[NYTr] Bush Impeachment: The Case Against
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The Nation - Jan 12, 2007 (posted 1/26/07)
http://www.thenation.com/docprint.mhtml?i=20070212&s=levinson
The Nation
Bush Impeachment: The Case Against
by SANFORD LEVINSON
It would be wonderful to evict George W. Bush--quite possibly the worst
President in our entire history--from the White House. Thus one can
readily understand the temptation to talk about impeaching him. But we
should recognize that this conversation is triggered not only by Bush's
own performance as President but also, and perhaps more important, by
one of the greatest defects of the Constitution, the impeachment
clause. Thanks to the Founders, we were given a Constitution that
perversely makes us "better off" with a criminal in the White House
instead of someone who is "merely" grotesquely incompetent. The reason
is that the Constitution provides us with a language to get rid of a
criminal President, but it provides us no language, or process, for
terminating the tenure of an incompetent one. Unfortunately, this was a
deliberate decision by the Framers, who rejected an altogether sensible
proposal to make "maladministration" an impeachable offense for fear
that this would give Congress too much power.
Only because of the Constitution are serious progressives engaging in
an entirely fruitless campaign to impeach Bush by describing him as a
criminal. It is fruitless for two quite different reasons. The first,
and more practical, is that there is simply no possibility that Bush
will actually be removed from office in the twenty-four months that
unfortunately remain to him. One might well contemplate impeachment if
there were a possibility of its being successful. But the House
Democratic leadership has rejected the idea, not least because there is
no possibility that the constitutionally required two-thirds of a
nearly evenly divided Senate would vote to convict an impeached George
W. Bush. Thus, advocates of impeachment are in effect supporting a
strategy doomed not only to fail but also to be perceived by most of
the country as a dangerous distraction from the pressing problems
facing the country.
House Republicans in 1998, who knew for certain that Bill Clinton would
never be convicted by the Senate, could behave with reckless abandon in
part because much of the country did not perceive itself as facing
grave problems. Democrats today do not have that luxury.
But there is a second reason to be wary of the impeachment
conversation: It inevitably becomes a highly legalistic one about
exactly what constitutes "high crimes and misdemeanors." It is not
enough that the President be a criminal; he must be a criminal of a
certain gravity. If there is anything the country needs less at this
point than a self-defeating political strategy, it is the further
domination of public debate by lawyers trading jargon-ridden charges
and countercharges about the criminal liability of the President.
Almost no one was genuinely edified by the legal debate that occurred
in 1998. Most of the public believed that most of the lawyers--or at
least those on "the other side"--who participated in that debate were
motivated by partisan political considerations. The same would be true
today.
Although I admire some of those calling for impeachment, one should
recognize that some of their ostensibly legal claims are all too
dubious. Consider the charge that Bush lied to the country during the
run-up to the war, which may well be true. If lying to the public about
matters of grave importance were an impeachable offense, however,
almost no President--including, for starters, Franklin Roosevelt and
his deceptions regarding lend-lease--would survive. It is even more
difficult to construct criminality out of Bush's reckless disregard of
the consequences of Katrina. It is not, however, at all difficult to
accuse him of maladministration and disqualifying incompetence.
American politics would be infinitely better if we could avoid
legalistic mumbo-jumbo and accusations of criminality and cut to what
is surely the central reality: The American people have exhibited a
fundamental loss of confidence in a wartime President/Commander in
Chief. In most political systems around the world, the response to such
a stinging rebuke would be resignation or removal. But we are trapped
in a constitutional iron cage devised by eighteenth-century Framers
who, however wise, had no conception of the role the presidency would
come to play in American (and world) politics. The US President should
be treated as what Ross Perot aptly called an "employee" of the
American people, vulnerable to being fired for gross incompetence in
office. Instead, he is given the prerogatives of a feudal lord of the
manor who owns the White House as his personal property until the end
of the presidential term, with almost dictatorial power over decisions
of foreign and military policy.
Far better than a politically pointless--and almost certainly
counterproductive--campaign to impeach George W. Bush would be the
initiation of a serious discussion of the extent to which we are
disserved, in 2007, by a political system devised for an entirely
different era. However divided we might be, most Americans might be
persuaded that we would all be better off if future Presidents could
face the possibility of a Congressional vote of "no confidence" that
would trigger eviction from the White House. Perhaps that discussion,
too, would be doomed, given both the preposterous reverence that
Americans have for the Constitution and the near-impossibility of
constitutional amendment because of the hurdles placed by Article V in
the way of amendment. But at least such a discussion would focus on the
most important feature of the Bush Administration--its gross
incompetence--in a language that could readily be understood by any
attentive citizen rather than quickly degenerate into an arcane (and
acrimonious) discussion among constitutional lawyers.
Moreover, and even more important, whereas an attempted impeachment
would be guaranteed to be maximally divisive, this might be the perfect
time to hold a serious national conversation about whether we should
have an alternative to the cumbersome impeachment process to remove an
incompetent President. The reason, paradoxically, is that because of
our very political divisions, it is impossible to know who will be
President in 2009. The stars are aligned for a truly bipartisan
discussion, among serious Democrats and Republicans alike, over the
extent to which we are well served by the eighteenth-century
Constitution, since members of both parties are behind a "veil of
ignorance" as to who would benefit from any changes. Even the most
partisan among them have every incentive to think of the national
interest, since it is impossible to discern what the party's interest
will turn out to be.
Perhaps if we took the citizenry seriously and engaged them in an adult
conversation about the dysfunctionality generated by the present
Constitution, we might be able to escape its iron cage in the
future--even if not, alas, before the expiration of Bush's term of
office in January 2009.
*
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