The Impeachment Hearing That Wasn't

http://www.buzzflash.com/articles/alerts/438

by Meg White
Submitted by meg on Fri, 07/25/2008

Though the name of the hearing -- Executive Power and Its Constitutional Limitations -- didn't include the hot-button word, impeachment was on the minds of judiciary committee members and witnesses Friday.

Last month, Rep. Dennis Kucinich (D-OH) introduced 35 articles of impeachment against President George W. Bush. In an interview with BuzzFlash shortly after the introduction, Kucinich said it was imperative that Congress act now, rather than later:

"If we wait, we're licensing further abuses of power. There's been broad concern that this administration could attack Iran. Why should we give them the opening to do so by failing to challenge the lies that they told that took us into war with Iraq?" he asked. "We cannot wait for after the election. We don't know what could happen in the next six months with respect to a further erosion of our democratic process. And what the impeachment process would do would be to have a chilling effect on further abuses of the Constitution and on creating another war."

Kucinich recently introduced more articles of impeachment against Bush. After years of sticking to her impeachment is "off the table" line, House Speaker Nancy Pelosi (D-CA) said earlier this month that she supported the idea of Kucinich's articles making it to a hearing.

It has been suggested that Pelosi took impeachment off the table to avoid being entangled in legal issues.

A Washington Post article from December of last year revealed that party leadership such as Pelosi had been briefed by the Bush Administration early on regarding torture policies, including waterboarding, as well as other controversial subjects. Journalists and lawmakers alike have suggested that the Democratic Party's reluctance to hold impeachment hearings relates to these closed meetings. They have suggested that Pelosi and others could be held legally responsible for their reticence on harsh interrogation techniques.

When such Bush Administration wrongdoings are brought up publicly, Republican lawmakers often say that since the Congressional leaders known as the Gang of Eight did not express concern at the closed hearings that they are complicit in the condoning of torture, an opinion mentioned again at today's hearings.

In at least one way, these were the impeachment hearings that weren't.

Conyers' staff made sure each witness had a written copy of the House rule that state "personal abuse, innuendo, or ridicule of the president is not permitted. . . Any suggestion of mendacity is out of order."

Being called out of order could result in being barred from speaking for the duration of the hearing. In order to talk specifically about impeaching the president, Congress would have to vote to begin an inquiry.

"To the regret of many, this is not an impeachment hearing," Conyers said.

The lawmakers and witnesses repeatedly had to result to codes to refer to specific members of the Bush Administration. At one point, Rep. Cohen, wanting to ask a question about the vice president, referred to a "barnacle attached to the legislature."

Many were pleased that Conyers set up such parameters. Rep. Trent Franks (R-AZ) said he was taking Conyers at his word:

"I hope we can expect that none of the witnesses will mention the word impeachment."

Cindy Sheehan, an activist who is running for Pelosi's seat, addressed the media and impeachment advocates gathered at the National Press Club yesterday:

"I read that Conyers has said that tomorrow they can't talk about lies or crimes or mention George Bush or Dick Cheney because it's not an impeachment hearing. Well, I have a solution for that: Make it an impeachment hearing. There's so many good people here that are really being betrayed by our Democratic leadership in Congress... I'm afraid that tomorrow's hearing is going to be another dog and pony show."

Pelosi's recent change of heart on whether or not impeachment is off the table put Judiciary Committee Chair John Conyers (D-MI) in a political bind. He has said he supports impeachment hearings, but also that he couldn't make a move without the approval of party leadership. One way to avoid the problem was to hold a hearing that's not technically about impeachment.

Though Sheehan did not testify, she was addressed by the committee chair: "Sheehan, you're out," Conyers said, as security guards escorted her out of the hearing room after a disturbance during testimony.

One constant during the hearing was audience participation. The hearing was paused several times to remove protestors, and Conyers reminded those in attendance repeatedly not to show appreciation or disappointment with testimony or statements.

Even before the hearing began, the audience was audible. Screams and clapping accompanied Kucinich and his wife as they entered the hearing room.

Not everyone was as excited as the audience about the prospect of impeachment. Several Republicans used derogatory language to refer to the hearings.

Ranking Member Lamar Smith (R-TX) called the hearing an "anger management class," saying "nothing is going to come" of the exercise:

"There is no evidence to support impeachment."

Comparing the hearing to watching the "Friday night fights" as a child, Rep. Dan Lungren (R-CA) called the gathering the "Friday morning show trials:"

"Maybe what we're here for is impeachment-lite... to allow the press the opportunity to print that the president has been accused of impeachable offenses."

Franks said the proceedings "would make Alice in Wonderland roll her eyes."

Sardonic language came from both sides of the aisle.

"Thank God we're not in Kansas any longer," Rep. Steve Cohen (D-TN) said in reply to Franks' comment. Cohen had much higher expectations, saying, "These hearings will restore the faith of the American people."

Zoe Lofgren (D-CA) also raised the ire of at least one Republican lawmaker when she stated that, "President Bush is the worst president we have ever suffered."

Witnesses invited by the minority party also used invective language when referring to impeachment.

George Mason University Law Professor Jeremy Rabkin was asked by House Republicans to testify.

"The tone of the deliberations is slightly demented," he said of the hearing. Rabkin characterized the idea that Bush lied in order to start a war in Iraq as an unbelievable, outrageous "conspiracy theory," born of bitterness and political divisiveness.

Both Rabkin and Northwestern University Legal History Professor Stephen Presser spoke to what exactly is an impeachable offense and advised against impeachment.

Presser appeared before Congress in 1998 during the effort to impeach President Bill Clinton. He said the allegations against President Bush were "different" from those mounted against Clinton. He said that since Bush didn't appear to have acted out of self interest, as Clinton did, his offense was not impeachable. Presser said that while "obstruction of justice" was the best legal course for Congress to take in constructing a case against the Bush Administration, he saw no direct evidence of the president obstructing justice.

Though both the professors were vehemently against the idea of impeaching the president, when Rep. Keith Ellison asked them if Kucinich's assertions proved accurate whether Congress should act, they both agreed that Congress should investigate.

Former Mayor of Salt Lake City and President of High Roads for Human Rights Rocky Anderson said that the two lawyers that used the personal interest argument were misusing law to prove a partisan point:

"That is atrocious scholarship." He brought up several instances of legal precedent that allow for actions by the Bush Administration to be classified as impeachable offenses.

"I stick by the list of impeachable offenses," Presser simply replied.

There were many different offenses committed by the Bush Administration that were mentioned as impeachable at the hearing. Elizabeth Holtzman, who most recently wrote a book on the subject of impeaching President Bush, was also a member of Congress who served on the Judiciary Committee. She was present, along with Conyers, during the impeachment of President Nixon.

Holtzman said there was a case, based on prima facie grounds, for impeachment. Among the grounds was the charge that the Bush Administration refused to obey the FISA law, the Geneva Conventions, the War Crimes Act, and the Anti-Torture Act. She noted that since the death penalty could factor in some of these charges, there is no statute of limitations. She also noted the improper use of signing statements, misuse of executive privilege, and deceptions about going to war with Iraq as further impeachable offenses.

Holtzman suggested beginning an impeachment inquiry. She said that prosecution is unrealistic, a truth commission would be stonewalled, and the only realistic remedy is impeachment, because executive privilege would not be a legal possibility in such a case.

"The options are limited, but there are options," Holtzman said.

Rep. Maurice Hinchey (D-NY) testified that he was most concerned about the quick shift from the war in Afghanistan to war with Iraq:

"They did not want to capture bin Laden," Rep. Maurice Hinchey (D-NY) said in his opening testimony. "It would have been much more difficult to justify the attack of another country which had nothing to do with the attack of Sept. 11."

Much of the discussion revolved around what, in the absence an impeachment inquiry, should be done about accusations against the Bush Administration.

"My question is how we can enforce limitations of power... without using the impeachment inquiry process," Rep. Bobby Scott (D-VA) asked another witness, Bruce Fein, who was associate deputy attorney general from 1981-82 and is currently chairman of the American Freedom Agenda.

"Short of impeachment, there isn't anything you can do about a president," Fein replied.

Former U.S. Congressman from Georgia and Libertarian Presidential Candidate Bob Barr disagreed, saying that there are numerous Congressional actions that could at least "not make things worse." One of the examples he gave where Congress could have acted differently to change the actions of the administration was the recent passage of the FISA bill.

Despite the name of his book, The Prosecution of George W. Bush for Murder, witness Vincent Bugliosi, author and former deputy district attorney, did not necessarily support the formation of impeachment hearings.

"Once he leaves office he could be criminally prosecuted for any crimes he had committed while in office," he said. "I've never suggested he could be prosecuted for murder while he was in office."

Many resolutions were suggested, including a bill to limit the president's authority to pardon of members of his administration.

Rep. Brad Miller (D-NC) serves on the House Foreign Affairs Committee and was also a witness at the hearing. He introduced a bill last week to restore certain checks and balances against executive power and expects to introduce similar legislation next week. He said Bush should be pursued after leaving office:

"Those disputes will not be moot next year."

The election loomed large over the hearings. Many hinted at the theory that Democratic leadership does not want impeachment hearings to ensue because they are concerned the inquiry could make their party appear petty in the eyes of voters.

While the recognition of a new administration in 2009 put a short timetable on the possibility of impeachment, many were concerned by precedents that could be set by Congress' failure to act.

Rep. Tammy Baldwin (D-WI) said the future presidents "are informed by the actions and inaction of past administrations and Congresses... [Our actions] will impact the conduct of future presidents."

Previous administrations played a big part in the hearing as well. Impeachment efforts against both the Nixon and Clinton Administrations were referenced several times.

Rep. Hank Johnson (D-GA) rebuffed some who said that Clinton deserved impeachment while Bush should be exempt.

"If lying about consensual sexual activity fits the bill... lying to the American people about the invasion of Iraq, a sovereign country... certainly that qualifies as an impeachable offense," he said, to an outburst of applause. Once again, Conyers was forced to ask the audience to keep quiet.

Others were worried that the current partisan nature of Congress is much closer to that of the Clinton Administration's era, and that voters might see the impeachment effort as disingenuous.

"The reason the Nixon impeachment worked was because it was bipartisan," said Holtzman.

At one point, both concerns over what should be done about the situation and what has been done in the past converged.

Rep. Adam Schiff (D-CA) proposed the formation of a modern-day Church Committee to start an inquiry, independent of the administration shift that will take place in January, into possible illegal actions in the Bush Administration. Schiff's proposal is based on a Senate committee that investigated the Nixon Administration.