Four constitutional scholars comment here on Ralph Nader's proposal. A few observations:
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:
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