You know where this is goingEvery now and again, from the primordial depths of the commentariat bubbles forth the appealing idea of impeaching President Bush. This week's model is a column by constitutional lawyer Bruce Fein on Slate.com castigating House Speaker Nancy Pelosi (D-CA) for "single handedly" taking impeachment off the table. The prospect of impeachment, Fein tells us, "would concentrate the minds of the president and vice president wonderfully on obeying rather than sabotaging the Constitution." Furthermore, the time is right:
According to public opinion polling, the percentage of voters supporting the impeachments of both President Bush and Vice President Dick Cheney are now approximately 45 and 54 percent, respectively. Most Americans instinctively feel the president is an untrustworthy steward of the Constitution's checks and balances because, among other things, he flouts laws, prohibits White House aides from testifying before Congress, consistently defends an attorney general who is an inveterate liar, and detains citizens and noncitizens indefinitely as enemy combatants on his say-so alone.Pelosi won't consider this option, according to Fein, because "It is the fortunes of the Democratic Party, not the fate of the Constitution and the strength of democracy, that animate her decision." The Speaker is squarely fixed on the Democrats retaining control of Congress and capturing the White House in 2008; she feels that an impeachment proceeding could needlessly derail the party's electoral prospects. Mr. Fein, articulating the feelings of "many Democrats", asserts that this is a misreading of the mandate the party was handed in 2006, and that failing to pursue impeachment may ultimately prove a costlier course:
...citizens voted for authentic change last November and will revolt if Democrats ape President Bush and maneuver for partisan advantage while the Constitution burns. If an impeachment inquiry is blocked by Pelosi, and the White House is left undisturbed in its constitutional usurpations and celebration of perpetual war, voters may turn against Democrats for their political spinelessness.I placed the phrase "many Democrats" in quotation marks in the above paragraph, not because I dispute Mr. Fein's assertion or wish to belittle him; those are his exact words, and I believe them to be accurate. Democrats are frustrated, and we have a right to be. Eight months have passed since Congress switched hands, and not only does the Iraq war continue to grind on (though I believe it naive to think that it would already be over, even under the best of circumstances) but President Bush has actually managed to escalate the conflict with his so-called "surge", ramping up our military presence even as our military leaders have taken the idea of "victory" off the table. The Democratic leadership in Congress has shown no willingness to use that body's considerable war-making and budgetary powers to do anything whatsoever to impede him. Furthermore, as Fein rightly points out, the Democratic leadership has virtually bent over backwards to aid the Bush Administration's quest to shred the Constitution and consolidate unprecedented power in the Executive Branch; the enactment of the Protect America Act of 2007 (paging Mr. Orwell) basically lends Congress's considerable imprimatur to the extensive program of illegal warrantless wiretapping exposed by the New York Times in December 2005.
Ending the war and stopping the Bush gang's assault on our constitutional freedoms: these are aims Democrats can achieve now with the majorities they enjoy in both houses of Congress. Furthermore, such policies are entirely congruent with the results of the 2006 elections. Mr. Fein's focus, however, is on impeachment, where the stakes, both constitutionally and politically, are considerably higher. Only two presidents in American history, Andrew Johnson and Bill Clinton, have ever been impeached by the House of Representatives (though Richard Nixon surely would have been had he not resigned); neither was convicted by the Senate.
Therein lies the rub: there is no possibility of getting the 67 votes in the Senate required to convict President Bush. Fein tacitly acknowledges this, omitting any mention of the impeachment trial itself and focusing solely on the articles of impeachment. That initiating impeachment proceedings under such circumstances would be a supreme act of futility is seemingly besides the point; according to Fein's logic, President Bush has trampled the Constitution, ergo impeachment proceedings should be viewed not as a matter of discretion for the House but as a fait accompli. Failure to impeach the President equates to "spinelessness", an abdication of the Democrats' responsibility to check the Administration's growing litany of abuses. Of course, the consequences of the President's inevitable acquittal at the hands of the full Senate are never considered; such a moment would invariably be bent into a political triumph for the White House and a validation of the Bush gang's policies. The Democratic Congress's prestige would be considerably damaged, and instead of going into 2008 with a clear shot at the presidency and a good chance of expanding their majority, Democrats would instead be left playing defense against a cast of Republican goons, none of whom are George W. Bush or Dick Cheney. Any one who believes that, in practical terms, a botched impeachment of President Bush is more likely to hasten an end to the war in Iraq than a Democratic sweep in 2008, well, I'm sure that Cindy Sheehan's congressional campaign can use a few more volunteers.
Indeed, something as grave as impeachment must be considered in practical terms. Mr. Fein is content to rest his case on principal, which is all well and good: in principal, I agree with him that Bush deserves impeachment. Condemning Pelosi's inaction, he adopts the high-falutin' language of the above-it-all:
But even if the speaker's political and strategic impeachment worries were valid, the Constitution is beyond party. It has remained generally unscathed for more than two centuries only because our leaders have subordinated their parochial concerns when looking into a constitutional abyss. The speaker should not be permitted to frustrate the will of 434 co-equal members who collectively represent the entire nation and who are inspired by loftier motives when the Constitution and the relevance of Congress lie in the balance. Just as President Bush should not be a king, Speaker Pelosi should not be our queen.Heady stuff, but ultimately laughable, and a constitutional lawyer should presumably know better. The Constitution "has remained generally unscathed for more than two centuries[?]" So I'm guessing that the Alien and Sedition Acts, Lincoln suspending habeus corpus, the WWI-era Espionage and Sedition Acts, the Sacco and Vanzetti trial, J. Edgar Hoover's tenure at the FBI - these are all examples of our precious constitutional rights being "generally" upheld. And our leaders subordinating "their parochial concerns when looking into a constitutional abyss[?]" So that's how the framers ended up determining that a slave counted as precisely 3/5ths of a man.
The Constitution has not endured because it denies the inherently political and partisan nature of American democracy, but because it has outlined an ingenious series of institutions, checks, and balances designed to withstand these pressures and channel them in a fashion presumably useful to the American people. Amateurs often cite George Washington's words about avoiding partisanship as some holy dictum, absolute proof that parties are unnatural impurities in the American political system. Yet other Founding Fathers, who can probably lay even greater claim to the intellectual formulation of our Constitution - James Madison, John Adams, and Thomas Jefferson - were all partisan politicians themselves, often arrayed against one another.
Make no mistake, impeachment is a deeply political process; that is why it was entrusted to the Congress. That does not make it an unserious matter, where principal should always be subordinated to the same horse-trading mentality that governs much Congressional business. It does, however, signify that it is process governed by very real political considerations, chief among which should be the likely success of adopting articles of impeachment, and the potential for obtaining a conviction in the Senate. We can argue that such "craven" calculations are beneath our American concept of justice, but it should be noted that prosecutors in our courts often refuse to bring criminal proceedings where they feel there are insufficient odds of getting a conviction. The Constitution, by requiring a 2/3rds majority "yea" vote in the Senate for conviction, set the bar extremely high for a successful impeachment; it would be foolish to presume that this requirement was not in some way intended by the Founding Fathers to deter impeachment proceedings that had little chance of ultimate success.
I empathize with Mr. Fein's frustrations; the Democrats were given a clear mandate by the electorate to bring the machinery of war and deceit to halt, and thus far they have failed to do so. But insisting on impeachment in lieu of oversight is like getting turned down for five bucks and then asking to borrow a million. To suggest that Speaker Pelosi should allow a free vote on the matter and cease "frustrating the will of 434 co-equal members" is a fantasy sentiment, ignoring the political reality that the "will" of 202 of those "co-equal members" is to erase the Democratic majority in 2008 and get their hands back on the levers of power. A stillborn impeachment process would be at the top of the GOP's wish list for 2008 - a readymade opportunity to portray the Democrats as weak, ineffective, and vengeful: just as obsessed with embarrassing President Bush as the Republican Congress was with embarrassing Clinton in 1998. As a leader of her party and a guardian of its electoral prospects, Speaker Pelosi should continue to do everything in her power to prevent this from happening. As the leader of the full House of Representatives and the most powerful member of Congress, she should do everything in her power to provide the type of oversight and opposition necessary to bring the Bush gang to heel and preserve our Constitution.
