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Raoul Berger, Impeachment: An Instrument of Regeneration, Harper’s Magazine, January 1974.
As the final eleven months of the Bush Administration are being counted off in Washington, the accepted wisdom is that impeachment must be taken off the table. The end is now so close by—what’s the point? Moreover, the American people would, we are told, view it as an act of over zealous partisanship, and would strike back at the polls. But these responses reflect a misunderstanding of the role that impeachment has historically played in the American democracy, and the English roots of impeachment as a constitutional device. They see in impeachment a measure which is purely ad hominem in nature, and avoid the much more important institutional aspect.
I predict that before Bush leaves office, the case for his impeachment will and should be given a more careful hearing. It must not be pursued as a partisan remedy to force a transfer of power. Rather it should be used as an institutional remedy. Polling now shows that a large majority of Americans believe that President Bush and Vice President Cheney have committed serious transgressions against the Constitution which would merit consideration of the impeachment process. Impeaching President Bush and Vice President Cheney for their attempts to hijack the Constitution would make a clear statement about abuse of power. It would also serve to put reasonable constraints on the conduct of their successors–who are likely to be Democrats. This is a step which genuine Conservatives and Republicans who adhere to their party’s former understanding of a government with an executive of carefully limited and checked powers should welcome and embrace.
But more importantly, the political stage in Washington will soon encounter facts that command the consideration of impeachment. Let me posit a scenario which I believe likely to appear before the end of this summer. The Justice Department’s Inspector General and Office of Professional Responsibility have concluded their joint investigation into the “Gonzales Eight,” namely the eight U.S. attorneys who were fired by Alberto Gonzales on December 7, 2006. The legal standard governing these terminations can probably be summarized this way: the U.S. attorneys could be fired for no reason, or for any reason, but not for an improper reason. But the inquiry has concluded, as I think it invariably must, that in several cases the firing occurred for an improper reason, to-wit: in order to corruptly influence a criminal investigation. In one case, relating to New Mexico U.S. attorney David Iglesias, the facts establishing an improper purpose lie right at the surface, and they implicate Alberto Gonzales, Karl Rove and George Bush. The Justice Department’s internal investigation will not address the White House’s involvement in the illegality—surely not President Bush’s and probably not even Karl Rove’s. But it will make a series of adverse conclusions concerning Alberto Gonzales and it will note that Karl Rove and George W. Bush were intimately involved in the whole process. This is because the jurisdictional remit of the investigation is limited–it can only deal with employees and former employees of the Justice Department, so Rove and the president are off bounds. But among the charges it is likely to lay at Gonzales’s doorstep is that he failed to apprise the White House of the fact that their meddling with the U.S. attorneys for purposes of influencing criminal investigations connected to elections was a crime–which it surely was. Gonzales recently engaged savvy criminal law counsel. He needs them. But the facts will point to more systematic and potentially deeper culpability within the White House than the Justice Department itself.
If things unfold this way, it will be incumbent on the Congressional oversight organs, and particularly the House Judiciary Committee, to pick up where the Justice Department’s investigation left off: it will need to scrutinize the role that President Bush, Vice President Cheney, Karl Rove and potentially others played in the whole affair, and generally in the corrupt influencing of criminal proceedings. It’s well settled at this point that if a criminal prosecution is manipulated for purposes of creating some partisan political benefit, that is a “corrupt influencing” under federal criminal law—a felony, and in the language of the Constitution, a “high crime and misdemeanor.” It’s very rarely charged because, of course, prosecutors make the decisions to bring charges, and prosecutors very rarely charge themselves. The key question of supervision of misbehaving prosecutors is rising to the top in Washington right now in a way it never has before in America’s history.
But let’s keep the focus for the moment on impeachment. It may not necessarily start its inquiry under the rubric of “impeachment,” but it may well be viewed as a preliminary to an impeachment. And if the past is a guide, American impeachment proceedings have often started as a general inquiry and developed into impeachment—particularly as facts are disclosed which generate public demand for stronger action.
In 1974, Prof. Raoul Berger, the conservative Harvard legal historian and Supreme Court scholar, addressed the impeachment issue in a brief essay in Harper’s. Berger died in 2000 following a long, rich career as a legal scholar (though he told friends that he really wanted to be a violinist, and indeed he is reported to have been quite gifted as a musician). He is best known for his extremely harsh critique of the Warren Court and its equal protection jurisprudence, which Berger argued was irreconcilable with the framers’ intent. Berger’s views at the time seemed a radical assault on liberal orthodoxy, but today they seem relatively mainstream.
Berger, in any event, studied and wrote about the notion of impeachment in English jurisprudence from the seventeenth century, and how it was incorporated into the American constitution. He felt Americans were far too reticent about using it. Impeachment, in his view, was an essential Constitutional safeguard–it is an instrument for regeneration.
Impeachment, to most Americans
today, seems to represent a dread
mystery, an almost parricidal act, to
be contemplated, if at all, with awe
and alarm. It was not always so. Impeachment,
said the House of Commons
in 1679, was “the chief institution
for the preservation of the government”;
and chief among the impeachable
offenses was “subversion
of the Constitution.” In 1641, the
House of Commons charged that the
Earl of Strafford had subverted the
fundamental law and introduced an
arbitrary and tyrannical government.
By his trial, which merged into a bill
of attainder and resulted in his execution,
and by a series of other seventeenth-
century impeachments, Parliament
made the ministers accountable
to it rather than to the King and
stemmed a tide of absolutism that
swept the rest of Europe. Thereafter,
impeachment fell into relative disuse
during the eighteenth century because
a ministry could now be toppled by
the House of Commons on a vote of
Historians regularly reach back to the Strafford case for another purpose: it marks one of the early chapters of what we would know today as “parliamentary oversight.” The Commons used a probe of Strafford as a vehicle for challenging abuses in government by the monarch. The Stuart kings, including Charles I for whom Strafford was a favorite, claimed to be monarchs by divine right. For them the maxim was not that the “king is above the law,” but rather “the king is the law” (“rex est lex”). Strafford effectively served as a parliamentary whipping boy. His impeachment was a means for holding the monarch to account. And as Berger notes, the inclusion of the notion of impeachment in the U.S. Constitution was very plainly driven by the painful memory of parliament’s struggles with the monarchy in the seventeenth century.
The reason lies in the fact that the
Founders vividly remembered the
seventeenth-century experience of the
mother country. They remembered
the absolutist pretensions of the Stuarts;
they were haunted by the
greedy expansiveness of power; they
dreaded usurpation and tyranny.
And so they adopted impeachment
as a means of displacing a usurper–a
President who exceeded the bounds
of the executive’s authority.
The colonists, after all, regarded
the executive, in the words of Thomas
Corwin, as “the natural enemy,
the legislative assembly the natural
friend of liberty.” Throughout the
colonial period, they had elected their
own assemblies and trusted them as their own representatives. The governors,
on the other hand, were often
upper-class Englishmen with little
understanding of American aspirations,
who had been foisted on the
colonists by the Crown. Hence, Congress
was given the power to remove
the President. This power, it must be
emphasized, constitutes a deliberate
breach in the doctrine of separation
of powers, so that no arguments
drawn from that doctrine (such as
executive privilege) may apply to the
preliminary inquiry by the House or
the subsequent trial by the Senate.
This last point is of vital importance for the present affair. The Bush White House has put up enormous battlements in anticipation of what is coming. They are asserting executive privilege in response to a series of outstanding Congressional subpoenas requiring Karl Rove, Harriet Miers and others to appear and testify and to produce documents. They also have been playing a historically unprecedented game of deceit with respect to documents, asserting executive privilege in the most preposterous way (for instance, claiming that emails on the servers of the Republican National Committee are shielded by executive privilege, as if the RNC were part of the White House, a claim which itself would support an impeachment count since it supposes an anti-constitutional restructuring of the government). But they also suggest that the documents have been destroyed, then withdraw that statement, and then raise it again, in a bewildering volley of conflicting assertions. All of this is done to one purpose, namely, to leave no doubt that the Bush Administration would view any probe of its dealings surrounding the U.S. attorneys and related scandals (most of which go to corrupt manipulation of the Justice Department) as an existential threat, to be challenged to the end. Justice Department officials, many of whom are implicated in the matter under investigation, produce their own highly implausible arguments in support of executive privilege. But the point to keep in mind is that the Congress holds all the aces in this struggle. If it proceeds on the basis of an inquiry into impeachment, then no claim of executive privilege can stand because this is, as Berger notes, outside of the separation of powers framework. More precisely it is the “ultimate check” given to the legislature.
As most readers will recall from the Clinton case just a few years back, impeachment requires a “high crime or misdemeanor.” Again constitutional history needs to be considered carefully, because this phrase has a peculiar meaning in the context of impeachment in the English legal tradition from which it sprang.
Certain political crimes–treason
and bribery, for example–were
also indictable crimes, but English
impeachments did not require
an indictable crime. Nonetheless,
the English impeachment was criminal
because conviction was punishable
by death or imprisonment.
In fact, under English practice
there were a number of impeachable
offenses that might not even be
crimes under American criminal law.
First and foremost was subversion of
the Constitution: for example, the
usurpation of power to which Parliament
laid claim. Other impeachable
offenses were abuse of power, neglect
of duty, corrupt practices that fell
short of crimes, even the giving of
“bad advice” to the King by his ministers.
Broadly speaking, these categories
outlined the boundaries of
“high crimes and misdemeanors” at
the time the Constitution was adopted.
In fact, the lesson of the seventeenth century is clear on this point. One crime provided the basis for impeachment repeatedly and that was subversion of the constitutional order. The Earl of Strafford’s case provides a perfect example. His conduct subverted the constitutional prerogatives of parliament in the name of the king. This was the paradigm case for impeachment. And it was recognized by the earliest American commentators, such as Justice Story, who said that impeachment “is not so much designed to punish as to secure the state against gross official misdemeanors.”
It is prophylactic, designed to remove an unfit officer from
office, rather than punitive. But most important, it is designed to protect the constitutional order from efforts to transform it.
Berger goes on to apply these rules to the facts facing the nation in early 1974. In his view, Nixon’s assertion of executive privilege in the face of a Congressional probe would have merited his removal from office had be persisted in it, and Nixon’s simple assertion of the privilege was a clear grounds for impeachment. This ground is already present in the Bush case. Second, Berger cites Nixon’s abuse of his commander-in-chief powers in making war. He considers this again to be right at the center of the turf reserved for impeachment.
widely agreed among eminent historians
that so far as the “original intention”
of the Founders is concerned,
the power to make war was
exclusively vested by the Constitution
in Congress. They intended, in
the words of James Wilson, second
only to Madison as an architect of
the Constitution, to put it beyond the
power of a “single man” to “hurry”
us into war. The argument for a
President powerful enough single-handedly
to embroil the nation in war
rests on comparatively recent Presidential
assertions of power.
No President, or succession of
Presidents, can by their own unilateral
fiat rewrite the Constitution and
reallocate to themselves powers purposely
withheld from them and conferred
on the Congress alone.
Berger focuses his comments on the covert war in Cambodia, but Bush’s conduct of the “war on terror” presents a far greater array of transgressions. He has claimed the “commander in chief power” as a basis for subverting Congress’s power to legislate, as can be seen in his recent signing statement on defense authorizations, in which he wields this power to protect corrupt military contractors from oversight and accountability. And Bush’s entire process of war-making relating to Iraq boils down to entry into war by stealth and deceit, among the most basic charges brought against Strafford, and later his master, Charles II. (Of course both Strafford and the Stuart monarch were convicted and executed, and no one would argue that the death penalty is the proper remedy here—it is simply removal from office.)
Berger is not of course considering the case for impeaching George W. Bush, but it is remarkable, reviewing his article, how similar Nixon’s offenses are to those we witness today. Indeed, it is remarkable how many recidivists figure in the story, starting with Donald Rumsfeld and Dick Cheney.
Berger’s essential point is clear:
The Founders feared an excess of
power in executive hands; they had
just thrown off the shackles of one
tyrant, George III, and were not
minded to submit to another. Hence,
they provided impeachment as an
essential restraint against arbitrary
one-man rule. The wisdom of the
Founders has been abundantly confirmed
by recent events, The time has
come to regard impeachment, not as
a clumsy, outworn apparatus, but
rather as an instrument of regeneration
for protection of our liberties
and our constitutional system.
The use of impeachment as a device to undo the electorate’s will and install the legislature’s choice as president is a temptation inherent in democratic structures and in recent years we have seen impeachment misused or threatened this way not just in the United States, but also in other societies (Korea and Taiwan being two). The proper use of impeachment is as a constitutional restorative, just as Berger argues. And following this argument, as Bush’s term of office comes to an end, the use of the impeachment remedy becomes more, not less compelling. It can and should be used to draw a line in the sand about the arbitrary use of executive power, making clear that Bush’s abuses cannot be taken as precedent by future presidents. Indeed, failure to use impeachment has its consequences: it means acceptance of Bush’s transformation of the constitutional order. It means that the careful balance between legislature, executive and judiciary created by the Framers has been undone, and the executive has triumphed as the paramount power. Impeachment may be a painful process, of course, but Americans should consider whether their Constitution is worth saving.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Percentage of Americans who say they have “a great deal of confidence” in the executive branch of government:
Dolphins use names.
A poet in Saudi Arabia was sentenced to death for apostasy.
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