Rep. Bobby Scott Debates Impeachment

By David Swanson

Some colleagues and I spent much of Thursday and Friday meeting with Congress Members and their staffers to discuss impeachment. Some of them were on the edge of backing it, others miles away but inching closer. Congressman Bobby Scott, a Democrat from Virginia who serves on the Judiciary Committee, was one of the furthest from backing impeachment but one of the most interesting to debate the topic with.

I’ve debated Scott before, at a public debate in 2004. He was representing Howard Dean, and I was filling in for Dennis Kucinich. Scott did better than Dean himself could have done. I actually felt bad making him defend positions that were not his own. But Friday’s debate was all Scott, on his own, explaining in his own words to a small group why the Democrats should not impeach Dick Cheney.

I like debating Scott because he starts with most of the same premises I do but ends up in a totally different place. We ran into people on our lobbying visits who believed President Bush might soon decide to declare victory and pull out of Iraq. How do you debate someone like that who seems to be just briefly visiting this planet? We also ran into a number of people who believed that by not impeaching Cheney, the Democrats could make Hillary Clinton president in 2009, and that doing so was the most important project right now. With these people, in a public debate, you could argue that restoring the rule of law to our government is more important than an election. But, since they fundamentally disagree with that, in a private meeting you have to argue the case on their terms. Fortunately, it’s easily done.

When the Democrats held back from impeachment during Iran Contra, they lost the next elections. When the Democrats led the effort to investigate and impeach Nixon, they won big in the next election, even though Ford was running as an incumbent. When the Republicans tried to impeach Truman, they got what they wanted out of the Supreme Court and then won the next elections. Articles of Impeachment have been filed against 10 presidents, usually by Republicans, and usually with electoral success following. When the Republicans impeached Clinton, impeachment was actually unpopular with the public. Even so, the Republicans lost far fewer seats than is the norm for a majority party at that point in its tenure. Two years later, they lost seats in the Senate, which had acquitted, but maintained their strength in the House, with representatives who had led the impeachment charge winning big.

Parties that seek to impeach are not punished at the next election. In fact, they frequently improve their position — as evidenced by Dems in 1974, Republicans in 1952, and all the way back to the Whigs of last century. In every election back to 1842 where House members of an opposition party to a sitting president have — as a whole or a significant caucus within the party — proposed impeachment of the president, that opposition party retained or improved its position in the House at the following election. There is no instance of voters responding to a significant impeachment effort by sweeping its advocates out of office. In fact, history points in a different direction — suggesting that voters frequently reward parties for taking the Constitution and the rule of law seriously. To establish this point in the minds of Congress Members and staffers, we gave them all copies of John Nichols’ book “The Genius of Impeachment.”

Scott makes a different argument. He maintains that there does not yet exist solid evidence for impeachment, and that investigations will uncover such evidence faster if they are not called impeachment investigations. He thinks that calling them impeachment investigations will prevent the Democrats from joining with the Republicans to pass good legislation. And he’s concerned that joining the 15 heroes now cosponsoring articles of impeachment against Dick Cheney would “marginalize” him.

Scott spent a lot of time talking about particular complicated investigations, such as those involving FBI security letters and Justice Department attorney firings. I agreed with him several times that these were areas that could use more investigation, and tried several times to direct the conversation to other areas where no further investigation is needed. But Scott wouldn’t change the subject.

I pointed out that an article of impeachment had been passed against President Richard Nixon for his refusal to comply with subpoenas, and that Bush and Cheney have refused to comply with subpoenas. Scott had two quick responses before going back to talking about his preferred investigations. First, he maintains that Congress may be able to force compliance with subpoenas if given enough time. This seems very unlikely. It seems unlikely that a court will side with Congress and even less likely that Bush or Cheney will comply simply because a court orders it. Second, Scott maintains that the only evidence of an impeachable offense that really counts is testimony given under oath or information discovered by an investigation. Anything already known to the public is by definition not evidence. I proposed having Senator Leahy testify under oath that Cheney had not complied with a subpoena. Scott changed the subject.

I tried another tack. I pointed out that the signing statements devised by Cheney and used by Bush to overthrow laws are posted publicly on the White House website, eliminating the need for a long investigation to find them. I said that a Government Accounting Office study had found that with a sample of the signing statements, in 30% of the cases Bush and Cheney have gone ahead and violated the laws they announced the right to violate. Scott said the statements didn’t matter, only the crimes. I said that the most obvious was torture. He asked if we knew for sure they were torturing. I told him it had been extensively documented for years and recently by groups like the Center for Constitutional Rights including the testimony of victims. Scott said they’d need to look into it.

Ya think? Might be appropriate, I’ve got to agree.

But I disagree that we need more information than is publicly known to impeach. An impeachment is, after all, only an indictment. The trial takes place in the Senate. And I don’t know of any legal basis for the notion that information is disqualified as evidence when it becomes publicly known.

I asked Congressman Scott to imagine what it would be like if he were investigating the illegal spying programs and trying to pin down documents and testimony to prove they existed and violated the law. In such a circumstance, Scott might explain his slow deliberateness thus: “We live in the real world. If we could get the President to go on videotape and confess to having knowingly violated the law, we wouldn’t have to do all of this.” But, of course, in reality Bush has already done that. He’s confessed on television. No, he was not under oath. But putting him under oath to have him claim he never said what we have him saying on videotape would seem counterproductive, at least to my amateur mind. Scott was not impressed with this evidence, apparently because Bush’s confession had not come about through an investigation. This seems to be a case in which the sheer audacity of Bush and Cheney’s crimes serves to hide them from Congress. Nixon said “If the President does it, then it’s not illegal.” This Congress says “If the President does not hide it, then it’s not illegal.”

I also asked about one of the charges contained in H Res 333, specifically the charge that Cheney has threatened an aggressive war on Iran. Cheney has done so on videotape. How, I asked, would you go about “investigating” those videotapes? Well, Scott replied, you’d need to bring in people to testify that it was illegal. I pointed Scott to the UN Charter and Article 6 of the US Constitution, but he insisted that testimony would be needed.

If you’d like to volunteer to testify, here’s what you can do. Read this bit of the UN Charter making it illegal to threaten an aggressive war: and call Congressman Scott at (757) 380-1000 and volunteer to testify under oath that you read it. For that matter, you can read all the evidence compiled to support H Res 333 at and let Scott know you’re available as a witness. Under Article 6 of our Constitution, a treaty the United States is party to is the law of the land.

Here’s another case I wish I’d been able to bring up in the meeting with Scott. When Bush was warned about Hurricane Katrina, it was recorded on videotape. When he told the public he had not been warned, the cameras were rolling. How would one “investigate” that? Can corpses “testify”?

But what about Scott’s claim that the toxic word “Impeachment,” forever poisoned by the Republican attack on Bill Clinton, would slow investigations down? Well, subpoenas are not working. Contempt and criminal charges are very unlikely to work. And the special prosecutor route has been tried. What happened? Cheney organized a coordinated campaign to obstruct the investigation. Scooter Libby was convicted of obstructing justice, and Bush commuted his sentence and is almost certain to pardon him in 2009. Where are the investigations speeding off to? I don’t see it. The public doesn’t see it. This could be part of the reason Congress is even less popular than Bush. Exposing crimes and not holding the top criminals accountable, just persuades us that Congress is weak. In fact, Scott himself argued that it’s hard to find witnesses willing to testify to Bush and Cheney’s crimes, because they have shown how fiercely they exact retribution against whistleblowers. I would have thought this sort of situation was exactly the reason Congress had been created as a separate branch of government with the power to impeach.

As far as passing useful legislation in cooperation with Republicans, one has to ask: what useful legislation? And won’t it be vetoed? The Democrats ought to be bringing Republicans on board with impeachment, not behaving as if they – the Democrats – were still in the minority.

In the only poll ever done on impeaching Cheney, 76% of Democrats said they favor it (and 54% of all Americans, with 40% opposed). But Scott is worried that joining 15 Congress Members in support of impeaching Cheney would “marginalize” him.

Scott’s office, like every office in Congress, has been flooded with Emails, phone calls, and letters backing impeachment. While we were meeting in his DC office, some of his constituents in Virginia were standing outside one of his district offices holding Honk-to-Impeach signs; and the cars were honking!

But Scott openly told us that the only thing politicians care about is elections. Scott typically runs unopposed in his primary and in the general election. Maybe it’s time someone who has given the Constitution a good read stepped up and challenged him. Otherwise, for the sake of this country and those it impacts, someone is going to have to explain to Scott and others like him that another year and a half of “investigations” is going to lead only to Republican victories next November.