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

[poeticjustice4all]

Bring us photos of an illicit affair or some secretly taped phone conversations or something. You can't impeach over policy. You want to impeach? Bring us dirt. Otherwise, let karma deal with it.

[mamacita]

"She wanted Democrats to focus on challenging the president on the war and on kitchen table concerns -- from energy to education to health care. "

Uh huh. How's that working for us? Republicans need only suggest a filibuster, and the Dems back down obediently. Dems weren't allowed to filibuster when Republicans had the majority because that would label them obstructionists, yet Republicans have used it freely--and to their advantage. Just once I'd like to see the Dems tell them to go ahead and filibuster, and call for a pizza delivery.

[gurukalehuru]

...and steroids in baseball. Don't forget steroids in baseball.

[ThermoChemist]

There's PLENTY of information available to start impeachment. Even IF there wasn't a ton of "hardcore" evidence (which there is), there would still be enough CIRCUMSTANTIAL evidence to proceed.

I'm tired of the lame excuses on why impeachment shouldn’t be pursued (votes; time, political impact; other work to do)

a. As to VOTES, let the proceeding commence. As more evidence gets presented, we'll see how things change.
b. As to TIME, how long did it take to impeach Clinton...? Answer -- LESS THAN 3 MONTHS (Dec. 19, 1998 to Feb. 12, 1999). WOW ! People make it sound like it will take over a year.
c. As to POLITICAL impact, Congress would be impeaching an already unpopular President and things would go favorably for holding Bush accountable.
d. As to WORK to Do, let's be reasonable. It took Bush over 7 years to mess things up. Many/most/all of the problems will NOT be solved in the next 7 months.

With delays, Bush has more time to:

1. DESTROY EVIDENCE
Federal spending on paper shredding has increased more than 600%t since Bush took office.
http://www.radaronline.com/exclusives/2007/12/bush-secret-shredding-soars.php

2. "LOSE" EMAILS
Bush Administration Lost MILLIONS OF EMAILS
http://www.huffingtonpost.com/2007/12/04/crew-bush-administration_n_75244.html
http://www.cnn.com/2007/POLITICS/04/13/white.house.email/index.html

3. Have potential key witnesses "die off"
Sadaam Hussein, for one example. Ken Lay, for another.

[SnapShots]

Attorney Vincent Bugliosi (prosecutor of Manson case and many others; author of Helter Skelter) says impeaching Bush is not enough, that impeaching him will allow him to walk away without penalties.

Bugliosi said instead of impeachment, Bush should be tried for murder. Bugliosi said, "I'm out to get Bush on murder charges and, according to the law, the fact that Bush lied about the reasons for going to war and that he deliberately deleted information from the intelligence reports that stated Sadam Hussein and Iraq posed no threat to the U.S., and the fact that these lies caused U.S. soldiers to die, according to law, these are legal grounds for indictment on murder charges."

Impeachment is not enough. I wish someone out there with a legal background would comment/concur with Bugliosi. It seems nobody in the legal community has the cajones to speak up.

[davidly]

I agree with you in theory, and also wish more people had the fortitude to act as Bugliosi has. But I also wish the majority of the houses had that fortitude as well. Only if he were convicted in the Senate would he get off the hook for murder. Since this isn't likely to happen, he'd still be subject to the indictment.

What if he were convicted in the Senate, you may ask? My guess is that no matter the court, he's not gonna be paying any penalty, so I'd take my chances with the impeachment first.

[DougNTexas]

The first thing the Dem's should have done is restore all the things the Patriot Act took away from the Constitution. The Congress should never again quickly vote on Legislation they have never read again. Never again quickly pass stuff on a whim. Secondly they should try B & C quickly for crimes and such against the Constitution. President Chaney and his VP Bush are jokes. I am so mad that the Patriot Act was extended with the Dem's in charge. Some one needs to show some balls and say the buck has stopped already.

[bbbear]

Well, it seems apparent that the spineless dems have long ago lost whatever figurative "balls" they may have had.
Yet I fervently hope Feingold and Dobb are real and prevail against FISA.
But I remain broken hearted that both men weren't led, or at least joined, by Barack Obama.

[ROBOT8]

The Eichmann Defense:

"I cannot recognize the verdict of guilty. . . . It was my misfortune to become entangled in these atrocities. But these misdeeds did not happen according to my wishes. It was not my wish to slay people. . . . Once again I would stress that I am guilty of having been obedient, having subordinated myself to my official duties and the obligations of war service and my oath of allegiance and my oath of office, and in addition, once the war started, there was also martial law. . . . I did not persecute Jews with avidity and passion. That is what the government did. . . . At that time obedience was demanded, just as in the future it will also be demanded of the subordinate. [1]" - Adolf Eichmann

"act of terrorism" means an activity that -- (A) involves a violent act 
or an act dangerous to human life that is a violation of the criminal 
laws of the United States or any State, or that would be a criminal 
violation if committed within the jurisdiction of the United States or 
of any State; and (B) appears to be intended (i) to intimidate or coerce 
a civilian population; (ii) to influence the policy of a government by 
intimidation or coercion; or (iii) to affect the conduct of a government 
by assassination or kidnapping.

Ref: United States Code Congressional and Administrative News, 98th Congress, 
Second Session, 1984, Oct. 19, volume 2; par. 3077, 98 STAT. 2707

[flydoghead]

If there was one smart Republician in Congress who wanted to rehabilitate the GOP, then he or she

would call for the impeachment of President Bush.

This brave Congress person would have nothing to lose as most Republicans hate Bush as much as

we do.

They could then claim the mantle of reform and that they are only ones with the courage to confront the

problems in Washington.

Because god knows that the Dems are not going to do anything about it.

Yes, I am suggesting that the only hope for the Republicians is to run as far and as long as they can

away from George W Bush, and if there were ever a bunch of back stabbing bastaaaards then the

Reps are the ones to do it.

[bbbear]

They'd lose their base, which is the 28% of Americans who still call themselves corpse effin' republicans and still mindlessly support Dubya, et al.

[MadJeffersonian]

When Obama wins the election, let's see how the Repugnicants act if he tries to use any of the powers Bush has stolen. You think the Repugnicants are obstructing progress in Congress now? Just wait until Obama gets in the White House.

Hopefully, Obama won't be that dumb to try to use the ill-gotten powers.

[davidly]

My fear is that the uniting he'll be doing, is bringing the hardcore, never-say-­vote-anyth­ing-but-De­m types on board for the next military excursion. Those kind of Dems are never opposed to ANYTHING a democratic president does.

[bbbear]

While nor longer as fervently enthusiastic for Obama, I still suspect President Obama will sign on the brightest and best, who will hopefully once again follow the rule of law. Still, I expect Obama will do as he promised. That is he'll get out of Iraq ASAP at the same time he's beefing up in Afghanistan.

But by the time Obama convinces Pakistan that he means business, ol' bin Laden will probably be long gone. Since Dubya has long been a friend of the bin Laden family, maybe he'll sub lease the Crawford ranch to bin Laden.

[TomR]

----
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.
----

A couple of points Robert:

1) According to Bruce Fein, former associate deputy attorney general for President Reagan, Nancy Pelosi "has threatened the removal of Michigan Rep. John Conyers from his chairmanship of the House judiciary committee if an impeachment inquiry were even opened..."
http://www.slate.com/id/2172547/

2) Pelosi's motivation for keeping impeachment off the table has nothing to do with winning seats in November and everything to do with protecting herself, since she looked the other way when the Bush administration informed the minority Democratic leadership of the administration's criminal activities, prior to Pelosi becoming Speaker of the House. It's CYA all the way.

- Tom

[bbbear]

Thanks Tom. We need to be constantly reminded of Pelosi's collusion with Dubya and his corpse effin' republican administration.

[flydoghead]

House Speaker Nancy Pelosi will shortlyfind herself in the same position as Hillary.

Left behind.

The time for courage has come. If you don't have it, if you want to hedge your bets politically,

then step aside.

Our boys and girls are losing lives and limbs in Iraq, and our politicans are afraid of losing

votes.

[EllisonHorne]

Thank you for your statement. In only a few words you have captured the point of the tragic situation we find ourselves. I hope to God Almighty, that we, The People, will override the corporate media and our elected officials, and, without further delay, demand that justice is served without delay. Through impeachment proceedings we can learn what happened to us so it never happens again.

[davidly]

I more than second that motion!

[Vorticose]

Man, you people are so stupid. I do not agree with everything Bush does BELIEVE ME, but this is not the American Revolution or some War where the enemy is easily identified. This is a war against 13th century throwbacks that do not target military, but anyone that is civilized and derives from the laws of reason and logic. To say we need to impeach a president for this is beyond obtuse. Some of Bush’s polices may have been horrible, but their have been a lot worse (Bill Clinton).

[flydoghead]

Drink much Kool Aid ?

That argument when away three years ago , check the expiration on that drink.

[EllisonHorne]

The Bush administration has been led by a bunch of greed-filled supremacy zealots who have signed their names to a chilling manifesto called “Project for the New American Century” -- a Master Plan for world domination by the controllers of the USA.

All who are not taking action now are relentlessly enabling this epic tragedy of senseless death, shattered lives, broken families, mind-numbing abuses of our hard-earned tax dollars, and savage corporate exploitation. This is not about the next President; this is about justice being served. Our laws allow impeachment proceedings, and our morality demands it!

[WIpatriot]

"Man, you people are so stupid. "

Well, you won me over to your side with that INTELLIGENT statement.

I do not agree with ANYTHING Bush does, BELIEVE ME. WTF are we doing in Iraq, huh?

We have impeached a president for less (Clinton.)

Their (sic) have NOT been any policies worse than those of this president. Have another shot of that stale Kool-aid.

[ccpostman]

You just painted yourself in a corner with your statement.

Everybody in the Bush Administration has been saying this for years and it drives me nuts.

The "U.S. is at war with terror". hmmmmm??? Let me check.

The last I looked, "Terror" is not a country. Terrorism is a way of physically and physiologically brutalizing people into believing your ideology.

YOU CAN ONLY LEGALLY DECLARE WAR ON A COUNTRY. You fight terrorism by going after the people involved. Examples would be the British going after the IRA. The Israelis going after PLO terrorists.

Terrorism never works. Neither does occupying a country. The British learned this in India, and we learned this in Vietnam, and the USSR learned this in Afghanistan. However, Bush ditched school(draft dodged) during the Vietnam war and never learned that important lesson!

For the record...we are currently occupying Iraq and possibly Afghanistan. We are not occupying terrorism! "Terror" is NOT A COUNTRY.
You fight wars against countries. You apprehend and bring to justice terrorists. Big difference.

I wish people would get this straight!

In your own words "Man you are so stupid"

[edva]

We are coming through a very dangerous time in the history of our nation.
Bush has seemingly been "guided" by his ignorance and hubris, and by the greed and false bravado of those around him, a terrible combination.
The manifestation of these evils, which have been brewing for many years,
is slowly coming to light.
We are turning the page, but these criminals should be held accountable for their actions,
in the interest of justice, decency, and the restoration of the American dream.

[GrainOSand]

"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."


This statement from the article is my reason for being passionately concerned about this legislation, the precedent it sets. Thank you Mr. Borosage for providing the legal backdrop and confirmation for my held novice opinion that proceeding with the proposed legislation cannot be good for America as a nation of laws, inalienable rights, and a balance of power distribution across three branches of government. Bush is stealing the American idea and the smoking gun may end up being the seating of a dictator who later produces a mushroom cloud due to no oversight and no check on tyrannical power.

[insanityfollows]

Hear, Hear. I understandy why Pelosi did what she did, but now that the President's time is almost up, indeed the time is right to beging 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, and are having to choose between fuel, medicine, and food, which is facing a shortage. Our infrastructure is falling apart, our southern border is wide open for Al Queda to come through (and illegal immigrants), he let a major city rot in the fallout of a storm, we have over 4000 dead and tens of thousands wounded (troops), we invaded and desemated a sovereign nation that posed no threat to us, and Osaba Bin Laden and Al Queda are running free. The list goes on. Bush and all of his administration should be tried a-la-Nuremberg at The Hague and be judged.

[GrainOSand]

...and judged harshly and with the full weight of the law.

[karela]

To the above list of crimes, add this: Enter search words: Iraq, depleted uranium, white phosphorous and Fallujah. The United States dropped 330,000 bombs coated with depleted uranium in violation of international law. The White Phosphorous kills people by burning. As a result of the radiation dust from depleted uranium, miscarriages and birth defects have skyrocketed. Children are born in large numbers with missing limbs, brain and spinal cord damage, cleft palettes, external abdominal organs and Down's Syndrome. Cancer cases have also skyrocketed in both Iraqi citizens and in American veterans. 50% of the cancer patients in Iraq are now under five years old. The Pentagon at first denied that these weapons were being used and then, when it was over, admitted it. The pictures of babies born without brains, with two heads, with external livers and other defects are appalling. What in God's name has been done in our name? There is no way to clean up such quantities of radioactive dust and the atrocities will continue. In addition thousands of cluster bombs were dropped, leaving, vast numbers of unexploded bomblets. Two thirds of the deaths and maimings caused by cluster bombs are children. George Bush, Dick Cheney and others have much to answer for and accountability is required. Please do the search and read for yourself. It isn't easy reading, but the MSM have not covered these stories adequately, if at all, and far too few Americans are aware of how their tax dollars have been used.

[DavidBeckwith]

I've got a better idea. Let's fasten securely the mindwinks, grant them even more power, let them start another war, then write glorious hagiographies about these saintly geniuses.