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Elizabeth Holtzman: The Nation's Impeachment Brief

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Former Congresswoman Elizabeth Holtzman has the cover of tomorrow's Nation, and I suspect that it will become the script for those on the left who will be organizing, protesting, advocating, and clamoring for George W. Bush's impeachment.

The article, "The Impeachment of George W. Bush" has just now been posted, but I have been thinking about her argument for two days, wondering what I could add to the mix or say about this that she has not.

Holtzman has written a powerfully argued piece with which I mostly agree -- but to be honest -- could have been even more powerful if it had embedded more Republican disgust with what Holtzman appropriately terms the "President's systematic abuse of power." Nonetheless, it's an important brief.

While Holtzman was a steadfast liberal in Congress, her writing about the Nixon impeachment in which she participated and voted for as a Member of the House Judiciary Committee, reaches beyond her party affiliation as it's clear that for her, considering "impeachment" of a president is as grave as "declaring war", which she argues is the toughest and most serious call a president can make.

She compares Bush's "high crimes and misdemeanors" to those of Nixon -- and makes a very compelling case.

In her methodic and reasoned indictment of President Bush, Holtzman states that she has been "deeply troubled by Bush's breathtaking scorn for international treaty obligations under the U.N. Charter and the Geneva Conventions." She proceeds to outline the torture scandal and violations of U.S. criminal law which reach to the highest levels of government but for which there has been virtually no application of accountability.

Part of her argument follows a course that I (if writing the article) would not have so strongly emphasized: resurrecting the assertion that Bush deliberately misled the country into war against Iraq. Bush and Cheney did mislead the country, in my view, but in a matter of court of law -- it's tough to prove and no longer has the weight that either the NSA intercepts controversy or torture policy have at this point.

She does proceed into the NSA matter and argues that "President Bush directed the wiretapping of hundreds and possibly thousands of Americans in violation of the Foreign Intelligence Surveillance Act."

She compares these to the crimes committed by Nixon and suggests that she "felt the same sinking feeling as (she) did during Watergate" and argues that in some cases, the legal breaches are worse under Bush than Nixon -- in part because of the lengths that Bush went to circumvent Congressional controls enacted in the wake of Watergate.

Holtzman's most powerful and compelling case rests on her blow by blow treatment of the case of "warrantless wiretaps". As she points out, after the Vietnam-rationalized warrantless wiretaps that Nixon authorized against his list of enemy journalists and suspected traitors on his White House staff, Congress imposed explicit controls on the White House. But these constraints which required the President to get court approval for wiretaps still allowed ex post facto approvals after a wiretap began -- as long as secured three days after the wiretap was initiated.

Holtzman tells us that over 28 years, more than 10,000 wiretaps have been approved and only four rejected. Four.

The article posits that the White House is pursuing power for its own sake and attempting to restore a Nixon-style imperial presidency. She suggests that the warrantless wiretaps are less about securing national security objectives than they were of establishing new precedents for unconstrained, expansive Executive Branch authority during a war.

Even if some sympathize with the President's view -- for a short crisis -- Cheney, Bush, Rumsfeld have argued that this "war against terrorism" will go on for years, perhaps indefinitely. Thus, the power the White House has tried to grasp is one rationalized by them as having no finite end -- and having no legitimate constraint.

What is dictatorship, if not that? Holtzman asks the same question.

The article quotes a poignant comment by Sandra Day O'Connor that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

If only Samuel Alito carried any of O'Connor's sensible judicial DNA. . .

Holtzman adds to her brief against Bush many other counts -- such as asserting a false connection between Saddam Hussein and al Qaeda, pushing war using false intelligence, not firing or punishing any senior staff -- particularly Donald Rumsfeld -- after the Abu Ghraib torture scandal, not providing armor for soldiers, not planning for the demands of occupation after the invasion of Iraq, and other crimes.

But to be honest, this article could have quoted a roster of Republicans like Congressman Chris Shays, former Congressman Amo Houghton, Senator Chuck Hagel, Senator John McCain and others -- particularly other Republicans knowledgeable and present during the Nixon impeachment like William Cohen and Howard Baker -- to make her Nixon-Bush impeachment case even more powerful.

I think that this country, and its elected Congressional representatives, are far away from any serious impeachment effort. The Republicans control both chambers of Congress and are highly unlikely to unleash a process that would lead to the most serious kind of legal challenge to the President, particularly if the only ones calling for this sort of ultimate accountability are on the left.

The fact is that there are many moderate Republicans and Democrats who are disgusted by many of the same issues that Holtzman documents.

I also feel that one of the connections that Holtzman and the media are not making is that while Bush authorized a great number of warrantless wiretaps using al Qaeda as the rationale, the fact is Bush took his eye of the Osama bin Laden/al Qaeda ball -- and distracted resources that might have quickly shut down the man, myth and rabid ideology of bin Laden so that they could settle old scores with Saddam Hussein.

On one hand, Bush has engaged in serious abuses and violations of the law in the name of fighting al Qaeda and protecting Americans -- and yet he failed in this very cause when he chose to make Hussein the number one enemy over bin Laden. As Cheney said to Bob Woodward, Hussein was a more tangible target to Americans in contrast to the more ephemeral bin Laden. That seems admission enough.

Holtzman calls for "full investigations" of the President's crimes -- which won't happen, not as Congress is currently comprised. But Arlen Specter might launch relatively fair and serious hearings into the wiretap issue, but he won't get much assistance from colleagues or the White House.

While Holtzman recognizes this constraint, she really doesn't outline ways to draw Republicans into the process, to cultivate the currents of disgust that do flow in Republican circles.

But whether impeachment is the right strategy or not -- LEGALLY challenging the White House and Bush on every front is important and is ultimately the only effective way of curbing Executive Branch authority -- which is forcing America's system of checks and balances to force the White House back if there are going to be any checks at all.

To some degree, the legal assault against and dethroning of Tom DeLay, the Fitzgerald investigation into the Valerie Plame case and indictment of Scooter Libby, the relatively fragile position of Karl Rove, and the scrutiny of Cheney and his role have all been helpful in getting some momentum going against Bush's unchecked power.

However, the process -- if it continues to have traction -- has only begun. It's important for someone to paint the big picture of what Bush could face if the Congress were controlled by Democrats -- but there are many other iterations of legal challenge that can and should be launched against Bush than impeachment.

And to win -- as Holtzman implies but does not say loudly enough -- a consensus must be cultivated in the country, ACROSS party lines that these abuses deserve serious punishment.

While Holtzman has written a powerful brief against Bush -- and it should be read and kept on hand -- I'll settle for squashing DeLay, further exposing Abramoff's corrupt networks, exposing the truly heinous crimes of Cheney and his staff, and knocking one pillar out after another under Bush.

That may not be impeachment -- but it will help to get controls back in place on White House power.