A perfect impeachment storm is brewing. While the MSM does not cover the story, the White House is truly concerned that Bush faces real impeachment risk for the NSA scandal. A majority of Americans (52%) want Congress to impeach Bush if he wiretapped without a judge’s approval. It is not just Democrats. Moreover, only 36% supported hearings to consider Clinton’s impeachment. Even GOP Senator Specter agreed that if it is determined that Bush violated the law, both impeachment and criminal prosecution are legitimate remedies. The Bush team was so worried that Senate hearings would conclude that Bush violated FISA, and that this would lead to impeachment proceedings. The response was to threaten to blacklist GOP Senators who voted in favor of NSA hearings.
The Rovian response to this perfect storm is really quite brilliant. It is a strategy of interconnected building blocks to prevent any impeachment at this time and provide a defense against impeachment down the road should the Democrats regain control of Congress in the midterm elections.
True to Rovian methods of operation, the strategy involves keeping information from the public. Another fact not reported is that the GOP’s own standard governing impeachment, if applied, would find that Congress has a constitutional duty to commence an impeachment inquiry against Bush. And, by not proceeding with an inquiry, Congress is violating the law.
The Rovian response is a White House agreement to make a deal with Congress that is described to the public as “fixing” FISA. The reality is that the substantive terms of this deal have the hallmarks of a President Lincoln Ratification. But, if you strip away the key elements of a proper Lincoln ratification, which are not met in the Bush case, the substance of the Bush deal is nothing more than an agreement by Bush to let Congress pardon him. No one will call this deal a pardon now, but if the Democrats regain control of Congress, which now is quite likely, look for the White House to gradually reveal the building blocks of this deal that it will spin as a constitutional pardon.
(1) A formal report of allegations of impeachable offenses prepared by an independent counsel or Congressional hearings is not necessary to trigger an impeachment inquiry.
The White House believes that if it can prevent FISA hearings at Congress, it can avoid any findings that Bush violated the law, and therefore, it can avoid an impeachment inquiry. This theory that impeachment hearings can only be triggered by a presentment of findings to Congress or by Congress can be implied by the facts of the Clinton impeachment as it was the presentation of the Starr Report that some GOP claimed triggered their duty to commence an impeachment inquiry.
However, the GOP measure to commence the Clinton impeachment process was open-ended, and did not contain any requirement to “limit the issues formally — to the issues formally presented by the special prosecutor.” As GOP Rep. Robert Goodlatte explained, impeachment inquiries do not have to be based on presentment from independent counsel. The key is presentment of “credible evidence” from “other credible sources” to Congress.
Moreover, in the only other impeachment precedent, there was no investigative body that rendered a formal report to Congress. Rather, the impeachment inquiry was triggered after the President notified Congress that he had violated a law, similar to Bush’s admission that the leaked media story about his NSA program was true.
When the violation of law by the President is clear, such as when a President takes an action contrary to Congressional laws, even if that law is ultimately held by the US Supreme Court to be unconstitutional, Congress’ duty of an impeachment inquiry may be triggered by the President informing Congress of his action which violated the law. President Andrew Johnson was impeached for overt obstruction of Congress in facts similar to President Bush’s violation of FISA. In the case of President Andrew Johnson, Congress passed a law called the “Tenure of Office Act” over President Johnson’s veto. This law removed the President’s power to remove Cabinet members at will, requiring members to remain in office until a successor was appointed and confirmed by the Senate. President Johnson notified Congress that he had removed and replaced the Secretary of War, which violated the Tenure of Office Act. Three days after the Secretary’s removal, Congress responded by commencing impeachment against President Johnson for intentionally violating the Tenure of Office Act.
(2) According to the GOP, as stated in the transcript of the House debate on whether to launch an impeachment inquiry of President Clinton, Congress has a duty to commence an inquiry to determine whether a president has committed impeachable offenses when it is presented facts that satisfy one of these standards: “Substantial and credible evidence,” facts strongly suggestive of wrongdoing, or “potential lawbreaking.”
Congress has a “duty, duty, duty” to “vindicate the rule of law” by beginning a “search for the truth.” The existence of “substantial and credible evidence” of “impeachable offenses” triggers this constitutionally mandated duty. (GOP Rep. Henry Hyde) When “serious and credible allegations are raised against any president,” it is Congress’ “legal obligation to “determine whether such conduct violated that president’s obligation to faithfully execute the law.” (GOP Rep. James Rogan)
The lawmakers’ “constitutional duty” to proceed with a formal inquiry may also be triggered when the evidence “strongly suggests wrongdoing by the president.” (GOP Rep. Steve Chabot)
Finally, GOP Rep. Tom DeLay says Congress has a duty to proceed with an impeachment inquiry when facts indicate a “potential lawbreaking” by the President.
In the NSA case, there is virtual agreement that Bush violated the law under any of these 3 GOP standards.
(3) If Congress does not start an impeachment inquiry after presented with facts that satisfy one of these 3 standards, then Congress will be breaching its own constitutionally imposed duties.
As Tom DeLay stated, “closing our eyes to allegations of wrongdoing by voting no or by limiting scope or time constitutes a breach of our responsibilities as members of this House. So let history judge us as having done our duty to uphold that sacred rule of law.”
(4) After Congress is presented with facts that satisfy the evidentiary standard, Congress does not have the discretion to pursue a remedy other than impeachment.
When Congress is presented with facts that satisfy one of the three standards which trigger an impeachment inquiry, Congress does not have the discretion to “concoct” their “own ideas on how to proceed.” If Congress does decide to ignore the rule of law and “concoct” a different remedy other than impeachment inquiry, then Congress would itself be suspending or ignoring the rule of law.
As stated by GOP Rep. Asa Hutchinson:
“Each of us took a simple oath to uphold the Constitution of the United States. The Constitution provides a path to follow in these circumstances. The path may not be well-worn, but it is well-marked. And we would be wise to follow it rather than to concoct our own ideas on how to proceed.”
“The president and his lawyers have denied each of these charges as is his right to do. Our response should be that we need to examine these facts to determine the truth and to weigh the evidence. And it is our highest duty today to vote for this inquiry so that if the result is there are no impeachable offenses we can move on, but if there is more to be done, then we can assure that the rule of law will not be suspended or ignored by this Congress.”
Despite this pronouncement of the appropriate process, Congress is now suspending the rule of law by negotiating the FISA deal with the White House.
(5) Lincoln Ratification and Pardon: Can Congress retroactively validate Bush’s violation of FISA?
The White House has agreed to make a deal with Congress to “fix” FISA and this deal is designed to eliminate the need for a Congressional inquiry into Bush’s illegal NSA spying of Americans. So far, the GOP is considering two options. Under the Specter plan, Congress would enact a law to subject Bush’s NSA program to the FISA court. This is a particularly innovative plan considering that Bush’s NSA spying is already subject to the FISA court under the existing FISA law, but Bush just did not comply with the law. The second GOP proposal is the DeWine plan to exempt Bush’s illegal NSA spying from the FISA law.
What the White House does not want the public to realize is that this deal is not a mere technicality to “fix” FISA, but an action to retroactively validate Bush’s illegal NSA spying. The White House also doesn’t want the public to realize that this deal has a name, and it is called Lincoln ratification. During the Civil War, President Lincoln usurped Congressional functions, just as Bush usurped both Congressional and judicial functions with the NSA spying. Under Lincoln Ratification, the corrective measure was President Lincoln asking Congress to ratify and confirm his acts, which Congress promptly did. However, the key elements of Lincoln’s ratification were that Lincoln took emergency actions when Congress was not in session and these actions were consistent with congressional powers in the Constitution.
However, public debate over application of the Lincoln Ratification to the Bush case would real that it is not applicable to the NSA scandal. Bush did not issue his executive order to approve the warrantless wiretapping during an emergency that was not covered by the FISA law. Congress was in session so Bush could have pursued the FISA remedy of seeking an amendment to FISA to cover his NSA spying. Moreover, Bush’s actions were not consistent with congressional powers in the Constitution which is why the White House is now seeking a new law to cover the NSA program.
Moreover, when the distinguishing facts of the Lincoln ratification are stripped away, the public would see that the essence of the White House deal is Congressional forgiveness of Bush’s illegal acts and removal of any penalty. In short, Bush is asking Congress to give him a pardon. This word won’t be tossed about now in relation to this deal, but down the road, and particularly if the GOP lose control of Congress in the midterm elections, Bush will need a get-out-of-impeachment card as the one limitation on executive pardons is they cannot be issued in cases of impeachment. So, the White House obtains a Lincoln Ratification in hopes of retroactively validating his illegal actions to avoid impeachment. If shown that the deal did not constitute a valid Lincoln Ratification, the White House can argue that it constituted a congressional pardon. Given that Congress does not have pardon powers would this pardon be constitutional? The president has virtually unlimited pardon powers that Congress may not restrict. Question is whether a president can agree to impose his own restriction by allowing Congress to exercise the pardon power under limited terms in one case agreed to by the president.