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Judiciary Committee Should Move to Impeach Bush and Cheney

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Message Elizabeth Holtzman
Elizabeth Holtzman served in the US House of Representatives from 1973 to 1981.

    Since mid-December, members of the House Judiciary Committee Robert Wexler (D., Fla.), Luis Gutierrez (D., Ill.) and Tammy Baldwin (D., Wis.) have called for hearings on the impeachment of Vice President Cheney.

    This should not be surprising, given the strength of the case for impeachment. What's surprising is that it took so long for members of this committee, normally tasked with holding impeachment proceedings, to call for them.

    They face huge political resistance on Capitol Hill. But they aren't alone. Other Democratic members are joining them. Former senator and Democratic presidential nominee George McGovern recently published an op-ed demanding impeachment proceedings for both Bush and Cheney. Bruce Fein, a Republican who served in the Reagan Justice Department, and many other constitutional scholars also argue for impeachment.

    There is more than ample justification for impeachment. The Constitution specifies the grounds as treason, bribery or "high crimes and misdemeanors," a term that means "great and dangerous offenses that subvert the Constitution." As the House Judiciary Committee determined during Watergate, impeachment is warranted when a president puts himself above the law and gravely abuses power.

    Have Bush and Cheney done that?

    Yes. With the vice president's participation, President Bush repeatedly violated the Foreign Intelligence Surveillance Act, which requires court approval for presidential wiretaps. Former President Richard Nixon's illegal wiretapping was one of the offenses that led to his impeachment. FISA was enacted precisely to avoid such abuses by future presidents.

    Bush and Cheney were involved in detainee abuse, flouting federal criminal statutes (the War Crimes Act of 1996 and the anti-torture Act) and the Geneva Conventions. The president removed Geneva protections from al-Qaeda and the Taliban, setting the abuse in motion, and may have even personally authorized them.

    The president and vice president also used deception to drive us into the Iraq war, claiming Saddam Hussein and al-Qaeda were in cahoots, when they knew better. They invoked the specter of a nuclear attack on the United States, alleging Hussein purchased uranium in Niger and wanted aluminum tubes for uranium enrichment, when they had every reason to know these claims were phony or at least seriously questioned within the administration. Withholding and distorting facts usurps Congress' constitutional powers to decide on going to war.

    Can a commander-in-chief disobey laws on wiretapping or torture to protect the country in wartime?

    No. The Constitution requires the president to "take care that the laws be faithfully executed." The Supreme Court ruled Harry S. Truman could not seize steel mills to prevent a strike, even during the Korean War. Nixon's claim of national security as a justification for illegal wiretaps was also rejected in impeachment proceedings against him.

    What then is the justification for taking impeachment "off the table"? Congressional leaders don't defend the administration, nor do they contend that its actions are unimpeachable or less serious than Nixon's. Instead they argue there is no time, or that impeachment proceedings would distract the Congress from other work, or divide the country. The subtext seems to be fear that impeachment could undermine Democratic election prospects in 2008.

    But even these "pragmatic" arguments are wrong. Let's take them one at a time:

    Insufficient time. In the case of Nixon, the House officially instructed the Judiciary Committee to act in early February 1974. The committee finished voting on articles of impeachment July 29, less than six months later. No presidential impeachment proceeding had taken place for almost 100 years, so the committee had to start from scratch, analyzing the Constitution and developing procedures for the impeachment inquiry. Now that the relevant legal spade work is done and a road map for proper impeachment proceedings exists, Congress might conduct them even faster than in 1974.

    Distraction. During Watergate, the impeachment inquiry didn't prevent Congress from getting its work done. In fact, the House Judiciary Committee also worked on other matters during impeachment, just as the Senate did during its impeachment trial of former President Bill Clinton.

    Divisiveness. True, President Clinton's impeachment was a highly partisan process that divided the country - because most Americans didn't support it. They believed his conduct was reprehensible, but not an impeachable offense. Impeachment therefore had negative repercussions for the Republicans who instigated it.

    Nixon's impeachment united the American people. The process was bipartisan, demonstrating this wasn't just a Democratic ploy to undo an election. The fairness of the process, the seriousness of purpose, the substantial evidence - all gave the public confidence that justice had been done. This reinvigorated the shared value that the rule of law and preservation of democracy are more important than any president or party.

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Elizabeth Holtzman, is a former Congresswoman and Brooklyn District Attorney who was a vital member of the House Judiciary Committee during the impeachment of President Richard Nixon. She is the co-author, with Cynthia Cooper, of The Impeachment of George W. Bush: A Practical Guide for (more...)
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