Friday, August 3, 2007

The Spirit of 65:
Why demanding investigation and impeachment is the constitutional option.

Jesus' General was kind enough to sponsor The Impeachment Ball that I am holding tonight at the Yedo Basilica.

I spoke with one influential member of sl, and he called this "self-indulgent silliness" and was surprised that Yearly Kos in SL would associate with it. My purpose with this post is not to make a case for impeaching George W. Bush, that is something for much more important people than I will ever be. Instead, my purpose is to make the case for putting impeachment on the table of public discussion. It is a subject whose time has come, if not of George W. Bush, then at least of his Attorney General.

In one sense, impeachment is never off the table. If you read both Hamilton and Madison on the subject of impeachment, it is the general all purpose remedy for abuses of power by the executive branch from the perspective of Congress. Hamilton can be heard in a some what pained tone of voice in Federalist 65 admitting that the House could impeach by majority, and that since impeachment is a political process, that is, abuse of power is in the eye of the beholder, often "faction" would beable to impeach even if nothing else. Newt Gingrich, Alexander Hamilton owned you on that one.

But said both Hamilton and Madison, if you cut off the legislative branch from being able to judge the executive, then there was no way to recall or hold to account an executive who had abused power. Madison argued for impeachment during the Constitutional Convention, and specifically mentioned corruption during the conduct of a war as a reason for impeachment. Madison also often told concerned members of Congress, both during the debates, and as a member of the House, that if they were concerned about the abuse of some power by the executive, for example removing a popular cabinet member, that Congress could always impeach.

The clear original intent of the framers of the Constitution, "of 1787" as Professor Bruce Ackerman is wont to add, was that impeachment should alwayus be on the table. And this was with an executive that was far less powerful than the one we have today. In fact, it could even be said that the President during wartime in that age was less powerful than even a peace time President is today.

I am not an original constructionist, or whatever fancy term of art is now applied for those who want to read the Constitution like fine print on a shrinkwrap agreement. But it must be admitted that any point of view that the framers so clearly and repeatedly expressed, from both the future Federalist and future Republican parties, and has not been expressly overturned by later amendment, is not out of bounds as a starting point for discussion.

The next part is the question of politics. It is simply not tenable to argue that a drive for investigation of George W. Bush and his conduct of the office, even with the clear intent to build a case for impeachment, is either infantile or self-indulgent. On the contrary, investigation, backed with the threat of impeachment, is a legitimate political tool to hold any "civil officer" of the United States to account. If the President will not fire someone for violating the law, the Congress can. If the President himself acts as if he ias above either the law, or the clear will of the public, as expressed in the people's house, he can, and must, face an adversarial process. The people who founded America believed strongly that pitting, as Madison stated "interest against interest" was the means by which faction and instability could be controlled.

Impeachment then, is a process by which people stand up for their interests, and far from being self-indulgent, it is a fundamentally American thing to do. There is no abstract "interest" of the whole public, on the consensus of the sum of interests. We should not fear that others will pursue their interests, especially the extremists like O'Reilly of Foxnews who isn't exactly doing well right now.

This means that under the First Amendment, where citizens have a right to peaceably assemble and demand redress of grievances, demanding that representatives investigate and if the facts and politics warrant it, impeach, a President, Vice-President, Judge or other civil officer, is expressly in the intent of the framers of the Constitution of 1787.

This does not mean that the process is to be lightly entered into, but it does mean that both numbers, and strength of feeling, are proper ways of judging whether it is time to investigate, and if appropriate, impeach, a civil officer of the United States. It has to be admitted that the reasons for impeachment being invoked have to be weighty enough, and the barriers to other, less wrenching, forms of political solution must be exhausted.

The first part of this question is, then, whether there is enough strength of feeling to impeach George W. Bush. The argument made to me, which I find persuasive is simply this: more people want George W. Bush investigated with the intent of impeaching, in any poll, than approve of the job he is doing as President, in any poll. That is, more people are ready to invoke the constitutional option, than want George W. Bush to continue doing what he is doing as President. He has touched, within the statistical margin of error, the highest disapproval numbers for any President since polling began. And leaving aside Truman's number, since that was the era where "Dewey Defeats Truman" was possible in the polls, he has tied Richard Milhouse Nixon's worst mark.

Clearly there is strength of feeling for impeachment. When more people want investigation and impeachment, than approve, and this has been true for a lengthening number of weeks, it is not the result of some bad turn of fortune, but a growing consideration that the interests of the public are not being served by the current executive. One could argue as easily that George W. Bush is only supported by the "far right" as impeachment is supported by the "far left." In fact, the public breaks down into three nearly equal segments: the one third that support George W. Bush, the one third that want him impeached, and the one third who do not support him, but who want him restrained by the legislative branch by means short of impeachment. There is no "center," and if there is, it is an discussion between those who feel that investigation and impeachment are the correct way to restrain an executive which is out of control, and those that think some other way is possible.

This is why Speaker Nancy Pelosi "took impeachment off the table," and still opposes it publicly. And it is certainly reasonable to remain committed to staying within the normal channels of political struggle, as long as the essential business of the country can be done without it. If the country merely wanted a different set of budget priorities, or a few changes to corruption and ethics laws, or some changes in the law, then there is little reason to believe that this could not work. But the last election was not about civic issues such as abortion, nor about budget issues, nor about corruption specifically. Instead there was an overwhelming revulsion to the War in Iraq, and even more, to the conduct of that war.

This means that we are exactly at Madison's own argument: the conduct of a war, and the temptation for abuse of power that comes with it.

Let me again recite the facts from only 25% of all Americans approve of the handling of Iraq. This is the same percentage as the independents. Only 57% of self-identified republicans support the handling of the war. Read the numbers for yourself. Even more telling, according to the ABC News poll, with its long trend line, 60% of Americans "do not feel the war was worth it."

Now here is the point where the public's demand for impeachment becomes important. While a clear majority of the people polled prefer the way the Democrats are handling the war, than Bush, and by a lopsided majority of independents and Democrats together, indicating that support for Iraq is now a partisan Republican fetish, the public disapproves of the Democrats in Congress, as much as George W. Bush! Consider that this is an earthquake, because in 2003, 70% of the public trusted Bush on the war more than the Democrats in Congress, who were then a minority in both chambers.

What are we to make of this? There are two possible explanations. One is that the out of control far left of the Democratic Congress has gone to far, and the other is that an overly cowardly Congress has not done enough. The first is the overwhelming narrative from those who breath swamp gas for a living.

However, the facts do not admit the first reading: the public disapproves of the war, thinks the war is going badly, does not think that a few more troops will make a difference, and does not want to continue in Iraq. 59% of Americans want forces withdrawn. This is higher than on election day 2006. The last election is already an obsolete indicator of public sentiment, when the public, by a slender majority, wanted to continue in Iraq. By the time the new Congress took their oath of office, it was the reverse. Perhaps because the news has been so bad.

It is simply not the case that exit is what Bush is trying to do, it is simply not the case that the public wants "bipartisanship" on Iraq. Instead, as I am going to outline now, the public is non-partisan on Iraq: they want more than either elected political part is doing right now, but they are closer to the position held by the core of the progressive Democratic Party: out, as soon as possible.

When trying to decide between two diametrically opposed ways of reading the same facts, it is best to look for confirming indicators. If the position was that "far left" and out of control Democrats were the problem, then it would be logical to see more people identifying as conservatives and Republicans. The reverse is the case, fewer people identify as conservatives and Republicans. The other logical thing to ask is what each view implies about the underlying "reality." If people were against far left Democrats, then it would imply that the people who disapprove of Bush's handling would want more, not fewer, troops in Iraq. And that this body of opinion would be large and growing. However, "Keep forces" is now at its lowest point. If it were the case that people wanted what the Washington types call "the go big" option, then "keep forces" would be staying the same, not shrinking.

All of the poll questions point in the same direction. A clear majority of Americans want US combat forces out of Iraq by next spring, they want Congress to have the final say in the deadline, and they do not believe that the Iraqi government which the Bush administration has established will be able to stand.

Now for the reason for impeachment: "Do you think Bush is willing enough to change his administration's policy?" Last year, the answer was 30% yes. Now it is 18%. The same poll asked "Do you think the Democrats in Congress have done too much, too little or about right?" 49% said too little. The numbers do not admit of the reading of the public sentiment that it is "far left" Democrats that the public disapproves of, but on the contrary, that a full half the public, want the Democrats to do more.

While an individual might hold this viewpoint, because we are all entitled to our own opinions, it is not possible to hold that the public holds this as its view, because, as Senator Patrick Moynihan noted, we are not entitled to our own facts. It is not a coincidence that the same people telling us to be "bi-partisan" told us that it was Senator Joe Lieberman who represented the consensus on Iraq. Lieberman, as even his friends admit is irrelevant.

This means that the conditions for impeachment are present: the public disapproves of the way the President is handling a matter which is the executive's prerogative, handling a war. The public does not believe that that President will change his mind enough. The public does not believe that the opposition party has, or perhaps even can, do enough to achieve the policy which a clear majority of the public wants: withdrawal of combat troops form Iraq by next spring, at a deadline set by Congress.

This is, perhaps, the most original intent drive for impeachment ever, in that the anger is not coming from a "faction" seeking to advance its own ends, but from a public which finds existing factions to be unable to do what they were elected to do. In this case: end a war which the public now believes should never have happened in the first place.

This is the position outlined by Representative Murtha in his bills, starting last year: leave, with all due speed. You can say many nasty things about Rep. Murtha, and I know people who have, but "far left" isn't an accurate description.

This is why the public demanding impeachment is now on the table: the normal political process has broken down, and the overwhelming view of the public is that it is the President who is to blame.

Once it is clear that the political will exists for impeachment, the question is whether there is a case for impeachment. That cannot be said at this time, but must, instead, come after the public has seen the facts brought to light, with the full power of the Congress behind them. That is what the people's house is for: to set the facts before the public, and let the public come to some reasonable conclusion.

In a Democracy, representatives must sometime act before the public is ready. However, since impeachment is not a long term problem which manifests itself in murky data to bureaucrats and staffers who spend their days going over spreadsheets, but is, as Hamilton and Madison both stated over and over again, a political decision, if there is to be impeachment, then it must, and should, and ought, and perhaps shall, come from a public demand for it.

And even if there is no impeachment, the investigation itself must happen, because no Democracy can long survive, if a full third of its citizens believe that high crimes and misdemeanors have gone unpunished. To no small extent, the aggressive campaign of finding rugs to sweep problems under these last 6 years is to blame. If the real faults leading to Iraq, and leading to 9/11 had come to light, it is very likely that people would not now entertain such aggressive belief in criminality. It is not the crimes, or even the mistakes, but the cover up, which creates the impression that worse is hidden, and lets the imaginations of the angry and disgruntled, and I admit I am angry and disgruntled, soar. I do not want to live in an America that permits itself nightmares of what we should have known.

Instead, these questions must be laid to rest, they have not been. The only way to clear the air is with public investigation.

However, as the questioning of the Attorney General makes clear, the President invokes a broad, vague and inferential privilege. In essence any questions about how he has done anything are "executive privilege," and cannot be questioned. This means that ordinary investigation is impossible, since no one will answer any questions at all.

I live in a world where a man has to find or buy a penis, it seems that this is not as strange as it seems, but that instead, a whole generation bought themselves a penis, called "Iraq." It is time to realize that wearing a cock in public isn't good manners, and the open orgy room politics of "24" and the WTC as the new Pearl harbor, are over and done.

And if we cannot have accountability by ordinary means, then we must demand accountability by extra-ordinary ones, even if that means asking for the sun, the moon and the stars, when all we want is the stars and stripes to be flown with a clear conscience again. I will be happy if we end the war and Bush is impeached. I will be happy if we end the war and bush is not impeached. I will be unhappy if Bush is impeached, and we do not end the war. Because it is the war which is bleeding us of our laws, our rights, our youth, our honor, our faith in America, and the years themselves, of which life and history are made.


  1. I expect calls for impeachment will escalate a little later in the election process.

    It is never unpatriotic to ask for accountability. Or sanity.

  2. Respectfully, I must disagree.

    Bubble Boy started his Oedipal war in Iraq in an attempt to outdo and out-man his father.

    It was not to be.

    Iraq remains his flaccid failure.