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Tuesday, Nov 24, 2009
Michael J. Gerhardt, Professor of Law and Director of the Center on Legislative Studies, University of North Carolina Law School
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.
The criticism intensified after Bob Woodward's and former Treasury Secretary Paul O'Neill's inside accounts of the Bush White House indicated that the president and his advisors seemed determined to invade Iraq well before the actual invasion. Democratic candidate John Kerry based his 2004 presidential campaign in part on the repeated claim that the Bush administration had deliberately misrepresented the grounds for the Iraq war.
The Downing Street memo, dated July 23, 2002, confirms, as one report puts it while quoting the memo, "that President Bush had decided, no longer than July 2002, to 'remove Saddam, through military action,' that war with Iraq was 'inevitable'" and that what remained was simply to establish and develop the modalities of justification; that is, to come up with a means of "justifying" the war and "fixing 'the intelligence and the facts ... around the policy.'"
Based on the memo, 89 members of Congress have asked Bush whether intelligence was manipulated to facilitate an invasion of Iraq. Ralph Nader has gone further. He claims the memo "merits introduction of an impeachment resolution" against President Bush and Vice President Cheney for launching an invasion of Iraq undertaken on "false pretenses in violation of domestic and international law..."
Those urging an impeachment inquiry against Bush undoubtedly consider the Downing Street memo akin to the Watergate tapes, which established President Nixon's direct involvement in obstructing justice. But any analogy to Watergate does not hold. Nor does it square with what we know about the impeachment process from the Constitution, its structure, and prior presidential impeachment attempts, including those against Richard M. Nixon and Bill Clinton.
First, impeachment requires proof of treason, bribery "or other high crimes or misdemeanors." "High crimes or misdemeanors" refer to breaches of the public trust and offenses against the state. While there was substantial disagreement about whether Clinton's misconduct formally qualified as an offense for which he could be properly impeached and removed from office, the case for Nixon's impeachment and removal is widely viewed as paradigmatic. His misconduct was bad, so bad that he resigned from office when it became clear that a majority of the House and at least two-thirds of the Senate were prepared, as required by the Constitution, to make it a basis for removing him from office.
The Downing Street memo tells us nothing we did not know before its publication, and it has hardly mobilized the requisite support in the House for impeaching and in the Senate for convicting the president for misleading the nation into war.
But Nixon's misconduct did not justify his impeachment and removal merely because it was a bad act. What tipped the balance against Nixon was that it became clear, through the Watergate tapes, that he had malicious or criminal intent. The Constitution requires more than just a bad act to merit removal from office; it also requires bad intent. This requirement derives from the framers' explicit use of criminal terminology to describe the scope of impeachable offenses.
Yet the framers never suggested impeachment and removal were appropriate to address political leaders' mistaken judgments. Indeed, the Senate's acquittal of President Andrew Johnson, by the slimmest of margins, has been understood as signifying the Senate's judgment that a president may not be removed for mistaken policy or constitutional judgments. If presidents could be removed for their mistakes, we would have a very different kind of government than the one we do have.
The Downing Street memo does not establish Bush's bad faith. He has repeatedly denied misleading the American people. More importantly, the president's reelection was based in part on the American people's rejecting the charge that he had misled the country in the run-up to the Iraq invasion.
Bush's reelection is pertinent for another reason. The framers designed impeachment as a unique procedure to be used as a last resort to deal with presidential misconduct. The Constitution provides other means. Indeed, an election is a perfectly appropriate means for holding presidents accountable for their misconduct or for redeeming themselves.
During Clinton's impeachment proceedings, his defenders argued that his reelection effectively ratified his conduct in office and rejected claims he was unfit to hold office. They claimed that removing him for the Lewinsky affair substituted the Congress' judgment for that of the voting public. Something similar could be said of President Bush. It is perfectly reasonable to construe Bush's reelection as ratifying his call for war in Iraq and redeeming him against claims that he had acted in bad faith. Nothing in the Downing Street memo suggests we should reject that interpretation.
There is a final lesson that cuts against authorizing an impeachment inquiry against President Bush. One measure of the egregiousness of an official's misconduct is the extent to which it disables him from effectively discharging his constitutional responsibilities.
In the 1990s, for instance, the Senate removed three judges for perjury, income tax fraud, and false statements to a grand jury. The Senate convicted and removed the judges on the ground that the judges' misconduct had robbed them of the requisite integrity to do their jobs. Clinton's acquittal was based in part on the public's unwavering support for him throughout his impeachment proceedings. It was hard to argue he had violated the public's trust when the public continued to trust him to do the job to which they had reelected him. The Downing Street memo has nothing to do with the lag in Bush's approval ratings.
The case for impeaching Bush cannot be made. Manipulating the impeachment process to undo electoral outcomes with which one disagrees is not the American way. The American way is putting your case before the American people as best you can, and accepting the results as graciously as possible.
