[Mb-civic] Trial by Constitution

[Hawaiipolo at cs.com]

 The momentum continues to build.....keep those fingers crossed..MD 
By Stirling Newberry 
t r u t h o u t | Perspective 

Saturday 06 August 2005 

Thirty-one years ago, on August 8th, Richard Nixon addressed the American 
public for the 37th time from the Oval Office. His message was that he was 
resigning the Presidency "effective noon tomorrow." It was the fall of a man who had 
risen in public life under a cloud, and had participated in five national 
elections on a major party ticket, more than any one else except Franklin Delano 
Roosevelt. For many who had been opposed to him from the beginning, it was a 
great weight lifted from the country. GB Trudeau had a metaphorical brick wall 
removed from in front of Doonesbury's White House. 

In his speech Nixon acknowledged what had come to be recognized as the 
reality of impeachment: that it was a constitutional and deliberative process, and, 
at its root, a means for the American people to determine the destiny of the 
Executive. There have been four serious attempts at impeachment: Clinton and 
Nixon are both within living memory, and the impeachment of Andrew Johnson has 
entered into legend, both because of its metaphorical significance, and because 
the outcome was so decisive for politics in America. But the fourth serious 
attempt is almost forgotten, though it was the model for the Andrew Johnson 
impeachment: John Tyler. 

Tyler is a historical oddity. He was the first President to come to office 
through the death of the President. He was also the first President to be voted 
out of his own party when the Whigs in Congress expelled him, and all but one 
member of his cabinet resigned. This made him, arguably, the only independent 
to occupy the Oval Office. The Whig Party, formed in response to what was 
perceived as Andrew Jackson's monarchical ways, found itself with a man as 
hard-willed as Jackson. When Tyler vetoed the Bank of the United States, which was 
the most important policy to the Whig Party, it precipitated a crisis within 
American governance. 

After expelling Tyler, the Whigs attempted to introduce an amendment that 
would have made a simple majority of Congress capable of over-riding a veto. When 
this failed, and when they lost control of Congress, they turned to 
impeachment, hoping that enough Democrats would join the motion. The articles accused 
Tyler of using the veto wrongly, and of lying to the American public, for 
abusing his power as President. As later scholars would determine, "high crimes and 
misdemeanors" is constitutional language for "abuse of power." 

The articles of impeachment failed, but they would leave behind a model which 
would be adopted in Johnson's case. History wasn't quite finished with Tyler 
though: he would also become the first President to have a Veto over-ridden by 
Congress, and would end his life by being elected to the Confederate 
Congress. The man who decided the South was more important than his party also decided 
it was more important than the Union. 

Tyler's impeachment was a civil war within the Whig Party. While Johnson's 
impeachment is often cast as the Republicans in Congress against a Democratic 
President, the parallel to Tyler is closer than people realize. Lincoln ran in 
his second term as a "Unionist," as did many members of Congress. William Henry 
Harrison of Ohio picked John Tyler, who was a Virginian, to balance the 
ticket. Twenty years later, the same would be the case with Lincoln of Illinois 
choosing Andrew Johnson of Tennessee: a Northwesterner at the top of the ticket, 
with a Southerner on the bottom to balance it. Lincoln was hoping to revive 
the Whig coalition. 

Johnson's battle, like Tyler's, was not merely a conflict of parties, but of 
the very shape of party politics. Each man had been the hope to bind at least 
some of the South to a national and progressive ticket, rather than a regional 
one. Each man faced a hostile Congress when that coalition failed. 





In the four major attempts at impeachment, the conflict has been over the 
mandate of an Executive against the mandate of Congress. Each one was the result 
of a "broken election," where conflicting mandates were created by the 
electorate. Under the Constitution the President or the Congress can be the center of 
power, but it is not possible for both to be dominant at the same time. There 
have been nine attempts at impeachment all together; in each case a Congress 
attempted to hold an Executive who had, rightly or wrongly, lost the faith of 
the electorate. 

Looking at those who have faced such charges, one thing unifies all of them: 
they were all headstrong Presidents who collided with legislatures that had a 
very different vision of the public good and the public trust. 

In his book Warrior King, John Bonifaz lays out what he feels to be a legal 
case for impeachment of the President. His case argues for particular 
constitutional boundaries to Presidential action. Like any legal case, it is phrased in 
ringing language and argues for deep principles. It argues eloquently and 
passionately for a Presidency that must report truthfully to the public, and a 
Congress that has limits on what it can delegate to the Executive. 

The problem is not finding a legal case, but a finding a political one. 
Impeachment and Declaration of War are the two most extreme powers in the arsenal 
of Congress. Both have been used sparingly, because in both cases successive 
generations of politicians have found better and less drastic ways of attaining 
the same end. 

The political case for impeachment rests on the nature of impeachment itself. 
Looking back at every serious attempt to impeach a sitting President, certain 
historical features leap out: the Presidential party has lost the next 
election in 8 of the 9 times that impeachment articles have been filed, and the 
Congressional party has only lost Congress in the next election twice. In short, 
the political meaning of impeachment is as the culmination of conflict. In the 
case of Tyler and Johnson, it would involve the disintegration of parties and 
the invocation of amending the constitution itself. In the case of Nixon and 
Clinton, it would involve the entrenched Congressional Party attempting to 
restrain what they saw as an imperial Presidency. 

There are those who would argue that unless and until the Democrats win the 
elections in 2006, there is no impeachment process. However, the reality is 
that the movement toward impeachment has already begun, because it is not 
impeachment which is the objective: the bar to actual removal of the Executive is so 
high that either impeachment of the President is dead letter, or it has 
another meaning. 

That other meaning has been a trial by Constitution over the limits of 
executive power. John Bonifaz's case is not a question of whether the law was 
broken, but whether there is any law all. Impeachment has been the recourse of 
lawless Congress, and it has been the tool to restrain a lawless Executive. But 
which is which is only decided in retrospect. By testing the limits of 
Constitutional procedure, and forcing the public to face whether an Executive has exceed 
the bounds of the power granted him by the public, it settles the matter. We 
hold impeachments, in short, for the same reason we hold Superbowls: because 
there is no other way. 





One way to tell that the movement toward impeachment has already begun, and 
that it has members in the most unlikely of places, and indeed members who will 
publicly deny they are moving in that direction at all, is the introduction 
of the language of Constitutional conflict. The current slogan of the Democrats 
in both House and Senate is that the Republicans are guilty of "Abuse of 
Power." It is a phrase that should be familiar: it is the title of Article II of 
the Impeachment Articles passed by the House Judiciary Committee on July 29th, 
1974. 

Frank Lautenberg has also brought forth the language of impeachment: by using 
the word "Treason" to describe the breach of national security by Karl Rove. 
The word "impeachment" has, itself, surfaced in connection with Rove, floated 
by John Conyers, who wrote the introduction for John Bonifaz's book. The 
language of impeachment has not just surfaced in rhetorical ways, but in an even 
more portentious place: in the proceedings of the Grand Jury that has been 
empanelled to investigate whether crimes were committed in connection with the 
outing of Valerie Wilson a.k.a. Valerie Plame. 

It should be remembered that one of the killing blows against Nixon was that 
he was named as an "unindicted co-conspirator." It was not Congress that began 
the real inquiry into Nixon, it was the judicial process. Just as revelations 
discovered by a grand jury in 1973 and 1974 placed the scandal "inside the 
White House," so too have revelations in 2004 and 2005 placed the scandal inside 
the Oval Office: with Karl Rove and Scooter Libby, two top aids to the 
President and Vice President respectively. 

This is a stark change from standing "shoulder to shoulder" with the 
President. It should be noted that the Congressional leaders who said this, Tom 
Daschle and Dick Gephardt, along with DNC Chair Terry McAuliffe, are now all in 
private life. The new leadership is both more liberal and more aggressive than the 
old. The public has also soured on Iraq, and on George Bush. No President has 
ever been less popular with an economy that is not in recession. One has to 
look back to the pit of 1982 to find Reagan's numbers as bad for as long as 
George Bush's are now. 

But the most important sign of the movement toward impeachment is a growing 
demand for answers. Once upon a time, Dick Cheney could have snarled at the 
cameras that the public had "moved on," now he cannot. Inquiry is the seed of 
impeachment, and resolutions of inquiry are being pressed on the floor of the 
House. It is true that these resolutions will be tabled, and left for dead. But 
they then give the Democrats something to run on: a demand for answers. The 
results from Ohio's Second District show that while the public may not accept a 
case for impeachment based entirely on how we went to war in Iraq, it is more 
than willing to listen to charges that Iraq has been mishandled. 

This is an important, if subtle, distinction. To make a case solely on how 
America went to war is to ask the public to face its own complicity in the rush 
to Iraq. However, to make a case that Bush has abused the trust that War 
creates, that lies were told before, during and after the invasion, allows the 
public to set aside, rather than take, responsibility for Iraq. They can tell 
themselves that Bush mishandled the trust they gave him, and that he lied to cover 
up his failures. And it is almost always the cover up, more than the crime, 
that angers people. 

Impeachment, remember, is when a Congress attempts to hold a stiff-necked 
Executive to account. The very trait that makes a stubborn man capable of playing 
a weak hand against an opposition Congress is the trait that becomes a 
liability once inquiry and impeachment are invoked. The march to impeachment gives a 
President chance after chance to prove that he neither learns, nor listens. 
With each denial, with each attempt to change the subject, with each imperious 
declaration that he is right, the Executive builds the case against himself in 
the public mind. He is on the stand in a trial, each and every day, and is, 
in the end, the most devastating witness against himself. 

In this particular moment, the struggle that ends with regime change in 
America has already begun. One of the possible roads to the climax of that struggle 
lies through inquiry, and if necessary, invocation of power of impeachment, 
which, like the power to declare war, is in the hands of the Congress alone. 



Stirling Newberry is an internet business and strategy consultant, with 
experience in international telecom, consumer marketing, e-commerce and forensic 
database analysis. He has acted as an advisor to Democratic political campaigns 
and organizations and is the co-founder, along with Christopher Lydon, Jay 
Rosen and Matt Stoller, of BopNews, as well as the military affairs editor of The 
Agonist. -------

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