Time for a Grand Inquest into Bush's High Crimes

One of House Speaker Nancy Pelosi's first acts upon taking the gavel was to rule impeachment off the table. She wanted Democrats to focus on challenging the president on the war and on kitchen table concerns -- from energy to education to health care. With Democrats now enjoying an increasing margin in generic polls and looking towards gaining seats in both the House and the Senate, the strategy certainly hasn't hurt politically.

But the constitutional implications are far more disturbing. This was dramatized as the Congress debated the FISA reform legislation that will provide retroactive immunity to the telecommunications companies for warrantless interception of the conversations of Americans -- and by implication, retroactive acceptance of the president's authority to order such wiretaps.

We have witnessed a staggering abuse of power by this president. Even former Bush Justice Department officials now charge President Bush with trampling the Constitution. Bush has claimed the prerogative to declare an endless war without congressional approval, to designate someone an enemy without cause, to proceed to wiretap them without warrant, arrest or kidnap them at will, jail them without a hearing, hold them indefinitely, interrogate them intensively (read torture), bring them to trial outside the US court system. He claims that executive privilege exempts his aides -- even the aides of his aides and his vice president's aides -- from congressional investigation. He claims the right to amend or negate congressional laws with a statement upon signing them. And much more.

Even this Supreme Court, stacked with activist right-wing judges enamored of executive national security powers, has rebuked the president on some of these claims, particularly around the treatment of allegedly enemy combatants. But many of Bush's claims will escape judicial determination.

And there is the rub. According to the leading case on presidential powers, if Bush's extreme assertions of power are not challenged by the Congress, they end up not simply creating new law, they could end up rewriting the Constitution itself, altering the Constitutional division of powers by establishing the president's claims as constitutional powers that the Congress or the Courts may not infringe.

The Steel Seizure case -- Youngstown Sheet and Tube v Sawyer, 343 US 579 (1952), remains the leading case on presidential power. In Youngstown, a six member majority of the Court joined in overturning Truman's executive order nationalizing the steel plants to end a strike during the Korean War. Justice Black wrote the opinion for the Court, but the historically influential opinions were penned by Justices Robert H. Jackson and Felix Frankfurter, both Democratic appointees. Frankfurter laid out the argument for a sort of common law of constitutional amendment:

Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part [343 U.S. 579, 611] of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by 1 of Art. II.

In Youngstown, Jackson concurred, arguing that the president's powers vary as to whether he acts with congressional authority (his greatest power), in the absence of it, or in opposition to it:

When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

When a president egregiously abuses his power -- particularly in areas relating to the rights of American citizens -- remedies are often difficult. The Supreme Court is reluctant to arbitrate a power struggle between two co-equal branches. That is why the Constitution prescribes the specific remedy of impeachment for crimes and abuses of power -- High Crimes and Misdemeanors -- and empowers the House and Senate to sit in judgment whether the actions are to be accepted or condemned.

What the Court said in Youngstown is that if presidents assert a prerogative -- like the power to make war without a congressional declaration -- systematically, with unbroken regularity, with the knowledge of the Congress and are never questioned -- then that practice becomes a Constitutional power that cannot be infringed upon by the Congress or the Courts.

Thus, Congress must formally object to President Bush's abuses or it risks by "indifference or quiescence" contributing to the powers of our imperial presidency.

When Pelosi took impeachment off the table, it was reduced to being a rhetorical protest vehicle for progressives like Dennis Kucinich or Russ Feingold. But Congress need not convict President Bush to impeach him for High Crimes and Misdemeanors. And arguably, the House need not even impeach the president to hold a Grand Inquest into the powers that he has claimed, registering a formal objection to them. The Judiciary Committee in the House should formally convene that Inquest, no matter what the decision is on impeachment. For if Pelosi's sensible political judgment results, as it has to date, in a show of congressional "inertia, indifference or quiescence," the Democratic majority in Congress may have gained a dozen seats at the cost of relinquishing its own powers, and putting the rights of Americans at risk.

Comments

[woodguru]

I believe we run several risks by not impeaching bush.

One of the hidden dangers is that we uncover numerous insidious and inexplicable giveaways that are contracted into the next few decades if we don't repeal them.

Billions of dollars in unaccountable missing funds can be recovered easier if the admin is under indictments

Bush will not be able to post an eleventh hour pardon list that looks like a phone book if he's impeached

We can start getting good legislation through as opposed to constant vetoes and railroaded legislations

Impeachment should be of primary focus, trust the people to be smart enough to vote in change under that pressure. There are more smart people than blind faith republican religious voters. They are losing numbers who wise up while more and more smart people are becoming involved.

[princessofnowt]

Yes, Woodguru.. very good points.

AND he cant start a war to help McCain

AND we can show the world that we are waking up to what he has done. That is more important than we realise.

there are SO MANY reasons to do it now.

Impeach NOW. All involved.

[Alethea]

Agreed.

[elion10]

More than that- impeachment is not an option ( like- a political choice) its a duty - or that whole oath to "protect and defend the constitution" is meaningless.

[princessofnowt]

For those who say 'Bush will be gone soon"... really? If you were scamming a giant corporation and they said Hey- go ahead, but just for a few more months, then please go away, what would you do? (if you were in it for the money)

Also, Bush and his Dick still has plenty of time to do GKW -
http://www.youtube.com/watch?v=dR0ojQToCUA

And- What the hell is wrong with everyone? Whats to stop the next president from doing whatever it takes to make himself rich too? Or the one after that?

The precedent for us layin down and taking it is being set.

Ok, here comes Obama, hopefully. But he cant do it all!!! People, stop taking the soma!!! Wake up!

I mean, thanks-great article. Good points.

[Tulka2]

Amen. Obama has said nothing about reducing the new Executive powers delivered to him by Dick Cheney. Power corupts and no Ceasar ever gave power back willingly. Save Obama! Make him live up to his principles by fixing this mess before he steps up to what is now virtually a throne.

[loislane88]

Actually he has said he will repeal and reverse many of the newly created Exec Powers.

[goodspeed]

Well, maybe what's off the table now, can be or will be put on the table when the Dems have enough congressional votes to ensure that any such indictment isn't an exercise in futility.

Remember, never say never.

[lowlycitizen]

Funny thing is, Nancy Pelosi's remarks of taking impeachment off the table probably strenghtened the resolve of those who want to put this shaministration to its proper place in history - as an incompetent, negligent, and criminal group of people.

[Tulka2]

No justice, no peace.
Not a slogan, but the simple reality. Some certain people in this administration must be handed over to the World Court in Belgium, if we ever expect forgiveness from the world community.

[ahornick]

Chappelforpres provided a link in his/her post -

http://speaker.house.gov/contact/

[rbenjamin]

Excellent post Mr. Borosage. An inquiry is vital, but as you point out, it's legal effect will be to claim territory, like a dog pissing on a pole.

Much has been made of impeaching Bush, but he will be gone in six months. The Supreme Court which lacks the will to check him will be in place far longer. Congress should use it's broad power of impeachment against the Chief Justice for dereliction of duty. Repeat as needed. If the votes aren't there to remove him, it's still possible for Congress to stop writing checks for heat, air conditioning and limos.
Desperate times demand creativity.

The broad Presidential pardon effectively makes the Executive Branch above American Law. New amendment, the President cannot pardon himself, nor current nor former members of or working for his administration.

Cultural memory is important. It's time to turn Bush into a National Cautionary Tale, much like the British do with Guy Fawkes. Set aside a day each year for pointed buffoonery. Big men in Bush masks ride teeny chimp bicycles in parade. The watch word of the day is "yer doin' a fine job Brownie." Hot dogs and fire works for the kids. The Republican Party is radioactive. Let's use the glow to stay mad as hell and not get fooled again.

[rbenjamin]

Update: I've just discovered the Bush Legacy Tour a " 28-ton, 45-foot long biodiesel-powered museum on wheels features interactive exhibits on the worst policy failures that grew out of the conservative agenda."

http://www.boston.com/news/politics/politicalintelligence/2008/06/bush_legacy_tou.html

Good start. I'd like to see a fitting Bush Memorial as well. An inverse of the Washington Monument would work for me..... a 555 foot shaft dug straight down towards where the sun don't shine.

[dhinds]

Here's another: www.house.gov/pelosi/contact/contact.html

[chappelforpres]

And be sure to write Nancy and let her know what a miserable failure she has been as Speaker. Don't hold back worrying about being labeled "sexist". Here's her contact info

http://speaker.house.gov/contact/

[ahornick]

Thanks for the link - email posted.

[Tulka2]

I sent a blister. What makes Pelosi think any Ceasar would give power back or restore the Constitution? Even Obama, my friends. No one gives away power.

[chappelforpres]

Bush unconstitutionally assumed the mantle of emperor, now let him defend it!. His complicity in politicizing both Justice and the judiciary, shows just how dangerously close we have moved towards a
plutocracy. Thank God this Administration has been plagued by ineptness. Imagine the deep shit we'd be in, if the Neocons had not gotten bogged down in Iraq. Be prepared for a "dog backed into corner" fight to restore representative government.

[Malachyone]

I am afraid that the bottom line about giving Bush, Rove, Snarling Cheney etc. their due is due to us, the DO NOTHING PEOPLE.

Out in innocent Iowa now, a public servant who was supposed to be helping the poor, ran off with thousands of tax payer dollars, used it for gambing etc. Why? How could this happen?

We didn't do a damn thing about the Vietnam war until children were murdered by our government troops at Kent State, did we. Finally, after all the killing fields, the adults did join with our kids who were protesting all the time.

For years, now and then, of all the horror and killing fields, of the dead and terribly wounded for life, mentally and physically. Why. How does this happen.?

THE DO NOTHING PEOPLE OF THIS COUNTRY. CONGRESS JUST REFLECTS US.

[DeMaria]

I add my voice to the many demanding impeachment proceedings against these traitorous criminals. This is long overdue, and our only hope to maintain our country's ideals. We cannot stand aside and let these abuses go investigated and unpunished.

[prairiepoodle]

POST ADMINISTRATION IMPEACHMENT?
I would like to see these guys tried in the Senate even after they are done. We could take away their health care, federal pensions and declare them convicted felons. The crimes must be exposed. Please post thoughts on this idea...
Thanks, C

[deminmo]

We might have a better chance of getting Bush and
Chaney tried in court for murder. No one wants to do
anything to hurt their candidates chance of winning in
November. No one is really holding Bush accountable
for anything. My question is, will Congress arrest Bush and
Chaney and put them in Gitmo, if Bush goes to war with
Iran sometime between now and January 2009? Even if
Bush only backs up an Israeli attack? By the way, I've found if
Pelosi gets a lot of negative emails, her address is shut down.

[joebaggadonuts]

If they are impeached after they are out of office, will the pardons they issued while in office stick?

[enoughalready]

Obama is a constitutional law expert. Bush is a failed oil businessman from Texas. Either if you left unchecked could be a danger to our constitution and the laws we hold dear. I will vote for Obama but I will also say that as a life-long Democrat who holds that everyone is subject to our rule of law I am appaulled by the fact that Congress is doing nothing to hold this cowboy President responsible.

Russ Feingold is our Senator - we are very proud of him. We wish there more like him so that Americans are protected from Presidents that abuse their power. Feingold even wanted a censure vote and the GOP led Senate at that time said no. We must object - Congress must object - this must go into the history books.

[Moshe]

Outstanding post Robert. Thank you.

Pelosi's decision to take impeachment "off the table" was itself a violation of our Constitution, as the impeachment provisions are part of our Constitution. Pelosi swore an oath to uphold our Constitution, all of it, not just the parts she finds politically expedient at the time.

DEMs are not ahead because their ideals are inspiring the American People, but because the People are finally seeing the GOP as the greater of two evils. But clearly, DEM enablers are also responsible for the evils that have befallen our Nation.

There would be no disastrous, never ending war in Iraq if it were not for DEM enablers of this war; no torture; denial of habeas corpus; illegal spying; etc.

Pelosi would like us to think she is being politically savvy, but here is the real reason Pelosi refuses to go after the neo-cons: DEM enablers are up to their necks in the same violations of law the GOP neo-cons have committed, and Pelosi knows that holding the GOP neo-cons publically accountable would also expose their own traitorous complicity.

Pelosi and the other DEM enablers have failed us.

It is time for accountability, as there will be no real change until their are real consequences for those that have violated our Constitution and public trust, but GOP and DEM.

[amamomofsons]

You stated this well. It isn't just the Bush administrations abuse of the constitution. It is the Dems as well.

[Galt907]

Unfounately by taking impeachment "off the table" the leaders of the Democratic Party have deprived the American People of the only Constitutionally approved method of eliciting information under oath to uncover the truth. In depriving us of the truth, Democratic Leaders are co-conspirators in any crimes committed by the administration, as well as having violated their own oath of office.