Monday, Jul 7, 2008
Ralph Nader says the Downing Street memo is grounds to debate the impeachment of the president. Four constitutional scholars weigh the issue.
Jun 9, 2005 | Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
Ralph Nader wrote last week that "mainstream political discourse" should include a discussion of impeaching President Bush and Vice President Cheney. Others have made similar observations. Economist Brad DeLong, for example, routinely ends many of his blog posts with "Impeach Bush. Impeach Cheney. Impeach them now." The so-called Downing Street memo is the latest occasion for their outrage.
The memo was written in 2002 as the Bush administration was building its case for attacking Iraq because of Saddam Hussein's possession of weapons of mass destruction and support for terrorism. According to the memo, the head of the British foreign intelligence service reported on "his recent talks in Washington," informing the leaders of Tony Blair's foreign policy team that "the intelligence and facts were being fixed" around the policy of removing Saddam Hussein.
Nader and DeLong take the memo as further evidence that Bush, Cheney and their administration lied to the American people. In this view, the administration wanted to invade Iraq and cooked the books because only by misrepresenting the facts could its leaders generate support for the invasion.
I know something about the Constitution, not much about intelligence operations. So, 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 Nader and DeLong 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. 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.
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. It's probably worth noting that Nader and DeLong don't have much to say about why removal is necessary right now.
The second complication is so blindingly obvious that I'm embarrassed to have waited until this point to mention it. Impeachment is a political process with some legal overtones, not a legal one with some political overtones. To get impeachment going you have to have substantial support in the House of Representatives -- and, as the outcome of the Nixon and Clinton impeachments indicates, it's probably a good idea to have substantial bipartisan support. Nixon left office before the impeachment process was concluded, but he did so because he knew that he didn't have much support even within the Republican Party anymore, and Clinton was not convicted by the Senate at least in part because he had essentially unified support from his own party.
The Nader-DeLong position has no legs politically because Republicans in the House and Senate -- a majority in both houses, after all -- support the Bush administration's policy. And, because it has no legs politically, it has no legs legally either.
If you want to impeach the president, you're going to have to win elections. And, of course, if you can do that, you might not have to impeach the president anyway.
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