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.”

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 the article II passage, the answer that emerges is different from the conventional answer that only the Senate can remove from office. Instead, we see that by 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.

We need to note two points (to stay oriented -- this construction is so different from the conventional one). First, we are talking about two different kinds of trials, conducted by two separate branches of the federal government. Second, because neither trial would commence until the House has voted to impeach, we're not talking about some group of “out of control judges.” The requirement of a House impeachment vote for all “cases of removal,” whether tried by the Senate (impeachment) or by the judiciary (criminal), makes impeachment ultimately accountable to the American people, as it should be.

Let's consider further the implications of this change in the scope of the word “conviction.” When we see the Article II grounds not as general for all impeachments, but as a minimum requirement that is triggered by a set of circumstances (the grounds, House impeachment, and “conviction”), this forces us to re-examine the scope of the article I impeachment powers of Congress per se. When you do this, you may be stunned as you recall that there is no constitutional restriction on the scope of the power of Congress to impeach and remove from office when the route is through a Senate impeachment trial. Constitutionally, the only restrictive grounds are now: a) the article II special case, (where “removed from Office” is a minimum requirement), and b) a constitutionally explicit defense argument for judges (“good behavior”).

In short, 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.”

Two additional 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.

A final background point: shortly before the end of the convention, the draft language for the article II passage included the phrase: “Conviction by the Senate”. Madison moved to delete the words “by the Senate.” His motion failed, but that was the day the final five-man committee was appointed. The fact that the phrase “by the Senate” had been removed when the final draft emerged supports this theory.

We need to look beyond our present situation, and reflect on the long term implications and potential of this theory. Over time, this reading offers the possibility of a new and broadly based agreement about what we can and should expect of our government, our leaders, and ourselves -- since we the American people are accountable for Congress. To quickly see the improvements this theory could lead to, let's consider how it could have prevented both the Clinton impeachment and 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” (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 decriminalized impeachment 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.

At this point, as a scholar, you must remain skeptical. However, you probably would also agree on two points: first, this theory merits further consideration and study, and second, it is topical in the context of current events.

I have good news, and a request. Here's the good news: This theory is presented in much more detail, including both a recent 7,600 word article, and a book written in 2000 (The Nixon-Clinton Impeachment: A New Constitutional Theory). Go to: http://www.bobcarneyjournal.com. The format is designed so that many of the questions you are likely to have are addressed, at least in summary form.

Here is my request: Will you work with me, to write articles and commentary on this theory on a provisional basis? Obviously, full research of this will take much time and effort. However, Congress needs to know as much as possible about this theory from the experts – and soon. I will be happy to publish at my web site your written articles and commentary on this thesis, with provisional disclaimers appropriately and prominently featured. I can show you exactly what your article or commentary will look like on-line before putting the link to it. Alternatively, I want to link to other web sites that have articles and commentary about this theory. Would you also consider posting this article on a bulletin board at your law school?

Please note one further view of my own. 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 via decriminalized Senate impeachment trials. To be blunt, America needs cleansing action quickly. We need to find out, and report fully and honestly to the world, how the torture and abuse of Iraqi prisoners happened. We need to remove from office those whose policies and actions led to it. If the testimony and information Congress demands in decrimalized impeachment trials raises a defense so that people impeached and removed by the Senate can eventually succeed in defending themselves in a criminal trial, believers of different faiths will agree that these people will still be accountable to God and to their own conscience. As the results of possible criminal trials emerge, a better understanding will also emerge, as expressed above, of what we can and should expect of our government, our leaders, and ourselves.