "ask whether Bush got us into war under false pretenses," but we can't expect any actual consequences to attach to an affirmative answer to that question. Is this a joke?
It's obvious that the call for impeachment of Bush is impractical; it's simply a nonstarter, a publicity stunt, reality-free television. But it's also an irresponsible and even nutty idea in principle -- the lunatic left imitating the lunatic right. Can we talk about something else instead?
"The lunatic left"? Did a putative liberal really utter that phrase with respect to those, like Professor Tushnet it appears (not to mention the mothers of the dead), who believe that there are grounds for impeachment in the evidence that has emerged from London? Shame on Professor Sunstein!
A somewhat tangential observation: in every society of which I'm aware the vast majority of the preeminent academic figures were, in general, cowards when it came to their own regimes, and apologists for what later generations would see clearly as inhumanity and illegality. This was clear in Germany in the 1930s, as it was in America in the 1950s. There is no reason to think the United States today is any different. This is one reason I should probably abandon attempts to evaluate law schools in terms of scholarly caliber. [UPDATE: Thanks to reader Jason Walta for pointing out that one of the Volokh Conspirators apparently can't read; Jason's apt observation: "I thought it was quite funny that Juan Non-Volokh, a supposed legal academic who blogs anonymously at the Volokh Conspiracy, criticized your plain-as-day observation that academic figures are often cowards when it comes to their own regimes." For an actual example of the kind of comparisions Mr. Non-Volokh is looking for, try this.]
UPDATE: I suppose I should have anticipated that the passing remarks about originalism (about intentions and meanings) would have produced as much or more comment from correspondents than the main thrust of the critique itself. Let me add a few words of clarification, in the hope of preempting some reader queries. Originalism (whether about intentions or meanings) is now the dominant, almost entirely unquestioned touchstone of constitutional argument and interpretation in the United States. This is odd since there is no plausible, theoretical justification for it that speaks to the kinds of issues I noted in passing and that are taken up by Professor Marmor in the piece linked to, above. Although there analagous questions that could be raised about constitutionalism itself, the issue of originalism as a theory of interpretation is severable. We might agree that later majorities should be bound by an earlier foundational document (the crux of constitutionalism), but that simply does not settle the question of how the meaning of that document should be fixed. (Last year, when I pressed Akhil Amar about this during a visit to Texas, he argued that to be bound by the text one has to be bound by the original understanding. This is, alas, also a non-sequitur, and not just conceptually: in practice, for example, Canadian courts are barred from originalist interpretations of the Charter, yet still manage to interpret and apply it.) Those who would supplement constitutionalism with originalism need to explain why the original meaning or intentions are authoritative. Intentions might be authoritative if, for example, we had consented to be bound by them; but that is inapposite in this case. Intentions might be authoritative if they reflected a kind of practical/moral expertise or insight, such that (to put it in Razian terms) we are more likely to do what we really ought to do by treating these original intentions as authoritative with respect to our decisions and choices today; but that also seems inapposite in this case, absent some extended moral and political defense of the special expertise of the framers of the Constitution. In general, originalists fail to come to terms with the question of why original meanings or intentions should be authoritative, and opt instead for instrumentalist arguments of the form, "We need originalism to constrain judges." But there are multiple ways to constrain judges (make their decisions appealable; permit legislative overrides [as, e.g., the Canadian Charter does in certain contexts]; adopt a simple rule like, 'Appellant always wins' [this last being far more efficient than originalism!]; adopt a more complex rule like "the plain, current meaning controls," and where it is unclear, do a Gallup poll to see what the "people" want), and so what is needed is some clear explanation of why originalism should be the preferred way of achieving constraint (why is constraint a value? how much constraint can originalism deliver compared to alternatives? etc.). Perhaps originalism can meet these challenges. It is a decidedly odd feature of our contemporary constitutional culture in the U.S. that, despite the absence of answers--indeed, despite the recognition in many quarters that these are real challenges!--originalism should be so widely accepted across the political spectrum.
ANOTHER UPDATE: Professor Tushnet writes with the following useful clarification of his reasons for considering the originalist argument:
In my defense, my view is that the only possible ground for thinking that the facts recounted in the Downing Street memos do not set forth a legally and constitutionally sufficient basis for impeaching the President is a belief that these activities don't describe something within the intended meaning of "high crimes and misdemeanors." My phrasing was designed to show that even that ground wasn't available. The claim that a contrary position is laughable is even more obvious under any other reasonable interpretive approach -- subject only to what I take to be a reasonable point of discussion, about whether there is an urgent need for removal from office.
AND A FINAL UPDATE: Another clarification, for the benefit of some (on the far right, needless to say) who are having trouble following the argument. Constitutionalism is the view that we should be bound by the meaning of the words in a foundational text of some kind. Originalism is the view that we should be bound by the original meaning of those words. The question is why originalism is the correct approach to the meaning of the words in the text. Originalism is plainly not necessary for the words to have a meaning: witness Canadian practice, which is officially anti-originalist with respect to interpretation of the meaning of the Charter. "Congress shall make no law respecting an establishment of religion" has a meaning quite apart from what Akhil Amar has taught us about the original concerns animating the provision. The question is why the original concerns ought to be authoritative. For more on the general topic, see this.