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Friday's House Judiciary Hearing on Impeachment: A Victory and a Challenge

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By Dave Lindorff

The dramatic hearing on presidential crimes and abuses of power
held on Friday by the House Judiciary Committee was both a staged
farce, and at the same time, a powerful demonstration of the power of a
grassroots movement in defense of the Constitution. It was at once both
testimony to the cowardice and self-inflicted impotence of Congress and
of the Democratic Party that technically controls that body, and to the
enormity of the damage that has been wrought to the nation’s democracy
by two aspiring tyrants in the White House.

As Rep. John Conyers (D-MI), chairman of the committee, made clear
more than once during the six-hour session, this was “not an
impeachment hearing, however much many in the audience might wish it to
be” He might well have added that he himself was not the fierce
defender of the Constitution and of the authority of Congress that he
once was before gaining control of the Judiciary Committee, however
much his constituents, his wife, and Americans across the country might
wish him to be.

At the same time, while the hearing was strictly limited to the
most superficial airing of Bush administration crimes and misdemeanors,
the fact that the session—technically an argument in defense of 26
articles of impeachment filed in the House over the past several months
by Rep. Dennis Kucinich (D-OH)--was nonetheless a major victory for the
impeachment movement. It happened because earlier in the month, House
Speaker Nancy Pelosi (D-CA), who has sworn since taking control of the
House in November 2006, that impeachment would be “off the table”
during the 110th Congress, called a hasty meeting with Majority Leader
Rep. Steny Hoyer (D-MD), Rep. Conyers, and Rep. Kucinich, and called
for such a limited hearing.

It was no coincidence that shortly before Pelosi’s backdown, peace
activist and Gold Star mother Cindy Sheehan announced that her campaign
had collected well over the 10,000 signatures necessary to qualify for
listing on the ballot as an independent candidate for Congress against
Pelosi in the Speaker’s home district in San Francisco. Sheehan has
been an outspoken advocate of impeaching both Bush and Cheney. “Pelosi
is trying to throw a bone to her constituents by allowing a hearing on
impeachment,” said Sheehan, who came to Washington, DC to attend. “It’s
just like her finally stating publicly that Bush’s presidency is a
failure—something it has taken her two years to come to, but which
we’ve been saying for years.”

So determined were Pelosi and Conyers to limit the scope and
intensity of the hearing that they acceded to a call for Republicans on
the Judiciary Committee to adhere to Thomas Jefferson’s Rules of the
House, which prohibit any derogatory comments about the President,
which was interpreted by Chairman Conyers as meaning no one, including
witnesses or members of the committee, could suggest that Bush had lied
or deceived anyone. Since a number of Rep. Kucinich’s proposed articles
of impeachment specifically charge the president with lying to Congress
and the American People, this made for some comic moments, with witness
Bruce Fein, a former assistant attorney general under former President
Ronald Reagan, to say he would reference his listing of crimes to the
“resident” of the White House.

In the end, the rule imposing a gag on calling the president a
criminal fell by the wayside, with witness Vincent Bugliosi. A former
Los Angeles deputy district attorney, accusing Bush of being guilty of
the murder of over 4000 American soldiers and of hundreds of thousands
of innocent Iraqi civilians because he had “lied” the country into an
illegal and unnecessary war, and with committee member Shiela Jackson
Lee (D-TX) suggesting that the president may have committed treason in
invading Iraq, and that he appeared to be preparing to do it again with
an unprovoked invasion of Iran.

Conyers also acquiesced in a Republican effort to minimize public
monitoring and involvement in the hearing, allowing the minority party
to fill most of the available seats in the hearing room with office
staffers who showed little interest in the proceedings. Only a few
dozen of the hundreds of pro-impeachment activists who had come to the
Rayburn Office Building at 7 am in order to get seats in the Judiciary
Committee hearing room were allowed in, with the rest having to remain
in the hall or go to two remote “overflow” rooms to watch the
proceedings on a TV hookup. Conyers also went along with a call by
Republican members of the committee to have some of those who did make
it into the hearing ejected simply for wearing buttons on their shirts
calling for impeachment (the Republican members referred to these as
“signs”), though such small personal tokens are routinely allowed in
congressional hearing rooms.

It was clear that this was to be a tightly controlled and strictly limited hearing.

It was also clear that it was intended to go nowhere.

At one point, after hearing witnesses like Fein, Bugliosi, former
representative and Nixon impeachment committee member Elizabeth
Holtzman, former Salt Lake City mayor and impeachment activist Rocky
Anderson, former House Clinton impeachment manager Bob Barr, former
Watergate Committee counsel and current senior counsel of the Brennan
Center for Justice Frederick A.O. Schwartz, and Elliott Adams,
president of the board of Veterans for Peace, lay out the
administration’s crimes and abuses of power—which included charges of
usurping the legislative powers of Congress, violating international
treaties, war crimes, lying to Congress, an illegal war, felony
violation of the Foreign Intelligence Surveillance Act and the Fourth
Amendment, defying Congressional subpoenas, obstruction of justice and
more, Rep. Jerrold Nadler (D-NY), chair of the Constitution
subcommittee of the Judiciary Committee, appeared convinced that the
abuses were real and serious.

But Nadler, who for two years has been a major obstacle on the
Judiciary Committee to any efforts to move impeachment to a formal
hearing, said, “No president has been removed from office through
impeachment.” He asked the witnesses, “How would you approach
impeachment today so it would be a viable option?”

Former Rep. Holtzman responded, “The real remedy to a president who
believes he is above the law is impeachment. There is no running away
from that.” She said, “An impeachment inquiry, handled fairly, could
work. Maybe I’m a cockeyed optimist, but I believe it could work.”

The basic point, made by Holtzman, by Fein and by many others,
including this writer, is that worrying about the political opposition
to impeachment, both in the House, and in the Senate, not to mention
among the broader public, is completely wrongheaded. Even when
impeachment articles were first filed against Nixon, the public and the
bulk of the Congress were against the idea. It was during the hearings
that the tide turned, as evidence of malfeasance, criminality and abuse
of power became evident through hearing testimony. The same would
happen in the case of President Bush and/or Vice President Cheney. Most
Americans don’t even know that the president made up evidence to
justify the war against Iraq out of whole cloth. They don’t know what
the Geneva Conventions are with regard to torture. They don’t know why
Congress passed the FISA act, which Bush has been feloniously violating
to spy on them (it was passed because Nixon was using the National
Security Agency to spy on Americans without judicial warrants!). They
don’t know the Bush has been refusing to enact laws passed by the
Congress. Public hearings by an impeachment panel would make all these
high crimes and misdemeanors clear on national TV to all sentient
Americans. Moreover, as Holtzman pointed out, the president would not
be able to use the claim of “executive privilege” to withhold testimony
from aides in an impeachment inquiry, the way he has done when they
have been subpoenaed by other House and Senate committees. Impeachment
would be about violations of the very executive actions he would be
claiming privilege on. As well, an impeachment committee, unlike any
other committee of the Congress, is specifically sanctioned and
empowered in the Constitution, meaning that even strict
“constructionist” Federalists on the bench would have a hard time
backing presidential obstruction.

As Holtzman noted, “There is no executive privilege in impeachment,
because refusing to testify is itself an impeachable offense.”

Committee Republicans, aided by two law professors they had brought
in to testify, Stephen Presser of Northwestern University School of Law
and Jeremy Rabkin of George Mason University School of Law, tried to
argue that impeachment was only meant for crimes in which the official,
or the president, was seeking personal gain. This nonsense was knocked
down by most of the speakers, who quoted numerous founders who made it
clear that what high crimes referred to were actions—even taken with
the noblest of intentions—that undermined the Constitution or abused
the powers of the office. As Rep. Nadler said, “Impeachment has nothing
to do with intentions or with good faith. Impeachment has to do with
abuse of power which weakens the balance of power.”

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Dave Lindorff, winner of a 2019 "Izzy" Award for Outstanding Independent Journalism from the Park Center for Independent Media in Ithaca, is a founding member of the collectively-owned, journalist-run online newspaper (more...)

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