The Purposes of Impeachment: It’s not Criminal Law

Aside from this introduction, this diary was first published on dailyKos July 30, 2007 under the title Impeachment 101: Perjury is Beside the Point.  It borrows freely from a diary by SilentBob published April 13, 2007, and a yet earlier diary by darrelplant from December 26, 2006.  The most salient aspects of all these diaries stem from the 1974 report of the legal staff of the Congressional Inquiry Committee considering Constitutional Grounds for Presidential Impeachment of Richard Nixon.  It was written with Alberto Gonzales in mind, but it could apply to most high-ranking officials in the executive branch today.

We may be jaded, tired, disgusted, bored with repetition and even despairing, but we’re not going away.  Not this time.  This is not Nixon.  As long as we are alive, we will remember what they have done and we will seek justice in the names of the literally millions who have suffered injustice.

The partial list of specific crimes at the end of the diary has only grown in the last year.  A lot more evidence has come to light.  We can see clearly what happens when we fail to support our laws, our rights, and our constitution.

Finally, I’m not going to be around much for commentary.  I’m just sending this back out for review and to add my voice to the chorus, FWIW, but I can’t spend much time here until tonight.

Original diary, with edits:

Despite numerous cogent diaries on the subject, impeachment discussions here seem to suffer from misconceptions as to what constitutes proper grounds for impeachment. Specifically,

1) the Constitution places a positive burden on the President “to take Care that the Laws be faithfully executed.”  By extension, this burden is placed on civil officers.  Criminal behavior does not necessarily constitute grounds for impeachment. Failing “to take care” does.

2) Unlike criminal proceedings, which function to punish miscreants and to protect individuals, impeachment proceedings serve the sole function of protecting the integrity of government or the Constitution itself.



3)  The House is not required, nor should it be expected, to prove anything before impeaching.

4)  Just as OJ Simpson is now “not guilty” of murder, a conviction by the Senate would mean that Alberto Gonzales could no longer serve as Attorney General.  There is no appeal process and no independent basis for judging whether the decision is proper.  No need to invoke the jury in the sky.

Okay, I admit it, I’m completely cribbing from other diaries.  I love dKos for being all about this sort of information.  And by “this sort of information”, I mean information based on primary documents, such as the Constitution and a 1974 report of the legal staff of the Congressional Inquiry Committee considering Constitutional Grounds for Presidential Impeachment of Richard Nixon.  If you want to be on solid ground when debating the merits of impeachment, you need to read at least the conclusion of that 1974 report.  This conclusion is quoted in this diary by SilentBob.  darrelplant has also quoted freely from this document in providing highly enlightening commentary.

From the 1974 report:

Impeachment is a constitutional remedy addressed to serious offenses against the system of government. The purpose of impeachment under the Constitution is indicated by the limited scope of the remedy (removal from office and possible disqualification from future office) and by the stated grounds for impeachment (treason, bribery, and other high crimes and misdemeanors). It is not controlling whether treason and bribery are criminal. More important, they are constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself, and thus are “high” offenses in the sense that word was used in English impeachments.

The most frustrating persistent myth here is that impeachment is necessarily tied to proof of criminality.  To argue this is to woefully misunderstand both the language and intent of the Constitution.  The Constitution specifies the grounds for impeachment:  treason, bribery, and other high crimes and misdemeanors.  To the founders, “high crimes and misdemeanors” was not a purposely broad term to allow inclusion of criminal activities such as perjury.  To the contrary.  The list of reasons for impeachment is intentionally limited to crimes against the structure of government or the Constitution itself.  Similarly, the punishment for these offenses is limited to removal from office.  Thus, “high crimes” does not mean ordinary criminality committed by those in high office.  In fact, high crimes can be committed only by a person in high office.  And conviction by the Senate is not intended to punish.  The penalty for conviction is intended only to protect the structure of the government or the Constitution.  Perjury is not necessarily grounds for impeachment.  In fact, the crime of perjury itself is irrelevant except as it may relate to undermining the structure of the government.

Presumably, the strongest reason most of us want to get rid of this President and his gang has to do with their disdain for the Constitution and their general undermining of our government.  Yet, there is a wide-spread assumption that we must find secondary reasons, such as perjury or violations of the Hatch Act.  This view is really bass-ackwards.  Perjury, or even Hatch Act violations, may not be a good enough reason for impeachment, but undermining the Constitution most certainly is. The impeachment clause of the Constitution is designed specifically to address the sorts of high crimes and misdemeanors being committed by this President, Vice President and other civil officers.

Let’s look more precisely at reasons for impeachment.  From the 1974 report:

It is useful to note three major presidential duties of broad scope that are explicity recited in the Constitution: “to take Care that the Laws be faithfully executed,” to “faithfully execute the Office of President of the United States” and to “preserve, protect, and defend the Constitution of the United States” to the best of his ability. The first is directly imposed by the Constitution; the second and third are included in the constitutionally prescribed oath that the President is required to take before he enters upon the execution of his office and are, therefore, also expressly imposed by the Constitution.

The duty to take care is affirmative. So is the duty faithfully to execute the office. A President must carry out the obligations of his office diligently and in good faith.

Failing “to take care” is not a crime which can be committed by an ordinary citizen.  It is not a crime against an individual or property.  It is a crime against the Constitution.  It is misguided to equate a Senate trial with a criminal proceeding, or to require proof of criminality as a prerequisite to impeachment.  Suspicion that the Attorney General (or President or Vice President) has failed in his duty to “take Care that the Laws be faithfully executed” constitutes indisputable grounds for impeaching.  This is the equivalent of a grand jury determining whether sufficient evidence exists to go to trial.

After the House decides (i.e., votes) there is enough evidence to justify trial , the Senate operates as a jury in the sense that what they determine is what is so.  If the criminal jury says OJ is innocent then he is innocent, no matter what you or I think.  If the Senate says Gonzo must go, then Gonzo is gone.  Even if impeached and convicted, he will not have been found guilty of any crime even if the process exposed criminality.  He is simply dismissed from his post in government.

Finally, I want to throw out a more subjective impression, for what it’s worth.  For as long as thirty years now, the Republicans have been focusing on power, willing to act in their own interests whenever they have the power to do so.  We, OTOH, are focused on justice and truth.  We want to double check with ourselves and our friends before acting to be sure we’ve got it right.  I resonate with this attitude and usually appreciate it.  But in this instance, I am very frustrated by it.  While it seems almost of all of us progressives/Democrats agree that Bush and the gang are not “taking care the laws be faithfully executed,” we are tying our own hands as to what we can do about it.  I regularly hear what is, to me, the absurd argument that the impeachment of Clinton somehow poisoned the well for the impeachment of GW Bush.  (Because the Republicans brought a frivolous impeachment against Clinton, we are somehow prevented from impeaching for egregious acts?  Weird.)  Other people wring their hands over how it would look to the general public.  We don’t want to look too partisan, do we?  Still others regularly insist that we prove criminal behavior before proceeding.  Well, if the President or other civil officer is guilty of not taking care to faithfully execute the laws, this constitutes grounds for impeachment.  And if we can gather the votes for it, we should impeach him.  Then we should try him in the Senate, during which proceeding we should gather evidence.  Not having the votes yet means pushing to get them, not walking away from this crisis of government.  It really is that simple.

Yesterday, a diarist was criticized by several as naive for suggesting that Gonzales be impeached for incompetence.  My friends, incompetence constitutes more solid grounds for impeachment than perjury, in that it addresses the issue of faithfully executing the law.  Let’s quit being so hard on ourselves and focus our criticism on those who are destroying our system of government.  And let’s ground our discussion in understanding of what impeachment is really about.

In the interest of completeness, I include here a requirement which must be met for conviction and removal from office.  Also, from the 1974 report:  

Not all presidential misconduct is sufficient to constitute grounds for impeachment. There is a further requirement– substantiality. In deciding whether this further requirement has been met, the facts must be considered as a whole in the context of the office, not in terms of separate or isolated events. Because impeachment of a President is a grave step for the nation, it is predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.

Discussion of whether we can meet this requirement would be much more pertinent and fruitful than whether any specific laws have been broken or whether the media will be critical.

Signing statements, illegal surveillance, violation of international law, politicization of the executive branch, violations of the Presidential Records Act, contempt of Congress, subverting enforcement of the Civil Rights Act, election fraud… and these are just the things we know about.  It seems pretty substantial to me.