I was over at AmericanRhetoric this morning, listening to the top 100 speeches of all time and I listened to Barbara Jordan's statement to the House Judiciary Committee's panel to impeach Richard Nixon. That woman was larger than life. She was intelligent, articulate and tough as nails. I wonder if she was any inspiration for the DC Comics character Amanda Waller.
We could really use Barbara Jordan today. If she were still around I imagine her address to Mr. Conyers or Mr. Waxman might sound something like this:
"Who can so properly be the inquisitors for the nation as the representatives of the nation themselves?" "The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men."¹ And that's what we're talking about. In other words, [the jurisdiction comes] from the abuse or violation of some public trust.
It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an article of impeachment means that that member must be convinced that the President should be removed from office. The Constitution doesn't say that. The powers relating to impeachment are an essential check in the hands of the body of the legislature against and upon the encroachments of the executive. The division between the two branches of the legislature, the House and the Senate, assigning to the one the right to accuse and to the other the right to judge, the framers of this Constitution were very astute. They did not make the accusers and the judgers -- and the judges the same person.
We know the nature of impeachment. We've been talking about it awhile now. It is chiefly designed for the President and his high ministers to somehow be called into account. It is designed to "bridle" the executive if he engages in excesses. "It is designed as a method of national inquest into the conduct of public men." The framers confided in the Congress the power if need be, to remove the President in order to strike a delicate balance between a President swollen with power and grown tyrannical, and preservation of the independence of the executive.
The nature of impeachment: a narrowly channeled exception to the separation-of-powers maxim. The Federal Convention of 1787 said that. It limited impeachment to high crimes and misdemeanors and discounted and opposed the term "maladministration." "It is to be used only for great misdemeanors," so it was said in the North Carolina ratification convention. And in the Virginia ratification convention: "We do not trust our liberty to a particular branch. We need one branch to check the other."
"No one need be afraid" -- the North Carolina ratification convention -- "No one need be afraid that officers who commit oppression will pass with immunity." "Prosecutions of impeachments will seldom fail to agitate the passions of the whole community," said Hamilton in the Federalist Papers, number 65. "We divide into parties more or less friendly or inimical to the accused." I do not mean political parties in that sense.
The drawing of political lines goes to the motivation behind impeachment; but impeachment must proceed within the confines of the constitutional term "high crime[s] and misdemeanors." Of the impeachment process, it was Woodrow Wilson who said that "Nothing short of the grossest offenses against the plain law of the land will suffice to give them speed and effectiveness. Indignation so great as to overgrow party interest may secure a conviction; but nothing else can."
Common sense would be revolted if we engaged upon this process for petty reasons. Congress has a lot to do: Appropriations, Tax Reform, Health Insurance, Campaign Finance Reform, Housing, Environmental Protection, Energy Sufficiency, Mass Transportation. Pettiness cannot be allowed to stand in the face of such overwhelming problems. So today we are not being petty. We are trying to be big, because the task we have before us is a big one.
At this point, I would like to juxtapose a few of the impeachment criteria with some of the actions the President has engaged in. Impeachment criteria: James Madison, from the Virginia ratification convention. "If the President be connected in any suspicious manner with any person and there be grounds to believe that he will shelter him, he may be impeached."
We have heard time and again that the evidence reflects President George W. Bush and Vice President Richard Cheney had known ties to former lobbyist and convicted felon, Jack Abramoff. We know that the White House had over 200 contacts with Mr. Abramoff to discuss matters related to the lobbying activities of Mr. Abramoff. We know that Mr. Cheney met with the heads of the oil companies as part of his Secret Energy Task Force and almost immediately thereafter we invaded and occupied a critical oil producing country and the oil companies began seeing record windfall profits. We know that convicted criminal Scooter Libby was a close confident of Vice President Cheney and it is widely understood that Mr. Libby is protecting Mr. Cheney and in return President Bush is expected to pardon Scooter Libby at any time before the end of his term as President. The words are: "If the President is connected in any suspicious manner with any person and there be grounds to believe that he will shelter that person, he may be impeached."
Justice Story: "Impeachment" is attended -- "is intended for occasional and extraordinary cases where a superior power acting for the whole people is put into operation to protect their rights and rescue their liberties from violations." We know about the Patriot Act. We know about the secret invasions of our homes. We know about the warrentless wiretapping. We know about the loss of Habeas Corpus. We know about the loss of Posse Comitatus. We know about the Secret Prisons. We know what they did to American citizens like Jose Padilla. We know about the water-boarding, the sensory deprivation, the isolation, the stress positions and the dogs. We know about the Military Commissions Act. We know that George W. Bush has led the greatest attack upon our Constitutional Liberties in the history of our nation.
The Carolina ratification convention impeachment criteria: those are impeachable "who behave amiss or betray their public trust." Beginning shortly after the attacks on September 11th, 2001 and continuing to the present time, the President has engaged in a series of public statements and actions designed to mislead the people and Congress of the United States into invading and occupying the sovereign nation of Iraq. Moreover, the President and Vice President have made public announcements and assertions bearing on alleged connections between the attacks of 9-11 and the nation of Iraq and on alleged attempts by Iraq to purchase “yellowcake” from Niger, which the evidence will show they knew to be false. These assertions, false assertions, impeachable, those who misbehave. Those who "behave amiss or betray the public trust."
James Madison again at the Constitutional Convention: "A President is impeachable if he attempts to subvert the Constitution." The Constitution charges the President with the task of taking care that the laws be faithfully executed, and yet this President has unlawfully wiretapped millions of Americans without warrants. This President has willfully disregarded numerous laws, including the Federal Information and Surveillance Act and the Presidential Records Act. This President has imposed partisan, political litmus-tests on the Justice Department, crippling its ability to function with credibility. This President has taken American citizens off the streets and held them in violation of their constitutional rights. This President has allowed the torture of American citizens. This President has declared, through speech and through signing statements, that he has the personal prerogative to ignore the Constitution and the laws of the land when he sees fit. "A President is impeachable if he attempts to subvert the Constitution."
If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that 18th-century Constitution should be abandoned to a 21st-century paper shredder.
Has the President committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate? That's the question. We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.