Using the I-Word

So far I've only noticed one good thing about President Bush's plan to escalate the Iraq War: It's gotten a whole new group of people talking about impeachment.

Remember the hopeful days of December? Remember that white Time cover confidently announcing: "The Iraq Study Group says it's time for an exit strategy. Why Bush will listen"? It was a simpler, more innocent age. Now we know that Bush won't listen to anybody: Not the voters. Not the Democratic Congress. Not James Baker. Not General Casey. Not Colin Powell. Not Republican Senators like Hagel, Brownback, Voinovich, Smith, Snowe, Collins, or Coleman. Nobody. He's the Decider. He gets his marching orders from God, and nobody knows what would happen if God started telling him things he didn't want to hear.

But impeachment. Has it really come to that? How do we even think about impeachment in a way that builds the Republic up rather than tearing it down?

The Clinton Precedent: Throw it Out

It's very tempting to say, "The case for impeaching Bush is better than the one they had against Clinton, so let's go for it." And it's true, the case is better. But that is two-wrongs-make-a-right logic. We need to stay far, far away from it.

The Clinton impeachment was one of the Republican Congress' worst abuses of power. It cheapened impeachment and weakened the Constitution. But if we use the Clinton impeachment as a precedent, we ratify it. You wouldn't use slavery as a precedent, or the genocide of the Native Americans. You wouldn't justify something by pointing to Roosevelt's internment of Japanese-Americans or to the Jim Crow laws. Those were shameful moments in American history, not something we want to imitate. The Clinton impeachment belongs in that category. No part of a Bush impeachment should be justified by pointing to what they did to Clinton.

Standards of Impeachment

We need to make sure that any Bush impeachment lives up to the standards we set in the Clinton years, not the ones the Republicans set. I remember what I was saying then: The ordinary way to get rid of a bad president, the one the Founders intended for general use, is to wait for his term to expire and elect somebody else. In order to impeach a president you need to argue that waiting isn't good enough. The Constitution's two specific examples of impeachable offenses -- treason and bribery -- are like that. In each case the president is working for someone other than the American people, and the power of the presidency might be used against the Republic rather than for it. Obviously you can't just sit around and wait for the next election.

I also said that I could support a third and a fourth cause for impeachment: If the president's abuses of power undermine the electoral system itself, or if his illegal expansion of power threatens Congress' role as an equal branch of government. The third cause justified the Nixon impeachment: If a president uses his power to spy on his political enemies and play "dirty tricks" on them (or to protect non-government operatives who do), then waiting for the next election may be hopeless. Incumbency may be too great an electoral advantage to overcome. And the fourth cause is necessary to maintain the separation of powers. In any constitutional showdown, impeachment is the final arrow in Congress' quiver. Without it, a president can just ignore Congress. Even the power of the purse means nothing if the president decides to collect taxes and spend money on his own.

Those are the standards by which I decided that Clinton did not deserve impeachment. The two impeachment counts voted against him were (1) he lied to a grand jury about which sexual acts he performed with Monica Lewinsky, and (2) he conspired to reward her for lying to a different grand jury about their affair. Those two acts, even if completely true, constituted an embarrassment to the Republic rather than a threat. The constitutionally proper course for the Republicans would have been to use these events to embarrass the Democrats in the next election, and possibly indict Clinton after he left office.

Two Tracks of Impeachment

Here's what we should have learned both from the Lewinsky scandal and the Iran/Contra affair: A successful impeachment has to have two tracks. First, you need a legal case against the president, a broken law that can be interpreted to meet the "high crimes and misdemeanors" standard. But you also need a political case. The public has to believe not only that this guy did something, but that they want him gone.

In Iran/Contra the political case was missing, or at best appealed only to the minority of the electorate that had never liked President Reagan anyway. If that's the best you can do, it doesn't matter how good your legal case is. Legal arguments are complicated, and if the president remains popular, the defense will always be able to make the legal case sound like a bunch of technicalities.

The political case against President Clinton was that he had illicit sex in the Oval Office. That's not illegal, but it outraged about a third of the country so much that they were willing to see any illegality as an impeachable offense. He had to go -- it was that simple. But the other two-thirds of the country saw the affair as merely tawdry, and not something worth making into a national crisis. So Clinton's popularity actually went up during his impeachment, and conviction was never a serious possibility.

What About George W. Bush?

Over the past six years, President Bush has been accused of all kinds of things that could be impeachable: wiretapping without warrants, jailing American citizens without charges, torture, deceiving Congress, breaking the Geneva Conventions, and so on. What actually happened and how illegal it was has stayed mostly in the realm of accusation, because the Republican Congress didn't want to know whether or not President Bush had committed impeachable offenses. So it didn't hold hearings, interview witnesses under oath, subpoena documents, or do much of anything to keep the President honest.

We won't know for sure whether there's a smoking gun until someone tries to find one. Personally, I believe the investigations were ignored or suppressed because there is a smoking gun, probably a whole arsenal of them. I expect this to become increasingly obvious as the Democratic Congress starts asking reasonable questions and getting stonewalled by the administration. I expect this to escalate into a full-scale constitutional crisis, where Congress will either have to threaten impeachment or admit that it isn't an equal branch of government any more.

The legal case for impeachment will either be given to Congress by administration refugees unwilling to go to jail to protect the president, or it will arise out of the constitutional showdown itself. At some point Congress will pass a law, and Bush will ignore it and dare Congress to impeach him.

Whether Congress will be able to take that dare depends on whether there's a political case for impeachment. And that's where Iraq comes in. Legally, Iraq has nothing to do with impeachment. Starting a foolish war and prosecuting it incompetently is not an impeachable offense. Incompetence in general is not grounds for getting rid of a president. It would be if the Constitution had a recall process like the one California used to get rid of Governor Davis a few years ago, but it doesn't. Maybe that was an oversight on the part of the Founders, but that's how it is.

Even so, Iraq most definitely is the source of the growing feeling in the country that President Bush must go. He's getting good people killed for nothing, and the more obvious that becomes, the more of them he wants to send. This can't be allowed to go on. And if he's also trying to get us into a war with Iran, that provides the sense of urgency that impeachment requires. We can't just watch and wait for two years while he breaks another country and sinks us into the quagmire of its pacification and reconstruction.

How to Proceed

For now, the two tracks of impeachment should go forward separately. The legal case requires Congress to investigate past wrong-doing and to confront the administration in ways that resolve ambiguities. Whenever Bush claims to have the inherent constitutional power to act without Congress, Congress needs to call his bluff, both in the courts and by passing new and sharper legislation.

For now, none of that needs to happen in actual impeachment hearings before the House Judiciary Committee. Speaker Pelosi is right to soft-pedal immediate talk of impeachment, because (as I admitted above), most of what we have so far are just accusations and suspicions. The old Republican Congress assumed there was nothing to it all. If the new Democratic Congress assumes that there is something to it, they're falling into the same partisan mold. The proper course is for investigations of all sorts to take place all over Congress, and the proper line is: "We just want to find out what's been going on in this government for the past six years. We need that information to do our jobs." Eventually, the legal case for impeachment will emerge.

What Congress can't do is let itself be intimidated into not investigating and not confronting the administration. The Right has a large and well-funded network of propagandists, and manages to sound intimidating even as its popularity goes into the 20s. We're seeing it at work now in the "conventional wisdom" that it would be suicide for the Democrats to cut off funding for the Iraq War, because the American people would never support such a move. There's no way to know what the American people will support until someone seriously proposes it and makes the case. If you're afraid to make a case that the American people don't already support, you can never move forward.

Everything hangs on the political case for impeachment, and that revolves around Iraq. To promote that case Congress must constantly be moving towards ending the war. The escalation of the confrontation between Congress and the President should be slow but relentless. When Congress does cut off funding for the war, it should be obvious that they have tried everything else. The President is simply unreasonable and can't be dealt with in any other way. Either you're for cutting off funds, or you're for the war continuing pointlessly into the indefinite future.

Maybe it shakes out like this: Congress sets the cut-off date some time in the summer, and Bush ignores it, opening up the prospect that our troops in the field will suddenly have no supplies. Congress relents, because they care about the lives of our troops and aren't willing to play chicken with them. But Bush has proved that he is willing to play chicken with the lives of our troops. Congress votes another two months of funding and starts impeachment hearings. Any legal case at all will be sufficient at that point.

The rest of us can push the political case forward by refusing to shut up. Talk to your friends, blog, write letters to your newspapers and Congressmen, and participate in visible demonstrations. If someone is tempted to think, "No one is for ending the war right now" or "No one wants to see an impeachment" their next thought should be "except for Doug ... and Susan ... and Kathy ... and Bill ... and ..."

For the lives of our soldiers and the future of our country in the world, we can't wait two more years for the next president, who will have even fewer and less attractive options than exist now. And we can't allow this president to start any more equally pointless, equally wasteful, equally counterproductive wars. We have to act. And ultimately, that means we have to impeach.