Friday's House Judiciary Hearing on Impeachment: A Victory and a Challenge

by Dave Lindorff
baltimorechronicle.com/

Tue, 07/29/2008 Impeachment activists need to now redouble their efforts to make Congress do its Constitutional duty, and initiate a formal impeachment proceeding.

The dramatic hearing on presidential crimes and abuses of power held on Friday by the House Judiciary Committee was both a staged farce, and at the same time, a powerful demonstration of the power of a grassroots movement in defense of the Constitution. It was at once both testimony to the cowardice and self-inflicted impotence of Congress and of the Democratic Party that technically controls that body, and to the enormity of the damage that has been wrought to the nation’s democracy by two aspiring tyrants in the White House. ...

While the hearing was strictly limited to the most superficial airing of Bush administration crimes and misdemeanors, the fact that the session—technically an argument in defense of 26 articles of impeachment filed in the House over the past several months by Rep. Dennis Kucinich (D-OH)--was nonetheless a major victory for the impeachment movement. It happened because earlier in the month, House Speaker Nancy Pelosi (D-CA), who has sworn since taking control of the House in November 2006, that impeachment would be “off the table” during the 110th Congress, called a hasty meeting with Majority Leader Rep. Steny Hoyer (D-MD), Rep. Conyers, and Rep. Kucinich, and called for such a limited hearing.

It was no coincidence that shortly before Pelosi’s backdown, peace activist and Gold Star mother Cindy Sheehan announced that her campaign had collected well over the 10,000 signatures necessary to qualify for listing on the ballot as an independent candidate for Congress against Pelosi in the Speaker’s home district in San Francisco. Sheehan has been an outspoken advocate of impeaching both Bush and Cheney. “Pelosi is trying to throw a bone to her constituents by allowing a hearing on impeachment,” said Sheehan, who came to Washington, DC to attend. “It’s just like her finally stating publicly that Bush’s presidency is a failure—something it has taken her two years to come to, but which we’ve been saying for years.”

So determined were Pelosi, Hoyer and Conyers to limit the scope and intensity of the hearing that they acceded to a call for Republicans on the Judiciary Committee to adhere to Thomas Jefferson’s Rules of the House, which prohibit any derogatory comments about the President, which was interpreted by Chairman Conyers as meaning no one, including witnesses or members of the committee, could suggest that Bush had lied or deceived anyone. Since a number of Rep. Kucinich’s proposed articles of impeachment specifically charge the president with lying to Congress and the American People, this made for some comic moments, with witness Bruce Fein, a former assistant attorney general under former President Ronald Reagan, saying he would have to reference his listing of crimes to the “resident” of the White House, without naming him.

In the end, the ludicrous rule imposing a gag on calling the president a criminal fell by the wayside, with witness Vincent Bugliosi, a former Los Angeles deputy district attorney, accusing Bush of being guilty of the murder of over 4000 American soldiers and of hundreds of thousands of innocent Iraqi civilians because he had “lied” the country into an illegal and unnecessary war, and with committee member Shirley Jackson Lee (D-CA) suggesting that the president may have committed treason in invading Iraq, and that he appeared to be preparing to commit it again with an unprovoked invasion of Iran.

Conyers also acquiesced in a Republican effort to minimize public monitoring and involvement in the hearing, allowing the minority party to fill most of the available seats in the hearing room with office staffers who showed little interest in the proceedings. Only a few dozen of the hundreds of pro-impeachment activists who had come to the Rayburn Office Building at 7 am in order to get seats in the Judiciary Committee hearing room were allowed in, with the rest having to remain in the hall or go to two remote “overflow” rooms to watch the proceedings on a TV hookup. Conyers also went along with a call by Republican members of the committee to have some of those who did make it into the hearing ejected simply for wearing buttons on their shirts calling for impeachment (the Republican members referred to these as “signs”), though such small personal tokens are routinely allowed in congressional hearing rooms.

It was clear that this was to be a tightly controlled and strictly limited hearing.

It was also clear that it was intended to go nowhere.

At one point, after hearing witnesses like Fein, Bugliosi, former representative and Nixon impeachment committee member Elizabeth Holtzman, former Salt Lake City mayor and impeachment activist Rocky Anderson, former House Clinton impeachment manager Bob Barr, former Watergate Committee counsel and current senior counsel of the Brennan Center for Justice Frederick A.O. Schwartz, and Elliott Adams, president of the board of Veterans for Peace, lay out the administration’s crimes and abuses of power—which included charges of usurping the legislative powers of Congress, violating international treaties, war crimes, lying to Congress, an illegal war, felony violation of the Foreign Intelligence Surveillance Act and the Fourth Amendment, defying Congressional subpoenas, obstruction of justice and more, Rep. Jerrold Nadler (D-NY), chair of the Constitution subcommittee of the Judiciary Committee, appeared convinced that the abuses were real and serious.

But Nadler, who for two years has been a major obstacle on the Judiciary Committee to any efforts to move impeachment to a formal hearing, said, “No president has been removed from office through impeachment.” He asked the witnesses, “How would you approach impeachment today so it would be a viable option?”

Former Rep. Holtzman responded, “The real remedy to a president who believes he is above the law is impeachment. There is no running away from that.” She said, “An impeachment inquiry, handled fairly, could work. Maybe I’m a cockeyed optimist, but I believe it could work.”

The basic point, made by Holtzman, by Fein and by many others, including this writer, is that worrying about the political opposition to impeachment, both in the House, and in the Senate, not to mention among the broader public, is completely wrongheaded. Even when impeachment articles were first filed against Nixon, the public and the bulk of the Congress were solidly against the idea (unlike Bush, who has a 19% approval rating, Nixon had just won an epic landslide re-election victory in 1972 against George McGovern). It was during the hearings that the tide turned, as evidence of malfeasance, criminality and abuse of power became evident through hearing testimony. The same would certainly happen in the case of President Bush and/or Vice President Cheney. Most Americans don’t even know that the president made up evidence to justify the war against Iraq out of whole cloth. They don’t know what the Geneva Conventions are with regard to torture. They don’t know why Congress passed the FISA act, which Bush has been feloniously violating to spy on them (it was passed because Nixon was using the National Security Agency to spy on Americans without judicial warrants--exactly what Bush is now doing!). They don’t know that Bush has been refusing to enact laws passed by the Congress. Public hearings by an impeachment panel would make all these high crimes and misdemeanors clear on national TV to all sentient Americans. Moreover, as Holtzman pointed out, the president would not be able to use the claim of “executive privilege” to withhold testimony from aides in an impeachment inquiry, the way he has done when they have been subpoenaed by other House and Senate committees. Impeachment would be about violations of the very executive actions he would be claiming privilege on. As well, an impeachment committee, unlike any other committee of the Congress, is specifically sanctioned and empowered in the Constitution, meaning that even strict “constructionist” Federalists on the bench would have a hard time backing presidential obstruction.

As Holtzman noted, “There is no executive privilege in impeachment, because refusing to testify is itself an impeachable offense.”

Committee Republicans, aided by two law professors they had brought in to testify, Stephen Presser of Northwestern University School of Law and Jeremy Rabkin of George Mason University School of Law, tried to argue that impeachment was only meant for crimes in which the official in question, or the president, was seeking personal gain. This nonsense was knocked down by most of the speakers, who quoted numerous founders who had made it clear that what high crimes referred to were actions—even taken with the noblest of intentions—that undermined the Constitution or abused the powers of the office. As Rep. Nadler said, “Impeachment has nothing to do with intentions or with good faith. Impeachment has to do with abuse of power which weakens the balance of power.”

In the end, the hearing petered out, taking no action of any kind—exactly the result that Pelosi, Hoyer and Conyers cynically intended.

Now it is up to the public and the impeachment movement to call the Democratic leadership's bluff and take impeachment to the next level. Noting that even Rep. Conyers ended the hearing by saying, “We are not done yet, and we do not intend to go away until we achieve the accountability that Congress is entitled to and that the American people deserve,” Rep. Kucinich and five other co-sponsors of his articles of impeachment (Robert Wexler, Tammy Baldwin, Keith Ellison, Maurice Hinchey, Sheila Jackson-Lee, and Hank Johnson) are calling on all Americans to contact their representatives (202-224-3121) and urge them to join in co-sponsoring those articles and in calling for a formal impeachment hearing.

They are also calling on everyone to contact their local and national media, nearly all of whom have blacked out news of impeachment. Incredibly, the New York Times, for example, has not even reported on Friday’s hearing, even as a news “brief.” Those news organizations, like the Washington Post and the Philadelphia Inquirer, that did report on the hearings did so only in short, inside articles. Though the hearing was aired in full on C-Span (and is still available for download), many Americans don’t even know it happened.

Time is short, but even at this late date, it would be a simple matter to impeach the president on some issues. As several of Friday’s witnesses pointed out, President Bush has essentially dared Congress to act, admitting that he openly violated the FISA law—a felony, and openly admitting that he has refused to enact laws passed by the Congress, claiming a power—unitary executive authority—not even mentioned in the Constitution. He has openly admitted to having known about, and approved, “enhanced interrogation techniques” devised by his subordinates—techniques like waterboarding which clearly violate the Geneva Conventions and US law. No hearings would be required to establish these high crimes and misdemeanors. They could simply be voted on by an Impeachment Committee and sent to the full House for a vote.

Even if there were no time for a Senate trial, the simple act of impeaching the president for one or more abuses of power would serve notice on future presidents that future such abuses would not be tolerated. Failure to do so, and allowing this administration to leave office unimpeached, would send the opposite message: that Congress is no longer a co-equal branch of government, but is merely a consultative body, at best, and that a president is in effect a dictator.

That Pelosi buckled and permitted a hearing on impeachable crimes by the Bush/Cheney administration is a major victory for the impeachment movement, but it must not be the end of the line. Impeachment activists need to now redouble their efforts to make Congress do its Constitutional duty, and initiate a formal impeachment proceeding.

As former Republican representative Bob Barr, now the Libertarian candidate for president, told Friday’s hearing, “We had a nuclear clock during the Cold War. In the ‘90s we had a debt clock. Now we have a Constitution Clock.”

That clock is getting close to midnight, and it is ticking.
••••••••
About the author: Philadelphia journalist Dave Lindorff is a 34-year veteran, an award-winning journalist, a former New York Times contributor, a graduate of the Columbia University Graduate School of Journalism, a two-time Journalism Fulbright Scholar, and the co-author, with Barbara Olshansky, of a well-regarded book on impeachment, The Case for Impeachment. His work is available at www.thiscantbehappening.net.