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Trial by Constitution
Trial by Constitution
By Stirling Newberry
t r u t h o u t | Perspective
Thirty-one years ago, on August 8th, Richard Nixon addressed the American public for the 37th time from the Oval Office. His message was that he was resigning the Presidency "effective noon tomorrow." It was the fall of a man who had risen in public life under a cloud, and had participated in five national elections on a major party ticket, more than any one else except Franklin Delano Roosevelt. For many who had been opposed to him from the beginning, it was a great weight lifted from the country. GB Trudeau had a metaphorical brick wall removed from in front of Doonesbury's White House.
In his speech Nixon acknowledged what had come to be recognized as the reality of impeachment: that it was a constitutional and deliberative process, and, at its root, a means for the American people to determine the destiny of the Executive. There have been four serious attempts at impeachment: Clinton and Nixon are both within living memory, and the impeachment of Andrew Johnson has entered into legend, both because of its metaphorical significance, and because the outcome was so decisive for politics in America. But the fourth serious attempt is almost forgotten, though it was the model for the Andrew Johnson impeachment: John Tyler.
Tyler is a historical oddity. He was the first President to come to office through the death of the President. He was also the first President to be voted out of his own party when the Whigs in Congress expelled him, and all but one member of his cabinet resigned. This made him, arguably, the only independent to occupy the Oval Office. The Whig Party, formed in response to what was perceived as Andrew Jackson's monarchical ways, found itself with a man as hard-willed as Jackson. When Tyler vetoed the Bank of the United States, which was the most important policy to the Whig Party, it precipitated a crisis within American governance.
After expelling Tyler, the Whigs attempted to introduce an amendment that would have made a simple majority of Congress capable of over-riding a veto. When this failed, and when they lost control of Congress, they turned to impeachment, hoping that enough Democrats would join the motion. The articles accused Tyler of using the veto wrongly, and of lying to the American public, for abusing his power as President. As later scholars would determine, "high crimes and misdemeanors" is constitutional language for "abuse of power."
The articles of impeachment failed, but they would leave behind a model which would be adopted in Johnson's case. History wasn't quite finished with Tyler though: he would also become the first President to have a Veto over-ridden by Congress, and would end his life by being elected to the Confederate Congress. The man who decided the South was more important than his party also decided it was more important than the Union.
Tyler's impeachment was a civil war within the Whig Party. While Johnson's impeachment is often cast as the Republicans in Congress against a Democratic President, the parallel to Tyler is closer than people realize. Lincoln ran in his second term as a "Unionist," as did many members of Congress. William Henry Harrison of Ohio picked John Tyler, who was a Virginian, to balance the ticket. Twenty years later, the same would be the case with Lincoln of Illinois choosing Andrew Johnson of Tennessee: a Northwesterner at the top of the ticket, with a Southerner on the bottom to balance it. Lincoln was hoping to revive the Whig coalition.
Johnson's battle, like Tyler's, was not merely a conflict of parties, but of the very shape of party politics. Each man had been the hope to bind at least some of the South to a national and progressive ticket, rather than a regional one. Each man faced a hostile Congress when that coalition failed.
In the four major attempts at impeachment, the conflict has been over the mandate of an Executive against the mandate of Congress. Each one was the result of a "broken election," where conflicting mandates were created by the electorate. Under the Constitution the President or the Congress can be the center of power, but it is not possible for both to be dominant at the same time. There have been nine attempts at impeachment all together; in each case a Congress attempted to hold an Executive who had, rightly or wrongly, lost the faith of the electorate.
Looking at those who have faced such charges, one thing unifies all of them: they were all headstrong Presidents who collided with legislatures that had a very different vision of the public good and the public trust.
In his book Warrior King, John Bonifaz lays out what he feels to be a legal case for impeachment of the President. His case argues for particular constitutional boundaries to Presidential action. Like any legal case, it is phrased in ringing language and argues for deep principles. It argues eloquently and passionately for a Presidency that must report truthfully to the public, and a Congress that has limits on what it can delegate to the Executive.
The problem is not finding a legal case, but a finding a political one. Impeachment and Declaration of War are the two most extreme powers in the arsenal of Congress. Both have been used sparingly, because in both cases successive generations of politicians have found better and less drastic ways of attaining the same end.
The political case for impeachment rests on the nature of impeachment itself. Looking back at every serious attempt to impeach a sitting President, certain historical features leap out: the Presidential party has lost the next election in 8 of the 9 times that impeachment articles have been filed, and the Congressional party has only lost Congress in the next election twice. In short, the political meaning of impeachment is as the culmination of conflict. In the case of Tyler and Johnson, it would involve the disintegration of parties and the invocation of amending the constitution itself. In the case of Nixon and Clinton, it would involve the entrenched Congressional Party attempting to restrain what they saw as an imperial Presidency.
There are those who would argue that unless and until the Democrats win the elections in 2006, there is no impeachment process. However, the reality is that the movement toward impeachment has already begun, because it is not impeachment which is the objective: the bar to actual removal of the Executive is so high that either impeachment of the President is dead letter, or it has another meaning.
That other meaning has been a trial by Constitution over the limits of executive power. John Bonifaz's case is not a question of whether the law was broken, but whether there is any law all. Impeachment has been the recourse of lawless Congress, and it has been the tool to restrain a lawless Executive. But which is which is only decided in retrospect. By testing the limits of Constitutional procedure, and forcing the public to face whether an Executive has exceed the bounds of the power granted him by the public, it settles the matter. We hold impeachments, in short, for the same reason we hold Superbowls: because there is no other way.
One way to tell that the movement toward impeachment has already begun, and that it has members in the most unlikely of places, and indeed members who will publicly deny they are moving in that direction at all, is the introduction of the language of Constitutional conflict. The current slogan of the Democrats in both House and Senate is that the Republicans are guilty of "Abuse of Power." It is a phrase that should be familiar: it is the title of Article II of the Impeachment Articles passed by the House Judiciary Committee on July 29th, 1974.
Frank Lautenberg has also brought forth the language of impeachment: by using the word "Treason" to describe the breach of national security by Karl Rove. The word "impeachment" has, itself, surfaced in connection with Rove, floated by John Conyers, who wrote the introduction for John Bonifaz's book. The language of impeachment has not just surfaced in rhetorical ways, but in an even more portentious place: in the proceedings of the Grand Jury that has been empanelled to investigate whether crimes were committed in connection with the outing of Valerie Wilson a.k.a. Valerie Plame.
It should be remembered that one of the killing blows against Nixon was that he was named as an "unindicted co-conspirator." It was not Congress that began the real inquiry into Nixon, it was the judicial process. Just as revelations discovered by a grand jury in 1973 and 1974 placed the scandal "inside the White House," so too have revelations in 2004 and 2005 placed the scandal inside the Oval Office: with Karl Rove and Scooter Libby, two top aids to the President and Vice President respectively.
This is a stark change from standing "shoulder to shoulder" with the President. It should be noted that the Congressional leaders who said this, Tom Daschle and Dick Gephardt, along with DNC Chair Terry McAuliffe, are now all in private life. The new leadership is both more liberal and more aggressive than the old. The public has also soured on Iraq, and on George Bush. No President has ever been less popular with an economy that is not in recession. One has to look back to the pit of 1982 to find Reagan's numbers as bad for as long as George Bush's are now.
But the most important sign of the movement toward impeachment is a growing demand for answers. Once upon a time, Dick Cheney could have snarled at the cameras that the public had "moved on," now he cannot. Inquiry is the seed of impeachment, and resolutions of inquiry are being pressed on the floor of the House. It is true that these resolutions will be tabled, and left for dead. But they then give the Democrats something to run on: a demand for answers. The results from Ohio's Second District show that while the public may not accept a case for impeachment based entirely on how we went to war in Iraq, it is more than willing to listen to charges that Iraq has been mishandled.
This is an important, if subtle, distinction. To make a case solely on how America went to war is to ask the public to face its own complicity in the rush to Iraq. However, to make a case that Bush has abused the trust that War creates, that lies were told before, during and after the invasion, allows the public to set aside, rather than take, responsibility for Iraq. They can tell themselves that Bush mishandled the trust they gave him, and that he lied to cover up his failures. And it is almost always the cover up, more than the crime, that angers people.
Impeachment, remember, is when a Congress attempts to hold a stiff-necked Executive to account. The very trait that makes a stubborn man capable of playing a weak hand against an opposition Congress is the trait that becomes a liability once inquiry and impeachment are invoked. The march to impeachment gives a President chance after chance to prove that he neither learns, nor listens. With each denial, with each attempt to change the subject, with each imperious declaration that he is right, the Executive builds the case against himself in the public mind. He is on the stand in a trial, each and every day, and is, in the end, the most devastating witness against himself.
In this particular moment, the struggle that ends with regime change in America has already begun. One of the possible roads to the climax of that struggle lies through inquiry, and if necessary, invocation of power of impeachment, which, like the power to declare war, is in the hands of the Congress alone.
Stirling Newberry is an internet business and strategy consultant, with experience in international telecom, consumer marketing, e-commerce and forensic database analysis. He has acted as an advisor to Democratic political campaigns and organizations and is the co-founder, along with Christopher Lydon, Jay Rosen and Matt Stoller, of BopNews, as well as the military affairs editor of The Agonist.