Political Cortex: Brain Food for the Body Politic

We are the 'good guys.' And that means, as always, that we have principles we hold, that we have actions we may not use, even though the 'bad guys' have no such limitations.  It is always tempting to resent that, to forget that our principles and our limitations are strengths, not weaknesses.  We need taped on our wall the warning of Pogo "We have met the enemy and they are us,' to be reminded we cannot let it become true.

And one of our limitations is our belief in the 'rule of law.'  We do not permit ourselves to punish men because they are 'bad men,' we may only punish them because of specific acts they have done against specific laws.  This is as true in impeachment as it is in our lowest-level criminal courts.

Impeachment is, it is true, a grey area.  The qualifications of 'high crimes and misdemeanors' are poorly defined, so much so that some writers have argued that an 'impeachable offense' is whatever Congress decides it is.

No.  That way leads to a Parliamentary system, where a government only remains in power if it can command -- in this case -- a 'super majority.'  We've just seen the danger of parliamentary-style party rigidity, and it wasn't pretty.

There are precedents, and, I would argue, general rules for impeachable offenses that we can follow to keep us from the 'bad man mistake."
Because there is no doubt whatsoever that Bush and Cheney are 'bad men.'

The first is the basis of the 'rule of law.'  We must have evidence -- not sentiment, or genral belief, or even logic -- tieing the person to specific acts.  This is most important in relation to Dick Cheney.  Giving bad advice is not a crime.  Even if you view him as the 'evil puppeteer' manipulating Bush, he has personally DONE little that can be pointed to, with evidence, as impeachable. I do not agree that he is, I think that gives him too much 'credit' and Bush too little.  I see him rather as the sleazy uncle whose tone and very existence impress his 'nephew' into acting out the nephew's own evil ideas and perhaps who shows him how to do it, a facilitator rather than a 'mastermind.'  (Cheney is far from a 'theocon,' for example, and whatever his geopolitical ideas, I see him as personally more interested in profit than in extending 'Imperial power.')

But as for Bush, it's more doubtful.  There are two cases where his actions might constitute impeachable offenses, and I'll end with them.  But first let's rule out some of the oh-so-tempting charges.

First, a simple but annoying rule.  "It ain't impeachable if the Congress approves it."  Technically, the President only acts to 'execute' the laws passed by Congress.  He may, in extraordinary circumstances, refuse to act on something that he views as Unconstitutional, but that is rare -- and I will argue below that it is by doing this that he may have committed offenses.  But he doesn't have to, he may 'defer' to Congress' judgment on the subject.  And if he does something on his own initiative -- the true picture of the modern Presidency -- and the Congress accepts it, that's it, he cannot be impeached for it, even if the Courts rule it is an unjustified use of power.

That takes a lot of things 'off the table.'  The Patriot Act, the Habeas Corpus suspension, etc.  He can be stopped from acting on them, he can be sued, or the government can, for using them, he can even be prosecuted in other forums for them, but he can't be impeached for them.

And it is very difficult to argue that he can be impeached for misusing the 'war power,' because we have a precedent for that in the Nixon impeachment.  Nixon secretly -- an 'open secret' to the people involved and to anyone who followed the news -- widened Vietnam by bombing Cambodia and Laos.  (A disaster that produced, among other things, the Pol Pot regime of the 'killing fields.')  Several anti-War Congressmen insisted on this being included as a charge in the impeachment, so they could go on record against it.  It was, they did, but the final vote excluded it from the charges.

And no one attempted to impeach Lyndon Johnson for the Gulf of Tonkin lie, no less blatant than Bush's WMD and Al Qaeda fantasies.  Nor was impeachment ever suggested for our other bad wars, not against McKinley for the Spanish-American War, against Polk for Mexico, or Reagan for Granada (a tiny war, but a war nonetheless).  So Iraq might have been a 'war crime' to be tried, perhaps, in some future tribunal, but it wasn't impeachable.

And bad appointments, even corrupt ones, are not impeachable, or no President would escape unscathed.  Even Lincoln appointed Simon Cameron -- and he knew that Cameron was corrupt, as the 'hot stove' joke shows.  Bush may have come close to the Reagan and Grant records for bad appointments, but 'Brownie,' Deutsch, Keroack, Bolton and the rest are bad judgment, not crimes. (Even appointing daughter Babs as a Special Representative to a UN Conference on AIDS was arrogant, contemptuous stupidity of the highest kind, but isn't impeachable.)

And a President is not impeachable for the actions of his subordinates, even if they are criminal actions carrying out the President's wishes unless he can be specifically shown to have ordered those actions.  (And after Nixon, it is unlikely that tapes exist of Presidential meetings, so only a confession by the subordinate, backed up with supporting evidence, could substantiate this sort of charge.)  The subordinate is impeachable, and it is a shame Rumsfeld escaped this punishment for his many crimes, but not the President.  

(And, almost as seriously an attack on the Constitution is the way the 'faith-based initiative' was handled, and the deliberate discrimination against non-Christians.  Was this according to the President's wishes?  Almost certainly.  Did he specifically direct it?  Almost certainly not.)

And of course incompetence, stupidity, and deliberately ignoring good advice are not crimes, so Katrina gives no grounds for a charge.

But there might, in fact, be two areas where a charge could lie, if impeachment could overcome the hurdles I mentioned in Part I.  Maybe, just maybe, the 'signing statements,' which specifically, in the President's words -- even if written by a speechwriter, once he delivers them they become his words -- declared that he would ignore the specific mandates of duly passed laws, could be shown to be impeachable.  (And at the very least, they should provide grpunds for a court case if he repeats them in the new Congress.)

And, most tempting of all is the Abramoff connection.  Bribery is also impeachable.  Certainly there is evidence of Abramoff's character, of many more meetings with Bush himself than he admitted.  Is there current evidence that these meetings reached a point of bribery?  No.  Can such evidence be found.  Possibly.  Not likely, but definitely possibly.  And that would be sufficient for impeachment -- if the situation changed enough that it would be desireable -- again not likely.