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

[Peddler]

What Congress should do is to provide Bush with a departing gift......­..impeachm­ent.

[OgreDaddy]

All of this leads me to wonder what " they" have on Nancy Pelosi?

As we have seen, this administration will stop at nothing to destroy someone rather than
subject themselves to legal prosecution.

I can not think of any other valid explanation than political blackmail.

I can just imagine BushCo minions leaving phone messages saying

WE WILL DESTROY YOU!

[Malachyone]

One of the great disappointments in politics for this older coot is the rolling over by Nancy Pelosi!

The fact that she was so black and white about impeachment, early on, causes me to agree.

[flydoghead]

I suggest that we withhold our contributions to the DNC and instead support individual candidates
who reflect our values.

it is so much about the money, that when that power/ money control changes, then and only then will these politicos find their courage

i am tired of hearing that we must maintain our political control first and then will we do the right thing.

How about you show some courage and leadership and then see if anyone chooses to follow .

[vote4kucinich]

This is an excellent suggestion! Support the campaigns of Dennis Kucinich and Robert Wexler or send money to impeach.org. I was going to send money to campaign of my Democratic Congressman, but really, why should I? Statesmanship should be rewarded and encouraged, not playing politics as usual. Congress has NO more important work than upholding the Constitution. In fact I laugh with scorn at the IMPORTANT work the Democrats have done for the past two years; letting Bush continue to have his way on war funding, immunity for telecom companies, etc. or wasting time on issues that cannot be won because of not enough votes to overide a veto. There should have been only ONE issue ON the table from the get-go IMPEACHMENT!

[Faithtoo]

So what do we do to fix this????? Talking about it is not fixing it. What are the next steps, what can we do as citizens to right this wrong??????

[Malachyone]

Yes, Faithtoo has cut to the quick of it all. We have identified the problem, Mc Bush and Company, but now all posts should get off that -----and make one or more suggestions as to what we all can do about it starting NOW.

l. Contact our own Congress people and ask for/demand impeachment.
2. Also a written letter by snail mail to clog their mailboxes, so they take note.
3. Keep posting, but move away from the causes and give one or more solutions.

Thank you Faithtoo. I doubt that the people will act, however. The Congress just seems to reflect the "do nothing" people.

[EllisonHorne]

Unless Speaker Pelosi and Rep. Conyers change their course and take swift action toward impeachment proceedings, I'm voting for a Third Party. As an African American I've been very happy to see Sen. Obama as far as he is in his bid for President. However, this is beyond race, this is about justice--justice that comes from the heart of our democracy, which we still strive to achieve.

If it were a movie, this is the part where the people rise up and take to the streets, crowd the halls of justice, and storm Washington DC, demanding justice be served. But this is not a movie, it's real life!

The senseless loss of life and gutting of our financial resources is REAL! We can do more than a movie plot; we can impeach! So, let's get on the phone, send the emails, write the letters---take to the streets!

"IIT'S IMPEACHMENT TIME, STUPID!"

[redhead61]

I have called my Congress representatives, Senators on numerous occasions regarding holding this administration accountable..., I have even called Nancy Pelosi's office but felt like I did not get heard. When I get letters back from them they never talk about that issue at all. Pelosi's office has never responded.
To think she broke the glass ceiling and has not taken the lead in holding this administration accountable for its behaviors just makes me sick. I really believed that they would do so, and it really makes me question the sense of either party to be able to lead this country effectively anymore.

[MayaBeach]

Redhead61, I too, have repeatedly contacted my representatives in Congress, and what I received in response was either nothing, (Pelosi's office) or the worn out excuse that it would set things (other agenda items) back by pursuing impeachment. I asked them and myself, what could possibly be more important than upholding their oath of office to defend the Constitution? The excuses had a hollow ring to them, other than the one of fear. As has already been mentioned, impeachment isn't a prerogative, it is their sworn duty. To not follow through on this is not only unconscionable, it is contemptible.

[ICanHasDemocracy]

Dammit where's Jimmy Stewart when ya need him?

[Malachyone]

Yes, ICan. They could do more than our current members of Congress, who just rattle on, talk, talk, talk, do nothing.

IMPEACH BUSH, CHENEY, RUMSFELD, ROVE, PELOSI.

We let Johnson and Mc Namara get away for lying about Vietnam, over and over. and we owe it to our troops, now and then, to have taken action; to take action now.

The Do Nothing Congress is only matched by our Do Nothing people.

[babyboomerorig]

I've had my mouth hanging open since Pelosi decided that impeachment was off the table...until I read an article a couple of weeks ago about just waiting until Bush is out of office, then trying him on Acts against Humanity and High Treason.

If he's impeached, he's impeached....not punished for his crimes....just ushered out of office.

I like the idea of picking up Rove and some of the other cronies and just putting them in the jail under the Capitol...it's legal and even a judge has said that Congress should do that instead of having judges making some of these decisions on ignoring subpeonas.

[JDHART]

I agree, but what took you so long?

[Cookie100]

Exactly! The general Tagabu? comes back from Iraq and says the guys guilty of war crimes, what do these people do, the same thing, nothing. Clinton was impeached for lying about sex, geeze! You have Bob Barr to thank for that

[JAMES GORMAN]

NANCY PELOSI and the Democrats we hoped for in 2004 have sold out concern for the constitutional
separation. The best political position possible would be to step out for that claim, and ignore the endless skirmishes about funding which never get near passage.
Now in the campaign, there is no moral authority in the party for opposing the war and its methods,
and we are left to see the whole Iraq-Terrorist fiasco as a sleeping Frankenstein in the TV room.
The failure to be real makes it impossible for Oboma to be real as a Democrat--and the defeat of
Hillary Clinton proves that. Our party has been a party of complicity, and is much the villain as Bush.
I for one will of couse skip Nadir, and vote for somebody in "Green circles" once more this November.
A pox upon the two biggest houses--and on to some air we can breathe before the gasses get us.
J.McCormick

[civillibertieslost]

Gee, not to put too fine of a point on recent history but both the House and Senate did approve the following: the declaration of an endless war; the designation of someone as an enemy without cause, the legal right to wiretap them without warrant, to arrest or kidnap them at will, to jail them without a hearing, to hold them indefinitely, and to interrogate them intensively (read torture), and to bring them to trial outside the US court system.

Let's remember campers, congress passed the Patriot Act TWICE! Hopefully, and I know that I'm really reaching here, some voters will remember who lined up for and against the Bill of Rights this coming November.

[Dissident Dexter]

This illegal invasion, or “war” as you call it, was never declared by congress. The approval given was to go to the UN after the inspectors did their job. Bushit chose to ignore this directive anyway and charged right in.
Keep in mind it was the REPUBLICANT congress that pass the pat act twice. Matter of fact, the limp dems have accomplished nothing since gaining their HUGE majority of 1, so pretty much all of the egregious crap that has been allowed to happen the last eight years rests firmly on the shoulders of the one party rule we have been under.

[Namtillaku]

I hear the crickets chirping already...

[loupbouc]

To see what is involved in impeachment and removing a president or vice president from office and to see what impeachable offenses (and federal felonies and other crimes) Cheney and Bush have, or may have, committed,
see
http://www.usalone.com/jaffee_on_impeachment2.htm

[pbziegler]

This is why I keep telling the Democratic fund raisers who want my money to elect Democrats to Congress to "Go to Hell." As a former instructor in constitutional law at a local law school, I am dismayed at Bush's trampling of the constitution and the complicity of congress, even with a Democratic majority. A pox on both their houses. PROTECT THE CONSTITUTION AND THE RULE OF LAW.

[flydoghead]

that is what i keep telling those who solicate my money , as well pbziegler,

" You want me to support the DNC who won't stand up for me or for the constitution ?"

I think not.

My money will go to those who show courage.

[springsm]

I have done this too but then I read about the Supreme Ct decision on the Valdez oil spill and I wonder if we can really stand one more judge of the ilk of some of these. Altho I do understand it was a unanimous vote. Let the big oil devasting spills off, it doesn't bother those in WA DC who have been cocooned for a life time. Then I have to rethink what I think. These days..I don't think coming up with a third party is a wise idea...at least thru this election. Is that naive? I expect it is. Or maybe an ounce of optiomism. But I don't give to the DNC. NOPE..I wonder what bush has on Pelosi.

[Malachyone]

It is indeed high time we all quit pandering to either party. Give our contributions directly to thos we support, either side.

As for impeachment, we need to study about it and put our insights on here, so we can, together, do what can be done.

Whether Congress approved, voted for the war, or not, impeachment would be about the lies and gross misconduct in office.

[blueshift]

Impeach the enablers. Pelosi. And soon enough, Obama. I am so disillusioned.

[dhinds]

You're forgetting who does the impeaching. Contact your Congresspeople and make clear what you expect of of them.

It's wake up time!

[Marlyn]

My Congress person is Dianne Feinstein, and she supports GW Bush, the Iraq War, and giving telecoms immunity. She knows I don't support her. She doesn't care.

THESE PEOPLE ARE ALL GUILTY. We are doomed.

[chronic]

Obama?

[Insideout143]

Me too. I am SO "hoping" that Obama will prove my doubts about him right now are wrong.

[ICanHasDemocracy]

Sometimes you have to work within to create change without. Obama did vote for the Patriot Act renewal amendment but voted against the more scurrilous MCA which was rife with GOP dogma.

The needs of the many (Americans) outweigh the greeds of a few ( Bush, Cheney, PNAC, AIPAC,Big OIl)

[Cathexis]

Your article is so sane, Mr Borosage, I could weep. After 7-1/2 years of an environment that looked for any excuse to turn a blind eye to that which Justice & Democracy demands ... it is refreshing to see Truth in (virtual) print.

Is it really possible that so many can be so ignorant of what is happening ... of the ramifications of Bush's (and the radical GOP's) actions that they believe this is a matter they can sweep under the rug?

We will have no Honour ... no Integrity ... and no right to speak of "Democracy" or "Freedoms" until we clean our own house.

Impeach.
Indict.
Incarcerate.

[pdsimdars]

This is an important article. It puts all those loose ends together and shows where they can lead. This information needs to get out. Thank you for writing it.

[rkrenke]

When public servants put politics before policy and the People vote for them in spite of their poor judgment and leadership, we get the government we deserve.

The Democrats aren't leading in the polls because voters respect them or their decisions - they're leading in the polls because they're currently the least of two evils. Pelosi, Hoyer, et al, are not politically savvy - they're cowards who are too afraid to stand up to the fear mongering of this administration. They're easily intimidated and obviously don't understand their role in defending and protecting the Constitution and our civil liberties.

How many election cycles are we going to go through before we realize that the Democratic Party is nothing more than a shell of what it should be? Unless the Party is purged of professional politicians and replaced with true public servants, we will continue to support individuals who belittle their base and lie through their teeth.

If Obama chooses not to step up on some of these tough issues before the election, i.e., FISA, I am going to have a very hard time voting Democratic in November. Only the People can change what's going on in this country - if we continue to support Democrats in spite of years of poor performance, dismal policies, and outright cowardice, then we must accept the fact that we will never win on the issues most important to us.

[dhinds]

One way to get these issues on the table is to urge Obama and McCain to include Nader and Barr etc in a series of public debates.

I support Nader's running for that reason - but he won't get my vote, and they know it.