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Tuesday, Nov 24, 2009
Cass Sunstein, Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago
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.
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. 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.
For almost all of the nation's history, public officials have respected this aspect of the constitutional plan. Political disagreements, however intense, have not turned into pleas for impeachment. On the contrary, our traditions, at least as much as our founding document, limit impeachment to the most large-scale abuses of public trust.
The principal exception, of course, was the patently unconstitutional impeachment of President Clinton in 1998. In retrospect, that unconstitutional action appears even worse than it seemed at the time. Of course Clinton's behavior should be condemned; he might well have perjured himself. But perjury 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.
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.
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?
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.
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.)
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.
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.
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?
