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Impeachment: The Case Against | The Nation

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Impeachment: The Case Against

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It would be wonderful to evict George W. Bush--quite possibly the worst President in our entire history--from the White House. Thus one can readily understand the temptation to talk about impeaching him. But we should recognize that this conversation is triggered not only by Bush's own performance as President but also, and perhaps more important, by one of the greatest defects of the Constitution, the impeachment clause. Thanks to the Founders, we were given a Constitution that perversely makes us "better off" with a criminal in the White House instead of someone who is "merely" grotesquely incompetent. The reason is that the Constitution provides us with a language to get rid of a criminal President, but it provides us no language, or process, for terminating the tenure of an incompetent one. Unfortunately, this was a deliberate decision by the Framers, who rejected an altogether sensible proposal to make "maladministration" an impeachable offense for fear that this would give Congress too much power.

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Sanford Levinson
Sanford Levinson is professor of law at the University of Texas.

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Bush v. Gore may have superficially resolved a short-run political crisis, but it has triggered a deep intellectual crisis.

Only because of the Constitution are serious progressives engaging in an entirely fruitless campaign to impeach Bush by describing him as a criminal. It is fruitless for two quite different reasons. The first, and more practical, is that there is simply no possibility that Bush will actually be removed from office in the twenty-four months that unfortunately remain to him. One might well contemplate impeachment if there were a possibility of its being successful. But the House Democratic leadership has rejected the idea, not least because there is no possibility that the constitutionally required two-thirds of a nearly evenly divided Senate would vote to convict an impeached George W. Bush. Thus, advocates of impeachment are in effect supporting a strategy doomed not only to fail but also to be perceived by most of the country as a dangerous distraction from the pressing problems facing the country.

House Republicans in 1998, who knew for certain that Bill Clinton would never be convicted by the Senate, could behave with reckless abandon in part because much of the country did not perceive itself as facing grave problems. Democrats today do not have that luxury.

But there is a second reason to be wary of the impeachment conversation: It inevitably becomes a highly legalistic one about exactly what constitutes "high crimes and misdemeanors." It is not enough that the President be a criminal; he must be a criminal of a certain gravity. If there is anything the country needs less at this point than a self-defeating political strategy, it is the further domination of public debate by lawyers trading jargon-ridden charges and countercharges about the criminal liability of the President. Almost no one was genuinely edified by the legal debate that occurred in 1998. Most of the public believed that most of the lawyers--or at least those on "the other side"--who participated in that debate were motivated by partisan political considerations. The same would be true today.

Although I admire some of those calling for impeachment, one should recognize that some of their ostensibly legal claims are all too dubious. Consider the charge that Bush lied to the country during the run-up to the war, which may well be true. If lying to the public about matters of grave importance were an impeachable offense, however, almost no President--including, for starters, Franklin Roosevelt and his deceptions regarding lend-lease--would survive. It is even more difficult to construct criminality out of Bush's reckless disregard of the consequences of Katrina. It is not, however, at all difficult to accuse him of maladministration and disqualifying incompetence.

American politics would be infinitely better if we could avoid legalistic mumbo-jumbo and accusations of criminality and cut to what is surely the central reality: The American people have exhibited a fundamental loss of confidence in a wartime President/Commander in Chief. In most political systems around the world, the response to such a stinging rebuke would be resignation or removal. But we are trapped in a constitutional iron cage devised by eighteenth-century Framers who, however wise, had no conception of the role the presidency would come to play in American (and world) politics. The US President should be treated as what Ross Perot aptly called an "employee" of the American people, vulnerable to being fired for gross incompetence in office. Instead, he is given the prerogatives of a feudal lord of the manor who owns the White House as his personal property until the end of the presidential term, with almost dictatorial power over decisions of foreign and military policy.

Far better than a politically pointless--and almost certainly counterproductive--campaign to impeach George W. Bush would be the initiation of a serious discussion of the extent to which we are disserved, in 2007, by a political system devised for an entirely different era. However divided we might be, most Americans might be persuaded that we would all be better off if future Presidents could face the possibility of a Congressional vote of "no confidence" that would trigger eviction from the White House. Perhaps that discussion, too, would be doomed, given both the preposterous reverence that Americans have for the Constitution and the near-impossibility of constitutional amendment because of the hurdles placed by Article V in the way of amendment. But at least such a discussion would focus on the most important feature of the Bush Administration--its gross incompetence--in a language that could readily be understood by any attentive citizen rather than quickly degenerate into an arcane (and acrimonious) discussion among constitutional lawyers.

Moreover, and even more important, whereas an attempted impeachment would be guaranteed to be maximally divisive, this might be the perfect time to hold a serious national conversation about whether we should have an alternative to the cumbersome impeachment process to remove an incompetent President. The reason, paradoxically, is that because of our very political divisions, it is impossible to know who will be President in 2009. The stars are aligned for a truly bipartisan discussion, among serious Democrats and Republicans alike, over the extent to which we are well served by the eighteenth-century Constitution, since members of both parties are behind a "veil of ignorance" as to who would benefit from any changes. Even the most partisan among them have every incentive to think of the national interest, since it is impossible to discern what the party's interest will turn out to be.

Perhaps if we took the citizenry seriously and engaged them in an adult conversation about the dysfunctionality generated by the present Constitution, we might be able to escape its iron cage in the future--even if not, alas, before the expiration of Bush's term of office in January 2009.

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