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Macmillan Childrens Publishing Group

The Case for Impeachment

The Legal Argument for Removing President George W. Bush from Office

Dave Lindorff and Barbara Olshansky

Thomas Dunne Books


Chapter One

Why Impeachment?

The President, vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

—Constitution of the United States, Article II, Section 4

It's time.

On April 29, 2004, a nervous President George W. Bush went before the bipartisan 9/11 Commission to answer questions about how his administration had responded to the attack. The commission had already taken testimony from a long string of witnesses in the military, intelligence, justice, and other agencies of government. All had been questioned under oath about their knowledge of the events leading up to the attacks on the World Trade Center and Pentagon, including the government's response—or lack of response—to early warnings. All of that testimony had been widely reported, even televised. Only a handful of people know what happened after President Bush entered that room, though, because he (who had opposed creation of the commission in the first place) had made some curious demands before agreeing to appear. He insisted that only a few selected members of the ten-member body could be present, that he not be placed under oath, that he could have Vice President Dick Cheney by his side, and that no recording or notes be made of his testimony. The entire interview was conducted behind closed doors, with the press and public barred.

The only possible explanation for this behavior is that the president did not want the American public to know the truth—or that he had no intention of telling the truth—about his knowledge of the attack on America. Not only had his administration been criminally negligent during the months before the attacks, he, Cheney, and their neo-conservative advisers had shamelessly exploited that American tragedy to accomplish the greatest executive power grab and the worst descent into secret government in the history of the republic. They had used it as an excuse to launch two wars and a full assault on the Bill of Rights, the courts, and the political opposition.

Flash back more than a year to January 29, 2003. Standing before the assembled joint session of the Congress for his State of the Union address, President Bush told a hushed chamber of senators and representatives, and millions of Americans who were watching, that they were facing the imminent threat of a nuclear attack from Iraqi dictator Saddam Hussein. With the Pentagon already engaged in an all-out campaign to ferry troops and materiel to the Persian Gulf region in anticipation of war, and with U.S. fighter/bombers stepping up provocative aerial attacks in Iraq under the guise of maintaining several "no fly" zones in that country, the president said:

The International Atomic Energy Agency confirmed in the 1990s that Saddam Hussein had an advanced nuclear weapons development program, had a design for a nuclear weapon, and was working on five different methods of enriching uranium for a bomb.

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

Our intelligence sources tell us that he has attempted to purchase high-strength aluminum tubes suitable for nuclear weapons production.

Saddam Hussein has not credibly explained these activities. He clearly has much to hide.

Bush went on to drive the terrifying message home, saying:

With nuclear arms or a full arsenal of chemical and biological weapons, Saddam Hussein could resume his ambitions of conquest in the Middle East and create deadly havoc in that region.

And this Congress and the American people must recognize another threat. Evidence from intelligence sources, secret communications, and statements by people now in custody reveal that Saddam Hussein aids and protects terrorists, including members of Al Qaeda. Secretly, and without fingerprints, he could provide one of his hidden weapons to terrorists, or help them develop their own.

Before September the 11th, many in the world believed that Saddam Hussein could be contained. But chemical agents, lethal viruses, and shadowy terrorist networks are not easily contained.

Imagine those nineteen hijackers with other weapons and other plans, this time armed by Saddam Hussein. It would take one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known.

We will do everything in our power to make sure that that day never comes.

Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike?

If this threat is permitted to fully and suddenly emerge, all actions, all words and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option.

Scary stuff, but it was just not true. According to a series of memos written at that time, two days after this speech was given the president had informed Tony Blair, the British prime minister, that with or without UN approval, he intended to take America to war. In fact, he was considering flying a U2 surveillance aircraft painted in UN colors over Iraq, hoping to provoke an attack to which America could respond in force. Additionally, the president already knew at that point that the documents suggesting that Iraq had tried to buy yellow-cake uranium ore from Niger were forgeries and that no such effort had been made. (Indeed, as we shall explain later, there is reason to suspect that the Bush administration may have been involved in those forgeries.) The president was also aware that there were other far more likely and permissible uses for those aluminum tubes—such as fuselages for small rockets. In fact, scientists had noted that the pre-cut tubes were too short for use in a centrifuge, as was being claimed by Bush. Finally, the president also knew by the time of his address that not only was there no credible evidence of a link between Saddam Hussein and Al Qaeda—an organization which had, in fact, condemned Hussein as a godless apostate—but that Hussein viewed Al Qaeda as a potential threat to his regime.

It is commonplace for politicians and presidents to lie. Some lies though, are more serious than others. Only five years before Bush's State of the Union address, the House of Representatives had voted 228–206 to impeach President Bill Clinton for lying to a grand jury convened by Special Prosecutor Kenneth Starr, who was investigating, among other things, the weighty matter of whether Clinton had had consensual sex with an intern. The House also voted 221–212 to impeach Clinton for obstruction of justice. Nobody died (or even got pregnant) as a result of Clinton's deceit, but the impeachment effort, which purported to focus not on the sex but on the lying, nonetheless led to a bitter political battle and ultimately to a trial in the U.S. Senate, where Clinton was acquitted of the charges.

Meanwhile, Bush's dissembling and fabrications are more than garden-variety whoppers about illicit sex. His lies were designed to make the Congress and the public ready and willing to support a war of aggression against Iraq, a battered and impoverished country of 26 million people, which the president and his advisers knew posed no credible threat to the United States, or even, thanks to years of embargo and sanctions, to its neighbors. They are lies that led directly to a war that by March 2006 had killed over 2,300 American troops and grievously wounded more than 19,000, as well as killing an estimated 100,000 Iraqis, most of them civilians. And they have cost hundreds of billions of dollars.*

Where impeachment is concerned, the issue is not whether an official was under oath or not; rather it is the significance of the lie, and what the liar was attempting to accomplish. Furthermore, there is a precedent for impeaching a president for lying to the public and to Congress, even if he was not under oath. Richard Nixon is the model here. On July 27, 1974, the House Judiciary Committee voted 27–11 for an impeachment article accusing Nixon of making false and misleading public statements for the purpose of deceiving the people of the United States [author's emphasis] into believing that a thorough and complete investigation has been conducted with respect to allegation of misconduct on the part of personnel of the Executive branch of the United States and personnel of the Committee for the Re-Election of the President, and that there was no involvement of such personnel in such misconduct.1

As we will see, this is remarkably similar to President Bush's role in revealing the identity of undercover CIA operative Valerie Plame Wilson. Speaking through his press spokesman, on several occasions Bush has falsely assured reporters and the public that he knew of nobody in the White House who was responsible for disclosing her identity. In fact, there is evidence that well before those assertions, Bush had criticized his closest adviser, Karl Rove, for his involvement in the outing of Plame to the media.2

But Bush's lies about Iraq and the Plame affair are only the beginning of the case for his impeachment. Over the course of his one and a half terms, this president and his administration have committed a staggering string of what could clearly qualify as high crimes and misdemeanors. Among them:

• The arrest and detention without charge of American citizens, who have been denied their constitutional rights to due process and a speedy and public trial.

• The violation of international treaties that the United States has signed, and which have thus become the law of the land, such as the Geneva Conventions regarding the treatment of soldiers, military detainees, and civilians, and the conventions against torture—protocols that the current U.S. Attorney General, Alberto Gonzales, in his earlier role as White House counsel, advised the president is just a "quaint" artifact of an earlier time.

• Willfully ignoring or violating acts of Congress, through the issuance of hundreds of so-called "signing statements" by the president, in which Bush declared his intention to interpret laws in his own way and to obey only those that he feels like obeying.

• The blatant violation of the Foreign Intelligence Surveillance Act and Fourth Amendment to the Constitution, by secretly authorizing secret warrantless spying on thousands of American citizens by the National Security Agency.

• The foolish and disastrous transfer of the nation's first-line defenders—police, firefighters, and border patrol personnel who were long encouraged to supplement their income by joining their local National Guard units—to Iraq, leaving the nation unprotected against both cross-border infiltration and natural disasters like Hurricane Katrina, which destroyed much of the city of New Orleans.

As the list grows, so have calls for the president's impeachment. In June 2005, Zogby International, a well-respected nonpartisan polling organization, found that 42 percent of Americans thought that Bush should be impeached if it were determined that he had lied about his reasons for invading Iraq. That was an astonishing number, particularly because at the same time an even higher percentage of Americans were telling pollsters they believed the president had lied about the reasons we went to war. Compare that to polls taken at the height of the Republican campaign to impeach President Clinton; according to sixteen major polls conducted during the summer and fall of 1998, only 36 percent of the public thought impeachment should be considered, while only 26 percent thought the president should be removed from office.

Since June 2005, support for impeachment of President Bush has steadily increased. A poll conducted in early October 2005, by Ipsos Public Affairs, another nonpartisan polling firm, found support for the impeachment of the president up to 50 percent. A month later Zogby asked the same impeachment question which it had asked four months earlier: of 1,200 Americans polled, 53 percent said they supported impeachment while only 42 percent of Americans opposed impeachment. Even among self-identified Republicans, 29 percent said that if the president lied about the war, he should be impeached. Another Zogby poll, this one conducted in January 2006, found that 52 percent of Americans supported impeaching President Bush if he authorized warrantless domestic spying on Americans by the NSA, an action he openly admits to.

Impeachment isn't a popular election, nor is it simply a legal matter to be tried in a court of law. Impeachment is a political process played out in the Congress. Technically, it is an action taken by the U.S. House of Representatives, which must first consider a bill of impeachment, vote articles of impeachment out of the Judiciary Committee, and then put the question to the full membership. If a majority of the House votes for an article or for multiple articles of impeachment, this becomes the equivalent of an indictment, which must then be "tried" in the U.S. Senate. A two-thirds majority is required to convict and to remove the president from office. There have been two presidential impeachment trials in American history—both of them brought for political rather than legal reasons. In 1868, Democratic President Andrew Johnson was impeached and came within a single vote of being removed from office.

In 1998, President Clinton was confronted by a House that had a Republican majority. His own Democratic Party still held a narrow edge in the Senate, meaning there was no chance he would be convicted and removed from office, but there were plenty of Representatives, the vast majority of them Republicans, ready to vote for impeachment. In contrast, approaching midterm elections in Bush's second term, the Republican Party has a firm grip on power in both the House and the Senate, making even a hearing on impeachment in the House Judiciary Committee almost inconceivable, no matter how serious the president's crimes.

The two situations are almost mirror opposites. In the Clinton case, a popular president's congressional Republican enemies were seeking impeachment, while a majority of Americans did not support it. In the present case, Bush, an unpopular president, has the backing of a majority of both houses of Congress, so more than five years into his presidency only a handful of Democratic legislators had even suggested calling for his ouster. Despite the unpromising political situation in the Congress, a number of grassroots campaigns promoting impeachment have sprung up, and numerous polls suggest widespread support for impeachment. What would be the point of impeaching Bush though, if the Republican Senate would never consider removing the president?

"There is in a sense an impeachment campaign whether we want one or not," says David Swanson, co-founder of the organization, which, together with, has been one of the main proponents of impeachment. "Half the signs at anti-war marches say: ‘Impeach Bush and Cheney.' "

Swanson concedes that impeachment, at least in Bush's sixth year in office, is a long shot, but argues that impeachment efforts are much more than just tilting at windmills. "A campaign for impeachment erodes further any of this administration's remaining credibility," he says. "It focuses people's attention on the reasons for an impeachment. Finally, an impeachment campaign during the months leading up to the 2006 off-year congressional elections can help to reshape the Congress in such a way that impeachment becomes possible. Some people may say we should wait until the Democrats are in the majority and then consider impeachment, but we're saying the Democrats won't be the majority unless they give people a reason to make them a majority, and impeachment is clearly a way to do that. It's a movement builder. Besides, if you can't have impeachment now, with all the crimes of this administration, you're basically saying you can only have impeachment for adulterous sex."

Granted, even for some ardent Bush critics, impeachment is a hard sell. Lowell Weicker, the former Republican senator from Connecticut who, as a member of the Senate Watergate Committee, took a leading role in investigating and condemning Richard Nixon, professes no love for Bush. "I am doing everything I can to see that he doesn't have a Congress after November 2006," he says. Weicker, whose criticism of Nixon earned him a spot on that president's notorious "enemies list," argues against impeachment, saying "Bush obviously lied to the country and to Congress about the war, but we have a system of elections in this country. Everyone knew about the lying before the 2004 election, and they didn't do anything about it. The famous Democratic Party didn't stand up about it. Sen. John Kerry didn't stand up, and so Bush got elected. The horse is out of the barn now."

John Dean, Richard Nixon's White House attorney during the Watergate scandal, knows a fair bit about impeachment from personal experience, having served as minority counsel on the House Judiciary Committee before joining the White House staff. He has a very different view. He claims that Bush's war scandal is, as his recent book title puts it, Worse than Watergate, and as such deserving of impeachment. However, he also considers impeachment, at least at the time of this writing, to be "inappropriate." A key witness to the collapse of the Nixon presidency, Dean himself pleaded guilty to participation in the cover-up that led to Nixon's having three articles of impeachment voted out of the Judiciary Committee of the House. Now a retired investment banker living in Beverly Hills, he argues that "no responsible member of Congress" would "talk about impeachment unless they have solid evidence of a high crime or impeachable misdemeanor." Furthermore, while he agrees impeachment could become a campaign issue in the 2006 congressional elections, and could even lead to a Democratic takeover of the House, until that occurs he insists there will be little or no action in Congress on impeachment. "Impeachment is the most serious constitutional charge you can make against a federal official," he says, "and only an irresponsible judiciary committee would take up charges that could not be proven in a Senate trial. Only an irresponsible House of Representatives would pass a bill of impeachment that could not succeed in the Senate." For precisely that reason, Dean considers the Clinton impeachment to have been improper and irresponsible.

"It may be true that you couldn't have an impeachment in the House today," counters's Bob Fertik. "But things may not look the same tomorrow—for example, what if we had an indictment of Karl Rove or Dick Cheney—and we know enough already to know that those things are possible. We're taking the position that Bush and Cheney have to be impeached because they've committed so many crimes. The one that is farthest along in terms of exposure at this point is the Plame case, but there are a whole bunch of others. If the Republicans block all efforts to investigate these crimes, and if they block efforts to impeach, then it's our job to organize the majority who want to impeach Bush and the even larger majority who believe that the Iraq War is wrong, and to elect a Democratic majority in 2006 that will do the job."

Ralph Nader, a third-party candidate for president in both Bush election campaigns, 2000 and 2004, has drawn up his own proposed bill of impeachment. "It really doesn't matter whether it's politically possible to impeach," says Nader. "If the Constitution has been violated, you have to call for impeachment. Presidents are more and more out of control. They're above the law in so many ways. They have to be held accountable." In an op-ed essay in The Boston Globe, he and colleague Kevin Zeese explain why they and their supporters are pressing for impeachment:

Did the administration mislead us into war by manipulating and misstating intelligence concerning weapons of mass destruction and alleged ties to Al Qaeda, suppressing contrary intelligence, and deliberately exaggerating the danger a contained, weakened Iraq posed to the United States and its neighbors?

If this is answered affirmatively, Bush and Cheney have committed "high crimes and misdemeanors." It is time for Congress to investigate the illegal Iraq war as we move toward the third year of the endless quagmire that many security experts believe jeopardizes U.S. safety by recruiting and training more terrorists. A Resolution of Impeachment would be a first step. Based on the mountains of fabrications, deceptions, and lies, it is time to debate the "I" word.3

For the moment, impeachment is not a word one hears uttered out loud in the nation's capital, where politicians prefer to battle more politely over pork programs. Indeed there is evidence that the Democratic Party leadership has been actively working to prevent party members in the House from filing an impeachment bill, as the late Rep. Henry Gonzalez (D-TX) did against the elder President George H. W. Bush over the 1991 Gulf War, fearing that such a radical move might hurt Democrats with independent voters. This may explain why efforts in mid-November and December 2005 to elicit a comment on impeachment from the often outspoken House Judiciary Committee minority chair John Conyers, and from several more radical Democratic House members, including Cynthia McKinney (D-GA) and Dennis Kucinich (D-OH), were rebuffed with terse "no comments" from their staffs.* Nor is impeachment yet much of a topic of stories in the national media, where caution still rules when it comes to challenging the provenly ruthless Bush administration. There is no other rational explanation why a dramatic piece of news like the Zogby data showing a majority of Americans favor impeachment can be blacked out in our normally poll-obsessed media.

Yet the impeachment idea is gaining a life of its own among the broader public, where the president's lying, his extraordinary attempts to expand presidential power, his inept handling of the wars in Iraq and Afghanistan, his administration's corruption and possible crimes, and, in the case of the Katrina disaster in New Orleans, his inaction and incompetence, are leading more and more people, some mainstream Republicans among them, to ponder about how to get rid of him and his whole White House gang without having to wait until 2008. The mood in Congress, particularly among Democrats, is also in flux. In December 2002, just before revelations that Bush had approved a warrantless domestic spying campaign that has been conducted by the National Security Agency, Representative Conyers introduced bills of censure for both Bush and Cheney, as well as a third bill calling for creation of a Watergate-style select committee to investigate constitutional violations by the president and vice president. To some people, this is simply a preliminary step that could lead to impeachment proceedings. Seven other Democrats joined Conyers as cosponsors, a number that had risen to thirty-two by the time this book went to press.

"I'm having a hard time keeping up with all the impeachable offenses," laughs attorney Francis Boyle, who, together with former Lyndon Johnson–era attorney general Ramsey Clark, drew up an impeachment bill for consideration by House Democrats on the eve of the Iraq War. Boyle, Nader, Swanson, and others who have been pressing the issue, cite lying to Congress, violating international laws, breaking international treaties, ignoring court orders, eliminating habeas corpus, refusing to deal with the global warming crisis, undermining U.S. emergency preparedness by sending off National Guard troops to Iraq and gutting first-responder organizations at home, undermining the United States and global response to the AIDS pandemic, blocking the full investigation of 9/11, as well as election interference, fraud, and manipulation, as some of the issues that could lead to impeachment charges. In fact, Boyle argues that the real challenge isn't finding grounds for impeachment, which he claims are legion, but rather "finding some member of Congress with the courage to introduce an impeachment bill."

Impeachment, meanwhile, is becoming not just a word, but a popular idea. The March 2006 issue of the liberal monthly magazine Harper's featured a cover story titled "Impeach Him" by editor Lewis Lapham, and a number of the nation's newspapers by 2006 had published opinion pieces calling for Bush's impeachment. This is something new and fundamentally different from the presidential impeachment efforts of the past. All three previous impeachment attempts were essentially efforts by a president's political enemies in Congress to remove the chief executive from office mid-term. None of those campaigns had broad public support. What we are seeing now is a mounting public desire to undo, via impeachment, the results of the last election.

This became clear to Tony Trupiano, a Michigan talk-radio host seeking the 2006 Democratic nomination to run for Congress against two-term Republican Thad McCotter. Trupiano has made a call for impeachment one of his main campaign promises. At campaign events during the fall of 2005, Trupiano reportedly had to halt his speeches after announcing that one of his first actions upon being elected would be to introduce a bill of impeachment for both President Bush and Vice President Cheney. The uproar from the enthusiastic crowds completely drowned out the public address system. "This is not a difficult position to take," says Trupiano. "I think it's clear that the American people, including many Republicans, want accountability. People are realizing that the president and vice president lied about the war, and they're wondering what else they've lied about. There's certainly enough to investigate, and it's my sense that if the Democrats gain control over Congress next November, there will be an impeachment resolution and there will be hearings in the House Judiciary Committee."

Howard Zinn, a prominent scholar of popular movements in American history, noting that few Democratic House incumbents have been willing to echo Trupiano's call for impeachment, says, "This situation is different than previous moves for impeachment, in that it is being driven by popular will, with no response thus far from the political leaders of either party. It is a damning indictment of our political system, and of the way that a regime in power can ignore public opinion. It is also a sad commentary on the cowardice of what is supposed to be the opposition party, the Democrats, that none of those leaders has broached the idea of impeachment, though in our history there has been no case for impeachment more powerful than in the present circumstance. If there is any situation calling for a popular upsurge against the president, and a nationwide campaign for impeachment that would frighten the leaders of both political parties into some sort of response, this is it."

"But it's not a movement yet," cautions Nader. "To have a mass movement, you have to have organization. It's certainly a call for a mass movement, though."

In a sense then, an effort to impeach Bush may have more in common with the various anti-war movements or the civil rights movement, in that it has begun among the ordinary citizenry, rather than their elected officials. With a bitter campaign for control of Congress underway in 2006, it is surely only a matter of time before impeachment moves from Main Street to Washington, D.C., and before the "I" word makes it into the mainstream media. If it becomes an issue in the contested congressional campaigns, and if the public's frustration with the Bush administration is reflected in the voting, it could conceivably lead to a fourth presidential impeachment drama in the Capitol building before Bush's second term can run its course.

It is not our purpose here to make tactical arguments about which among the president's high crimes and misdemeanors are the most likely to succeed as articles of impeachment, though it seems clear that, for example, a House Judiciary Committee would be much more likely to pass a measure accusing the president of violating a federal statute, or of deceiving Congress and the public, than one accusing him of violating an international law like the Nuremberg Charter. Our purpose here is to try to lay out for examination the vast range of presidential crimes, misdemeanors, abuses of power, and threats to the Constitution and to the republic.

And there are a lot of them. As Bob Graham, the former Democratic senator from Florida who headed the Senate Intelligence Committee during 9/11 and over the following year, writes, after listing eleven serious presidential crimes, abuses of power, and obstructions of justice in his book Intelligence Matters:

Any one of these things would warrant a leader's removal from office. Taken together, they are a searing indictment of a president who, despite lofty words to the contrary, has not been a leader, has not been honest, and has not made America safer.4

The American public, and the people's elected representatives, have the responsibility to decide which of his many actions constitute impeachable offenses.

One thing is alarmingly clear: the threats posed to the American constitutional tradition of separation of powers and of checks and balances in government, to the various supposedly inalienable rights enumerated in the Constitution's Bill of Rights, and to the rule of law in a dangerous world, are all in grave danger if the American people do not take a stand in their defense against an administration that is clearly intent on eroding or destroying all these things.

It's time.

Copyright © 2006 by David P. Lindorff