AWOT Essay: The Impeachment Question Revisited
Last week one of our editors, Alex Gourevitch, debated Barbara Olshansky, Deputy Director for Litigation and Movement Support at the Center for Constitutional Rights, on the merits and demerits of impeachment. What follows are our conclusions about the problems with impeachment. This discussion is especially vital in the context of the pending mid-term elections, in which many liberals feel a positive rallying cry should be ‘impeach Bush’ (see Congressman Paul Koretz's news release and the political action committee created to impeach Bush).
The question that dominates the current impeachment debate is whether Bush’s actions amount to ‘high crimes and misdemeanors’ – the standard for impeachment. This is unfortunate because it is the least interesting and least important part of the debate. As Olshansky demonstrates in a book she co-wrote with David Lindorff, called The Case for Impeachment: The Legal Argument for Removing President George W. Bush from Office, ‘high crimes and misdemeanors’ is a special, poorly defined category because it is not a purely legal concept. It is meant to refer to ‘political’ crimes in the sense that not all violations of the law are necessarily high crimes and misdemeanors, but some abuses of official power that may be technically legal are still so egregious that they amount to impeachable offenses. What this means is that impeachment is a specific tool of political accountability that requires using political judgment. Unfortunately, Olshansky and many other proponents of impeaching Bush and his cronies simply take this to mean that extremely unwise or incompetent decisions, like how Bush handled Katrina or how he approaches global warming, are equally fair game as grounds for impeachment. But political judgment is even more necessary not just in determining whether an act amounts to a crime, but to the prior question of whether impeachment is an appropriate tool for holding the administration to account. It is here that we think impeachment is seriously misguided, potentially undemocratic, and most likely to work against the very goals and ideals that impeachment’s proponents wish to uphold.
Impeachment might look like a good idea if we focus only on what Bush has done. He has been incompetent, mendacious and repeatedly violated the Constitution. The abuse and distortion of the powers of the Presidency is one of those high misdemeanors the Framers of the Constitution must have had in mind when they made impeachment as a checking tool. And since impeachment is a power of the most popular branch of government to hold the other two branches to account, it also appears as a very democratic method of dealing with the abuse of powers.
The problem with this argument is not that it is wrong but that it is only a narrow truth. It seizes on one aspect of a problem – President Bush’s actions – and substitutes it for an analysis of the broader reality. What are these broader facts? First, we are dealing not with a runaway President, but a runaway Presidency. We have discussed the ‘imperial presidency’ thesis before, but the point here isn’t that the American presidency as an institution was chugging along just fine, within proper boundaries, until Bush appeared and turned it into a tyranny. In fact, as numerous historians and political scientists (like Arthur Schlesinger and Theodore Lowi respectively) have observed, the 20th century has been the century of the American presidency. The office has been aggrandized, accreted expansive powers during both peacetime and war, and enlarged its scope well beyond anything consistent with the original idea of ‘separation of powers’. As Jules Lobel noted in 1989, the scope of legal emergency powers alone extends to more than 470 remarkably broad privileges.
Second, the involution of the separation of powers is not something that happened by presidential usurpation alone. In fact, Congress has repeatedly legislated away numerous powers to the Presidency, including passing laws that explicitly erode civil rights, and Congress has abjectly failed to exercise its ‘checking and balancing’ function in crucial moments. While we have discussed some of this before, consider a few examples. First, this Congress alone has passed: the Authorization for the Use of Military Force, the PATRIOT Act, PATRIOT II, the Authorization for the Use of Military Force in Iraq, the Detainee Treatment Act, each of which delegated powers to the President or gave him close to carte blanche to use the American military as he saw fit. Nor has it been just this Congress. Much of the PATRIOT Act built on precedents established by the Anti-Terrorism and Effective Death Penalty Act of 1996. And it was the Democrats, controlling both the legislature and executive in 1978, who passed the horrible Foreign Intelligence Surveillance Act, which created the courts that have essentially rubber-stamped every executive request for surveillance privileges. This is but a brief list of a long-standing historical abdication of power and responsibility by Congress.
The Supreme Court has likewise been complicit in this trend. While a few cases in which the Court checks the President, like Youngstown Co. v. Sawyer, are perhaps better known, the real trend has been for the Court to discover many ‘implied powers’ in the Constitution that grant the President power to suspend certain rights during ‘national emergencies’. In other words, both the judicial and legislative branches have participated in the aggrandizement and broadening of the executive branch.
Third, and very briefly, there is the strange malaise of the two party system, in which neither party is able consistently to capture a secure popular mandate, nor develop an inspiring political project. This has weakened the Democrats’ ability to serve as a meaningful opposition, and leads both parties to substitute the politics of personalities for ideas.
These three trends – executive expansion, congressional delegation/judicial accommodation and two-party stagnation – well predate Bush, and they will persist after him. They also provide us with a way of understanding the political environment within which we must judge the call for impeachment, and point to a number of problems with it as a political instrument.
The most straightforward problem with impeachment is that it is a political process that takes a legal form. This means it deals entirely with the choices, actions and motivations of specific individuals, and works according to a standard of individual responsibility. This makes it very ill-suited to dealing with structural problems. By its very nature, impeachment is not a medium through which The People can exercise their power over structural problems or reflect upon the institutional arrangements. They can only hold specific individuals to account.
Proponents of impeachment counter that the People are still acting through their representatives in Congress. This is what is supposed to make impeachment a democratic tool, unlike judicial review by the Supreme Court. At present, however, it is difficult to say that representatives are truly representative. There is a great deal of disenchantment with the two-party system, and, as noted, neither party succeeds in laying claim to a popular mandate. A great number of Americans do not see their representatives as extensions of their own will. It is therefore much more likely that an impeachment proceeding, rather than being a democratic activity, will be something more like a political drama that unfolds before a relatively passive citizenry. One can even imagine that impeachment would only further alienate the People from their representatives, because it rehabilitates the politics of Anybody But Bush. This failed electoral strategy of the 2004 election attempted to substitute collective antipathy towards Bush for the development of a set of compelling, shared ideas. It failed to inspire, and substituted a logic of short-term political gain for long-term political thinking.
It is of course possible that impeachment could indirectly expand public debate and lead to more reflective thinking about our political institutions. After all, an impeachment question always forces us to think anew about what the Constitution means, and we would be asked to consider what the Constitution prescribes in relation to Bush’s actions. However, the far more likely effect would be to narrow public debate. Given the individualized nature of the central question – Did Bush Commit High Crimes and Misdemeanors – the public debate would likely be dominated by a circumscribed set of questions such as: ‘Did Bush lie?’ ‘Did he know he lied?’ ‘How bad was the lie?’ ‘Did he violate the constitution?’ ‘Did he know he was violating the constitution?’. Worse yet, impeachment could very easily give the public the wrong impression about the source of our political problems. The premise of an impeachment proceeding is that the system works fine but the individual has skewed it – impeachment is the means by which we prove that the system works well. There is something disingenuous and self-serving about a Congress that chooses to impeach and give the impression that it is performing its checking function, when for the most part it fails to do so. Such a maneuver would, of course, be consistent with the overall pattern of a Congress that seeks to displace responsibility.
At best, impeachment would be a very limited ‘second best’ to thought and action aimed at our basic principles and institutions. This may very well be why it attracts many followers. Underlying the call for impeachment is actually a great deal of pessimism and cynicism about political change. During the debate last week, Olshansky said that she was well aware of the broader problems but was cynical about any possibility of changing them. No doubt the political will for more dramatic social change is weak at present, but what is pernicious about this dimension of the argument for impeachment is that it is tacit and presents itself as ‘realistic’. Impeachment can only reinforce the mood of political pessimism, rather than assist in overcoming it.
There is another reason why impeachment is likely only to retrench cynicism. Not only will the public debate about Bush (and any others who might be impeached) be intense and bitter, but it will absorb political energy for an extended period of time. At the end of this protracted process, at most a few individuals will be gone from power, but the familiar problems will remain. Given all of the emotion and commitment invested in this process, it can only be disenchanting for the public to come out the other end to discover how little of substance really changed. The analogy with Nixon is apt. It was after Nixon resigned that public cynicism really consolidated. While some of that was not doubt due to Dirty Dick’s dirty tricks, it was also part of the public realization that the problem was larger than Nixon and a feeling that so much effort had been expended to relatively minimal result. There is little reason to repeat that affair.
American politics is shot through with the sense that things must change, and yet little sense of how they can. Impeachment presents itself as something immediate and practical. Yet in reality, it will be a protracted piece of political theater considerably removed from any real democratic process. It would be a shame to invest what little democratic possibility exists at the moment in an activity with such a short time-horizon and narrow political perspective.
The question that dominates the current impeachment debate is whether Bush’s actions amount to ‘high crimes and misdemeanors’ – the standard for impeachment. This is unfortunate because it is the least interesting and least important part of the debate. As Olshansky demonstrates in a book she co-wrote with David Lindorff, called The Case for Impeachment: The Legal Argument for Removing President George W. Bush from Office, ‘high crimes and misdemeanors’ is a special, poorly defined category because it is not a purely legal concept. It is meant to refer to ‘political’ crimes in the sense that not all violations of the law are necessarily high crimes and misdemeanors, but some abuses of official power that may be technically legal are still so egregious that they amount to impeachable offenses. What this means is that impeachment is a specific tool of political accountability that requires using political judgment. Unfortunately, Olshansky and many other proponents of impeaching Bush and his cronies simply take this to mean that extremely unwise or incompetent decisions, like how Bush handled Katrina or how he approaches global warming, are equally fair game as grounds for impeachment. But political judgment is even more necessary not just in determining whether an act amounts to a crime, but to the prior question of whether impeachment is an appropriate tool for holding the administration to account. It is here that we think impeachment is seriously misguided, potentially undemocratic, and most likely to work against the very goals and ideals that impeachment’s proponents wish to uphold.
Impeachment might look like a good idea if we focus only on what Bush has done. He has been incompetent, mendacious and repeatedly violated the Constitution. The abuse and distortion of the powers of the Presidency is one of those high misdemeanors the Framers of the Constitution must have had in mind when they made impeachment as a checking tool. And since impeachment is a power of the most popular branch of government to hold the other two branches to account, it also appears as a very democratic method of dealing with the abuse of powers.
The problem with this argument is not that it is wrong but that it is only a narrow truth. It seizes on one aspect of a problem – President Bush’s actions – and substitutes it for an analysis of the broader reality. What are these broader facts? First, we are dealing not with a runaway President, but a runaway Presidency. We have discussed the ‘imperial presidency’ thesis before, but the point here isn’t that the American presidency as an institution was chugging along just fine, within proper boundaries, until Bush appeared and turned it into a tyranny. In fact, as numerous historians and political scientists (like Arthur Schlesinger and Theodore Lowi respectively) have observed, the 20th century has been the century of the American presidency. The office has been aggrandized, accreted expansive powers during both peacetime and war, and enlarged its scope well beyond anything consistent with the original idea of ‘separation of powers’. As Jules Lobel noted in 1989, the scope of legal emergency powers alone extends to more than 470 remarkably broad privileges.
Second, the involution of the separation of powers is not something that happened by presidential usurpation alone. In fact, Congress has repeatedly legislated away numerous powers to the Presidency, including passing laws that explicitly erode civil rights, and Congress has abjectly failed to exercise its ‘checking and balancing’ function in crucial moments. While we have discussed some of this before, consider a few examples. First, this Congress alone has passed: the Authorization for the Use of Military Force, the PATRIOT Act, PATRIOT II, the Authorization for the Use of Military Force in Iraq, the Detainee Treatment Act, each of which delegated powers to the President or gave him close to carte blanche to use the American military as he saw fit. Nor has it been just this Congress. Much of the PATRIOT Act built on precedents established by the Anti-Terrorism and Effective Death Penalty Act of 1996. And it was the Democrats, controlling both the legislature and executive in 1978, who passed the horrible Foreign Intelligence Surveillance Act, which created the courts that have essentially rubber-stamped every executive request for surveillance privileges. This is but a brief list of a long-standing historical abdication of power and responsibility by Congress.
The Supreme Court has likewise been complicit in this trend. While a few cases in which the Court checks the President, like Youngstown Co. v. Sawyer, are perhaps better known, the real trend has been for the Court to discover many ‘implied powers’ in the Constitution that grant the President power to suspend certain rights during ‘national emergencies’. In other words, both the judicial and legislative branches have participated in the aggrandizement and broadening of the executive branch.
Third, and very briefly, there is the strange malaise of the two party system, in which neither party is able consistently to capture a secure popular mandate, nor develop an inspiring political project. This has weakened the Democrats’ ability to serve as a meaningful opposition, and leads both parties to substitute the politics of personalities for ideas.
These three trends – executive expansion, congressional delegation/judicial accommodation and two-party stagnation – well predate Bush, and they will persist after him. They also provide us with a way of understanding the political environment within which we must judge the call for impeachment, and point to a number of problems with it as a political instrument.
The most straightforward problem with impeachment is that it is a political process that takes a legal form. This means it deals entirely with the choices, actions and motivations of specific individuals, and works according to a standard of individual responsibility. This makes it very ill-suited to dealing with structural problems. By its very nature, impeachment is not a medium through which The People can exercise their power over structural problems or reflect upon the institutional arrangements. They can only hold specific individuals to account.
Proponents of impeachment counter that the People are still acting through their representatives in Congress. This is what is supposed to make impeachment a democratic tool, unlike judicial review by the Supreme Court. At present, however, it is difficult to say that representatives are truly representative. There is a great deal of disenchantment with the two-party system, and, as noted, neither party succeeds in laying claim to a popular mandate. A great number of Americans do not see their representatives as extensions of their own will. It is therefore much more likely that an impeachment proceeding, rather than being a democratic activity, will be something more like a political drama that unfolds before a relatively passive citizenry. One can even imagine that impeachment would only further alienate the People from their representatives, because it rehabilitates the politics of Anybody But Bush. This failed electoral strategy of the 2004 election attempted to substitute collective antipathy towards Bush for the development of a set of compelling, shared ideas. It failed to inspire, and substituted a logic of short-term political gain for long-term political thinking.
It is of course possible that impeachment could indirectly expand public debate and lead to more reflective thinking about our political institutions. After all, an impeachment question always forces us to think anew about what the Constitution means, and we would be asked to consider what the Constitution prescribes in relation to Bush’s actions. However, the far more likely effect would be to narrow public debate. Given the individualized nature of the central question – Did Bush Commit High Crimes and Misdemeanors – the public debate would likely be dominated by a circumscribed set of questions such as: ‘Did Bush lie?’ ‘Did he know he lied?’ ‘How bad was the lie?’ ‘Did he violate the constitution?’ ‘Did he know he was violating the constitution?’. Worse yet, impeachment could very easily give the public the wrong impression about the source of our political problems. The premise of an impeachment proceeding is that the system works fine but the individual has skewed it – impeachment is the means by which we prove that the system works well. There is something disingenuous and self-serving about a Congress that chooses to impeach and give the impression that it is performing its checking function, when for the most part it fails to do so. Such a maneuver would, of course, be consistent with the overall pattern of a Congress that seeks to displace responsibility.
At best, impeachment would be a very limited ‘second best’ to thought and action aimed at our basic principles and institutions. This may very well be why it attracts many followers. Underlying the call for impeachment is actually a great deal of pessimism and cynicism about political change. During the debate last week, Olshansky said that she was well aware of the broader problems but was cynical about any possibility of changing them. No doubt the political will for more dramatic social change is weak at present, but what is pernicious about this dimension of the argument for impeachment is that it is tacit and presents itself as ‘realistic’. Impeachment can only reinforce the mood of political pessimism, rather than assist in overcoming it.
There is another reason why impeachment is likely only to retrench cynicism. Not only will the public debate about Bush (and any others who might be impeached) be intense and bitter, but it will absorb political energy for an extended period of time. At the end of this protracted process, at most a few individuals will be gone from power, but the familiar problems will remain. Given all of the emotion and commitment invested in this process, it can only be disenchanting for the public to come out the other end to discover how little of substance really changed. The analogy with Nixon is apt. It was after Nixon resigned that public cynicism really consolidated. While some of that was not doubt due to Dirty Dick’s dirty tricks, it was also part of the public realization that the problem was larger than Nixon and a feeling that so much effort had been expended to relatively minimal result. There is little reason to repeat that affair.
American politics is shot through with the sense that things must change, and yet little sense of how they can. Impeachment presents itself as something immediate and practical. Yet in reality, it will be a protracted piece of political theater considerably removed from any real democratic process. It would be a shame to invest what little democratic possibility exists at the moment in an activity with such a short time-horizon and narrow political perspective.
1 Comments:
De Tocqueville on impeachment: "When the American republics begin to degenerate, it will be easy to verify the truth of this observation by remarking whether the number of political impeachments is increased."
Post a Comment
<< Home