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John W. Whitehead Headshot

Is It Time to Consider Impeaching the President?

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It's been almost ten years since the House of Representatives voted to impeach Bill Clinton for lying under oath when asked during a deposition in the Paula Jones case whether he had had sexual relations with a White House intern.

I was one of the lead attorneys in that case and had agreed to represent Jones in her sexual harassment lawsuit because I believed the underlying principle in the case was too important to let it slide. Namely, no one is above the law, not even the president.

I did not, however, agree with the impeachment proceedings charging Clinton with perjury and obstruction of justice. Don't get me wrong: what Clinton did was unacceptable and unworthy of his office and his role as a national figure. However, there's a world of difference between lying about sex and blatantly disregarding the Constitution.

As Elizabeth Holtzman, a former member of Congress who served on the House Judiciary Committee during President Nixon's impeachment, explains, "The Constitution specifies the grounds [for impeachment] as treason, bribery or 'high crimes and misdemeanors,' a term that means 'great and dangerous offenses that subvert the Constitution.' As the House Judiciary Committee determined during Watergate, impeachment is warranted when a president puts himself above the law and gravely abuses power."

Unlike Clinton, George W. Bush has repeatedly put himself above the law and abused the power of his office. Over the past seven years, Bush has greatly expanded the power of the president, in addition to unilaterally bypassing federal law to secretly, and illegally, listen in on the phone calls of American citizens and read our e-mails, among other things. His use of presidential signing statements is yet another example of his willingness to subvert the Constitution at almost every turn.

Historically, presidents have used signing statements to thank supporters, provide reasons for signing a bill or express dissatisfaction or pleasure with Congress. The previous 41 presidents combined challenged a total of only 600 laws through signing statements. Bush, on the other hand, has used the statements as a way to disregard certain laws with which he disagrees and, so far, has used the statements to challenge over 800 laws.

"The laws Bush has challenged with signing statements include a ban on torture, stricter oversight provisions in the USA Patriot Act, restrictions against using U.S. troops to fight rebels in Colombia, requirements that his agencies provide information to Congress, and various affirmative action programs," writes Charlie Savage for the Boston Globe.

Bush's latest signing statement was issued in response to the 2008 National Defense Authorization Act, which adds nearly $700 billion to the war chest, along with a 3.5% military pay raise and improved health care and benefits for wounded troops. The Act also prohibits the government from spending taxpayer money to establish permanent military bases in Iraq, requires that intelligence agencies such as the CIA and NSA hand over reports and legal opinions to Congress, calls for an independent, bipartisan commission to investigate allegations of waste and excessive force by military contractors abroad, and strengthens legal protections for whistleblowers who work for and report abuses of government contractors.

Although President Bush disagreed with various provisions in the Act (primarily the ones intended to hold him or other governmental agencies accountable to our elected representatives in Congress), he did not express his disagreement with a veto, as the Constitution requires. Had he done so, Congress would have had to either reconsider it or override his veto. Instead, he issued another of his infamous signing statements in which he essentially tells Congress to stick it. According to this particular statement, if Bush wants to build permanent bases, he'll do it. And if he wants to order the CIA not to report to Congress, he'll do that, too.

Such actions place the president outside the rule of law, which is foundational to our country. It keeps our country free and promotes democratic government. If the president can simply chart his own course and set his own rules, not being bound by either the Constitution or the other branches of government, he is "above the law" and becomes, in effect, a dictator who can do whatever he wants. He then becomes the law, which is precisely what the Founders intended to prevent when they drafted the Constitution. As Senator Arlen Specter (R-Pa.) explains, "If the president is permitted to rewrite the bills that Congress passes and cherry-pick which provisions he likes and does not like, he subverts the constitutional process designed by our framers."

We've never tolerated that before in this country, and we shouldn't start now.

The separation of powers, which is at the heart of our system of checks and balances, allows the president to have as much power as Congress and the courts but no more than that. The importance of this constitutional principle cannot be overstated. It ensures that power does not become centralized in a single branch of government, thereby preventing our country from sliding into an authoritarian regime.

Thus, it's time for Congress to grow a backbone and send this president a clear message: either step in line with the rule of law and heed the voice of "we the people" who speak through Congress or face impeachment hearings. If Congress does not act, this president and those who come after him will continue to amass power at an alarming rate to the detriment of us all.

We must never forget that America was founded on the consent of the governed. As Thomas Jefferson wrote in the Declaration of Independence: "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it."

It's not time to abolish our form of government, but it's certainly time to bring our elected officials under the rule of law.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org. Information about The Rutherford Institute is available at www.rutherford.org.

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