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

[alainv]

and yet with all these blatant crimes witch continue to this day, I am called crazy for questioning the events of 911 that was the catalyst for all these other atrocitys, "a useful pearl harbor type event" to quote Dick Cheney. Why won't the MSM interview the FDNY{ not a single interview to date} or show the collapse of wtc7? Wake up people. Terrorists have highjacked our government and they ain't done yet. If the dems are so afraid of Bush that they will allow him to get away with the types of torture that would make Hitler jealous, there is no reason for Bush to give up his power when all he has to do is bomb Iran, or an American city,declare martial law, then suspend the constitution and the election.

[bbbear]

Well, I strongly suspect you are not alone. I've spoken with many who feel the same as you. Most simply believe Dubya, et al not only knew it was coming, but actually aided and abetted the horrible event. Admittedly, it took me a few years to get my mind around that terrible thought... But in the end I was finally convinced by my very smart wife...

[Marlyn]

"it took me a few years to get my mind around that terrible thought"

Me too. But the evidence is overwhelming.

[Wiredwilly]

What's necessary is 10 Million people marching in the streets of Washington D. C. DEMANDING IMPEACHMENT. Anybody remember how we ended the War in Viet Nam ?

[dhinds]

Begin by contacting your congressman and insisting that he/she support Congressman Kucinich's Impeachment Resolution!

The coin is still in the air. It's time to get the nation back on track.

And don't forget that the need for War(s) is all McCain (like Bush) has to stand on!

[bbbear]

Organize it and I promise to show up. BTW, I live in Washington state and look forward to the long train trip..

[springsm]

I can affiirm that it is a very long train ride! But it is also worth it. And in this case..it would be doubly so. The other way is to un-elect these buffoons. But don't vote for any GOP..that is suicide.

[daddysboy]

It was wrong for Pelosi to take that position. In that instant, she was representing the entire electorate (and responsible American government as we used to know it) and not just the Democrat party as the Democrat party numbers were just swelled months prior to that in opposition to bush's (and his party's) ongoing abuse of governmental powers and she knew that. The mob was ready with torches and she told them to eat cake instead. She is more responsible for everything that has happened since than bush is (if that is possible). The last few years should have been a direct battle against bad government waged by hopeful, concerned Americans; instead, we have all got to witness corporate fascism take permanent hold. Power in the hands of myopic people is a dangerous thing.

[pdsimdars]

I think others should do as I do and write her every few months and tell her she should step down if she refuses to do her duty and fulfill the oath she took, swearing to protect and defend the Constitution. It is shameful and worse.
Can you believe her statement about the new FISA bill, that it upholds the constitution. The nerve! It GUTS the 4the amendment.

[bbbear]

I truly loath Pelosi... I loath her so much I can hardly strand the sight of her. She's worse than a Judas Goat... leading We The Sheeple into the slaughter house.

[mimsnpips]

Our current president should be impeached for trashing the constitution and many of its' inalienable rights provided to us.
At the same time W is not a Hitler. Far as I know he didn't kill 6 million people and we aren't in a world war-as of this writing anyway. And we do not live in an Orwellian state, I mean really, I wonder if those who say we do ever read 1984.
Still, our rights are trickling away and the majority of Americans don't care and could not even fully explain their guaranteed rights. (Neo's and Repub's love this fact.) And we are in an illegal war while BinLaden just chills in a cave in Afghanistan or Pakistan. Wiretaps, illegal detentions, the list goes on while weak in the knees Congress men and women look the other way.

[naturallight]

i dunno.

he has a concentration camp in cuba.
they murder
illegal invasions of soverign countrys.
looting of other countries
secret police
citizen informants
war targets specific ethnic groups

he's a mini hitler, and he needs to swing

[bbbear]

bin Laden is probably a guest at the Crawford "ranch."

[Marlyn]

"he didn't kill 6 million people" ???
But he did kill 1 million in Iraq. Isn't that good enough?

"we do not live in an Orwellian state" ???
Oh, you mean a state of perpetual war?
Or a state where the news is just propaganda, promoting hate on TV?

[HowietheScreamer]

It is truely shocking to me to see how spineless the Dems in Congress are. When Nanny P took Impeachment off the table, it was the first toning of the bell announcing the end of the Republic and the dawning of the "New American Dictatorship". Regardless of party, the power of the President MUST be checked, as the Constitution intended.

When the Constitution was written by Congress in 1787, Ben Franklin came out and a woman asked him what kind of government we were going to have. He said "a Republic..­. if you can keep it". It took us 221 years to lose it. What a shame.

[daddysboy]

Obama-one-kinobe is our only hope.

[bbbear]

Yeah, that's what I thought until he refused to filibuster FISA and up for our civil liberties.
Oh, I'll still vote for him and donate little... But it seems he's not the man I hoped for...

[scooperss]

I think there needs to be a national outcry for either term limits or the voters in each state should have the legal right to *fire* their representatives if the majority agrees. It would take up a lot of time at first with most states actually trying it but in the long run we'd have people who we pay to represent us actually have to represent us or get fired.

[Giglawyer]

Finally, someone has gotten it right. If you read Kucinich's Articles of Impeachment, they are based on little more than suppposition. If we actually had an inquest, we could determine if that which we fear and believe to be true is actually true.

I do have to disagree with the author on one point. Bush has not overextended his Presidential authority to fight an "endless war." Congress has control of the pursestrings, they are just too cowardly to use that hammer.

[dhinds]

"Kucinich's Articles of Impeachment, ...are based on little more than suppposition"

I've read them and found they are well substantiated.

kucinich.us/impeachment

[springsm]

I think the fiasco that was Viet Nam is too fresh in the minds of these people and they are very afraid of the consequences of "drawing down" in Bush's war.

[MBryant]

Some are weak. articles 7, 8, & 9 all talk about the war violating various treaties and U.N. agreements, etc.. This seems to forget that the congress authorized the war. Knowingly providing false information and misleading congress if this happened (and I think it needs investigation) is a high crime - contempt of congress. But if congress agrees, proposing and executing the war is not solely the responsibility of the President.

others are very strong. but you can't say there are 35 bulletproof articles here. But that's what hearings and investigation is for, to figure out which ones hold water.

[darcy]

Giglawyer, absolutely right. There is no absolving this congress. They have been remiss in their duty, cowardly, and inattentive to the will of the people. We the people are being taxed but not represente­d...this leads to revolution, if history is any guide.

[daddysboy]

I don't think pointing out that the discussion of impeachment has been relegated to mere rhetoric was intended to dismiss the content of the discussion; simply the likelihood of accomplishing a successful agenda in it's current form.

[bbbear]

"I do have to disagree with the author on one point. Bush has not overextended his Presidential authority to fight an "endless war." Congress has control of the pursestrings, they are just too cowardly to use that hammer."

Very, very, TRUE!

[Buddysingh]

Maybe more democratic voters are thinking the way I am - Vote for Obama but ignore your democratic representative for the Congress!!! This Democratic Congress is a Spineless Bunch. The problem is we would then have a Democratic President and a Republican Congress - much more evil!!! It is tough....

[jimdog1954]

Wrong apporoach. VOTE DEMOCRATIC, PERIOD. We clean our own house during the primaries, where we should be aggressively challenging every spineless weenie in congress who does not have the courage to fight for us. Once they are nominated, support them, as they are the only bulwark against continued Republican atrocities. If this next congress does not attack the important issues of our time with enough determination, fire their asses in the next primary. Competition within the family is the only constructive way to end the madness.

[Marlyn]

A senator serves a 6 year term, so we are STUCK. Can't fire their ass.

[bbbear]

Regardless of what happens, I'll never, ever cast a vote for ANY corpse effin' republican, including Hagel, or anyone such as Lieberwhine who supports them...

[paixa3]

The current congress have been traitors to the constitution and people. They are a DISGRACE. But, you can bet your backside nearly all of them will be re-elected.

AMERICA, you have LOST. The world has passed you by.

[naturallight]

Really?



Why are you on an American website using an American operating system?

Who passed us by?

[pablito]

Pelosi was ridiculous to rule out impeachment. The Dems in Congress simply fail to realize that impeachment too is a "kitchen table issue." It's a flashpoint. I am certain that in the minds of many Dems in this country, and probably some Repubs too, Bush's criminal behavior is just the linchpin around which many other problems rotate.

Impeachment is of course a kitchen table issue. It's the biggest. It draws the line between sitting around a kitchen table in the USA that we all in our hearts know and love, and sitting around a kitchen table in the perverted Orwellian fascist plutocracy that Bush has been allowed to create.

[MBryant]

This congress has refused to defend itself and therefore leaves the door open to many types of abuses in the future. While the administration's actions in the Plame affair and the falsification for proganda of the deaths and injuries of American warriors are likely actionable with impeachment, the important thing is .. Contempt of Congress.

The administration has edited valid scientific reports on global warming to congress consistently
The administration has ignored congressional subpeonas
The administration has subverted the law with signing statements - this is very serious
The administration probably gave false testimony before congress leading up to the Iraq war - this needs investigation
The administration may have given false testimony before congress concerning contractors and assignment of contractors in the Iraq war.

The reason for hearings on impeachment are to establish the limits of executive power. If the congress will not defend itself, it leaves a legacy for future congresses of weakness.

[scooperss]

Until eventually there will be no need for one. There almost isn't now with the ones we have unable or unwilling to do their job.

[MBryant]

I agree with this last statement. With Pelosi and Reid either "unable or unwiling to do their job" and defend their institution, they theatren the constitution's foundation - the balance of powers. If in the future the first years of this century marked the American slide into facism, these Democrats will hold as much resposibility as the Neocons. Americans elected them for a reason, and they have simply been "unable or unwilling".

[Stoyver]

Both Pelosi and Reid grouse about Bush's crimes but ultimately do nothing to stop them. It therefore appears that they both approve of what Bush is doing. The grousing is a ploy to confuse Democrats. It is clearly time to clean house!

[escobar]

It is no secret there has been a well financed multi dimensional neo-con attempt to take over the government. Now there is solid proof.
A heavy hand should come down upon these traitors to the Constitution for the good of the country.
Congress had time to investigate Baseball players for steroids, something the local courts could handle, so they obviously have money and enough free time to investigate a type of terrorist assault on the Constitution.
I think most of them are afraid of the powers that be because they've been giving tacit approval to the agenda all along.
Nobody is immune to GOP corporate financed hit squad investigation so they run scared. Heck, the "Swift boat" liars seem to have found full time work!
They should simply prosecute everyone to the full extent of the law.

[bbbear]

You are most probably absolutely correct.

[dhinds]

Borosage wrote:

"One of House Speaker Nancy Pelosi's first acts ... 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".

What? Congressman Dennis Kucinich's Impeachment Resolution IS focused on GWB's intentional misrepresentation of the threat posed by Iraq in order to satisfy his preexisting oilman agenda. With an armed forces to command, his course of action had nothing to do with WMD, liberating Iraq or terrorism but rather, rolling back Saddam Hussein's nationalization of Iraq's oil.

As for the kitchen table concerns: After squandering Americas financial reserves in Iraq, little (certainly not enough) was left for the rest of the issues, including disaster relief and maintaining the nation's infrastructure.

The real disaster was the Bush administration and a legislative branch that refuses to call him to task.

Support Congressman Dennis Kucinich's Impeachment Resolution!

[castlerider]

Fellow blogger insanityfollows Wrote:

"I understandy why Pelosi did what she did, but now that the President's time is almost up, indeed the time is right to begin laying the framework for trials for High Crimes and Misdemeanors. I think those trials should occur here and then at The Hague, in the world court. Bush and his cronies have committed the most agreagous set of crimes against a state since Hitler. I'm not likening Bush to Hitler, however, Bush has managed to quash Habeaus Corpus (which Thank God) the Supreme Court had the sense to overturn, he has murdered us with a defecit that is now owned by foreign countries, energy prices are absolutely robbing Americans of income..."

I absolutely agree, as many Americans do. What you say about an inquest also seems absolutely in order. Congressional members need to go on the record, to state where they stand for future preference, and for saving us in the future from a president who will think he can do whatever he wants because there would not be "enough time" to impeach him in his or her last 2 years.

So OK- forget impeachment. But let's get it on the record, and not deny that we are duty-bound to resist becoming accomplices in Bush's War crimes, and crimes against the Constitution.
In this context, that he has ruled by fear, and the fact that hundreds of thousands have died because of his leadership, I absolutely liken Bush to Hitler.

[Grlcajun]

Respectfully I acknowledge these important nuances to the debate. It just seems the wrong perspective.
What we had in early 2000 was a Corporate Coup...wit­h the Vice President in cahoots with the oil companies and his power to influence government we set about a war attitude that served the Corporate need for fuel at any cost and our government went along with it.

Define Coup and you will see how it fits so clearly.

Why are we not discussing this in the open?

[kirkland]

Excellent article. The Dems biggest mistake has been to underestimate the passion and conviction of those who elected them in *the sweep*. Also to underestimate how closely their actions and INactions with the Bush matter have been watched. I do believe that many will pay a political price. I have not spoken to ANYONE Dem and increasingly Republicans in recent history who is not confused, appalled and at times outraged at the Dem leaderships passivity in the face of such wrongdoing by this admin. To say nothing of the lack of progress in getting us out of Iraq. I do believe that Americans are MORE demoralized now than we were before we elected the Dem majority. The will of the people is not represented. Certainly as it regards the dismantling of the Consitution and in other areas as well. The new mess @ Justice BEGS for redress. It may be that the Dems will be defined , finally, by their activity or absence of same on *this* one.

[bbbear]

"The Dems biggest mistake has been to underestimate the passion and conviction of those who elected them in *the sweep*. Also to underestimate how closely their actions and INactions with the Bush matter have been watched. I do believe that many will pay a political price."

I'd truly like to believe that. Certainly most here seem to feel that way.. But I suspect the general populace don't really give a ch*t. Oh they're worried about the price of gas, and who will give them the most help. But they don't give a ch*t about Dubya's crimes against humanity, or even his crimes against We The Sheeple.

Hell, it seems, a large number of them still believe Sadam was responsible for 911.

las, it seems the corporate media has done its job all too well. We The Sheeple seem to be numb to the woes of all but those we hold near and dear...