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A Primer on Impeachment

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Impatience with the Democrats in Congress seems to grow daily about their inaction to begin impeachment proceedings of President George W. Bush and Vice President Dick Cheney, which a slight majority of Americans seem to want.

Democratic leaders have ready reasons to not consider impeachment at this time. They cite lack of support in the Congress, or an unwillingness to "divide the country" that Bush has been dividing for more than six years. Democratic leaders also claim that impeachment would preclude action on other important matters.

Both the pro-impeachment forces and the anti-impeachment crowd have valid arguments for their positions just as there are invalid arguments for their stands. This article will not side with either one, but will only look at the issue from a neutral standpoint.

First up is a question that has confounded Americans ~ including constitutional scholars ~ for two centuries.

Are we misreading the "high crimes and misdemeanors" clause of the impeachment powers? I think we are; every damn last one of us; or at least most of Americans are. It has long puzzled "experts" why the Founders would include "misdemeanors" ~ minor criminal infractions ~ with "high crimes." Had the Founders wished the word misdemeanors to mean only petty crimes, they probably would not have put "high crimes" or "misdemeanor" into the Constitution, they would have just said "crimes."

There are another meanings ~ other than "petty crimes" ~ for the word 'misdemeanors" and they are understood by breaking down the word into its component parts. The prefix "mis" means abhorrent, detestable, disgusting, bad, or many other words with similar meanings; "demeanor" means behavior or conduct. Thus "misdemeanor could mean abhorrent behavior, detestable behavior, disgusting conduct or any other types of unacceptable actions or deportment. Of course, the Founders could have just used abhorrent behavior or conduct, bad behavior, or wrong conduct, or incorrect behavior. There is also the possibility that they didn't do so because of the various possibilities; they just used "misdemeanors" to embrace all possible interpretations. The confusion might have been avoided if the Founders had written "mis-demeanors."


But it shouldn't really matter; in reading the Constitution we must use all the definitions a word may convey, so "misdemeanors" should be invoked for abhorrent behavior as well as for petty crimes. Congress doesn't appear at this time to be using all definitions possible ~ or any for than matter. How ever "misdemeanors" is defined, it should put an end to far-right-wing Bush apologists who claim he has broken no laws because the wartime commander in chief can do whatever he wants. That according to a 1918 Supreme Court decision saying during a war the government must be allowed to take action that would be blatantly unconstitutional during peacetime. That decision was touched on in an earlier article, and most likely will be again in the future since it appears no one learned anything about it the first time around.

An exchange at the Constitutional Convention indicates that James Madison, considered the Father of the Constitution, didn't restrict impeachment to only crimes.

George Mason had argued that the president might use his pardoning power to "pardon crimes which were advised by himself" or, before indictment or conviction, "to stop inquiry and prevent detection." Madison played off that remark with: "If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty." In other words: bad behavior; and his statement indicates that Madison didn't interpret "misdemeanors" as referring to petty crimes.

If we applied Madison's concept today, Bush could be impeached for his commuting the prison sentence of convicted felon I. Lewis Libby.

And the Founders left many clues in the Constitution and their promotion of the Constitution that would indicate that "misdemeanors" didn't apply to petty crimes. There is the statement in Article III that judges could serve during "good Behaviour." That implies they can't serve during "bad behavior;" being removed from office through impeachment and conviction.

In Federalist Paper #65, Alexander Hamilton said impeachment is justified for "misconduct of public men" and added in #79 that "malconduct" of judges is grounds for impeachment. But he also said in #65 that the three justifications for impeachment must: 1) involve a violation of public trust as part of official duties, 2) be political in nature and 3) bring harm to the public. None of these three issues were involved in the impeachment of Bill Clinton by the Republican House, but all are or were involved in the Nixon, Reagan, Bush the Daddy and Bush the Infantile administrations. The Federalist Papers have no authority as legal documents, but they must be used for guidance.

So we need not restrict impeachment considerations to only crimes. "Misdemeanors," as it is defined to include abhorrent behavior or other such meanings, would certainly cover lying a nation into war, manipulating intelligence to justify a war, or maligning those who expose the lies and manipulations or defying Congress during matters of investigation.

On one side of the impeachment argument is the political left, which is impatient and would prefer impeachment yesterday, if not previous to that. While that doesn't appear practical under present circumstances, it could be beneficial. The Constitution specifically says that the President may not issue a pardon to anyone in cases of impeachment. Under that provision, the House of Representatives could hold impeachment hearings and proceedings for the sole purpose of preventing pardons that Bush has already shown he would use to protect any criminal in his administration. The problem in the House is that the 233-to-202 advantage the Democrats have over the GOP is eliminated by 47 conservative-to-moderate Blue Dog Democrats who support Bush on many matters, especially the war against Iraq, and would not support his impeachment.

The Senate as now composed includes 49 Democrats ~ one of whom is still partly incapacitated ~ 49 Republicans and two independents. The two independents include a socialist who will stick with the Democrats regardless. The other can't be counted on since he is a strong supporter of Bush and Bush's war against Iraq and has said he may support a Republican for president in 2008. Should the Congress take on an impeachment crusade and fail miserably, that Bush independent might join the Republican Party, giving it 50 members and a tie on all matters. That would turn the Senate over to Cheney who has the power settle all tie votes, resulting in Republican control of that body and all of its committees and subcommittees, which probably would end all Senate investigations and other actions intended to impede Bush.

The Constitution does not place a time table on how soon articles of impeachment must be forwarded to the Senate for trial. So the House, in theory, could draw up articles of impeachment, but hold onto the articles of impeachment until a new Congress is sworn in January 3, 2009, in order to prevent pardons from this President.

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***************************************************** Thomas Bonsell is a former newspaper editor (in Oregon, New York and Colorado) United States Air Force cryptanalyst and National Security Agency intelligence agent. He became one of (more...)
 
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