By David Swanson
House Judiciary Committee Chairman John Conyers has released a lengthy new report that updates his previous report originally released in 2005 documenting Bush and Cheney’s crimes and impeachable offenses. The new report recommends that the Attorney General appoint a Special Counsel, even while making other recommendations that could delay or prevent prosecutions (including creating a bipartisan commission to spend a year and a half looking at the crimes and potentially immunizing criminals). The report includes 47 recommendations, some better than others, and has a tendency to ask the next president to ignore bad laws while offering that Congress might pass better laws “if necessary.” The report takes up some new topics not addressed in the old one, but largely covers familiar ground, with one glaring exception: it virtually ignores what had previously been a major focus, the war. The lies that launched the war receive a few pages toward the end.
Over the past three years, a great many people have lobbied Conyers to impeach Bush and Cheney. I’ve worked with him and his staff, been arrested protesting in his office, and everything in between. Conyers includes in his new report a foreword that amounts to a seven-page letter to disappointed impeachment advocates. After listing some of the most serious abuses of power imaginable, Conyers writes:
Many think these acts rise to the level of impeachable conduct. I agree. I have never wavered in my belief that this President and Vice-President are among the most impeachable officials in our Nation’s history, and the more we learn the truer that becomes.
This is new for Conyers to be saying this publicly in a formal report. Just as his new report maintains a pretended uncertainty as to whether crimes have been committed, his past reports and statements have maintained a pretended uncertainty as to whether impeachable offenses had been committed. Given that most of the offenses discussed are statutory crimes and that Conyers now admits to the impeachability of the guilty parties, the new pretense is shaky. But if, years from now, Conyers says that he has never wavered from his belief that Bush and Cheney were criminals, it will be appropriate to point out the novelty. Conyers continues:
Some ardent advocates of impeachment have labeled me a traitor – or worse – for declining to begin a formal impeachment inquiry in the House Judiciary Committee. While I reject that particular criticism, …
I recall suggesting that Conyers might have “sold-out”, after which most of his staff refused to speak to me. I’m sure someone did call him a traitor, and I can’t imagine what’s worse than that. Perhaps someone said that he was complicit in the death of 1.3 million Iraqis. That’s pretty bad. But that charge would not be baseless. We had a situation in which a majority of Americans wanted impeachment, a majority of Conyers’ constituents (including his wife) wanted impeachment, 100 cities passed resolutions demanding impeachment, impeachment resolutions were introduced and referred to the House Judiciary Committee, the chairman of that committee believed the offenses were “among the most impeachable in our nation’s history,” the charges included the launching of the war on Iraq, and the chairman refused to act. It’s possible that his actions would have failed in the House or the Senate. It’s possible that his actions, whether failing or succeeding, would have had some other negative consequence. But the fact was that he refused to try, and as many of us read the Constitution that was a failure of duty.
The frustration citizens felt with Chairman Conyers was amplified by the fact that he had a book in the bookstores (the print edition of his first report) that said on the top of the back cover “The Foundation for Possible Articles of Impeachment,” and a little further down had this quote “Before reading the report, I wouldn’t have expected to find myself thinking that such a course of action was either likely or possible; after reading the report, I don’t know why we would run the risk of not impeaching the man.” The foreword to the book, by Liz Holtzman, said “Impeaching President Bush for lying to get us into a war will not only protect us from him, but also send an unmistakable message to future presidents: never again.” And yet, when we asked Conyers’ staff about impeachment, they couldn’t be bothered. They were too busy writing the second book (the new report), at taxpayer expense.
And it wasn’t just the book. In 2005 Conyers introduced a bill to create a preliminary investigation into impeachment. Throughout the past three years, Conyers has spoken at rallies and events, leading crowds to believe he favored impeachment just as clearly as Bush led crowds to believe Saddam Hussein destroyed the World Trade Center. As the 110th Congress began in January 2007, Conyers addressed a huge crowd on the national mall and shouted “We can fire him!” about Bush, leading to a chant of “Impeach Bush!” Then Conyers told a reporter that what he’d meant was that if we waited until 2009, Bush would complete his term. This was not an isolated incident, but an example of what came to be a pattern in public events in Detroit and elsewhere at which Conyers suggested he was for impeachment and then assured reporters he was not. Perhaps that behavior doesn’t justify shouts of “Traitor!” but it does explain them.
… I want to make clear how much I respect those who have given so much time and energy to the cause of fighting for the impeachment of President Bush and Vice-President Cheney. While we may not agree on the best path forward, I know they are acting on the basis of our shared love of this country. These citizens are not fringe radicals, and they are obviously not motivated simply by personal feelings about President Bush, however strong those feelings may be at times. They are individuals who care deeply about our Constitution and our Nation, and who have stood up to fight for the democracy they love, often at great personal cost. Our country was founded, and our democracy has long been nurtured, by people willing to take such risks, and we should honor their vigilance and courage. However, as I have said, while President Bush and Vice President Cheney have earned the dishonorable eligibility to be impeached, I do not believe that would have been the appropriate step at this time in our history, and I would like again to briefly explain why that is the case.
Conyers has explained this before, many times. He’s told us that Fox News would attack him if he moved on impeachment, especially if he failed. He’s told us he was guaranteed to fail. He’s told us it would be bad for the presidential election. But he hasn’t put it into a book before, so this is worth considering:
Contrary to assertions by some advocates, the predecessor to this Report – the Judiciary Committee then-Minority staff’s “Constitution in Crisis” – did not call for impeachment. Rather, it concluded that there was substantial evidence of impeachable misconduct and that there should be a full investigation by a select Committee armed with subpoena power.
That’s true of the report, but not — as I’ve mentioned — of the book’s cover and foreword. While Nancy Pelosi swore she would never impeach in May 2006 in response to a statement from the Republican National Committee, Conyers continued to hedge and fudge and prevaricate enough that a great many people worked hard to elect Democrats they disliked to Congress, in hopes that Conyers would become chair of the Judiciary Committee and impeach. Polls showed Americans believing that a Democratic majority would impeach. The RNC trumpeted this myth. And voters put in 30 new Democrats and not a single new Republican.
Conyers goes on:
Prior to the 2006 elections, when I saw that my views on impeachment were being misstated by friends and foes alike, I set the record straight in an essay published in The Washington Post titled “No Rush to Impeachment:” The administration’s stonewalling, and the lack of oversight by Congress, have left us to guess whether we are dealing with isolated wrongdoing, or mistakes, or something worse. In my view, the American people deserve answers, not guesses. I have proposed that we obtain these answers in a responsible and bipartisan manner. It was House Republicans who took power in 1995 with immediate plans to undermine President Bill Clinton by any means necessary, and they did so in the most autocratic, partisan and destructive ways imaginable. If there is any lesson from those “revolutionaries,” it is that partisan vendettas ultimately provoke a public backlash and are never viewed as legitimate. So, rather than seeking impeachment, I have chosen to propose comprehensive oversight of these alleged abuses. The oversight I have suggested would be performed by a select committee made up equally of Democrats and Republicans and chosen by the House speaker and the minority leader. The committee’s job would be to obtain answers – finally. At the end of the process, if – and only if – the select committee, acting on a bipartisan basis, finds evidence of potentially impeachable offenses, it would forward that information to the Judiciary Committee. This threshold of bipartisanship is appropriate, I believe, when dealing with an issue of this magnitude.
Conyers was very clear. As I mentioned above, he did NOT communicate his “belief that this President and Vice-President are among the most impeachable officials in our Nation’s history.” He pretended not to know it. And yet, he had produced a report that laid out indisputable evidence of quintessentially impeachable offenses, and his staff was saying they wanted to get there one step at a time. We thought the “preliminary investigation” nonsense was a step on the way to impeachment, a step taken by a ranking member lacking the power of a chairmanship.
Nonetheless, I have been accused of “violating my oath of office” by “playing politics” with impeachment, and I have been criticized for saying that I have the Constitution in one hand and a calculator in the other. I would suggest that this argument ignores the text and history of the Constitution. There is nothing mandatory about using the power to impeach when wrongful conduct is shown, and the decision whether or not to impeach was always intended to be subject to the politics at the time. We live in a democracy, after all.
Conyers knows that we do not live in even an ideal democratic republic, but one corrupted by money, parties, and a highly damaging communications system. In a democracy, we would have simply voted for impeachment and had it, leaving out the middle man. This is not the place to talk about democracy.
Thus, in Federalist No. 65, Alexander Hamilton described impeachable offenses as “those… which proceed from the misconduct of public men… which may with peculiar propriety be denominated POLITICAL…” (Caps in original.) To address these “political” offenses, the Constitutional Convention rejected using either a judicial tribunal (that was the approach of the “Virginia Plan”) or a hybrid committee of judicial and political officers (as proposed by Gouverneur Morris and Charles Pinckney), and instead vested the authority in the legislature. As the records of the Convention detail, the Founders made this choice fully aware of the political considerations that would factor into impeachment decisions. The simple fact is, despite the efforts of impeachment advocates, the support and votes have not been there, and could not reasonably be expected to materialize. It takes 218 votes in the House and 67 votes in the Senate to impeach and remove a president from office. The resolution I offered three years ago to simply investigate whether an impeachment inquiry was warranted garnered only 38 cosponsors in the House, and the Democratic Leader of the Senate labeled it “ridiculous.” Impeachment resolutions against Vice President Cheney and President Bush offered by my friend and colleague Dennis Kucinich only garnered 27 and 11 House cosponsors, respectively.
But this passes the buck. Of course, other members were to blame. Of course, the party leadership was especially to blame. But a resolution to begin impeaching Alberto Gonzales garnered much more support than these other proposals, enough to force his resignation. Why? Because enough Congress members with enough influence over their colleagues took a stand and set an example and whipped for it. Conyers has tremendous influence with many of his colleagues, many of whom did not sign on for impeachment precisely because he was not on board. Several members of his committee, who would not sign onto impeachment articles because they thought an investigation should come first, publicly lobbied Conyers to start an investigation, and he declined. Had he shown leadership, Congress would have moved in the right direction, and the public would have rallied, which might have been enough to bring the party “leadership” around, which would have meant success.
Conyers has another justification:
Impeachment, if done right, also takes time. When I became Chairman of the House Judiciary Committee in January of 2007, after twelve years of Republican rule, we had to start much of our oversight from scratch, and against an Administration more dedicated to secrecy and obfuscation than any in our history. Unlike the Nixon impeachment, we did not have the benefit of the bipartisan Ervin Committee or a fearless special prosecutor such as Archibald Cox or Leon Jaworski to help lay the groundwork needed to remove a president or vice president from office. During the failed impeachment of President Bill Clinton, many of us derided House Republicans for, in the words of Senator Bob Kerrey, “sloppily” conducting the inquiry. Without calling a single fact witness, the Republicans essentially rubber-stamped the work of Independent Counsel Ken Starr and forwarded his allegations on to defeat in the Senate. Many advocates would have had me do the same to this President based on newspaper and magazine articles. But that course would have cheapened the impeachment process itself – and would not have led to success.
What was Nixon (nearly) impeached for? Anything we know Bush did? Shall we try to recall? Three things. First, he “prevented, obstructed, and impeded the administration of justice.” Check. Second, he “repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposed of these agencies.” Check. Third, he “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives.” Check. In other words, Nixon was not impeached because he cooperated with lengthy investigations, but because he did not. I agree with Conyers that Bush was even less cooperative, by far. But I disagree that that is a reason not to impeach. I think that is a reason to impeach.
And why must impeachment, then, take years to do? It never has before. It’s messy comparing one impeachment to another, as they are complicated and varying processes. But a few things are clear: most impeachment efforts achieve important results quickly, without actually achieving impeachment (think Elliot Spitzer or Alberto Gonzales); it is not uncommon for impeachment efforts to begin late in an administration (think Andrew Johnson, Herbert Hoover, Harry Truman); while preliminary investigations of the sort that have long since been done on Bush and Cheney can be dragged out for months, impeachments tend not to last long; and while Senate trials can be delayed and dragged out for many months, impeachments in the House tend to be short-lived events.
An impeachment of Bush and/or Cheney for an indisputable offense (refusing subpoenas, refusing to enforce contempt citations, rewriting laws with signing statements, openly violating the Foreign Intelligence Surveillance Act, openly authorizing torture, etc.) could take literally one day. Such a thing would not be unprecedented. President Andrew Johnson was impeached three days after the offense for which he was impeached. Senator William Blount was impeached four days after the offense for which he was impeached.
There is no reason impeachment hearings on Cheney or Bush should be limited to the simplest crimes or rushed through at top speed. Public education might benefit from a slower process. My point is only that it is possible to impeach rapidly. A senate trial can also serve as an educational forum. Below are some of the dates I’ve been able to find on how long past impeachments have taken. A better researcher might add to this collection. In several cases, I have dates for the duration of the Senate trial, but not for the House impeachment, the duration of which may in fact have been negligible (think Rod Blagojevich).
A Senate trial can also be completed quickly, and there is no requirement or precedent for including every obvious impeachable offense. (In fact, there is no precedent for elected officials being guilty of so many obvious impeachable offenses as Bush and Cheney or for the public being so aware of impeachable offenses prior to an impeachment.) The Senate expelled Blount the day after he was impeached. Judge Halsted Ritter’s Senate trial took 11 days. Judge John Pickering’s trial took nine days. Judge James Peck’s trial took three days. Judge West Humphreys’ trial took one day.
Two presidents have been impeached: Andrew Johnson and Bill Clinton.
Johnson was impeached three days after committing the offense for which he was impeached, and prior to drafting articles of impeachment. Within a week, a committee drew up charges, and 11 days after the offense, the House delivered the charges to the Senate. The trial process began the next day, and in under three months it was over.
The House began impeachment procedures for Bill Clinton on October 8, 1998, and impeached him on December 19th. The Senate trial lasted from January 14, 1999, to February 12, 1999.
Of the presidential impeachment movements that did not reach impeachment, the most well-known is that against Richard Nixon. The House began impeachment on May 9, 1974, and passed the first of three articles of impeachment on July 27, 1974. Nixon resigned on August 8th. Of course there were lots of preliminary investigations, but those have long since already been done for Bush and Cheney.
Most impeachments have not been against presidents, but rather judges, cabinet officers, senators. These impeachments seem to take about as long as presidential impeachment do, and offer no support to the myth of long impeachments. In addition, much other business has been accomplished at the same time as these impeachments.
On July 3, 1797, evidence of an offense by Senator William Blount became known. Four days later, the House impeached him and the next day the Senate expelled him.
Evidence of an offense by Judge John Pickering became known on February 4, 1803, and the House voted to impeach him on March 2, 1803. The Senate didn’t try him for another year, but spent 9 days on it when it did so.
Supreme Court justice Samuel Chase was impeached in late 1804 (I don’t know how long the impeachment took) and 30 days later he was tried in the Senate, which completed the trial on March 1, 1805.
Judge James Peck was impeached on April 24, 1830, a month after the Judiciary Committee recommended it. The Senate took up the trial the following January and spent three days on it.
Judge West H. Humphreys was impeached on May 19, 1862. The Senate tried and convicted him in one day on June 26, 1862.
Secretary of War William W. Belknap was impeached on March 2, 1876, and the Senate trial was completed on August 1, 1876.
Judge Charles Swayne was impeached on December 14, 1904, and his trial was over on February 27, 1905.
Judge Robert W. Archbald was impeached on July 13, 1912, and the Senate trial was over on January 13, 1913.
Judge Harold Louderback resigned before his impeachment went to trial.
Judge Halsted L. Ritter was impeached on March 2, 1936, and the 11-day Senate trial ended on April 17th of the same year.
Judge Harry E. Claiborne was impeached on July 22, 1986, and the trial ended on October 9, 1986.
Then Judge and now Congressman Alcee L. Hastings, was impeached on August 3, 1988, and the Senate trial was over on October 20, 1988.
Judge Walter L. Nixon was impeached on May 10, 1989, and the Senate trial was completed on November 3, 1989.
Conyers goes on:
The final plea was: “Why not try? What do you have to lose?” Impeachments, however, both successful and unsuccessful, have precedential consequences – they set standards for future presidential behavior. The House Judiciary Committee’s rejection of an article of impeachment against President Nixon for failing to file tax returns, for example, was used as precedent in acquitting President Clinton for impeachment based on personal misdeeds.
Maybe there’s a better example to make Conyers’ point, because I agree with both of those outcomes. I think a good precedent was set, and that perhaps it was not so much a modern precedent as the original and obvious basis for impeachment. But where Conyers really loses me is in the assumption that failures to impeach do NOT have consequences. Conyers is looking at the small picture. He sees consequences for future impeachments in how impeachments are handled. I see consequences for future wars and abuses of power in whether impeachments are handled.
While some of the difficulty in garnering support for impeachment results from fatigue over the recent and unjustified impeachment of President Clinton, and concern about routinizing what should be an extraordinary constitutional event – whatever the reason, an impeachment vote in the House was certain to fail.
That’s a horrible reason and an unjustified prediction. An abuse of the impeachment power is simply no justification for required use of the same power. The founders Conyers cited above did not expect impeachment to be extraordinary, and it should not be any more extraordinary than are impeachable offenses. Predicting failure in this case was not crazy, but by no means justified. Success was entirely possible (and still is, before or after Bush and Cheney leave office). Moreover, this refusal to promote something likely to fail is coming from a man who every Congress, including the one that has just begun, introduces a bill to study reparations for slavery. In fact, I think it is safe to say that most of the bills Conyers introduces or signs onto and actively promotes are deemed guaranteed failures by the Washington establishment. And yet we need reparations for slavery. We need single-payer health care. Conyers is doing his job by promoting such things, and indeed they may succeed.
Conyers adds this:
What, then, would be the precedent set by a House vote against the impeachment of President Bush or Vice President Cheney for deceiving our nation into war, allowing torture, engaging in warrantless domestic surveillance, and retaliating against those who attempted to reveal the truth about these acts? In my view, a failed impeachment – by an almost certainly lopsided vote – would have grossly lowered the bar for presidential behavior and caused great damage to our Constitution. More immediately, a failure to impeach President Bush and Vice President Cheney would have been trumpeted by their allies as a vindication for them and for their overreaching policies. To all of us who treasure our constitutional form of government and our standing in the world, and mourn the loss of life in a war built on deception, I know the failure to impeach is a deeply unsatisfying outcome. As one who has participated in more impeachments than any other Member of Congress, I came to the realization that this is the reality of this moment in history. Faced with that reality, I had a choice: do nothing; or redouble my efforts to peel away the secrecy of this Administration, expose its wrongdoing, and protect the liberties and freedoms of the American people. I chose the latter course.
This is based on the false claim that failure was guaranteed. We had polls showing majority support with nothing happening in Congress or on the news. We had one pollster finding majority support and another refusing to poll on it because it wasn’t in the news. Imagine where the support would have gone with Conyers’ leadership! But suppose for the sake of argument that failure was guaranteed. Would an attempted impeachment not have sent more of a warning to future presidents than doing nothing at all? Didn’t the senate acquit Clinton and didn’t we still see Al Gore try to run for president pretending he had never met his boss? Again, Conyers is taking a narrow view. He would have had to be the man who led a failed impeachment. Never mind that the world would have honored his attempt. His colleagues would have seen a failure. And he would have been at odds with his party and perhaps been stripped of his chairmanship. These probably look like big significant things to Conyers. To the rest of us, a failed impeachment in 2007 or 2008 would have provided us with an ideal list of whom to reelect and whom to toss out on their ears in order to make impeachment happen in 2009.
Conyers goes on in his Foreword to enumerate his many reports and announcements, investigations, hearings, lawsuits, etc. Conyers opened a hearing on impeachment (but not really on impeachment) this past July by bragging about all the hearings he’d held. To him, these hearings and reports are, to some degree, ends in themselves. Actual substantive steps that impact people’s lives can get lost in the shuffle. One such step would be impeachment, which could happen right now if Conyers wanted it to. Another step would be Conyers’ clear and active support for a special prosecutor.
While prosecution of Bush and Cheney would be hard-pressed to fail, and politicians who supported it would be hard-pressed not to rise in popularity, Cheney has given us a preview of his legal defense: “We were never impeached.”