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Thursday, June 09, 2005

But what about murder?!

Salon.com today has a long piece occasioned by Ralph Nader's assertion that the so-called "Downing Street Memo" should spark a debate on impeaching the President. I must say I was most underwhelmed when I actually read this memo that is being waved around like a smoking gun in some quarters. For a while after I read it, I thought I must have pulled up a different memo than the one people were talking about. Pretty much the only "smoking gun" is the one sentence that everyone excerpts, that "[T]he intelligence and facts were being fixed around the policy [of removing Saddam Hussein]." Now, to me that's pretty ambiguous, especially if you assume the British diplomat who wrote the memo was not using the most idiomatic/colloquial meaning of "fix." But I didn't mean to write much about that, so back to the piece in Salon.com.

They invited four constitutional scholars to write about the possibility of impeaching the President for things like "lying to the American people," etc. What I really wanted to note here is the amazing piece of argumentation put forth by Georgetown law professor Mark Tushnet. He says that impeachment is available for conduct that is not actually criminal, which is a point you would have to make if you wanted to impeach someone for "lying to the American people," etc. Here is the Tushnet argument:
"Mostly because we've been misled by our contemporary understanding of the words the Constitution uses to describe the preconditions for impeachment, having forgotten what those words meant when the Constitution was adopted. The Constitution says that the president and other civil officers, like the vice president and secretary of defense, can be impeached for treason, bribery or 'other high crimes and misdemeanors.'

"Today we think that these provisions refer only to criminal behavior. The House of Representatives impeached President Clinton because it concluded that he had perjured himself. (Technically, 'impeachment' refers to the decision by the House to submit a case to the Senate, where the impeachment charges are tried; if the Senate convicts, the person -- already impeached by the House -- is removed from office.) The constitutional dispute in the Clinton impeachment was over whether the reference to 'high crimes and misdemeanors' included all serious crimes, not whether a president could be impeached for non-criminal behavior.

"But, to the Founders, the answer to that question was obvious. The impeachment provisions referred to behavior that amounted to extraordinarily serious political misconduct -- selling out the country to a foreign nation (treason), selling out the national interest for private gain (bribery), and similar political misconduct. You can have arguments around the edges of the category -- could a president be impeached for murdering his wife's paramour? (Sure, because even though the misconduct is not in itself political, it demonstrates an inability to lead sufficiently serious to justify removal prior to the next election) -- but lying to the American people to gain support for a foreign adventure that they wouldn't otherwise endorse isn't even a close case."

So, he says today we think that "treason," "bribery," "crimes" and "misdemeanors" refer only to criminal behavior. I tend to agree. And who knows what they meant back in the day--Tushnet does not tell us. Instead he throws in, with no foundation or explanation, this concept of "political misconduct" and rebadges treason and bribery as "extraordinary political misconduct." So then of course the rest of the clause about "other high crimes and misdemeanors" must really be referring to "similar political misconduct." But isn't it simpler to observe that treason and bribery are types of criminal conduct and that "other high crimes and misdemeanors" might mean similar criminal conduct? That interpretation may or may not be valid based on the history of drafting and debating the Constitution (which Tushnet does not mention but which, I suppose, must be where he is getting this "political misconduct" idea), but seems more plausible on its face than Tushnet's seemingly tortured reading.

I adore how Tushnet jumps from asserting his point without offering any evidence right to handling the most obvious ("But what about murder?!") objection to his assertion: murder isn't an impeachable "high crime" becasue it is a criminal act, but because murder "demonstrates an inability to lead." And this in the midst of making a truly fabulous claim, that murder is a close question, an argument "around the edges," but "lying to the American people" is a slam-dunk for impeachment.

So, again, "other high crimes and misdemeanors" might not include murder but it does include "lying to the American people." And, moreover, this was obvious to the Founders.


posted at 1:43 PM

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