Commentary

Commentary

1.1

Can Congress “fire” defense secretary Donald Rumsfeld?

According to the conventional wisdom, most would say “no.” The president can fire him, but Congress cannot, short of impeachment for criminal grounds.

This article advances both a new constitutional theory, and a new answer: “yes, Congress has the constitutional power to tell defense secretary Rumsfeld, and other civil officers: “you're fired.”

Even the “fast lane” to this answer is a little roundabout, but let's take it. Consider the most crucial constitutional provision on impeachment, from Article II, which says: “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.”

Let's ask a simple question. Suppose a civil officer (the president, a defense secretary) is impeached on criminal grounds, then tried and convicted in a Judicial court – not the Senate. What happens?

When you look at this crucial constitutional passage, the answer that emerges is different from the conventional answer that only the Senate can remove from office. Instead, we see that with the word “shall” this passage simply establishes a minimum consequence. Whenever a civil officer is impeached, and convicted -- by Judicial or Senate trial -- then whatever else happens, removal from office is required. 

It is important to emphasize two points. First, we are talking about two different kinds of trials, conducted by two separate branches of the federal government. Either trial – a Senate impeachment trial or a Judicial criminal trial -- can proceed independent of the other. James Madison's record of the constitutional convention provides clear evidence that the intent of the word “conviction” is to include the Judicial trial venue as one of the two venues that triggers the Article II minimum consequence of removal from office. We must also keep clearly in mind that neither trial can commence until the House has voted to impeach. We're not talking about some group of out of control judges here. Impeachment has always been recognized as having a political element. The requirement of House participation in all cases makes impeachment ultimately accountable to the American people, as it should be.

Our roundabout “fast lane” now brings us into view of another consequence of this reading, and a more topical one today. The impeachment and removal powers of Congress are not restricted to cases where a criminal statutory violation can be shown within the Article II grounds (“treason, bribery...”). Instead, the House can impeach, and the Senate by a two-thirds vote can remove, anyone, for any reason, if the national interest demands it. In other words: impeachment is, among other things, the authority of Congress to say: “you're fired.”

This theory is presented in more detail at: http://www.bobcarneyjournal.com, but you have the nub of it.

Two main consequences follow. First, the constitutional intent is for both a higher standard of conduct for presidents and cabinet secretaries, and for more accountability to Congress and the American people than we have realized. Second, Congress has much stronger oversight powers, and a greater oversight duty than we have realized.

One immediate implication of this theory is that Congress can fire secretary of defense Donald Rumsfeld, and others, for failing to prevent the torture and abuse of Iraqi prisoners. The American people can hold individual members of Congress responsible for their vote to do this -- or not do this -- both before the coming election, and after the election.

Let's look ahead, beyond our present situation. Over time, this theory has the potential to provide a broad basis of agreement about what we can and should expect of our government, our leaders, and ourselves, since we the American people are accountable for Congress. Had this theory been known and accepted earlier, it could have potentially prevented both what led to the Clinton impeachment and what led to Abu Ghraib.

Suppose Bill Clinton had known, say in 1974, that impeachment of a president on criminal grounds would not require the Senate to be bothered at all, but could be resolved quickly in a criminal court (there is a basis for the supreme court's original jurisdiction). Quickly, you might ask? Yes -- jury trials are required “except in Cases of Impeachment” (see Article III). Hillary (let's be blunt here) would have had more clout to make sure he behaved himself better through his entire adult life. If his widely acknowledged gifts had led to his election as president without all the baggage he brought to Washington, who knows what might have happened?

Regarding secretary Rumsfeld and the Bush administration, if they had known that Congress could fire them, and could require their testimony under oath (a strong implication of this theory, for non-criminal purposes only, but under penalty of perjury), would the torture and abuse of Iraqi prisoners have been prevented? Let's be clear and frank about this: it could have and should have never happened.

This theory is based essentially on a "strict constructionist" or "original meaning" approach to the constitution. Its truth is firmly rooted in the constitution itself: the exact words, and the structure and arrangement of the words.

A final comment. Fundamentally, this theory is founded on an awareness of the dangers of government power in the hands of fallible and corruptible people, and the need to have as many safeguards as possible to prevent the misuse or abuse of that power. There are many implications, and much study is required. We must also realize this: because this theory is so different from the current theory of impeachment, given our present context it would be wrong in the immediate future to apply it further than to removal from office.