The I-word

Ralph Nader says the Downing Street memo is grounds to debate the impeachment of the president. Four constitutional scholars weigh the issue.

Published June 9, 2005 8:54PM (EDT)

Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center

Ralph Nader wrote last week that "mainstream political discourse" should include a discussion of impeaching President Bush and Vice President Cheney. Others have made similar observations. Economist Brad DeLong, for example, routinely ends many of his blog posts with "Impeach Bush. Impeach Cheney. Impeach them now." The so-called Downing Street memo is the latest occasion for their outrage.

The memo was written in 2002 as the Bush administration was building its case for attacking Iraq because of Saddam Hussein's possession of weapons of mass destruction and support for terrorism. According to the memo, the head of the British foreign intelligence service reported on "his recent talks in Washington," informing the leaders of Tony Blair's foreign policy team that "the intelligence and facts were being fixed" around the policy of removing Saddam Hussein.

Nader and DeLong take the memo as further evidence that Bush, Cheney and their administration lied to the American people. In this view, the administration wanted to invade Iraq and cooked the books because only by misrepresenting the facts could its leaders generate support for the invasion.

I know something about the Constitution, not much about intelligence operations. So, I don't want to engage the factual claims about the meaning of the Downing Street memo. Let's assume that the memo accurately reports the facts and that a reasonable person could conclude that Bush administration officials lied so that they could lead the nation into a war with Iraq. Would those facts justify impeaching them?

On its face, that question is laughable -- because the answer is so obviously yes. If we could ask any of the leaders of the movement to get the Constitution adopted, "Could a president be impeached for lying to the American people in order to get their support for a foreign war?" he would say, "Of course. That's exactly what the impeachment provision is all about."

Impeachment was designed as a mechanism for removing from office a person who had demonstrated the kind of political irresponsibility that seriously threatened the nation's political institutions -- and whose continuation in office was so dangerous that waiting until the next election couldn't be tolerated. Why would anyone think that the kinds of misrepresentations Nader and DeLong believe the administration made shouldn't trigger the impeachment provision?

Mostly because we've been misled by our contemporary understanding of the words the Constitution uses to describe the preconditions for impeachment, having forgotten what those words meant when the Constitution was adopted. The Constitution says that the president and other civil officers, like the vice president and secretary of defense, can be impeached for treason, bribery or "other high crimes and misdemeanors."

Today we think that these provisions refer only to criminal behavior. The House of Representatives impeached President Clinton because it concluded that he had perjured himself. (Technically, "impeachment" refers to the decision by the House to submit a case to the Senate, where the impeachment charges are tried; if the Senate convicts, the person -- already impeached by the House -- is removed from office.) The constitutional dispute in the Clinton impeachment was over whether the reference to "high crimes and misdemeanors" included all serious crimes, not whether a president could be impeached for non-criminal behavior.

But, to the Founders, the answer to that question was obvious. The impeachment provisions referred to behavior that amounted to extraordinarily serious political misconduct -- selling out the country to a foreign nation (treason), selling out the national interest for private gain (bribery), and similar political misconduct. You can have arguments around the edges of the category -- could a president be impeached for murdering his wife's paramour? (Sure, because even though the misconduct is not in itself political, it demonstrates an inability to lead sufficiently serious to justify removal prior to the next election) -- but lying to the American people to gain support for a foreign adventure that they wouldn't otherwise endorse isn't even a close case.

Still, there are a couple of complications. Impeachment has its origins in the British system of the 1700s, where the king appointed the prime minister. Impeachment gave the Parliament a means of removing an unfit leader who somehow retained the king's confidence. The U.S. Constitution gives us a different way of getting rid of unfit leaders -- we can throw them out of office at the next election. (Or, in the case of a second-term president, we simply can wait a few years and he'll be gone, along with his team.)

So, for us, impeachment should be reserved for situations in which two conditions are met -- unfitness as demonstrated by serious political misconduct, and a need to replace the president so urgent that we can't put up with waiting until the next election. It's probably worth noting that Nader and DeLong don't have much to say about why removal is necessary right now.

The second complication is so blindingly obvious that I'm embarrassed to have waited until this point to mention it. Impeachment is a political process with some legal overtones, not a legal one with some political overtones. To get impeachment going you have to have substantial support in the House of Representatives -- and, as the outcome of the Nixon and Clinton impeachments indicates, it's probably a good idea to have substantial bipartisan support. Nixon left office before the impeachment process was concluded, but he did so because he knew that he didn't have much support even within the Republican Party anymore, and Clinton was not convicted by the Senate at least in part because he had essentially unified support from his own party.

The Nader-DeLong position has no legs politically because Republicans in the House and Senate -- a majority in both houses, after all -- support the Bush administration's policy. And, because it has no legs politically, it has no legs legally either.

If you want to impeach the president, you're going to have to win elections. And, of course, if you can do that, you might not have to impeach the president anyway.

Jack Rakove, Coe Professor of History and American Studies, Stanford University

Ralph Nader and Kevin Zeese have summoned Americans once again to utter those fearsome words that ordinarily dare not speak their name: "high crimes and misdemeanors" and, more provocative still, the I-word, impeachment. The objects of their incantations are President Bush and Vice President Cheney, and the occasion is the systematic misrepresentation of intelligence about WMD that provided the now-discredited pretext for the invasion of Iraq. Since the evidence of the administration's dissembling (or "disassembling," as a recent Bushism has it) failed to sway a majority of the electorate last fall, impeachment is the last option available for those who naively believe that every political wrong must have its remedy -- and sooner rather than later.

Why would anyone even bother to make this argument? One would have to suspend oodles -- nay, caboodles -- of disbelief to imagine a scenario under which impeachment proceedings could even begin, much less make any headway in a Republican House. And even with impeachment, how could a two-thirds vote for conviction in the Senate possibly be mustered (or maybe the word is really "mustarded")?

But let's suspend our disbelief for a moment. Politically unrealistic as Nader has repeatedly demonstrated himself to be, an abstract case could be made for uttering the I-word with the current administration in mind. For one thing, the impeachment of Bill Clinton in 1998 set the bar for "high crimes and misdemeanors" so low that any subsequent president could legitimately worry about this generally moribund provision of our Constitution being deployed against him whenever an opposition party controlling Congress found it convenient to do so.

For another, a decision to initiate a war that depended on the calculated misrepresentation of information on the scale alleged against this administration plausibly falls within the unspecified category of "high crimes and misdemeanors" that the framers of the Constitution belatedly added to their original list, limited to treason and bribery. The fact that this original deception was accompanied by a wholesale failure to plan for the occupation presumably compounds the case for impeachment.

It is worth noting, though, that the framers adopted "high crimes and misdemeanors" only after they had first rejected George Mason's proposal to add "maladministration" to the list of impeachable offenses. In James Madison's view, "So vague a term will be equivalent to a tenure during pleasure of the Senate." Gouverneur Morris added a further objection. "An election of [the president] every four years will prevent maladministration."

Doubtless Morris was overly optimistic in thinking that the promise of reelection would always persuade incumbents to avoid "maladministration" or offer the country relief in case they failed to do so. But his rationale for linking impeachment to the election cycle identifies another compelling reason for ignoring the Nader-Zeese proposal -- assuming, that is, that we're still taking it seriously.

Simply put, Americans know as much now about the defects in the administration's case for war as we did when we voted in November. True, some details have been added here and there. Additional months of insurgency and countless bombings have repeatedly confirmed how poorly our highest leaders planned for the aftermath of an initial battlefield victory. But the nation had as much information last fall as it needed to make an informed judgment about the rationale for war and the conduct of the occupation. And the challenger, John Kerry, certainly did the best he could to place these issues at the heart of his campaign. Even if large numbers of Bush supporters proved incapable of absorbing this information, their votes do not count any the less for having been cast in self-imposed ignorance.

There is, moreover, a deeper constitutional nexus between the regularity of the election cycle and the spasmodic history of presidential impeachments. Why do we have an impeachment clause at all in the Constitution? It was not because the practice was so well established and venerated in England that the framers simply adopted it uncritically. Though the English practice of impeachment arose in the Middle Ages (the phrase "high crimes and misdemeanors" dates to the 1380s), it had become so thoroughly politicized in the 17th century that it had essentially faded from use. (But it was being revived just about the time the framers were meeting, in Edmund Burke's campaign to impeach Warren Hastings, the governor-general of India.)

A better answer requires asking how the adoption of the impeachment clause reflects the general difficulties the framers faced in designing the presidency. Two reasons for the adoption of that clause stand out.

First, the presidency is the sole institution in which the Constitution vests the whole power of an entire branch of government in a single individual. In the other political branches, decision making is collective, and the capacity of individuals to subvert governance is greatly diminished. In the judiciary, the special circumstance of tenure during good behavior also made a mechanism for removal necessary. With the presidency, the concentration of power in a single person established its own rationale for a constitutional procedure for removal. (The same circumstance, by the way, satisfactorily explains why this is the one office reserved to natural-born citizens.)

But there was another reason why the peculiar problem of the presidency made something like the impeachment clause seemingly necessary. Of all the institutions the framers designed, this was the most novel, and the one whose political qualities and characteristics were most difficult to predict. There was simply no precedent in 18th century political science for a national executive elected on republican principles. The framers repeatedly looped around on the subject during their debates and fixed on the zany innovation of the Electoral College only at the last minute. Even then, few of them thought the electors would regularly produce a majority for any candidate.

Given their reigning uncertainty about how presidents would actually be chosen, it made a great deal of sense to adopt an impeachment clause for a system whose operations were so difficult to predict. The great irony here is that the election system has generally worked much better than the framers envisioned, usually producing decisive and unchallengeable results. The Y2K election that installed George W. Bush in the presidency is, of course, one of a handful of notable exceptions to this rule. The last election, however, was not. An informed electorate made its choice, and for better or worse, we are stuck with the consequences.

Michael J. Gerhardt, Professor of Law and Director of the Center on Legislative Studies, University of North Carolina Law School

If the Downing Street memo had not been publicized last month, President George W. Bush's critics would have had to invent it. No sooner had the world discovered that Saddam Hussein did not have the weapons of mass destruction whose existence had been claimed as the basis for the Iraq war than Bush was charged with deliberately misleading the American public.

The criticism intensified after Bob Woodward's and former Treasury Secretary Paul O'Neill's inside accounts of the Bush White House indicated that the president and his advisors seemed determined to invade Iraq well before the actual invasion. Democratic candidate John Kerry based his 2004 presidential campaign in part on the repeated claim that the Bush administration had deliberately misrepresented the grounds for the Iraq war.

The Downing Street memo, dated July 23, 2002, confirms, as one report puts it while quoting the memo, "that President Bush had decided, no longer than July 2002, to 'remove Saddam, through military action,' that war with Iraq was 'inevitable'" and that what remained was simply to establish and develop the modalities of justification; that is, to come up with a means of "justifying" the war and "fixing 'the intelligence and the facts ... around the policy.'"

Based on the memo, 89 members of Congress have asked Bush whether intelligence was manipulated to facilitate an invasion of Iraq. Ralph Nader has gone further. He claims the memo "merits introduction of an impeachment resolution" against President Bush and Vice President Cheney for launching an invasion of Iraq undertaken on "false pretenses in violation of domestic and international law..."

Those urging an impeachment inquiry against Bush undoubtedly consider the Downing Street memo akin to the Watergate tapes, which established President Nixon's direct involvement in obstructing justice. But any analogy to Watergate does not hold. Nor does it square with what we know about the impeachment process from the Constitution, its structure, and prior presidential impeachment attempts, including those against Richard M. Nixon and Bill Clinton.

First, impeachment requires proof of treason, bribery "or other high crimes or misdemeanors." "High crimes or misdemeanors" refer to breaches of the public trust and offenses against the state. While there was substantial disagreement about whether Clinton's misconduct formally qualified as an offense for which he could be properly impeached and removed from office, the case for Nixon's impeachment and removal is widely viewed as paradigmatic. His misconduct was bad, so bad that he resigned from office when it became clear that a majority of the House and at least two-thirds of the Senate were prepared, as required by the Constitution, to make it a basis for removing him from office.

The Downing Street memo tells us nothing we did not know before its publication, and it has hardly mobilized the requisite support in the House for impeaching and in the Senate for convicting the president for misleading the nation into war.

But Nixon's misconduct did not justify his impeachment and removal merely because it was a bad act. What tipped the balance against Nixon was that it became clear, through the Watergate tapes, that he had malicious or criminal intent. The Constitution requires more than just a bad act to merit removal from office; it also requires bad intent. This requirement derives from the framers' explicit use of criminal terminology to describe the scope of impeachable offenses.

Yet the framers never suggested impeachment and removal were appropriate to address political leaders' mistaken judgments. Indeed, the Senate's acquittal of President Andrew Johnson, by the slimmest of margins, has been understood as signifying the Senate's judgment that a president may not be removed for mistaken policy or constitutional judgments. If presidents could be removed for their mistakes, we would have a very different kind of government than the one we do have.

The Downing Street memo does not establish Bush's bad faith. He has repeatedly denied misleading the American people. More importantly, the president's reelection was based in part on the American people's rejecting the charge that he had misled the country in the run-up to the Iraq invasion.

Bush's reelection is pertinent for another reason. The framers designed impeachment as a unique procedure to be used as a last resort to deal with presidential misconduct. The Constitution provides other means. Indeed, an election is a perfectly appropriate means for holding presidents accountable for their misconduct or for redeeming themselves.

During Clinton's impeachment proceedings, his defenders argued that his reelection effectively ratified his conduct in office and rejected claims he was unfit to hold office. They claimed that removing him for the Lewinsky affair substituted the Congress' judgment for that of the voting public. Something similar could be said of President Bush. It is perfectly reasonable to construe Bush's reelection as ratifying his call for war in Iraq and redeeming him against claims that he had acted in bad faith. Nothing in the Downing Street memo suggests we should reject that interpretation.

There is a final lesson that cuts against authorizing an impeachment inquiry against President Bush. One measure of the egregiousness of an official's misconduct is the extent to which it disables him from effectively discharging his constitutional responsibilities.

In the 1990s, for instance, the Senate removed three judges for perjury, income tax fraud, and false statements to a grand jury. The Senate convicted and removed the judges on the ground that the judges' misconduct had robbed them of the requisite integrity to do their jobs. Clinton's acquittal was based in part on the public's unwavering support for him throughout his impeachment proceedings. It was hard to argue he had violated the public's trust when the public continued to trust him to do the job to which they had reelected him. The Downing Street memo has nothing to do with the lag in Bush's approval ratings.

The case for impeaching Bush cannot be made. Manipulating the impeachment process to undo electoral outcomes with which one disagrees is not the American way. The American way is putting your case before the American people as best you can, and accepting the results as graciously as possible.

Cass Sunstein, Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago

Having helped to elect President George W. Bush in 2000, Ralph Nader now seems to be calling for his impeachment. It would be funny, except that it's not funny.

The Constitution allows for impeachment of the president in exceedingly narrow circumstances, involving "high crimes and misdemeanors." The constitutional background demonstrates that the framers of the Constitution were thinking first and foremost of two things: treason and bribery. At a late stage, they concluded that other egregious actions, falling short of treason and bribery, could also be a basis for impeachment -- as, for example, where the president attempts to subvert the Constitution itself. The framers wanted to ensure that impeachment could not be used as a political weapon.

It follows that uses of presidential authority for corrupt purposes, or in ways that patently and persistently undermine the constitutional order, provide a legitimate basis for impeachment. We might even conclude that a president is guilty of a "misdemeanor" if he refuses to do his constitutional duty, for example, by going to the beach for a year or two. But under the Constitution, it is extremely difficult to make out legitimate grounds for impeachment.

For almost all of the nation's history, public officials have respected this aspect of the constitutional plan. Political disagreements, however intense, have not turned into pleas for impeachment. On the contrary, our traditions, at least as much as our founding document, limit impeachment to the most large-scale abuses of public trust.

The principal exception, of course, was the patently unconstitutional impeachment of President Clinton in 1998. In retrospect, that unconstitutional action appears even worse than it seemed at the time. Of course Clinton's behavior should be condemned; he might well have perjured himself. But perjury about sexual behavior doesn't come close to meeting the legal standard for impeachment.

It is clear that those who impeached Clinton were really motivated by their obsessive disapproval of him and his presidency. At a minimum, they hoped to damage him politically, so as to weaken his presidency and the next Democratic nominee as well. They succeeded beyond their hopes. Without the impeachment, it's a good bet that Vice President Gore would have been elected in 2000.

But Democrats shouldn't return the favor. Let's suppose that Bush did mislead the country. For the last year and more, it has been argued, plausibly, that the White House "hyped" the war effort by exaggerating its information about the actual threat from Saddam Hussein. Of course this is a legitimate and quite serious political complaint. And because the complaint involves official behavior, it is at least in the general domain of the impeachable (as Clinton's misconduct was not). Nonetheless, exaggerating a foreign threat, even intentionally, is hardly a legitimate basis for impeachment.

Little is added by the Downing Street memo. What we learn from that memo is that according to the chief of the British intelligence agency M16, Bush wanted to remove Saddam at an early stage, with military action "justified by the conjunction of terrorism and WMD," with the suggestion that "the intelligence and facts were being fixed around the policy." We also learn that England's foreign secretary said that "Saddam was not threatening his neighbors, and his WMD capacity was less than that of Libya, North Korea or Iran."

Fine. Is the president of the United States to be impeachable because Britain's foreign secretary believed, in 2002, that Saddam was less capable of using weapons of mass destruction than Libya, North Korea or Iran? Is the president impeachable because of an interpretation of his motivations by the chief of a British intelligence agency?

To be sure, it would be more than objectionable to find a clear demonstration that "intelligence and facts" were, in fact, "fixed" to support a predetermined course of war. We could even imagine circumstances in which such a demonstration would be a plausible basis for considering impeachment. But it is ludicrous to suppose that these words from a 2002 memorandum, representing a judgment from the chief of a British intelligence agency, make it reasonable to call for an impeachment inquiry.

At the very worst, Bush was committed, early on and for multiple reasons, to using force to remove a brutal dictator from office, and he hyped and distorted the evidence to convince the American public of the need for imminent military action. (In my own view, by the way, Bush believed in good faith that Saddam posed a genuine threat to American security, partly because of Saddam's willingness to support terror, partly because of Saddam's own military goals.)

Compare the behavior of President Franklin Delano Roosevelt in World War II, who secretly and unlawfully transferred arms -- including more than 20,000 airplanes -- to England. Roosevelt deceived both Congress and the American public about what he was doing. It would have been preposterous to claim that Roosevelt thereby committed an impeachable offense.

So too for Bush. In any four-year period, the nation's leader is highly likely to deceive the public on a serious matter at least once -- sometimes inadvertently, sometimes for legitimate reasons, sometimes for illegitimate ones. Of course presidents should not exaggerate evidence, and it's perfectly proper to ask whether Bush got us into war under false pretenses. But there isn't anything close to a sufficient basis for impeachment.

It's obvious that the call for impeachment of Bush is impractical; it's simply a nonstarter, a publicity stunt, reality-free television. But it's also an irresponsible and even nutty idea in principle -- the lunatic left imitating the lunatic right. Can we talk about something else instead?

By Mark Tushnet

Mark Tushnet is the author of "A Court Divided: The Rehnquist Court and the Future of Constitutional Law."

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By Jack Rakove

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By Michael J. Gerhardt

By Cass Sunstein

Cass R. Sunstein is the Karl N. Llewellyn Distinguished Service Professor at the law school and the department of political science at the University of Chicago.

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