Lofgren has always seemed to be on the fence. Two years ago, she signed and unsigned John Conyers' resolution for a preliminary impeachment investigation (she said it was a misunderstanding). And now she's written a letter to Conyers asking him to hold a hearing on a report that the Judiciary Committee's staff published in 1974 on "Constitutional Grounds for Presidential Impeachment". At the time the report was produced, Lofgren was serving as a staff person for Congressman and Committee Member Don Edwards.
Lofgren has issued a press release on the topic. She has posted a PDF of her letter to Conyers. And she has posted a PDF of the 1974 report "Constitutional Grounds for Presidential Impeachment".
When I first heard about this proposal I thought it might be a way to put impeachment on the table. If, I thought, Conyers could be brought to unsuspectingly hold this hearing, the public would seize on it as the beginning of impeachment and flood Speaker Nancy Pelosi, Chairman Conyers, and the media with such an outpouring of gratitude and praise that Washington would be a completely different place in a week.
On second thought, however, there just isn't any way that Conyers would do such a thing unsuspectingly. He would know, having served on the committee when it produced the report, that there would be no way to hold a hearing on it without moving forward with an impeachment of Cheney. And Lofgren must know the same. That's why I say she is a closet impeachment advocate and ought to come out and say it. She ought to join her nine colleagues, six of whom have signed onto articles of impeachment, and three more of whom - led by Robert Wexler - want to begin impeachment hearings on the vice president.
Lofgren may imagine that having 10 committee members instead of nine in favor of justice wouldn't make any difference, and that she is therefore not responsible for the fate of our constitutional republic. To that I say: let her prove it by adding her name to Wexler's letter to Conyers. If it makes no difference, Lofgren can at least know that she did the right thing, and she can tell her pro-impeachment constituents "See, it made no difference." If she doesn't try, she will have no defense against the penetrating eye of history.
The report is a fairly short historical review of impeachment and analysis of what constitutes grounds for impeachment. It's a bit out of date, of course, and should be supplemented in terms of dry boring facts by Michael Gerhardt's "The Federal Impeachment Process: A Constitutional and Historical Analysis," and in terms of real analysis and insight by John Nichols' "The Genius of Impeachment: The Founders' Cure for Royalism," which is the best book ever written on the topic.
A serious hearing would also review the books on Bush and Cheney's impeachable offenses authored by Marjorie Cohn, Elizabeth de la Vega, the Center for Constitutional Rights, Elizabeth Holtzman (former Congresswoman and member of the Nixon impeachment panel) and Cynthia L. Cooper, Dave Lindorff and Barbara Olshansky, Dennis Loo and Peter Phillips and Howard Zinn, Jennifer Van Bergen, Lewis Lapham, the International Commission of Inquiry on Crimes Against Humanity Committed by the Bush Administration, and an excellent book called "The Constitution in Crisis" by a guy named John Conyers.
The 1974 report reviews what is known of the intentions of those who placed impeachment in the Constitution and ratified it. Interestingly, the report develops at some length the concern the founders had that the executive be a single individual, because a presidency consisting of two or more people would eliminate a level of responsibility and accountability:
"The Revolution had been fought against the tyranny of a king and his council, and the framers sought to build in safeguards against executive abuse and usurpation of power. They explicitly rejected a plural executive, despite arguments that they were creating 'the foetus of monarchy,' because a single person would give the most responsibility to the office. For the same reason, they rejected proposals for a council of advice or privy council to the executive."
Yet, we now have a vice president engaged in as much executive decision making as the president, and the public denied the right to know who is responsible for which crimes. In addition, we have our co-presidents asserting "executive privilege" to keep secret any and all discussions they have with their council of advisors, a council that is not supposed to exist.
The report goes on to make clear the intention of the founders to use impeachment to hold in check a president or anyone subordinate to the president for whose actions the president could be held responsible.
James Madison, the principle author of the Constitution, we learn in this report, believed that the president should be absolutely free to fire any subordinates, but should be impeached if any subordinates commit high crimes or misdemeanors. Applying this logic to the US Attorneys, Alberto Gonzales, Scooter Libby, Donald Rumsfeld, Karl Rove, and other incidents, in each case leads to articles of impeachment against both of our co-presidents.
In the case of Scooter Libby, there's another lesson in the 1974 report: Madison and George Mason both wanted a president impeached if he ever pardoned someone for a crime that he himself was involved in.
The report clarifies that "high crimes and misdemeanors" covers abuses of power, some of which may also be criminal offenses, but less than a third of the 83 articles of impeachment the House had adopted by 1974 involved criminal violations. Reviewing articles of impeachment passed against presidents, cabinet members, and judges, the authors of the report found three main types of abuses that had been considered grounds for impeachment. A cursory reading of the description of any of the three categories (much less a "hearing" on this report) leads to a menu of Bush-Cheney abuses jumping out at you. The three areas are:
1. Exceeding the powers of the office in derogation of those of another branch of government.
2. Behaving in a manner grossly incompatible with the proper function and purpose of the office.
3. Employing the power of the office for an improper purpose or personal gain.
Under point #3 there are two subcategories, both of which Bush and Cheney qualify for on multiple counts: vindictive use of their offices, and use of their offices for personal gain.