Impeachment

Impeachment Forum: Article #2

Impeachment, Removal and Congressional Oversight

in a Post-9/11 World

By: Robert S. Carney Jr.

Long Version of Article – 6/2/04

Go to: Home page or Articles page or Impeachment Forum page

As the torture and abuse of Iraqi prisoners has come to light, America needs to be able to quickly and decisively hold those who serve in our government accountable. When the top leaders of our government either take action, or engineer an environment, that results in what can be seen as war crimes, we are on the road to becoming morally indistinguishable from the terrorists. We the American people must turn back.

Fortunately, the leaders and people who established our constitution had a realistic view of human nature. The founding fathers were painfully aware of the consequent inherent danger of entrusting power to fallible and corruptible people, who of course must always be the agents of governments.

A careful study of our constitution, and of the debates and writing that led us to it, shows that the issues of impeachment and removal from office are actually far more deeply woven into the constitution's fabric that our current popular understanding suggests. This paper outlines a new constitutional theory regarding the extent of these provisions.

The nub of our current understanding of impeachment, removal and oversight

Only the house can impeach, and removal from office of an impeached person can occur only after a senate trial, which must be on essentially criminal grounds of “treason, bribery, or other high crimes and misdemeanors”. According to our current understanding, the president and other civil officers cannot be impeached and removed because they are incompetent, or for anything short of criminal responsibility for disasters like the widespread torture and abuse of the Iraqi prisoners. This interpretation has certainly been shaped in part by the perception that the need for a stable government, and the partisan environment in which public events unfold, together point us to the need to protect both civil officers and the national interest against the potential adverse consequences of an unending series of politicized impeachment proceedings.

The “constitution code”

There are two fundamental problems with this current popular understanding of impeachment and removal from office. First, in our recent history it has proved sadly inadequate as a truly effective check against misuse of government power. In effect, we seem to have agreed that there is a necessary trade-off between a) government stability, and b) a built-in toleration for some unspecified level of “private crimes,” which civil officers can commit if “it's not that bad” and if there is “plausible denyability.” As a consequence, America looks away from the news, and towards phony reality shows and extreme makeovers.

Second, there are structural puzzles to our current understanding. As one example, consider that a primary structural feature of the constitution is its organization into articles, with the first three (about 80% of the whole original constitution) concerning the three main branches of government: legislative, executive, and judicial respectively. Given this structure, if impeachment is the sole power of the legislative branch, why are provisions for it scattered like wandering planets among all three articles? Why would the constitutional convention, knowing about Copernicus as they did, come up with what now seems to be a Ptolemaic impeachment system?

Here is the bare frame of an alternative answer to the conventional understanding: impeachment is an important element, but not the whole, of a system of provisions for removal from office that definitely revolves around a known central idea: checks and balances, but that is both more structurally rooted and more broadly conceived than we have realized.

Let's proceed, step by step, to fill in this frame and see how this actually works. We will examine the constitution's actual impeachment provisions and restrictions, together with background information concerning how these provisions were arrived at and organized.

Beginning with article I (legislative), we find article I, section 2 (last paragraph) states:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Note that there is no restriction or definition of any kind regarding the grounds for the house's “sole Power of Impeachment.” Constitutionally, the house can impeach anyone, for any reason they believe is sufficient to warrant removal from office.

Article I, section 3 (last two paragraphs) states:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Consent of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The senate has the sole power to conduct a specialized kind of trial called an an impeachment trial, again with no grounds for impeachment specified, but with consequences limited to removal from office and disqualification from holding office in the future.

Some common structural threads are already apparent in article I. First, no restriction on grounds is mentioned for either the house or the senate. Second, the phrase “Sole power” appears twice, once for the house and once for the senate. The impeachment process is analogous both to the impeachment procedure used in England, and to the two-phase judicial process for criminal cases of indictment and trial. The twice-repeated phrase “Sole power” can in this respect be seen to make it clear both that impeachment is a distinct, two-phase process, and that neither legislative body has power to interfere in the proceeding of the other body when their phase is being conducted. Finally, while the two-phase process is analogous to criminal indictment and trial, the restrictions in section 3 make it absolutely clear that the impeachment process per se is decriminalized. No criminal punishment can follow directly from the impeachment actions of the legislative branch alone. However, specific provision is made that criminal punishment can result separately from action of the judicial branch, taken for the same circumstances that resulted in a senate impeachment trial. In England impeachment was not decriminalized – this was an American innovation of pre-revolutionary war state legislative bodies.

Moving forward to article II (executive), we come to what has been seen as the constitution's most crucial impeachment passage. Article II, section 4, states:

The President, vice-President and all other civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high crimes and misdemeanors.

The conventionally accepted reading of this passage is that “Conviction” refers to conviction by the senate, since the senate has “the sole Power to try all impeachments.”.

As Senator John Edwards might say: “Not so fast.”

We'll revisit the use of the word “sole” in article I. First, let's move forward to article III, concerning the judiciary, where the last paragraph of section 2 states:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...

The conventional interpretation has been that in this passage, the restrictive clause “except in Cases of Impeachment” simply confirms that these cases are tried by the senate. However, there is an equally reasonable alternative interpretation. This restrictive clause is both a) a recognition that some judiciary trials may be of people who by their actions are subject to the judicial power and have also been impeached by the house, and b) an explicit provision to deny these people the right to a trial by jury, in recognition of the weight that must be given to the national interest of having office holders who are not criminals. According to this alternative interpretation, any individual who accepts the honor of serving as a civil officer in our government surrenders the right to judicial criminal trial by jury if impeached on criminal grounds.

Let's now return to examine article II, and ask this simple question: what happens if a federal civil officer is a) impeached by the house on criminal grounds within the scope of article II, and b) convicted in a judiciary criminal trial?

When you ask this question, and then read article II section 4, it is difficult to see anything other this simple, direct answer: such a person is automatically removed from office. Therefore, following house impeachment on criminal grounds, there are two possible trial venues – two kinds of trials – that can cause removal from office: a) decriminalized senate impeachment trials, and b) judiciary criminal trials of “Cases of Impeachment.”

Both the language and structure of our constitution, and the 1787 constitutional convention proceedings (as represented by Madison's Notes), show clearly that a judicial trial venue for removal of civil officers following house impeachment on criminal grounds is a deliberate, intended provision of our constitution. For most of the convention's proceedings, impeachment trials were to be assigned to the judiciary. On September 4^th, about two weeks before the signing, language was presented to the convention that transferred impeachment trials to the senate. The draft language, which parallels the final constitutional text, stated: “... removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for...” On September 8^th, Madison, our fourth president, and known as the “father of the constitution”, introduced a motion to delete the restrictive phrase “by the Senate.”

The motion failed. Of course many initial attempts at many things fail.

Madison was no quitter. He continued with his effort to remove the restrictive phrase “by the Senate,” and thus to provide for a judicial means of removal from office. On the same day that his initial effort to delete “by the Senate” failed, Madison was appointed to the five-person committee assigned to produce the final draft constitution. When it emerged, the restrictive phrase “by the Senate,” was gone -- never to return.

This deletion, as with several other rearrangements and re-wordings, indicates a clear intent to provide, as described above, two venues, for two kinds of trials.

Two further issues can now be addressed. First, regarding the word “sole” in the Article I Section 3 provision:

The Senate shall have the sole Power to try all Impeachments

The word “sole” has been understood to provide that only the senate has impeachment-based power to remove people from office. The operation of this word fits reasonably well with the conventional understanding of impeachment. However, in the context of this new constitutional theory, there is an equally if not better alternative construction of the function of the word “sole.” Some additional background is required.

We have already seen what Madison apparently did with the article II (executive) restrictive clause “by the Senate” after the senate was assigned the power to try impeachments. Considerations driving this reassignment of impeachment power included a perception that was growing toward the end of the convention: at least initially, the judiciary was likely to be the weakest of the three branches, and would thus potentially be less credible than the senate in standing up to abuses of power. A second important consideration in the final structure and arrangement of provisions was this: while (as noted), English impeachment trials were conducted by the house of lords (with structural parallels to the U.S. Senate), there was no independent judicial branch of government in England. Assumptions about the function and scope of this newly independent branch could thus not be made with reference to England – there was no parallel.

In this context we can now see a reasonable, if not better, alternative construction of the word “sole” in the article I provisions regarding the senate. The constitution establishes two kinds of trials: a) decriminalized impeachment trials, with consequences limited to removal and disqualification from office, and b) criminal trials, which are to be conducted by the judiciary, a newly established independent branch of government not present in England. Of these two kinds of trials, the senate has the “sole” power to conduct impeachment trials per se, with consequences fully specified and limited in article I (legislative). The judiciary is to conduct “the trial of all crimes,” with the emphasis on all, and with a limitation specified in article III (judiciary): that in “Cases of impeachment” no jury is required.

To summarize, the word “sole” in Article I section 3 has two functions. First, regarding the legislature, in the two-phase process of impeachment per se the house has no power when the senate's trial phase is proceeding. Second, of two kinds of trials (impeachment and criminal) it assigns one kind of trial as an exclusive power of the senate, as different and distinct from a second kind of trial which falls within the judicial power of article III, and which can include criminal trials in “Cases of Impeachment.”

We can now conclude our analysis of the operation of impeachment and impeachment-related provisions per se, by considering a kind of “Ptolemaic question”: why does the specification of grounds for impeachment, which we have seen to be clearly a legislative power, appear to wander off into article II (executive), when we would most reasonably expect to see these grounds in article I (legislative) if in fact (as the conventional theory argues) these grounds are to apply for all cases of impeachment? The answer to this question will demonstrate that the conventional understanding of impeachment is not just cumbersome and unwieldly as a practical matter -- everyone knows that – but it is also unreasonable to maintain in the face of a theory that has both better explanatory and analytical power, and that operates in a more practical and useful way.

The crucial underlying issue is not abstract or theoretical. It is a practical, real question: one that those who brought forth the constitution faced, and one that we face today. Under what set of circumstances should removal from office of people currently exercising executive power be required?

For convenience, here again is article II, section 4:

The limitations provided for in this passage concern grounds and scope. As we have noted, in article I (legislative), there is no limitation on either the grounds for impeachment per se, (it can be for any reason) or the scope of impeachment per se (anyone can be impeached).

Regarding scope, this article II passage applies only to a small group of people: civil officers of the United States. These people are part of the executive branch.

The circumstances that require removal from office include, first, that two events must have occurred: a) “Impeachment for” (a power of the house), and b) “Conviction of” (in either of two trial venues, a decriminalized senate impeachment trial, or a judiciary criminal trial). If and only if these two events have occurred, then removal from office is required if and only if the grounds for impeachment (and thus the basis for conviction) are: “Treason, Bribery, or other high crimes and misdemeanors.”

The fact that all the grounds specified are criminal is further evidence that the judicial criminal trial venue is one of two trial venues intended to cause removal from office of impeached persons.

This passage is the constitution's answer to our question: Under what set of circumstances should removal from office of people currently exercising executive power be required? The effect of the passage is, first, to establish a minimum standard of conduct for executive office holders, (that they not be guilty of a specified set of criminal offenses), and, second, to establish that whenever the house impeaches a civil officer on this set of criminal grounds, either of the other branches of the government can then act independently to remove the civil office holder.

The location of this passage in article II is structurally important. This passage is not in article II as the result of “Ptolemaic wandering.” Rather, both its location in article II and its exclusive effect on executive officers indicate, first, that it is not in any way a restriction on any power of the other two independent branches of government per se, but simply indicates a required consequence, under a specified set of circumstances, of the independent actions of the other two branches.

Initial Summary: Consequences and Implications of this Constitutional theory

Two major consequences follow from the impeachment aspects of this constitutional theory. In the context of current events, let's consider the least important one first. If a federal office holder is guilty of a criminal offense, it is not necessary to shut down half of congress for weeks or months as the senate conducts an ungainly trial that turns on issues of criminal law. There are few federal civil officers, many qualified candidates, and a strong national interest in having civil officers who are demonstrably not criminals with reference to the article II short list. Which is it easier and more prudent to replace: an individual federal civil officers holder, or a world-leading superpower with a two hundred year tradition of political freedom – offering the hope and the prospect that this freedom will be both preserved and extended. Unless circumstances demand immediate action, the case of a civil office holder impeached on criminal grounds can and should be presented to a judiciary court, while the rest of the government does what it was elected and established to do. If the outcome of such a judicial trial is a “conviction”, then removal from office is automatic – and that's that.

This constitutional theory is illuminating regarding the expectation we should have of federal civil office holders. By accepting such positions of honor, these people are being asked to be so circumspect in their actions that they can give no possible offense such that might trigger this powerful constitutional machinery. Civil office holders are well advised to behave themselves, and to make every effort to get along with everyone. Isn't that we we want?

A second major consequence of this constitutional theory, and an even more important one to us today, is this: congress has both the constitutional power and the duty to oversee the executive branch to a far greater degree than we have understood. This oversight power and duty has two roots. The first root, already noted, is a widespread awareness in the America of 1787 of the fallibility and corruptibility of human nature, and thus of the inherent danger of any and all government power. The second root is a constitutional consequence of this wary posture: no grounds are specified for impeachment and removal when removal is via a senate trial. Because the danger of misusing government power is so great, our constitution does not try to fully anticipate how this may be happen in the future. Instead, our constitution provides the option of a senate impeachment trial as a kind of “safety value.” A senate impeachment trial is a way to quickly and decisively remove from office anyone, for any reason, when the circumstances and the national interest demand immediate action. (Note: there is a strong argument that congress can impeach judges, again without criminal grounds, but this must be understood in the context of the article III provision that judges “shall hold their offices during good Behavior.”)

An expanded view of Impeachment and Removal from Office

We've seen the frame of this constitutional theory regarding impeachment. Let's now broaden the discussion to an historical perspective regarding the general problem of preventing government power, known always to be in the hands of fallible and corruptible people, from descending into tyranny.

At the time of the constitutional convention, this was a major concern among both federalists (who advocated establishing the constitution) and anti-federalists (who opposed the constitution). Here's what Madison wrote in The Federalist No. 47:

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution therefore really chargeable with this accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”

We have a concern with preventing government from becoming tyranny, shared by federalists and anti-federalists alike. A war had just been fought over this issue. To better understand how, and how extensively, this concern resulted in strong constitutional provisions for multiple additional ways of removal from office, additional background is needed regarding both what Americans at the time of the constitutional convention understood law to be, and how they regarding English law and history.

The Concept of Law

Regarding law itself, people today may be inclined to think of it as something both “spelled-out” by legislatures, and as arbitrary at least in the sense that law is whatever legislatures (and some would add “activist” judges) specify it to be. However, from medieval times up to the time of the constitutional convention, it appears the main line of thinking was that “law” was not something that was “made” by men at all. As professor Mulford Sibley writes in Political Ideas and Ideologies: “...when we make this distinction between description and prescription, it is a rather artificial one from the viewpoint of the medieval thinker. For to him, all law tends to be discovered and the distinction between description and prescription fades: one discovers both the is and the ought by examining an objective universe of 'fact' and 'value'. Even when the king makes a law, he is essentially declaring it and not imposing it as a sheer act of arbitrary will.” In short, “we hold these truths to be self-evident” was a good summation of a general attitude and approach toward law.

Parliament's Judicial Powers

Parliament today is almost exclusively a legislative body. However, historically and up to the time of the constitutional convention, parliament also had important judicial functions and powers – powers that went far beyond impeachment. Parliament's powers included:

Impeachment – As noted, the house of commons had the power to impeach, and the house of lords had the power to try impeachments. The respective powers of the U.S. house and senate parallel these provisions. In England, anyone could be impeached, with the possible exception of the King. Professor Raoul Berger, in Impeachment: The Constitutional Problems, characterizes parliament's impeachment powers as being for “'...the punishment of offenses of a public nature, which may affect the nation; as well in instance where the inferior courts have no power to punish the crimes committed by ordinary rules of justice;...'”.

The Bill of Attainder – The bill of attainder was a direct power of parliament to judge and punish by death, on a case-by-case basis. This power was so extensive that it is specifically prohibited to the legislature in the U.S. constitution. By the bill of attainder, parliament could and did: a) discover what the law is, and what is criminal, on an ex post facto (after the fact) basis, for any set of circumstances; b) convict a person of breaking the law, and c) sentence the offender to death. As with legislative bills, a bill of attainder required approval by both houses of parliament, and also required the king's approval. As with a judicial conviction, a bill of attainder fully specified both the crime that an accused person was found to be guilty of, and the punishment (which by definition was death). A related power of parliament, the bill of pains and penalties, could specify a lesser penalty than death, and could include removal from office(s), but was otherwise identical to the bill of attainder. Although our constitution specifically prohibits the bill of attainder per se, we will see that some elements of it are divided between congress and the courts in cases of treason.

The Trial of Treason – An English statute of king Edward III established parliament's direct judiciary power for cases where treason was suspected, but where no direct statutory enumeration of an act of treason applied. As recounted by professor Berger:

“The preamble of the treason statute recites, “Whereas divers opinions have been before this time in what case treason shall be laid, and in what not; the King, at the request of the Lords and of the Commons, hath made a declaration in the manner as hereafter followeth.'

“There ensues an enumeration of specific treasonable acts, for example, levying war against, or encompassing the death of, the King, or adhering to his enemies; which is followed by a proviso, often referred to as the salvo,

“And because that many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time, it is accorded, that if any other case, supposed treason, which is not above specified, doth happen before any Justices, the Justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony.”

Parliament was saying to lower courts: if you have a tough case, bring it to us -- we will discover whether it is or is not treason.

Elements of U.S. Constitutional judicial powers assigned to the legislative branch

All of this background concerning English law and institutions was known to the constitutional convention. We have noted that one of the unique features of the constitution is the establishment of three separate and independent branches, including the independent judiciary, as noted, a branch that was not present in England. However, we should not conclude from the fact of this division into three branches that the constitution has no provision for assigning any element of judicial power to congress. In addition to its impeachment powers, congress has additional powers that can be characterized as judicial, or partly judicial, in nature, concerning these issues and circumstances:

Treason – As already noted, treason is identified explicitly in article II (executive) as one of the crimes that automatically causes removal from office on “impeachment for, and conviction of...” However, we should take note of another provision in article III (judiciary):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Note that although article III concerns the judiciary, congress is given the “...Power to declare the Punishment of Treason...” This is a clear example of an element of judiciary power assigned to congress. Because treason is a crime that can be a threat to the nation, if and when a judicial treason conviction occurs congress is assigned constitutional power to discover and “declare” appropriate punishment for treason, on a case-by-case basis. One of the constitutional effects of this is to enable, in a worst-case scenario, the other two independent branches of government to act jointly against the executive. It appears this judicial power of congress is in addition to the implicit power of the judiciary to pronounce sentence for all crimes, including treason. It is possible that the punishment of a person convicted of treason can include some elements specified by congress, and other elements specified by the judiciary. It is possible that congress can leave it to the judiciary to pronounce punishment -- while power to “declare the Punishment” for treason is assigned to congress, congress is not required to do anything.

A number of considerations, first among them that treason is addressed primarily in article III, suggest that conviction of a person in a decriminalized senate impeachment trial on grounds of treason is not sufficient to trigger the power of congress to “declare the Punishment of Treason.” Although this is potentially a debatable point, it seems best to think of the senate impeachment trial provision as already characterized: the constitution's “safety valve.” Beyond the step of removing dangerous office holders, judicial process can and should be relied on. The requirement in article III: “the testimony of two Witnesses to the same overt Act, or on Confession in open Court” also suggests the power of congress to “declare the Punishment of Treason,” which can be severe, only operates with respect to the judicial trial venue. In short, it seems the power of congress to declare punishment for treason should be associated only with the additional protections for the accused provided for in article III. The fact that article I specifically anticipates and provides for a separate judicial criminal trial for persons impeached and removed from office by the decriminalized senate impeachment trial seems to clinch the argument.

Piracy, felonies on the high seas, and International Law – Article I, section 8 enumerates specific powers of congress. Regarding counterfeiting, a domestic crime, section 8 states:

To provide for the punishment of counterfeiting...

However, regarding crimes with an international aspect, the wording is different, and the difference appears to be significant. Section 8 also states:

To define and punish piracies and felonies committed on the high seas, and offences against the law of nations;

Let's consider this difference in word choice: “provide for” vs. “define and punish”. The power of congress to “define and punish” in cases where other nations may be affected appears to be, at a minimum, an explicit constitutional power of congress to “discover”, on a case-by-case basis, the appropriate punishment for a class of cases where other nations may have an interest, and consequently when national security may be even more at issue than in some cases of treason.

In addition to the ability to punish on a case-by-case basis for this class of cases, the word “define” suggests that congress might possibly have full judicial powers to also define these crimes, ex post facto, on a case-by-case basis. This is a highly debatable point. Note that to do so would not require an ex post facto law per se, but only a bill affecting one or more people under a set of circumstances acknowledged to be unique. Such a bill would not be a bill of attainder as such, first due to the technical point that approval by the executive branch would not be required (analogous to the king's approval for a bill of attainder), and second because if the punishment did not include a sentence of death, the procedure would thereby also not be a bill of attainder by definition. Thus, if it emerges that congress does have power to define violations on a case-by-case basis for this class of cases, it seems almost certain the punishment cannot include a death sentence. Aside from the possible extent of the direct power of congress to “define” for this class of cases, provision can always be made for a judicial trial of this class of cases, and the death sentence can be a consequence of judicial conviction.

An alternative construction of “define” would be simply that it makes explicit the power of congress to define what these crimes are, by statute, as with federal criminal law generally. A key point to consider here is that treaties are established by article III as on the level of the constitution: the supreme law of the land. Because treaties may not indicate directly, or fully, what acts of individuals are or may be criminal as a consequence of the treaty, explicitly assigning to congress the ability to “define” the criminal consequences of treaties resolves a potential ambiguity as to whether this is constitutionally a legislative or judicial function.

What process rights and responsibilities do individuals and congress have?

The fifth amendment provides that a person shall not “...be compelled in any criminal case to be a witness against himself...” Because the fifth amendment excepts “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”, it is unclear what protection individuals may have in at least some cases involving treason, in cases of piracies or felonies on the high seas, and in cases involving “offences against the law of nations.”

What about impeachments for other than criminal grounds, or the congressional aspects of impeachment proceedings that may be on criminal grounds? The key point here is this: because this constitutional theory is so different from the current understanding, the general topic of the oversight powers of congress must be fundamentally reviewed. It appears that regarding congressional impeachment proceedings per se, congress may have an unlimited power, or a very extensive power, to both obtain evidence, and to compel testimony. Testimony and evidence legitimately required by congress based on its oversight duty and impeachment powers may, of course, be inadmissible in a judiciary criminal proceeding.

The key point is this: if congress is to have effective oversight power to safeguard against the dangers of abusive office holders, then for impeachment with the purpose of removal from office only, it seems congress must have very broad power to provide for its ability to obtain both evidence and testimony, from anyone, about anything, on penalty of perjury.

The doctrine of “executive privilege” has often been advanced to limit the ability of congress to obtain testimony and information from the executive. The basis for executive privilege goes back at least as far as Marbury vs. Madison (1803). In light of both our present circumstances and of this constitutional theory, it seems the whole concept of “executive privilege”, a term that does not appear anywhere in the constitution, also requires fundamental reexamination.

The Constitutional Power and Duty of Congress today

We have considered, as did the constitutional convention and the people who ratified the constitution, the dangers inherent whenever fallible and corruptible people wield powers of government. It now seems clear that the constitution provides congress with two general kinds of remedies for cases where this danger breaks forth in events. The first remedy is to cleanse: impeachment powers that are general and unlimited in scope, but limited in consequence to removal from office. The second category of remedies consists of both the special case of article II, section 4, where the independent actions of the house and the judiciary can cause removal from office of civil officers, together with limited elements of judicial powers of congress, including the power to directly impose a death sentence in cases of treason. Of these two categories of remedies, the second category is virtually unexplored. As just one example of an issue to be resolved, it appears likely that the supreme court may have constitutional original jurisdiction to conduct criminal trials of civil officers covered by article II, section 4. Much more research and discussion is required for this second category.

However, this is not purely a theoretical and academic discussion.

We have reached both a time in our history, and a point in this analysis, where a simple and overriding conclusion can be restated and connected to a specific application that follows from it. Congress has both the constitutional power and the duty to safeguard America by removing office holders from power when their use of it is incompetent or dangerous. In a situation such as the present one, where there is evidence of widespread, systematic torture of Iraqi prisoners, the United States congress can and should impeach and try in the senate those civilian office holders who have had direct responsibility for what happened. Unless he resigns first, or is fired, the process should start with defense secretary Donald Rumsfeld, who has stated the grounds for his own impeachment simply by acknowledging that the torture and abuse “happened on my watch.” This cleansing action by congress, together with related actions, will tell the world, ourselves, and posterity:

When something as horrible as the systematic and extensive torture and abuse of prisoners happens, and when it is shown and acknowledged to have been done by our government, we must and will err on the side of stopping and preventing the abuse of powers of our government. Our congress, the democratically elected representatives of the American people, will remove from office immediately, any civilian -- the highest authorities in our government are all civilians -- who is found to directly have had the power, the authority, and the duty to see that nothing like this could be allowed to happen, and who has failed to prevent it. Further actions and consequences will follow. We can only say, first, that we are terribly sorry about what our nation has done, second, that we are still reacting to the terrorist attacks of 9/11, and, finally, that until recently it simply has not been collectively evident to us that our government could do such things. We can only hope and pray that our horror of what our nation has done, and the freedom we have been blessed with, will be combined to guide our future actions in ensuring that this never happens again.

Let's be clear and frank about this: the widespread U.S. torture and abuse of Iraqi prisoners is likely if not certain to be a cause of future terrorist attacks against the U.S. We already know of at least one direct consequence: an American civilian who has been killed. Those in our government who were responsible for establishing the corrupting environment that led to the abuse and torture were not following orders, they were giving orders. The tragedy these ill-conceived orders led to has resulted in “aid and comfort” to the terrorists. It is now easier for terrorists to recruit more people to kill innocent people.

The action of congress to impeach and remove from office those responsible for giving the orders, will be a proclamation to ourselves and the world that we are turning away decisively from this tragic course of events. It is part of the war on terror for congress to speak for the American people, and to make this proclamation. We will say to the people terrorists are trying to recruit: when we know that we have done wrong, America stops. We turn away from a path when we find it is wrong -- and we continue to do the many things we have always done that are right and good.

Obviously, the American people will render a decision in the coming election. Because it is an election, and not a referendum, we cannot view it as a verdict of the American people on any single issue. The possible re-election of president Bush, as with the actual re-election of president Nixon after the Watergate break-in and cover up but before the extent of wrongdoing in the Nixon administration was fully known, cannot be seen as a blanket impeachment amnesty for anyone. Note that article II gives the president reprieve and pardon power “except in Cases of Impeachment.”

Congressional impeachment action on noncriminal grounds can be as fast and as simple as necessary. Articles of impeachment can be one page. The nub of a house impeachment article can say: “Whereas, [name] has had the duty and the power to prevent the systematic and widespread torture and abuse of Iraqi prisoners, and has failed to prevent it, therefore, be it resolved by the United States House of Representatives on [date] that [name] is hereby impeached from [office].” The house can hear testimony (optional), take evidence (optional), debate and vote in a day, or two days, or a week – it's up to them. Of course... no testimony and no evidence would be shocking and intolerable in a criminal trial. Part of the point of identifying these elements as optional is to emphasize the unique nature of decriminalized impeachment by congress. If a highly publicized event occurs, known to the whole world, that makes the need to remove from office obvious, then obvious means obvious, and fast can mean one day.

The senate might reasonably conclude that with the present fact situation, one day is sufficient to consider an article, examine the organization chart, weigh the facts, consider the national interest, and vote to decide the issue of removal. The senate can take more than a day if they think it is necessary. A prolonged senate debate may be healthy in and of itself.

We need to keep in mind that we do not know what new information and background may emerge. We don't know what possible corrective actions may be best, or exactly who knew what when. Congress has the power to ask the questions we need to ask, and to compel answers on penalty of perjury. A house impeachment proceeding against secretary Rumsfeld may result in evidence gathering that leads the house to not impeach him, but to impeach one or more others. However, it is inconceivable to conclude that no one should be removed. If we can't find out precisely who should be removed, we are better advised to err on the safe side and remove multiple people, than to remove no one.

We should reflect on the fact that a person removed from office by a senate impeachment trial is free to do whatever they want on the day of their conviction -- and the next day -- with just one restriction: they can not wield powers of the United States government. Our situation is horrible and tragic, but it is not complicated. The action of congress can and should be clear, simple and soon.

It finally all boils down to this. Congress has the power to say to any civilian office holder: “you're fired.” President Bush has the same power to fire that person. Both have the duty to use good judgment in exercising this power, and all power. This system is imperfect – it was designed by people, and it's run by people. However, when governmental power is used incompetently, or dangerously, at least this system gives us two chances, not just one, that some person or group will see the problem and put a stop to it. This is the essence of the system of checks and balances. Today this seems to be the best we can do. Maybe we can do better in the future.

Looking back and looking forward

This constitutional theory is both new and significantly different from the current understanding. Because of this, it seems that it would be unjust to immediately attempt to apply it other than in the case of removing civil officers by decriminalized senate impeachment trial. Beyond the removal from office of one or a group of civil officers who have woefully failed our country, the full consequences and implications of this new reading of the constitution must be studied and explored deliberately, carefully and thoughtfully.

One of the best ways to study this theory further may be to reflect on how some of the problems our nation has encountered could have been avoided if this theory had been known and accepted earlier. We cannot change history, but we can benefit from thinking about how it might have happened differently. Let's consider two brief situations, first, president Clinton's, and second, secretary Rumsfeld's.

If this theory had emerged during the Watergate investigation that led to president Nixon's resignation, the Clintons would have gone through their adult lives with a very different understanding of what standard was required for serving as president. Would president Clinton have avoided the wrongful behavior that led first to the “whitewater” investigation, and finally to his impeachment? We can only note that a better course of events, and a better outcome, were certainly possible, if he had known of the powerful ways in which congress could hold him accountable for his actions.

What if this theory had been widely known as the Bush administration took office? Would secretary Rumsfeld, president Bush, and others, have operated differently if they had known, and the American people had known, that congress could impeach them, require them to testify, and anything they said, or didn't say, could be held against them in a decriminalized impeachment trial? Again, we can only note that a better course of events, and a better outcome were certainly possible.

The point is this: wouldn't both president Clinton and secretary Rumsfeld have acted differently if our constitutional safeguards had been better understood, and better used? On the one hand, we can only reasonably hold a person responsible for what is known and believed at the time a person acts. This is why it seems so important at this time to restrict any immediate implementation of the powers and provisions we have examined. We should go no further than decriminalized removal from office. On the other hand, the importance of considering the context in which people act simply gives more weight to the need to remove from office a person or persons responsible by actions or policies for the context in which the torture and abuse of Iraqi prisoners occurred.

Go to: Home page or Articles page or Impeachment Forum page

Note: this is a revision of an article first published 5/27/04.