Reply #5: Notes for the Consideration of Impeachment

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FOR THE CONSIDERATION OF THE IMPEACHMENT OF PRESIDENT GEORGE W. BUSH, VICE PRESIDENT RICHARD B. CHENEY, SECRETARY OF DEFENSE DONALD H. RUMSFELD, AND ATTORNEY GENERAL JOHN DAVID ASHCROFT

Provisions on Impeachment in the U.S. Constitution
British Experience With Imperial Power and Abuse
The Intention of the Founders to Grant the Power of Impeachment
Impeachment of U.S. Presidents
President George W. Bush and Other Named Officials Have Committed Impeachable Offenses of Unprecedented Danger to the Constitution and People of the United States
We Must Act Now to Prevent Catastrophe and Ensure Accountability


PROVISIONS ON IMPEACHMENT IN THE U.S. CONSTITUTION

Impeachment is the direct constitutional means for removing a President, Vice President or other civil officers of the United States who have acted or threatened acts that are serious offenses against the Constitution, its system of government, or the rule of law, or that are conventional crimes of such a serious nature that they would injure the Presidency if there was no removal.

The power of impeachment is a vital part of the Constitution. It was among the proposals first presented to the Constitutional Convention in 1787. Its terms were debated repeatedly and remained prominently in the text from the first drafts of the Constitution to the final document. Impeachment is more fully and carefully detailed in substance and procedure than any other power delegated to the Congress by the Constitution. Provisions relating to impeachment appear six times in text of the Constitution and once in an Amendment. They are:

1. Article I, which creates the legislative branch of government, in Section 2, para. 4 provides:
that the House of Representatives... "shall have the sole power of impeachment."

2. Article I, Section 3, para. 6 provides:
"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."

3. Article I, Section 3, paragraph 7 provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
4. Article II, which creates the Executive branch, in Section 2 provides the President:
...shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

5. Article II, Section 4 provides:
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.



BRITISH EXPERIENCE WITH POWER AND ABUSE

Impeachment was incorporated into the Constitution directly from the British practice and experience to a unique degree. Federalist No. 65, written by Alexander Hamilton cited Great Britain as "the model from which has been borrowed."

Impeachment in Britain had been a key weapon in the long struggle of the Parliament against the tyranny of the King. Because the Parliament and the Courts lacked power to remove, or limit the King, impeachment was used against officers of the King who carried out his tyrannical orders. Between 1620 and 1640 during the reigns of James I and Charles I the House of Commons voted more than 100 impeachments against officers of the Crown.

The impeachment of the Earl of Strafford in 1642 charging "he hath traitorously subverted the Fundamental Laws...to introduce Arbitrary and Tyrannical Government Against Law..." arose from the conflict between Charles I who asserted "the will of the Prince was the source of law" and parliamentarians who believed with Sir Edward Coke that law had "independent existence of its own, set above the King as well as above his subjects". Strafford's impeachment began early in the struggle of the Long Parliament to "prevent the English monarchy from hardening into an absolution of the type then becoming general in Europe". His impeachment is understood today to be "a great watershed in English Constitutional history of which the Founders were aware." 1

After the execution of Charles I in 1648, during the Commonwealth under Oliver Cromwell, there were no impeachments. With the Restoration of the monarchy in 1660 a stronger Parliament asserted greater power to control arbitrary acts of the King by impeachments for lesser offenses of "negligent discharge of duties" and "improprieties in office."

Just weeks before the Constitutional Convention in 1787 the first efforts to impeach Warren Hastings, Governor General of India began. The articles of impeachment charged Hastings with mal-administration, corruption in office and cruelty toward the Indian people. These articles are reminiscent of the charges against King George III in the American Declaration of Independence eleven years earlier. Indeed the Declaration of Independence could be thought of as a declaration of grounds for removal of the King and his distant government, or a declaration of independence in the absence of the power of impeachment. The Hastings impeachment was of great interest in the Convention, cited prominently by George Mason in the debates and well known by the delegates.

By 1787, the British Parliament had used the phrase "high crimes and misdemeanors" as a standard for impeachment for more than 400 years.

In Britain, impeachment had been called "...the most powerful weapon in the political armory, short of civil war." It was referred to as "the chief institution for the preservation of the government" in the House of Commons in 1677 and served to curtail the concentration of absolute power in the King and establish constitutional government and supremacy of law as fundamental principle. Impeachment played an historic and heroic role in England's long and bloody struggle to free itself from the despotism of Monarchs.

1 - See Raoul Berger, Impeachment, The Constitutional Problems, Harvard University Press, 1973 at p. 30-40.



6. Article III which creates the Judicial branch of government, in Section 2, paragraph 3 provides:
The trial of all Crimes, except in Cases of Impeachment, shall be by Jury... .

7. Amendment XXV to the Constitution ratified on February 10. 1967 provides in Section 1:
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

The power of impeachment was placed in the Constitution to protect the Constitution and the people from a despotic, or lawless President.



THE INTENTION OF THE MEMBERS OF THE CONSTITUTIONAL CONVENTION IN PLACING THE POWER OF IMPEACHMENT IN THE CONGRESS

In answer to the colonial experience with absolutist monarchy, the Articles of Confederation created a purely legislative form of government in which there was no King, or Chief Executive. Ministers answered directly to Congress. Removal of government officials was at the will of the Congress. Impeachment was not needed. The legislative form of government created by the Articles of Confederation did not work. It proved ineffective in accomplishing the purposes of government and diffused responsibility and accountability for acts of government, making reform difficult.

Delegates at the Constitutional Convention quickly decided that a strong executive was essential to effective government. They created the office of the President and vested "The executive Power" in it. The direct means provided in the Constitution for preventing and correcting abuse of executive power was impeachment. The debates on impeachment focused "...principally on its applicability to the President."2

Seeking to create a strong, but responsible executive, delegates at the Convention intended, in the words of Elbridge Gerry of Massachusetts, that "the maxim would never be adopted here that the Chief Magistrate could do no wrong." 3

George Mason, defending provisions for the impeachment of the President in the Constitutional Convention, asked "Shall any man be above justice? Above all Shall that man be above it, who can commit the most extensive injustice?" 4

Benjamin Franklin favored Congressional power to impeach and remove the President to prevent tyranny and recourse to assassination.
Edmund Randolph, who would become the first Attorney General under the Constitution and later be forced to resign from the Washington Cabinet on accusation of "Treason", argued for the impeachment power, observing "The Executive will have great opportunity of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands." Without the power to impeach he saw the remedy in "tumults and insurrections." 5

James Wilson, a major participant in the Constitutional Convention, speaking in the Pennsylvania ratification convention argued that for all the power vested in the President, "not a single privilege is annexed to his character, far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment." 6

The great concern of the Constitution was that there never be an imperial presidency disregarding law and usurping powers of the government and the people. This is further revealed by two provisions in Article II of the Constitution. The final clause of Article II, Section 3, which follows the recitation of Presidential powers and duties set forth in Sections 2 and 3, provides "he shall take care that the Laws be faithfully executed..." The last paragraph of Article II, section 1 prescribes the Oath or Affirmation to be taken "Before he enter on the Execution of his Office" ... "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

By the impeachment power, the authors of the Constitution intended to prevent the emergence of a tyrant, or despot in the form of a President who could destroy "the Blessings of Liberty to ourselves and our posterity."

2 - High Crimes and Misdemeanors: Selected Materials on Impeachment. Constitutional Grounds for Impeachment by the Impeachment Inquiry Staff of the House Judiciary Committee, Funk and Wagnells, 1974 at p 5.

3 - The Records of the Federal Convention 66 (M. Farrand ed. 1911).

4 - 2 Farrand 65.

5 - 2 Farrand 65.

6 - J. Elliot, The Debates In The Several State Conventions On The Adoption Of The Federal Constitution, 29 Ed. p. 74.



IMPEACHMENT HISTORY UNDER THE CONSTITUTION

A casual reading of the history of impeachment by the Congress might lead one to believe its use, contrary to its clear purpose, "had sunk in this country to the ouster of dreary little judges for squalid misconduct." 7 It has been our good fortune not to have been confronted with the tyrannies of our own Kings and their attendants and forced to struggle for freedom from their despotism. Still the existence of the impeachment power in the Constitution has been present and raised publicly, often prominently, during the administration of every American president.

In 1974, to aid the House of Representatives Committee on the Judiciary in its consideration of possible grounds for the impeachment of President Nixon, C. Vann Woodward, distinguished professor of history at Yale University, serving as Editor and Director, with the assistance of fourteen prominent historians, compiled a 398 page "Authoritative History of Accusations of High Crimes and Misdemeanors from George Washington to Lyndon Johnson." 8

Charges of misconduct and threats of impeachment against the President, or his civil officers are found in every Presidential administration. Most often the charges have involved corruption which was present in many and prominent in the administrations of Presidents Tyler, Buchanan, Grant and Harding. Sometimes they have involved personal misconduct. Some charges reflect "politics as usual" and are an abuse of the impeachment power itself seeking political advantage. But on many occasions the charges have claimed usurpation of power not delegated to the President, abuse of delegated Presidential power and serious criminal conduct destructive of constitutional government and the rule of law.

While the Constitutional definition of conduct that is impeachable, read with the gloss of history, seems clear, the range of definitions adopted by members of the Congress have stretched from serious felony crimes alone to whatever the Congress says it is. The most extreme definition of impeachable conduct ever proposed in Congress is found in the words of Gerald R. Ford spoken on the floor of the House of Representatives in 1970 when he introduced the notorious articles of impeachment against Justice William O. Douglas of the Supreme Court of the United States:

"What then is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history..." 9

See, generally, Irving Brant, Impeachment, Trials and Errors, Knopf, 1972.

If Ford gave the "only honest answer" to his own question, then the words of the Constitution mean nothing. The Congress could remove the President for any act, or failure to act, it might choose. It was Ford who later, as President pardoned Richard Nixon, immediately after Nixon's resignation as President. Ford himself had been appointed Vice President by President Nixon after the resignation of Vice President Spiro Agnew.

If the impeachment power is limited to serious felony crimes only, it may fail to protect against usurpations and abuses of power that threaten constitutional government, but are not crimes.

A brief comment on impeachable misconduct raised in public debate during the first Presidential administration will indicate the magnitude and frequency of impeachment as a national concern. 10 The administration of President Washington is generally considered to be among the least political and most honorable of all.

Among the most serious accusations were those against Alexander Hamilton of "nothing less than conspiracy to subvert the liberty of his country" by changing the form of the government prescribed in the Constitution from a federal to a national state copying the British financial system in order "to return to the rule of aristocrats and kings."

Hamilton was charged with corruption in selecting William Duer as his Under Secretary of the Treasury. Duer, a notorious speculator, soon resigned owing the government $200,000. His later speculation lead to the first financial panic of the new nation in 1792. Hamilton was subject to lengthy intensive investigation by the House of Representatives for this and other conduct.

Jefferson, among other acts, was charged with using government funds to finance Philip Freneau when Freneau started the National Gazette, a pro Jefferson newspaper.

Both Jefferson and Hamilton were accused of accepting bribes from foreign governments.

Edmund Randolph who served Washington as both Attorney General and Secretary of State was accused of treason and accepting bribes from the French government and corruption for agreeing to foment civil strife in the Whisky Rebellion in 1794 on the basis of French documents captured by the British and irregularties in State Department financial accounts. Confronted with evidence that he accepted bribes from France by President Washington and his War and Treasury Secretaries, Randolph endeavored to explain, apparently failed and then resigned. He was never prosecuted, but his public career ended.

President Washington was personally accused after signing the Jay Treaty with England of participation in a British- Federalist conspiracy to destroy republican government in the U.S. He refused to deliver papers relating to the negotiation of the Treaty to the House of Representatives which was investigating conduct which led to the Treaty.

The Constitutional impeachment power of the Congress has been a conscious presence in the conduct of the Presidency. It has surfaced frequently in public statements and accusations addressing controversial acts of the President and his principal civil officers. It has acted as a powerful deterrent to usurpation and abuse of power by the President. While impeachment has resulted in a completed trial in the Senate in only one case involving the President, it has affected Presidential conduct constantly and led to resignations of many officials and one President.

President Andrew Johnson after the assassination of Lincoln, as the nation entered the difficult post Civil War period of reconstruction was accused of the many crimes, even conspiring in the assassination of Lincoln. He was most aggressively charged with frustrating the implementation and execution of Congressional acts and effectively nullifying some laws dealing with reconstruction. The charge for which he was finally impeached and tried in the Senate was violation of the Tenure of Office Act by removal of Secretary of War Stanton whose role in enforcing reconstruction legislation in the former Confederacy was critical. The House vote for Impeachment was 126 to 47. The Senate failed by a single vote to meet the 2/3's requirement set in the Constitution to convict.

Historians still debate whether President Johnson was the victim of radical Republican political anger, or had seriously acted to frustrate the enforcement of reconstruction laws and to "take care that the Laws be faithfully executed" in a matter of great consequence to the nation.
Two of the last seven Presidents have faced impeachment crises. President Nixon was forced to resign in the face of the threat of impeachment. Had there been no impeachment power in the Congress, he surely would not have resigned. Part of President Nixon's problem was the credibility his acts gave to charges that his was an imperial Presidency. When Nixon designed uniforms for White House Guards that looked more appropriate for Buckingham Palace than the White House he was forced by ridicule to change back to customary uniforms.

C. Van Woodward, in his Introduction, The Conscience of the White House says of the charges against President Nixon, "Heretofore, no president has been accused of extensively subverting and secretly using established government agencies to defame or discredit political opponents and critics, to obstruct justice, to conceal misconduct and protect criminals, or to deprive citizens of their rights and liberties." 11

Maybe Woodward is right, but his report is replete with similar and worse allegations in circumstances far more dangerous to the United States. It is, however, clear that such offenses are subject to impeachment.

President Bill Clinton was impeached in December 1998 on three Articles of Impeachment by votes ranging from 229-205 to 221-212. The votes were highly partisan with only five Democrats voting for impeachment. The charges were for perjury, false and misleading testimony and obstruction of justice, all committed in legal proceedings involving allegations of extra-marital sexual conduct. The charges were less serious to Constitutional government than allegations against most previous Presidents. Representative Bob Livingston, Republican and speaker elect of the House of Representatives, resigned from Congress in January 1999 after the disclosure of his extra marital affairs hoping to set an example for President Clinton. The example was not followed and the matter ended without a trial in the Senate.

Allegations of impeachable offenses have been made in the administration of every President.

7 - Berger, op cit, at p. 3, citing Joseph Borkin, The Corrupt Judge (New York, 1962).

8 - Published as Responses of the Presidents to Charges of Misconduct, Delacorte Press, 1974.

9 - 116 Cong.Rec.H. 3113-3114 (daily edition April 15, 1970).

10 - See Responses of the Presidents To Charges of Misconduct, op. Cit George Washington, 1789-1797, at pp. 1-21.

11 - Responses Of The Presidents To Charges Of Misconduct, Op. Cit. at p. xxvi.





PRESIDENT GEORGE W. BUSH AND OTHER NAMED OFFICIALS OF THE UNITED STATES HAVE COMMITTED IMPEACHABLE OFFENSES OF UNPRECEDENTED DANGER TO THE CONSTITUTION AND PEOPLE OF THE UNITED STATES.

Draft Articles of Impeachment of President George W. Bush and other named officials of the United States charge the most serious crimes known to law and history. Nothing in the experience of the impeachment power under the Constitution compares. The conduct charged threatens the Constitution, the United Nations, the rule of law and the lives of unknown thousands, or millions of people by their act and example.

The alleged impeachable acts of President George W. Bush include:

1. Ordering and directing "first strike" war of aggression against Afghanistan causing thousands of deaths;

2. Removing the government of Afghanistan by force and installing a government of his choice;

3. Authorizing daily intrusions into Iraqi airspace and aerial attacks including attacks on alleged defense installations in Iraq which have killed hundreds of people in time of peace;

4. Authorizing, ordering and condoning attacks in Afghanistan and Iraq on civilians, civilian facilities and locations where civilian casualties are unavoidable;

5. Threatening the use of nuclear weapons and ordering preparation for their use;

6. Threatening the independence and sovereignty of Iraq by belligerently proclaiming his personal intention to change its government by force;

7. Authorizing, ordering and condoning assassinations, summary executions, murder, kidnappings, secret and other illegal detentions of individuals, torture and physical and psychological coercion of prisoners;

8. Authorizing, ordering and condoning violations of rights of individuals under the First, Fourth, Fifth, Sixth and Eight Amendments to the Constitution and of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international protections of human rights;

9. Authorizing, directing and condoning bribery and coercion of individuals and governments to obtain his war ends;

10. Making, ordering and condoning false statements and propaganda and concealing information vital to public discussion and informed judgment to create a climate of fear and hatred and destroy opposition to his war goals.

President Bush is accused of Crimes Against Peace, War Crimes and Crimes Against Humanity. No crimes are greater threats to the Constitution of the United States, the United Nation Charter, the rule of law or the future of humanity.



MAXIMUM EFFORT TO SECURE FULL CONSIDERATION OF IMPEACHMENT IS THE DUTY OF EVERYONE.

Impeachment is the means by which We The People of the United States and our elected representatives in Congress can prevent further crimes by the President and the human catastrophe they threaten and force accountability for crimes committed.

Congressional proceedings for impeachment can bring about open, fearless consideration of the most dangerous acts and threats ever committed by an American President. If courageously pursued, they can save our Constitution, the United Nations, the rule of law, the lives of countless people and leave open the possibility of peace on earth. Each of us must take a stand on impeachment now, or bear the burden of having failed to speak in this hour of maximum peril.

- - Ramsey Clark
January 15, 2003