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FOCUS | Stirling Newberry: Trial by Constitution

Sat, 06 Aug 2005 11:45:14 -0700

 

 

 

FOCUS | Stirling Newberry: Trial by Constitution

http://www.truthout.org/docs_2005/080605X.shtml

 

 

Trial by Constitution

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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