Levinson's "The Case Against Impeachment" : A Counterresponse

“Written laws are like spider's webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful.”--Anacharsis

An interesting case against impeachment is made by Sander Levinson in the upcoming Feb. 12th edition of The Nation and I have included it below. Levinson suggests that instead of impeachment, Congress could try to push through a constitutional amendment that would allow it to evict the president through a vote of no confidence for "maladministration". This position is preposterous for the obvious reason that it presents too low a bar for a serious check on the Executive and would possibly erode the stability of the Federal government. But Levinson is driven to this alternative because he believes that the high bar of 'high crimes and misdemeanors' cannot be met in the case of President Bush. To support this claim Levinson uses the same pattern of argument that I have seen the democrats in Congress make time and again when the question of impeachment comes up: "its a waste of the country's time". Its a waste of time because the law will not easily be settled on what constitutes a high crime and misdemeanor in this case. Levinson further points out that impeachment proceedings will take far more time than Bush has in office. Therefore, doubly, "its a waste of time". Even if it should come to nothing, I believe, contrariwise, that it is in the country's interest to pursue this "waste of time".

I want to suggest that an indictment of Bush on high crimes and misdemeanors is well founded and ought not to be considered a waste of time but as a fulfillment of justice. I think that the many abuses of the Geneva Conventions, the deception of a whole country so as to bring about a trillion dollar war, the human rights abuses visited upon the Guatanamo prisoners, the mismanagement of the war in Iraq etc. etc. etc., may in fact amount to high crimes. The evidence is far from clear and I think the country deserves to really have a look at what the Executive has been up to, not in a trivial sense, but looking--I mean really looking at these facts through the lens of justice. How do we know whether these are legal or illegal until we have a look? The Supreme Court has already slammed as unconstitutional the military kangaroo courts in Hamdan. We need to look at the overall legality of the Bush administration because, to this casual observer, laws have been broken and smashed all over the place over the last 6 years. I need not repeat the many charges that the impeachment movement has made, but they extend from the manipulation and deception deployed by the administration in getting us involved in Iraq, the gutting of environmental legislation and the gross irresponsibility regarding the science of global warming, the unprecedented near universal use of presidential signing statements in which the President has, in many cases, claimed the right not to follow the law set by Congress, the treatment of prisoners and detainees everywhere in the war on terror (with violations of habeas corpus and due process being foremost problems), the illegal use of wiretapping, the FISA courts, and so on and so forth.

We can think of the good moral effects that may come from impeachment proceedings as well. In the first place, it can serve an educative function as an object lesson to our own people and to fledgling democracies everywhere about what is involved in democratic rule and the limits on executive power. There will be fact-finding committees, special investigations and hearings. Many of the CIA analysts who were muzzled or intimidated will come forward. This will show the world how a truly democratic country limits the power of its executive and holds it accountable. This may be just the right tone needed as the world steps into the twenty-first century. It says, in effect, "we the people" are in charge, not the administrator.

In the second place, it will allow George Bush to be found either guilty or not guilty in an up or down vote. There will be no confusion or ambiguity any more. By depriving him of this justice we are depriving him of one of the most important moral rights, namely, the right to a fair trial and, if he should be found guilty, he should enjoy the right to be punished. The right to be punished is a part of the concept of justice and belongs to those who have transgressed the law and we ought to see to it that he enjoys this right as soon as possible. Think of the grave wrong that was done Nixon who lived out the rest of his years in a cloud of darkness and shame because he had been allowed to remain unpunished. I estimate that even George Bush himself would rather know whether he is guilty or not. He deserves that much, at least. And we, in all of our multitudinous torpor, deserve to know whether our president and his staff are criminals.

Against all concerns of efficiency we ought to place the demands of justice. This is not to say that efficiency may not sometimes trump the demands of justice, but in orders of this magnitude it is all too easy for Congress to let slip the demands of justice in order to go along to get along. And, indeed, much real work remains to be done and they are right to want to get on with this business. There are good practical reasons not to want to touch this issue, but these reasons are not sufficient to merit not pursuing this prosectution. This one case is different. Not only on the narrow grounds of justice should this case be put forward, but I think that by proceeding with this Congress might set the right tone for other valuable political reforms as well.

Well, here's Levinson's piece:


article posted January 25, 2007 (February 12, 2007 issue) The Nation
The Case Against Impeachment by Sanford Levinson

It would be wonderful to evict George W. Bush--quite possibly the worst President in our entire history--from the White House. Thus one can readily understand the temptation to talk about impeaching him. But we should recognize that this conversation is triggered not only by Bush's own performance as President but also, and perhaps more important, by one of the greatest defects of the Constitution, the impeachment clause. Thanks to the Founders, we were given a Constitution that perversely makes us "better off" with a criminal in the White House instead of someone who is "merely" grotesquely incompetent. The reason is that the Constitution provides us with a language to get rid of a criminal President, but it provides us no language, or process, for terminating the tenure of an incompetent one. Unfortunately, this was a deliberate decision by the Framers, who rejected an altogether sensible proposal to make "maladministration" an impeachable offense for fear that this would give Congress too much power.

Only because of the Constitution are serious progressives engaging in an entirely fruitless campaign to impeach Bush by describing him as a criminal. It is fruitless for two quite different reasons. The first, and more practical, is that there is simply no possibility that Bush will actually be removed from office in the twenty-four months that unfortunately remain to him. One might well contemplate impeachment if there were a possibility of its being successful. But the House Democratic leadership has rejected the idea, not least because there is no possibility that the constitutionally required two-thirds of a nearly evenly divided Senate would vote to convict an impeached George W. Bush. Thus, advocates of impeachment are in effect supporting a strategy doomed not only to fail but also to be perceived by most of the country as a dangerous distraction from the pressing problems facing the country.

House Republicans in 1998, who knew for certain that Bill Clinton would never be convicted by the Senate, could behave with reckless abandon in part because much of the country did not perceive itself as facing grave problems. Democrats today do not have that luxury.

But there is a second reason to be wary of the impeachment conversation: It inevitably becomes a highly legalistic one about exactly what constitutes "high crimes and misdemeanors." It is not enough that the President be a criminal; he must be a criminal of a certain gravity. If there is anything the country needs less at this point than a self-defeating political strategy, it is the further domination of public debate by lawyers trading jargon-ridden charges and countercharges about the criminal liability of the President. Almost no one was genuinely edified by the legal debate that occurred in 1998. Most of the public believed that most of the lawyers--or at least those on "the other side"--who participated in that debate were motivated by partisan political considerations. The same would be true today.

Although I admire some of those calling for impeachment, one should recognize that some of their ostensibly legal claims are all too dubious. Consider the charge that Bush lied to the country during the run-up to the war, which may well be true. If lying to the public about matters of grave importance were an impeachable offense, however, almost no President--including, for starters, Franklin Roosevelt and his deceptions regarding lend-lease--would survive. It is even more difficult to construct criminality out of Bush's reckless disregard of the consequences of Katrina. It is not, however, at all difficult to accuse him of maladministration and disqualifying incompetence.

American politics would be infinitely better if we could avoid legalistic mumbo-jumbo and accusations of criminality and cut to what is surely the central reality: The American people have exhibited a fundamental loss of confidence in a wartime President/Commander in Chief. In most political systems around the world, the response to such a stinging rebuke would be resignation or removal. But we are trapped in a constitutional iron cage devised by eighteenth-century Framers who, however wise, had no conception of the role the presidency would come to play in American (and world) politics. The US President should be treated as what Ross Perot aptly called an "employee" of the American people, vulnerable to being fired for gross incompetence in office. Instead, he is given the prerogatives of a feudal lord of the manor who owns the White House as his personal property until the end of the presidential term, with almost dictatorial power over decisions of foreign and military policy.

Far better than a politically pointless--and almost certainly counterproductive--campaign to impeach George W. Bush would be the initiation of a serious discussion of the extent to which we are disserved, in 2007, by a political system devised for an entirely different era. However divided we might be, most Americans might be persuaded that we would all be better off if future Presidents could face the possibility of a Congressional vote of "no confidence" that would trigger eviction from the White House. Perhaps that discussion, too, would be doomed, given both the preposterous reverence that Americans have for the Constitution and the near-impossibility of constitutional amendment because of the hurdles placed by Article V in the way of amendment. But at least such a discussion would focus on the most important feature of the Bush Administration--its gross incompetence--in a language that could readily be understood by any attentive citizen rather than quickly degenerate into an arcane (and acrimonious) discussion among constitutional lawyers.

Moreover, and even more important, whereas an attempted impeachment would be guaranteed to be maximally divisive, this might be the perfect time to hold a serious national conversation about whether we should have an alternative to the cumbersome impeachment process to remove an incompetent President. The reason, paradoxically, is that because of our very political divisions, it is impossible to know who will be President in 2009. The stars are aligned for a truly bipartisan discussion, among serious Democrats and Republicans alike, over the extent to which we are well served by the eighteenth-century Constitution, since members of both parties are behind a "veil of ignorance" as to who would benefit from any changes. Even the most partisan among them have every incentive to think of the national interest, since it is impossible to discern what the party's interest will turn out to be.

Perhaps if we took the citizenry seriously and engaged them in an adult conversation about the dysfunctionality generated by the present Constitution, we might be able to escape its iron cage in the future--even if not, alas, before the expiration of Bush's term of office in January 2009.