Posted by: Randy Allgaier | August 25, 2007

To Impeach or Not To Impeach? That is the question, but what is the answer?

There has been a drum beat around the country lately to put pressure on Speaker Nancy Pelosi to begin the process of Impeachment against President George W. Bush. There are interesting reasons to consider this and actually REAL reasons that have to do with protecting the country’s future than in trying to bring down a President through a “legal coup”.

No real discussion of impeachment can really occur unless the pink elephant in the room is addressed first” The impeachment of President William Jefferson Clinton. So let’s do a brief synopsis:

The charges arose from an investigation by Independent Counsel Kenneth Starr. Originally dealing with the failed land deal years earlier known as Whitewater, Starr, with the approval of Attorney General Janet Reno, expanded his investigation into Clinton’s conduct during the sexual harassment lawsuit filed by a former Arkansas government employee, Paula Jones. In a sworn deposition for this case, Clinton denied having “sexual relations” or a “sexual affair” with White House intern Monica Lewinsky. At the deposition, the judge ordered a precise legal definition of the term “sexual relations” that Clinton claims to have construed to mean only vaginal intercourse.

A much-quoted statement from Clinton’s grand jury testimony showed him questioning the precise use of the word “is.” Clinton said, “It depends on what the meaning of the word ‘is’ is. If the—if he—if ‘is’ means is and never has been, that is not—that is one thing. If it means there is none, that was a completely true statement”. Linda Tripp, one of Lewinsky’s confidantes, provided Starr with taped phone conversations in which Lewinsky discussed having oral sex with Clinton. Based on these tapes, Starr concluded that Clinton had committed perjury.

There are several defenses: Lewinsky may have exaggerated her testimony, or Starr may have coerced it. Another possibility, implied by Clinton himself, is that he did not touch her with “an intent to arouse or gratify.” He may have been “hands on,” but it might have been for his pleasure, not hers. In that case, his answers are still legally accurate. Again, this may make him sexually selfish, but that is not illegal. For critics to prove perjury, they must somehow enter Clinton’s head and prove that he did not intend to sexually gratify Ms. Lewinsky. Which, of course, is clearly impossible. Clinton may have even made a mistake by interpreting the definition too narrowly, but that is not the same thing as lying. The bottom line is that the definition crafted by the Jones’ team was deeply flawed, and allowed Clinton to make legally accurate answers in spite of what actually happened. And therefore he was not guilty of perjury in this writer’s estimation.

It is clear that an investigation that began to look into alleged questionable business dealings in a failed deal which went no where and ended up looking into the President’s bedroom was the work of an overzealous prosecutor and a coterie of Republicans who were determined to bring down the President at any cost. Pure partisan politics at its core and an abuse of Congress’s Constitutional duty to impeach for high crimes and misdemeanors. “Lying” about a sexual liaison and it is debatable that Clinton’s statement was technically a lie, does not rise at all to any serious or grave enough level intended by the founders to have impeachment to address. The proceedings against President Clinton were clearly political and were clearly not constitutional.

So the real question that arises is, after such a blatantly political abuse of the power to impeach would the nation be circumspect of new impeachment proceedings against President George Walker Bush, even if those proceedings were completely justified. Is the nation weary of the politics of impeachment and would the very serious matter addressed in an impeachment proceeding against President Bush have the effect of diminishing their troubling and heinous nature by relegating them to the dustbin of partisanship- which clearly the American people have developed a pronounced ennui.

Is there some sort of immunity from impeachment that President Bush has because he and his administration know bank on the fact it is unlikely the American people would want to live through 2 Impeachments within a decade? I fear it may be so.

But let’s look at the reasons that impeaching President Bush makes sense:

Recently a segment on the PBS Bill “Moyers Journal” was devoted to the subject of impeaching Bush. Conservative legal scholar Bruce Fein, an official in the Reagan Justice Department, and John Nichols, the chief Washington correspondent for The Nation come from different points on the ideological spectrum, but agreed that the Founders intended impeachment less as a punishment for officeholders than as a protection against the dangerous expansion of executive authority.

If abuse of the system of checks and balances, lies about war, approval of illegal spying and torture, signing statements that improperly arrogate legislative powers to the executive branch, schemes to punish political foes and refusals to cooperate with congressional inquiries are not judged as high crimes, the next president, no matter from which party, will assume the authority to exercise some or all of these illegitimate powers.

Let’s look at those abuses and actions that the Bush administration took within the legal context of Fein’s and Nichols rubric.

The U.S. Constitution provides for impeachment of any President or Vice President who commits “high crimes and misdemeanors.”

This applies to any serious abuses of power, whether or not they are actually crimes, but President Bush and Vice President Cheney have clearly committed numerous specific federal crimes while in office.

Let’s first focus first on a Conspiracy to Defraud the United States (a violation of Title 18, United States Code, Section 371).

Conspiracy to Defraud the United States is a specific federal crime prohibited by Title 18, United States Code, Section 371. Put simply, it is an agreement to use deceit and misrepresentation to “obstruct or impair” the normal functioning of government. It has been charged numerous times, including against defendants in the Watergate case and the Iran/contra scandal.

Let’s go through this step by step:

How do you prove a criminal conspiracy?

A criminal conspiracy is defined in the law as simply an agreement to commit a crime, but you don’t have to show that people wrote out an agreement or even explicitly said, “let’s do this criminal act…” Conspiracies are proved by evidence of what people do and say, both publicly and behind the scenes.

Isn’t that “circumstantial evidence?”

Yes it is and, as judges tell juries in courtrooms around the country every day, circumstantial evidence is just as important as direct evidence.

What does it mean “to defraud?”

To defraud means to attempt to influence people to go along with your proposal by using deceit. The attempt does not actually have to succeed. The crime is complete once a person uses misrepresentation with the intent to provide a false picture. “Fraud” includes deliberate misrepresentations, outright lies, half-truths and statements made with reckless disregard for the truth. Bush and Cheney used all of these methods to convince the public and Congress to agree to their plan to invade Iraq.

What are some examples of Bush’s and Cheney’s misrepresentations?

Bush, Cheney and their top aides made hundreds of misrepresentations to deceitfully convince people to accept their plan to invade Iraq. Here are a few examples:

1. Deliberate Misrepresentation- The linking of Iraq and 9/11

A deliberate misrepresentation is a statement or set of statements that might not be false in and of themselves, but are presented so as to give a false impression. In the case of the Bush/Cheney conspiracy to defraud, the best example of this is their repeated linking of Saddam or Iraq to the “lessons of 9/11.” The Bush administration used this device so often that it’s clear that it was a calculated and deliberate effort to provide a false impression that the two were linked — even though, as Bush has admitted, they knew there was no link. It is no defense to a charge of fraud based on deliberate misrepresentation that the person’s statement was not literally false.

2. Outright Lie- “Saddam wouldn’t let the inspectors in.”

Before the war, and as recently as March 21, 2006, President Bush said we invaded Iraq because “Saddam would not let the UN inspectors in.” That is an outright lie. The UN inspectors reported to the Security Council on March 7, 2003 that, although the process was not perfect, Saddam Hussein was cooperating with the inspections, the UN team thought the process was working, and they wanted to complete it. President Bush told the UN inspectors to leave within 48 hours on March 16, 2003.

3. Half-truth- “Saddam’s son-in-law told us about biological and chemical Weapons.”

One of the half-truths most often repeated by Cheney, in particular, was that “we” (the U.S.) knew there were biological and chemical weapons, because Saddam’s son-in-law, Kamel Hussein, told U.S. agents about them when he defected. Apart from the fact that Kamel made these statements in 1995, so they proved nothing about the existence of weapons in 2003, Cheney only told half the story. The other half was that Kamel had said that they had destroyed the weapons, a fact confirmed by U.N. and U.S. inspectors.

4. Reckless Disregard – “Iraq is a Grave and Gathering Danger”

In criminal law, statements made with reckless disregard as to whether they are true or false are considered fraudulent. In other words, the law imposes a duty upon people who are trying to influence others to make important life decisions — such as investments, large purchases, medical decisions, or, of course, agreeing to a war — to make assertions only if they are actually backed up by facts, especially when the people speaking are seen as authority figures, such as the President and Vice President. So every time Bush and Cheney made statements such as “Iraq is a grave and gathering danger” or “We know there are weapons of mass destruction,” they were speaking with reckless disregard for the truth. If they had done their due diligence and examined the reports of our own intelligence community, they would have known that these statements were seriously in question, if not outright false. If they did not complete any due diligence before making the statements, they were speaking with reckless disregard for the truth. Either way it’s fraud.

Does it Matter Whether Bush and Cheney actually believed there were WMD?

No, in criminal law it is not a defense to fraud that a person subjectively, that is, in his own mind, believed that the scheme would all work out, if he makes fraudulent misrepresentations in order to get people to go along with it. In other words, you can’t trick people into going along with your ideas, just because you think the ideas are good.

How was government “impaired and obstructed?”

Bush and Cheney’s fraudulent misrepresentations about the true state of affairs in Iraq was designed to convince the public to believe that Iraq presented an imminent threat. They needed to convince the public that there was a dire emergency in order to convince Congress to authorize funds for the war. This scheme of misrepresentation obstructed the workings of government in a critical way — it caused the most serious of governmental decisions to be made upon false information.

Second let’s look at violations of US Law and International Law- most specifically- violations of the Geneva Convention by condoning torture.

On 6/22/04 Bush said “We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.” Is that true?

The evidence below shows that Bush, Cheney, Rumsfeld and Gonzales are guilty of violating “Federal Torture Act” Title 18 United States Code, Section 113C, the UN Torture Convention and the Geneva Convention by ordering and condoning the use of torture. Many prisoners have died as a result.

1. 1/25/02 – White House Counsel Alberto Gonzales wrote a memo advising the President of “the threat of domestic criminal prosecution under the War Crimes Act,” a federal statute, for torturing prisoners. He advised Bush to invent a legal technicality –declaring detainees in the “war on terror” to be outside the Geneva Conventions –which, he said, “substantially reduces” the chance of prosecution. Gonzales was later promoted to US Attorney General. [Nation]

2. 2/7/02 – Bush took Gonzales’ advice and signed an order declaring that members of Al Qaeda and the Taliban are not covered by the Geneva Convention. The memo requires that “detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” While seeming to call for humane treatment, it is carefully worded to allow for violations of the Geneva Convention when necessary.

3. Bush moves prisoners to Guantanamo Bay in Cuba and holds them for years without charges, trials, or access to lawyers. This is ruled illegal by a Federal Judge on Jan 31, 2005.

4. Bush sets up secret prisons run by the CIA in foreign countries to escape US laws against torture. Rice claims European countries supported this plan. [Washington Post] [CNN] [FindLaw]

5. 9/26/02 – Canadian Maher Arar was arrested at JFK airport and sent to secret prison in Syria for torture under “extraordinary rendition” program. He was released a year later without charges. He sued the US government but the suit was dismissed by a federal judge David Trager on 2/17/06 citing the need for secrecy. He wrote, “One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar’s removal to Syria.” Thus the reason for the secrecy is not for national security but simply to avoid embarassing guilty parties in government. This sets a dangerous precedent that may allow Bush to kidnap and torture anyone he pleases. On 1/26/07 the Canadian government apologized and awarded Arar compensation. [Wikipedia]

6. Dec ’02 – Alberto J. Mora, the general counsel of the United States Navy, tried to halt what he saw as a disastrous and unlawful policy of authorizing cruelty toward terror suspects. His 2004 memo details his unsuccessful struggle with the White House to stop the torture. [New Yorker]

7. 12/31/03 – German national Khaled al-Masri says he was abducted by the CIA arrested in Macedonia and flown to Afghanistan. He was then tortured for five months and released. CIA has admitted making a mistake in this case.

8. April 2004, photos of prisoners being tortured at Abu Ghraib prison make headlines around the world. Low ranking soldiers are convicted of torture charges, falling on their swords for the White House. [Wikipedia] [New Yorker]

9. 5/24/04 – Seymour Hersh releases article detailing how Rumsfeld’s program encouraged torture. “President Bush was informed of the existence of the program, the former intelligence official said.” [New Yorker]

10. October 2005, Senator McCain adds an amendment to a defense bill that would outlaw torture by the United States. Bush and Cheney fight this tooth and nail to block this amendment but eventually give in after the McCain amendment is weakened by the Graham-Levin amendment. When Bush signs the bill he adds a signing statement that basically says he can ignore the prohibition against torture under his powers as “unitary executive” and “Commander in Chief “.

11. 6/29/06 – Supreme Court rules in Hamdan v. Rumsfeld that the Geneva Convention applies to prisoners at Guantanamo.

Now let’s look at illegal wiretapping. While the US Congress has recently expanded the President’s powers to continue this practice in a short term 6 month authorized bill, the President had no such authority before this legislation was enacted.

Bush has admitted to authorizing the NSA, a secretive spy agency, to conduct warrantless wire taps on American citizens. The spying even extends to postal mail. The NSA has also been collecting phone records in an attempt to build a database of every phone call that is made.

1. The Bush wiretaps violated US law because he was required to get approval from FISA. He can start a wiretap of a suspected terrorist at any time but must then seek approval to continue within 72 hours.

2. Attorney General Gonzales claims HJR114 gave Bush authority to conduct the wiretaps. But HJR114 only grants use of the “Armed Forces”. HJR114 does not explicitly suspend the Constitution. Also HJR114 requires “The President shall, at least once every 60 days, submit to the Congress a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted in section 3”. Congress was not notified of these wiretaps. [HJR114]

3. Bush may have bypassed FISA because he wanted to listen to and analyze all international signals, not just those of suspected terrorists. He knew this was blatantly illegal so he hid it. Bush says “We use FISA still. But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.” Then later “There is a difference between detecting, so we can prevent, and monitoring. And it’s important to note the distinction between the two.” The distinction is that “detecting” requires listening to lots of calls with a computer to see if someone says certain keywords like “bomb” in Arabic, or maybe even “impeach Bush” in English. Monitoring is listening to a specific suspected terrorist. The problem with detection is that you have to listen to all calls, including yours and mine. [This NY Times article confirms this interpretation. Also CNN.]

4. More evidence that Bush wants to listen to all signals is in Bob Woodward’s book “Bush at War,” on page 303. ” Bush summarized his strategy: ‘Listen to every phone call and close them down and protect the innocents.'” [WaPost]

5. James B. Comey, acting Attorney General, refused to sign an authorization for the NSA program because it “did not comply with the law”. On March 10th, 2004, Alberto Gonzales and Andrew Card tried to bypass Comey be getting a disoriented John Ashcroft to sign an authorization from his hospital bed. Comey rushed to the hospital to stop them. On March 11th, Bush intervened personally to get the Justice Department to authorize the program. [NYTimes]

6. Investigators may have found that Bush applied for an expansion of wiretap capability from FISA, was rejected, and then went ahead and did it anyway. [FindLaw] [FAS]

7. Bush claims going through FISA is too slow but legal emergency wiretaps helped capture terrorist Mosquera.

8. According to a report in USA Today, the NSA is collecting the phone records of tens of millions of Americans – most of whom aren’t suspected of any crime. The agency’s goal is “to create a database of every call ever made” within the nation’s borders. The stated goal is to be able to identify who is involved in a network of terrorists. But this same technique can be used to determine who is involved in a network of political activists who might, for example, oppose the Bush administration. Under Section 222 of the Communications Act, first passed in 1934, telephone companies are prohibited from giving out information regarding their customers’ calling habits. All of the major telecommunications companies cooperated with this program except for Qwest. Joe Nacchio, CEO of Qwest, was troubled by the fact that there was no FISA approval and that the program was so pervasive.

9. 8/18/06 – In response to a lawsuit filed by the ACLU, US District Judge Anna Diggs Taylor ruled that the wiretaps are unconstitutional.

There seems to be a grassroots swell for impeachment making it very different that the “in side the beltway” game that the Republicans played with President Clinton. More and more local jurisdictions are voting for resolutions calling for impeachment. This is the people talking, not the Washington insiders and the punditry.

The burgeoning movement for impeachment is a rational response to a moment when polls tell us that roughly three-quarters of Americans think the country is headed in the wrong direction. This administration has not just let Americans down; it has frightened them. A great many understand, intuitively or explicitly, that we are experiencing a constitutional crisis and that impeachment proceedings are the proper tonic. Unfortunately, key Democrats continue to mistake the medicine for the disease.

House Speaker Nancy Pelosi still keeps impeachment “off the table”; she and her advisers fear that if they allow Judiciary Committee Chairman John Conyers to open impeachment hearings, it will rally the Republican base in defense of Bush and Cheney. History suggests she’s wrong: Opposition parties that have pursued impeachment in a high-minded manner have, in every instance, maintained or improved their position in Congress and have usually won the presidency in the next election.

Pelosi should step out of the way and let her colleagues restore the rule of law. More than a dozen have shown their desire to do so by co-sponsoring Rep. Dennis Kucinich’s articles of impeachment against Cheney.

Clearly, impeachment is not just around the corner; even Sen. Russ Feingold’s “relatively modest response” to the crisis — censure resolutions against Bush and Cheney –faces an uphill struggle. At this late stage, it will be difficult to turn the need for accountability into action on Capitol Hill. But even an impeachment effort that falls short lays down a historical marker; it tells Bush and Cheney and all those who succeed them that an executive branch that imagines itself superior to Congress and the rule of law will arouse popular fury.
Let’s face it the Republicans are the sultans of spin and know the right buttons to push to scare the American people. You have heard the arguments from them about impeachment— partisan (excuse me? do you remember the Clinton impeachment) and a diversion from the real business of the American people.

I’ve already addressed the partisan issue. Republicans using this argument should just be ashamed of themselves- or they have suddenly developed Alzheimer’s. But let’s talk about the “real business of the American people”. Sure Congress needs to tackle issues like health care, terrorism (in a way that makes sense- not Bush’s strategy), the economy, the ever increasing violence in the country, and a myriad of social ills that should be addressed. But I posit that none of these issues can truly be addressed appropriately unless the Congress does it’s duty to protect the rule of law and the Constitution of the United States.

In my desire to be a pragmatic Democrat I have looked at impeachment talk as unrealistic and politically dangerous. After all in 2008 I would like to see a Democratic Congress and a Democratic White House. Would impeachment compromise the possibility of that dream? A year ago I would have said yes. Now I say no. The American people are hungering for leadership and for a way out of the mess. With an approval rating of 18% what does Congress have to risk?

The people are craving action and it is time for our leaders in Congress to do the right thing, show some backbone and hold the President accountable. There is a tightrope politicians walk in politics- how vigilantly do they hold to their convictions and how much are they willing to compromise those convictions to get something done. Governing is often seen as compromise and that is fine most of the time. Compromise has its own sort of accountability to the nation. But there are times when compromise is just a cop out and is a sign of weakness and is dangerous for the nation. This is one of those times.

It is time for the United States House of Representatives to do the right thing- it is time for Speaker Pelosi to put the impeachment option back on the table. After all there is nothing less than the future of our Constitution at stake.


  1. You’re right. Bush and Cheney have committed a multitude of impeachable crimes, and failure to call them to account for them would set a very dangerous precedent for the future.

  2. I’m trying to move away from using “wiretapping” as the broad term for the electronic surveillance carried out in recent years and currently, because the term brings to mind old technology and old methods. And as a blog commenter (I’ve forgotten who, where) pointed out, speaking of wires tends to cause readers to think of telephone calls only and not to think of Internet communications and traffic.

    We (and the judicial and congressional branches of government) must learn more about what has been done and is being done if we’re to specifically frame legal language. That entails learning more about methods being used in surveillance. It’s possible to make public some basic information without compromising national security. As a parallel, much information about local and state police and prosecutorial methods is made public, while certain specific information is kept secret while an investigation is ongoing or a trial is pending.

    There are several issues of executive branch conduct aside from domestic surveillance, sadly, but extreme secrecy by the administration is being used against investigations into most or all of them. Congress has to press matters at least to the point of issuing contempt citations, if necessary, if there are to be legal grounds to warrant impeachment. Once again, the ball (for each issue) is in their court.

  3. Editorial

    Should impeachment have been on council’s agenda?
    September 1, 2007

    Earlier this month, a Portland City Council meeting opened, as I assume all of them do, with the Pledge of Allegiance. “I pledge allegiance … and to the republic …”
    It is my opinion that a half-hour later some councilors reneged on their pledge. Ms. Jill Duson’s resolution for impeachment came up for discussion and was defeated.
    If you believe as I do that our republic, our Constitution and its amendments are under attack from the current administration, then it is one’s duty as a citizen and elected official to say so.
    Several of the councilors made comments to the effect that while they are personally not opposed to impeachment, they didn’t think it was City Council business.
    OK, I was willing to concede that their position could at least merit a discussion, until I made a trip to City Hall. At the city clerk’s office, I was given a copy of the oath of office for council members.
    The very first words of that oath are, “I do solemnly swear that I will support the Constitution of the United States.” If a councilor does not believe that there have been offenses against the Constitution, a “nay” vote was warranted.
    However, if councilors believe that impeachable offenses have occurred, their oath of office for their city councilor position requires them to support the Constitution and vote “yes” for the impeachment resolution.
    Their oath of office makes the Constitution of the United States part of city business, and they should have “faithfully discharged the duties incumbent on them according to said Constitution.”
    Pete Cavanaugh

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