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"Malfeasance in Office" | The Nation

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John Nichols

John Nichols

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"Malfeasance in Office"

Henry Waxman knows a thing or two about the Constitution, and the chairman of the House Oversight and Government Reform Committee displayed that knowledge at the opening of Friday's extraordinary morning of testimony by outed CIA operative Valerie Plame Wilson.

While appropriate attention will be paid to the remarks by the woman whose identity was exposed in a pattern of leaks that appears to have been coordinated by Vice President Dick Cheney's office, what Waxman said at the opening of the hearing sent the essential message.

"It's not our job to determine criminal culpability," the congressman said of the committee he heads, "but it is out job to determine what went wrong and insist on accountability."

The founders established parallel tracks for dealing with government wrongdoing.

A judicial process has already begun to hold members of the administration to account for violating laws protecting the identity of Central Intelligence Agency operatives by outing Plame in an apparent attempt to harm her husband, former Ambassador Joe Wilson. Wilson had earned the administration's wrath by revealing evidence of manipulation of intelligence by an administration that was attempted to convince Congress to authorize an attack on Iraq.

But the essential process for dealing with government wrongdoing is that established in the Constitution as the authority of Congress to examine and sanction presidents, vice presidents and their aides.

The legislative branch of the federal government is fully empowered to check and balance the executive branch, especially in times of war and national crisis. Those checks and balances begin to be applied when Congressional committees open investigations and when the elected representatives of the people begin to demand accountability.

Plame left no doubt that wrongdoing occurred. "My name and identity were carelessly and recklessly abused by senior official in White House and State Department," she testified. "I could no longer perform the work for which I had been highly trained."

As Massachusetts Congressman John Lynch explained before initiating his questions, the pattern of leaks suggested to him that members of the administration engaged in "a deliberate attempt to destroy your status as a covert agent."

Ohio Congressman Dennis Kucinich got to the heart of the matter, asking rhetorically: "Why? Why did this happen to you? Was it an unintentional mistake or part of a wider pattern."

Holding a chart detailing the leaks that targeted Plame, Kucinich spoke of a "coordinated" effort to discredit her and her husband, and suggested that it was indeed part of a broader pattern of administration attacks on critics. The congressman then detailed a long list of moves by the White House to intimidate and punish former Cabinet secretaries, aides and others who had questioned the actions of the president or vice president.

California Congresswoman Diane Watson picked up on the critique, suggesting that there had indeed been "malfeasance in office" by members of the Bush administration.

Waxman's inquiry is in its early stages. But Watson's choice of the term "malfeasance in office" points to where this inquiry can – and almost certainly should – proceed.

In the early years of the American experiment, when the founders of the republic still served in the executive and legislative branches, the term commonly used to describe the wrongdoing that might meet the deliberately vague "high crimes and misdemeanors" standard established in the Constitutional provisions for the impeachment of presidents, vice presidents and other top officials was: "malfeasance in office."

James Madison used the term, or variations on it, frequently in his writing about executive power and its abuse. The first great impeachment trial of a national political figure, Supreme Court Justice Samuel Chase in 1804, was on the specific charge of "malfeasance in office."

Two hundred years later, the term "malfeasance in office" remains the standard reference phrase for official misconduct of the most serious sort. It is used in state Constitutions and has been specifically and frequently been used during impeachment proceeding against presidents – including those of Richard Nixon and Bill Clinton.

That a reference to "malfeasance in office" would be featured on the first day of a congressional inquiry that is charged with determining what went wrong in the CIA leak case and insisting on accountability offers at least a measure of hope that the process unfolding today may yet lead to the appropriate checking and balancing of an errant executive branch and its lawless leaders.

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure forRoyalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use ofthe 'heroic medicine' that is impeachment with a call for Democraticleaders to 'reclaim and reuse the most vital tool handed to us by thefounders for the defense of our most basic liberties.'"

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