Wednesday, November 29, 2006The constitution provides for the removal from office of the President and Vice-President for what it terms 'treason, bribery, or other high crimes and misdemeanors'. As does so much else in our constitutional system, the idea of impeachment derives from English law. Despite their illegitimacy, impeachment and removal are therefore the legal avenue (of several available) that seems most apt for dealing with George Bush and Dick Cheney.
In judicial terms, impeachment is comparable to an indictment; at the Federal level, a simple majority of the House of Representatives is required to vote out Articles of Impeachment. These are then presented to the United States Senate, presided over by the Chief Justice, where a super-majority of two thirds is required for conviction and removal.
Notably, The Federalist Papers make clear that impeachment is a political, as opposed to a judicial, process.
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
A cursory glance at the subject suggests that it's not a bad idea to untangle the judicial and political strings intertwined in the impeachment discussion.
The judicial case is reasonably clear at first glance: both Bush and Cheney regularly flaunt their breaking of established law, such as the FISA statute. They knowingly presented false evidence to the United States Congress as it was debating the authorization to use force against Iraq. They authorized the breaking of U.S. law in detainee interrogations, most notably at Abu Ghraib and Guantanamo Bay. They claim discretion to suspend the writ of Habeas Corpus. All of these acts, and others, stem from a theory of law embraced by this administration known as the unitary executive. The theory holds that the executive branch, under the Constitution, is free to act without restraints which the legislative and judicial branches may seek to impose. It's worth noting that there is little in either U.S. or UK precedent that would establish the unitary executive theory as valid; Charles II lost his head on a scaffold in an earlier iteration of this argument. Parallels can be seen in Lenin's dictum that the Communist Party's dictatorship over the Russian people rests "directly on force, not limited by anything, not restricted by any laws, nor any absolute rules."