Has Bush Committed High Crimes And Misdemeanors?

by Joe Conason

Recklessly and audaciously, George W. Bush is driving the nation whose laws he swore to uphold into a constitutional crisis. He has claimed the powers of a medieval monarch and defied the other two branches of government to deny him. Eventually, despite his party's monopoly of power, he may force the nation to choose between his continuing degradation of basic national values and the terrible remedy of impeachment.

Until Bush openly proclaimed as commander in chief that he can brush aside the law, cries for impeachment were heard only on the political fringe, although most Americans have long since realized that he misled America into war. Much as he is disliked and disdained by liberals, even they have shown little enthusiasm for impeachment. In addition to the obvious obstacle of a Republican-controlled Congress, there appeared to be no firm proof of an offense that justified such action. To mention the word was to be dismissed -- even by people who believe that this president may well have committed "high crimes and misdemeanors."

The partisan peepshow of the Clinton impeachment did not leave much enthusiasm for that process. Nor would any thoughtful citizen want to risk abusing it in the manner made infamous by Newt Gingrich and Tom DeLay.

For responsible citizens, the reluctance to seek the ultimate sanction against the president is especially strong in a time of peril. He and his supporters could argue, quite plausibly, that to impeach him now would be dangerous and destabilizing. His pet pundits and flacks would deploy all the defensive arguments they scorned in 1999.

He might well be able to rally the public to his side again by denouncing "politicians in Washington" for "undermining national security."

So as political strategy and public policy, impeachment is an unappealing prospect. (And who would want Dick Cheney to succeed him?) Yet the actions and attitudes of this president raise the question of how else we can preserve the bedrock principles of a democratic republic.

Dark suspicions would be aroused by Bush's insistence on his supposed wartime exemption from the law even if he had greater credibility than he now possesses. Hearing a leader with his diminished reputation for honesty announcing such claims, as he seeks to regain authority by promoting fear, it is impossible not to imagine the worst.

The president says that if he is to protect the nation from our enemies, he must be able to order the surveillance of American citizens without seeking the authority of a court. He has repeatedly violated the Foreign Intelligence Surveillance Act of 1978, which provides very few safeguards of traditional civil liberties. He disdains a law that permits him to order the immediate electronic monitoring of anyone, requiring only that his officers seek a warrant within 72 hours from a secret court that approves those requests in almost every case and never hears an opposing brief. He claims that even those minimal restraints are too onerous.

Why would the president instruct the attorney general not to seek warrants from the FISA court, as the statute requires? What did he and his aides fear from that court's judges -- appointed by the late Chief Justice William Rehnquist -- who have approved all but a tiny percentage of the warrants presented to them? Which wiretaps did he expect them to reject?

The Bush doctrine of a president above the law and the Constitution has a dishonorable tradition that dates back to his father's idol, Richard Nixon. More recently, its pedigree derives from memoranda prepared by the same White House lawyers who have told Bush that he can tear up international treaties and American statutes that prohibit torture.

What has provoked fresh discussion of impeachment is his admission that he has ignored the law's requirements and intends to keep doing so. The impeccably conservative legal scholar Bruce Fein explained the deep implications of this arrogance:

"If President Bush is totally unapologetic and says, 'I continue to maintain that as a wartime president I can do anything I want -- I don't need to consult any other branches,' that is an impeachable offense. It's more dangerous than Clinton's lying under oath, because it jeopardizes our democratic dispensation and civil liberties for the ages."

There are politicians in both parties who know that Mr. Bush's trespasses cannot be allowed to stand. Only a bipartisan coalition can restrain and, if necessary, remove him. It is to be hoped that he steps back before such a struggle becomes inevitable.