Bill Moyers, Bruce Fein, John Nichols: Impeach President Bush?
Bill Moyers: Welcome to the Journal.
Impeachment...the word feared and loathed by every sitting president is back. It's in the air and on your computer screen, a growing clamor aimed at both President Bush and Vice-President Cheney.
This week's news only agitated the clamor. The president acknowledged that someone in his administration did leak the name of a CIA agent to the press, but he said let's move on - even as he refused to let his former White House counsel testify to Congress about political influence at the Justice Department.
So the talk in Washington was of executive arrogance. All the more so as the Democratic House voted to withdraw US troops from Iraq by next spring despite a threat of veto by President Bush. A public opinion poll from the American Research Group reports that more than four in ten Americans - 45 per cent-favor impeachment hearings for President Bush and more than half -54 per cent - favor putting Vice President Cheney in the dock.
Are these the first tremors of a major shock wave…or just much ado about nothing? First, let's take a look at the last time a president found himself fighting off an impeachment campaign. It happened less than a dozen years ago. And what was the issue:
President Bill Clinton: I did not have sexual relations with that woman, Miss Lewinsky...
Bill Moyers: But he did. And even after that denial in early 1998, President Clinton lied again seven months later - this time under oath to a federal grand jury. But that very evening he had a change of heart.
President Bill Clinton: "Indeed, I did have a relationship with Miss Lewinsky that was not appropriate. In fact, it was wrong….I know that my public comments and my silence about this matter gave a false impression. I misled people, including even my wife. I deeply regret that."
Bill Moyers: For one powerful Republican member of Congress, an apology wasn't enough. Tom Delay, then the majority whip of the House, convinced speaker Newt Gingrich and Republican leaders that Clinton's lie called for nothing less than removing the president from office - impeachment. Special prosecutor Kenneth Starr was commissioned to gather the evidence. Starr eventually sent 36 boxes of evidence to the capitol. They catalogued his investigation of Clinton's finances, a sexual harassment suit filed by Paula Jones and sting operations mounted by the prosecutor to uncover the details of the Lewinsky affair. Nearly 500 pages summarizing the report were quickly posted on the internet. For the next month, the house judiciary committee waded through the report. What the case meant depended largely on party affiliation. Democrats insisted it all came down to lying about sex.
Rep. Robert Wexler (D-FL): The president betrayed his wife ...he did not betray his country
Bill Moyers: Republicans, who controlled the House, argued it was about something more important.
Rep. Bill McCollum (R-FL): Truthfullness is the glue that holds our justice system together
Rep. Bob Barr (R-GA): With his conduct and his arrogance...William Jefferson Clinton has thrown a gauntlet at the feet of the Congress.
Rep. John Conyers Jr. (D-MI): This is not Watergate. This is an extramarital affair.
Rep. James Sensenbrenner (R-WI): Even the president of the United States does not have the license to lie.
Rep. Robert Wexler (D-FL): Wake up, America, they are about to impeach our president.
Bill Moyers: on october 5, 1998, the house judiciary committee authorized a full impeachment inquiry……only the third u.s. president in history to be seriously threatened with removal from office. The constitution says a president may be impeached for "treason, bribery or other high crimes and misdemeanors". Experts were called to interpret those words:
Leon Higginbotham Jr., Former US Appeals Court Judge: There has never been, never been an impeachment proceeding on this miniscule level...
Arthur Schlesinger, Jr., University of New York: All the independent counsel's charges thus far derive from the president's lies about his sex life. His attempts to hide personal misbehavior are certainly disgraceful. But if they are to be deemed impeachable, then we reject the standards laid down by the framers in the Constitution and trivialize the process of impeachment.
Prof. Alan Dershowitz, Harvard University: The only reason the majority of this committee cares about perjury is because they believe that President Clinton, their political opponent, is guilty of it.
Bill Moyers: The House Judiciary listened…and then drafted two articles of impeachment accusing Clinton of perjury…a third accusing him of obstruction of justice and yet a fourth, of making false statements. A week later, December 19, 1998, the full House met to consider the articles. They approved two of them…one for perjury…another for obstruction of justice. Republican leaders called for Clinton to resign. He didn't, and now it was the Senate's constitutional task to conduct the impeachment trial ordered by the House. The Senators met behind closed doors …and on Friday, February 12, 1999, the verdict was delivered to the chief justice of the Supreme Court.
Chief Justice William Rehnquist: Is not guilty as charged in the second article of impeachment.
President Clinton: I want to say again to the American people how profoundly sorry I am for what I said and did to trigger these events and the great burden they have imposed on the Congress and on the American people.
Bill Moyers: One of the fellows you're about to meet wrote the first article of impeachment against President Clinton. Bruce Fein did so because perjury is a legal crime. And Fein believed no one is above the law. A constitutional scholar, Bruce Fein served in the Justice Department during the Reagan administration and as general counsel of the Federal Communications Commission. Bruce Fein has been affiliated with conservative think tanks such as the American Enterprise Institute and the Heritage Foundation and now writes a weekly column for THE WASHINGTON TIMES and Politico.com.
He's joined by John Nichols, the Washington correspondent for THE NATION and an associate editor of the CAPITOL TIMES. Among his many books is this most recent one, THE GENIUS OF IMPEACHMENT: THE FOUNDERS' CURE FOR ROYALISM. Good to see you both. Bruce, you wrote that article of impeachment against Bill Clinton. Why did you think he should be impeached?
Bill Moyers: Bruce you wrote that article of impeachment against Bill Clinton. Why did you think he should be impeached?
Bruce Fein: I think he was setting a precedent that placed the president above the law. I did not believe that the initial perjury or misstatements - that came perhaps in a moment of embarrassment stemming from the Paula Jones lawsuit was justified impeachment if he apologized. Even his second perjury before the grand jury when Ken Starr's staff was questioning him, as long as he expressed repentance, would not have set an example of saying every man, if you're president, is entitled to be a law unto himself. I think Bush's crimes are a little bit different. I think they're a little bit more worrisome than Clinton's. You don't have to have -
Bill Moyers: More worrisome?
Bruce Fein: More worrisome than Clinton's - because he is seeking more institutionally to cripple checks and balances and the authority of Congress and the judiciary to superintend his assertions of power. He has claimed the authority to tell Congress they don't have any right to know what he's doing with relation to spying on American citizens, using that information in any way that he wants in contradiction to a federal statute called the Foreign Intelligence Surveillance Act. He's claimed authority to say he can kidnap people, throw them into dungeons abroad, dump them out into Siberia without any political or legal accountability. These are standards that are totally anathema to a democratic society devoted to the rule of law.
Bill Moyers: You're talking about terrifying power but this is a terrifying time. People are afraid of those people abroad who want to kill us. Do you think, in any way, that justifies the claims that Bruce just said Bush has made?
John Nichols: I think that the war on terror, as defined by our president, is perpetual war. And I think that he has acted precisely as Madison feared. He has taken powers unto himself that were never intended to be in the executive. And, frankly, that when an executive uses them, in the way that this president has, you actually undermine the process of uniting the country and really focusing the country on the issues that need to be dealt with. Let's be clear. If we had a president who was seeking to inspire us to take seriously the issues that are in play and to bring all the government together, he'd be consulting with Congress. He'd be working with Congress. And, frankly, Congress, through the system of checks and balances, would be preventing him from doing insane things like invading Iraq.
Bruce Fein: In the past, presidents like Abe Lincoln, who confronted a far dire emergency in the Civil War than today, sought congressional ratification approval of his emergency measures. He didn't seek to hide them from the people and from Congress and to prevent there to be accountability. And, of course, Congress did ratify what he had done. Secondly, sure, times can be terrifying. But that also should alert us to the fact that we can make mistakes. The executive can make mistakes.
Take World War II. We locked up 120,000 Japanese Americans, said they were all disloyal. Well, we got 120,000 mistakes. They lost their property. They lost their liberty for years and years because we made a huge mistake. And that can be true after 9/11 as well. No one wants other downgrade the fact that we have abominations out there and people want to kill us. But we should not inflate the danger and we should not cast aside what we are as a people. We can fight and defeat these individuals, these criminals, based upon our system of law and justice. It's not a - we have a fighting constitution. It's always worked in the past. But it still remains the constitution of checks of balances.
Bill Moyers: A fighting constitution -
Bruce Fein: It's a fighting constitution that enables us-
Bill Moyers: What do you mean?
Bruce Fein: That with the - with the consent of Congress and the president working hand in glove with consistent with due process of law, we have the authority to suspend habeas corpus in times of invasion or rebellion. It has enabled us to defeat all of our enemies consistent with the law.
Bill Moyers: Congress did not stand up to George Bush for five years when it was controlled by Republicans. And I don't see any strong evidence that the Democrats are playing the role that you think the Congress should be playing.
Bruce Fein: That is correct. But it doesn't exculpate the president that Congress has not sought immediately to sanctions his excesses.
Bruce Fein: - exactly right. And Bill, this could not happen if we had a Congress that was aggressive, if we had a Congress the likes of Watergate when Nixon was president and he tried to - obstruct justice and defeat the course of law. We have a Congress that basically is an invertebrate.
Bill Moyers: But why is Congress supine?
John Nichols: They are supine for two reasons. One, they are politicians who do not - quite know how to handle the moment. And they know that something very bad happened on September 11th, 2001, now five years ago, six years ago. And they don't know how to respond to it. Whereas Bush and Karl Rove have responded in a supremely political manner to it and, frankly, jumped around them. That's one part of the problem.
Bill Moyers: Jumped around Congress?
John Nichols: Jumped around Congress at every turn. I mean, they don't even tell them, they don't consult with them. They clearly have no regard for the checks and balances. But the other thing that's - in play here - and I think this is a - much deeper problem. I think the members of our Congress have no understanding of the Constitution. And as a result, they - don't understand their critical role in the governance of the country.
They - it - when the Republicans are in charge, they see their job as challenging - or as supporting the president in whatever he does, defending him, making it possible for him to do whatever he wants. When the Democrats are in charge, they seem to see their role as trying to score political points as opposed to what ought to be sort of a - common ground of -
Bill Moyers: - because the fact of the matter is approaching an - election year, you don't really think, do you, that the Democrats want to experience a backlash by taking on a Republican president in an election-
John Nichols: Well, it -
Bill Moyers: - or that the Republicans want to impeach an administration that they elected in 2000 and reelected in 2004? There is a political element here, right?
Bruce Fein: There's always going to be a political element, Bill. But in the past, there's always been a few statesmen who have said, "You know, the political fallout doesn't concern me as much as the Constitution of the United States." We have to keep that undefiled throughout posterity 'cause if it's not us, it will corrode. It will disappear on the installment plan. And that has been true in the past. When we had during Watergate Republicans and remember Barry Goldwater, Mr. Republican, who approached the president and said, "You've got to resign." There have always been that cream who said the country is more important than my party. We don't have that anymore.
Bill Moyers: It seems to me the country is ahead of Congress on this. How do you explain all this talk about impeachment today out across the country?
John Nichols: People don't want to let this go. They do not accept Nancy Pelosi's argument that impeachment is, quote/unquote, off the table. Because I guess maybe they're glad she didn't take some other part of the Constitution off the table like freedom of speech. But they also don't accept the argument that, oh, well, there's a presidential campaign going on. So let's just hold our breath till Bush and Cheney get done.
When I go out across America, what I hear is something that's really very refreshing and very hopeful about this country. An awfully lot of Americans understand what Thomas Jefferson understood. And that is that the election of a president does not make him a king for four years. That if a president sins against the Constitution - and does damage to the republic, the people have a right in an organic process to demand of their House of Representatives, the branch of government closest to the people, that it act to remove that president. And I think that sentiment is afoot in the land.
Bill Moyers: This is the first time I've heard talk of impeaching both a president and a vice-president. I mean, this - as you saw in that poll, more people want to impeach Dick Cheney than George Bush. What's going on?
Bruce Fein: Well, this is an unusual affair of president/vice-president, where the vice-president is de facto president most of the time. And that's why most of people recognize that these decisions, especially when it comes to overreaching with executive power, are the product of Dick Cheney and his aide, David Addington, not George Bush and Alberto Gonzalez or Harriet Miers, who don't have the cerebral capacity to think of these devilish ideas. And for that reason, they equate the administration more with Dick Cheney than with George Bush.
Bill Moyers: Bruce, you talk about overreaching. What, in practical terms, do you mean by that?
Bruce Fein: It means asserting powers and claiming that there are no other branches that have the authority to question it. Take, for instance, the assertion that he's made that when he is out to collect foreign intelligence, no other branch can tell him what to do. That means he can intercept your e-mails, your phone calls, open your regular mail, he can break and enter your home. He can even kidnap you, claiming I am seeking foreign intelligence and there's no other branch Congress can't say it's illegal - judges can't say this is illegal. I can do anything I want. That is overreaching. When he says that all of the world, all of the United States is a military battlefield because Osama bin Laden says he wants to kill us there, and I can then use the military to go into your homes and kill anyone there who I think is al-Qaeda or drop a rocket, that is overreaching. That is a claim even King George III didn't make -
Bruce Fein: - at the time of the Revolution.
John Nichols: Can I - can I -
Bruce Fein: That is clearly overreaching.
John Nichols: Let me keep us on Cheney for a second here, because that is -
Bill Moyers: You think Cheney should be subject to impeachment hearings?
John Nichols: Without a doubt. Cheney is, for all practical purposes, the foreign policy president of the United States. There are many domestic policies in which George Bush really is the dominant player. But on foreign policy Dick Cheney has been calling the shots for six years and he continues to call the shots. Remember back in 2000, in the presidential debates, George Bush said America should be a humble country in the world, shouldn't go about nation building. And Dick Cheney, in the vice-presidential debate, spent eight minutes talking about Iraq.
Now the fact of the matter is that on foreign policy, Dick Cheney believes that the executive branch should be supreme. He said this back to the days when he was in the House during Iran-Contra. He wrote the minority report saying Congress shouldn't sanction the president in any way, President Reagan.
Bill Moyers: And he's always taken an expansive -
John Nichols: Right.
Bill Moyers: - view of presidential power.
John Nichols: And put these pieces together. If Cheney believes in this expansive power. You've got a - unique crisis, a unique problem because the vice-president of the United States believes that Congress shouldn't even be a part of the foreign policy debate. And he is setting the foreign policy. I mean -
Bill Moyers: I served a president who went to war on his own initiative, and it was a mess, Vietnam, Lyndon Johnson. There wasn't serious talk about impeaching Lyndon Johnson or Hubert Humphrey. Something is different today.
Bruce Fein: Yeah, of course, the - difference is one thing to claim that, you know, Gulf of Tonkin resolution, was too broadly drafted. But we're talking about assertions of power that affect the individual liberties of every American citizen. Opening your mail, your e-mails, your phone calls. Breaking and entering your homes. Creating a pall of fear and intimidation if you say anything against the president you may find retaliation very quickly. We're claiming he's setting precedents that will lie around like loaded weapons anytime there's another 9/11.
Right now the victims are people whose names most Americans can't pronounce. And that's why they're not so concerned. They will start being Browns and Jones and Smiths. And that precedent is being set right now. And one of the dangers that I see is it's not just President Bush but the presidential candidates for 2008 aren't standing up and saying -
Bruce Fein: - "If I'm president, I won't imitate George Bush." That shows me that this is a far deeper problem than Mr. Bush and Cheney.
Bill Moyers: That struck me about your writings and your book. You say your great - your great fear is that Bush and Cheney will hand off to their successors a toolbox that they will not avoid using.
John Nichols: Well, let's try a metaphor. Let's say that - when George Washington chopped down the cherry tree, he used the wood to make a little box. And in that box the president puts his powers. We've taken things out. We've put things in over the years.
On January 20th, 2009, if George Bush and Dick Cheney are not appropriately held to account this administration will hand off a toolbox with more powers than any president has ever had, more powers than the founders could have imagined. And that box may be handed to Hillary Clinton or it may be handed to Mitt Romney or Barack Obama or someone else. But whoever gets it, one of the things we know about power is that people don't give away the tools. They don't give them up. The only way we take tools out of that box is if we sanction George Bush and Dick Cheney now and say the next president cannot govern as these men have.
Bruce Fein: Well, that's accurate but also we do find this peculiarity that Congress is giving up powers voluntarily. because there's nothing right now, Bill, that would prevent Congress from the immediate shutting down all of George Bush's and Dick Cheney's illegal programs. Simply saying there's no money to collect foreign intelligence-
Bill Moyers: The power of the purse-
Bruce Fein: - the power of the purse. That is an absolute power. And yet Congress shies from it. It was utilized during the Vietnam War, you may recall, in 1973. Congress said there's no money to go and extend the war into Laos and Cambodia. And even President Nixon said okay. This was a president who at one time said, "If I do it, it's legal." So that it we do find Congress yielding the power to the executive branch. It's the very puzzle that the founding fathers would have been stunned at. They worried most over the legislative branch in, you know, usurping powers of the other branches. And -
Bill Moyers: Well, what you just said indicts the Congress more than you're indicting George Bush and Dick Cheney.
Bruce Fein: In some sense, yes, because the founding fathers expected an executive to try to overreach and expected the executive would be hampered and curtailed by the legislative branch. And you're right. They have basically renounced - walked away from their responsibility to oversee and check. It's not an option. It's an obligation when they take that oath to faithfully uphold and defend the Constitution of the United States. And I think the reason why this is. They do not have convictions about the importance of the Constitution. It's what in politics you would call the scientific method of discovering political truths and of preventing excesses because you require through the processes of review and vetting one individual's perception to be checked and - counterbalanced by another's. And when you abandon that process, you abandon the ship of state basically and it's going to capsize.
John Nichols: Can I mention another branch of government?
Bill Moyers: Yeah, sure.
John Nichols: Let me mention the unspoken branch of government, which is the fourth estate: The media. The fact of the matter is the founders anticipated that presidents would overreach. And they anticipated that at times politics would cause Congress to be a weaker player or a dysfunctional player. But they always assumed that the press would alert the people, that the press would tell the people. And the fact of the matter is I think that our media in the last few years has done an absolutely miserable job of highlighting the constitutional issues that are in play. You know, you can't have torture and extraordinary rendition. You cannot have spying. You cannot have a - lying to Congress. You cannot have what happened to Joe Wilson and Valerie Plame, you know?
Bill Moyers: When she was outed and they tried to punish -
John Nichols: Plotted out of the vice-president's office without question. Notations of the vice-president on news articles saying, "Let's go get this guy." Right? You know, you can't have that and not have a media going and saying to the president at press conferences, you know, "Aren't - isn't what you're doing a violation of the Constitution?" Now, just imagine if the - if the members of the White House Press Corps on a regular basis were saying to Tony Snow, "But hasn't what the president's done here violated the Constitution?" The whole national dialogue would shift. And Congress itself would suddenly become a better player. So I'm not absolving Congress. I'm certainly not absolving Bush and Cheney. But I am saying that we have a media problem here as well.
Bruce Fein: Let me underscore one of the things that you remember, Bill, 'cause I was there at the time of Watergate. And this relates to one political - official in the White House, Sara Taylor's testimony. And claiming that George Bush could tell her to be silent.
Bill Moyers: That was a great moment when Sara Taylor said, "I took an oath to uphold the president." Did you see that?
Bruce Fein: Yes. And that was like the military in Germany saying, "My oath is to the Fuhrer, not to the country." She took an oath to uphold the Constitution of the United States. I did, too, when I was in the government. There's no oath that says, "I'm loyal to a president even if he defiles the Constitution."
John Nichols: Ever.
Bill Moyers: Just this week Harriet Miers, the president's former counsel, did not show up to testify before the congressional hearing. What do you make of that in regard to this issue of power?
Bruce Fein: Well, it shows how far we've come from even the mon - monarchical days of Richard Nixon where he didn't have the audacity to tell John Dean, "No, you can't testify before the Watergate committee about conversations you had with me about obstructing justice or otherwise."
Bill Moyers: John Dean was his counsel -
Bruce Fein: White House counsel -
Bill Moyers: - just as Harriet Miers -
Bruce Fein: - is to President Bush. Yes.
Bill Moyers: And Nixon said to Dean, "You must go up there and testify"?
Bruce Fein: No. He didn't attempt to impose any objection at all. And Dean, of course, broke the Watergate story that led to Nixon's impeachment and the House's judiciary committee -
Bill Moyers: And look what -
Bruce Fein: - and resignation. And now we have a comparable situation where a Harriet Miers could perhaps expose things regarding President - Bush's knowledge of the electronic surveillance program or the firing of U.S. attorneys, which seems to contradict what Alberto Gonzalez has said about White House involvement. And yet President Bush is saying, "You can't talk, Harriet Miers, because I don't want any of that political or legal embarrassment." And unlike John Dean who brought the Constitution forward with his testimony, Harriet Miers still is silent.
Bill Moyers: And you would put that in the bill of particular about impeachment?
Bruce Fein: Certainly with regard to the one example of the abuse of presidential authority, seeking to obstruct a legitimate congressional investigation by a preposterous assertion of executive privilege. Remember, in a democracy, in - under the Constitution, transparency and sunshine is the rule. The exception is only for matters of grave national security secrets. That certainly doesn't apply here.
Bill Moyers: How does the Scooter Libby affair play into this? Do you think that people - I mean, how did the Scooter Libby thing play into this? People seem really angry about this. And this is, to me, where the tipping point came.
John Nichols: If it wasn't for the president's commutation of Scooter Libby's sentence, we would not be sitting at this table and talking right now.
Bill Moyers: About impeachment?
John Nichols: About impeachment. That sentence opened up a dialogue in this country and even in Congress. A number of members of Congress stepped up and signed on to Dennis Kucinich's articles of impeachment against Vice-president Cheney after the Scooter Libby commutation.
John Nichols: We're talking tonight because of the Scooter Libby affair. And -
Bill Moyers: You mean the impeachment -
John Nichols: You - we're at this table because the fact of the matter is that impeachment has moved well up the list of things we can talk about because of the Scooter Libby affair. Now, should it be the - one that tipped it? I think Bruce and I would probably both agree no. There are probably more important issues. But the Scooter Libby affair gets to the heart of what I think an awfully lot of Americans are concerned about with this administration and with the executive branch in - general, that it is lawless, that - it can rewrite the rules for itself, that it can protect itself.
And, you know, the founders anticipated just such a moment. If you look at the discussions in the Federalist Papers but also at the Constitutional Convention, when they spoke about impeachment, one of the things that Madison and George Mason spoke about was the notion that you needed the power to impeach particularly as regards to pardons and commutations because a president might try to take the burden of the law off members of his administration to prevent them from cooperating with Congress in order to expose wrongdoings by the president himself. And so Madison said that is why we must have the power to impeach. Because otherwise a president might be able to use his authority and pardons and such to prevent an investigation from getting to him.
Bill Moyers: Are you suggesting that Libby had the goods on Cheney and Bush?
John Nichols: I think the bottom line is Scooter Libby was involved in conversations that, frankly, if those conversations were brought up, the American people would be very helpful to our discourse about whether we entered this war illegally and whether we've continued this war in ways which we never should have.
Bruce Fein: I think the spark against the Libby commutation is a little bit different focus. I think it's less on the idea he's covering up for Cheney or Bush than the indication that Bush is totally heedless of any honor for law and accountability. That he has special rules for him and his cabinet. You may recall at the outset of the investigation he said, "Anybody in my office who is responsible for this leak will not work for me." Karl Rove was shown to leak and Karl Rove was still sitting in the White House. And he says, "Well, he will issue a commutation here." But he's not issued commutations in similar circumstances to anybody else.
Moreover, the perjury of the obstruction of justice of Libby is a carbon copy of Clinton, which Republicans, including me, supported. That's why I said you've got to give a stiff sentence here. How can you say that Clinton's deserves impeachment and here you're communing someone who did the same thing. And it's that sort of outrage that this is now a sneering attitude towards everybody else. "I am king. You play by other people's rules, but as long as I am in the White House, I get to play by my rules." That is something that-
Bruce Fein: - offends everybody.
Bill Moyers: Sneering is not an impeachable offense.
Bruce Fein: Screening in isolation is not but this is combined with all of the other things he's done outside the law. The intelligence gathering, the enemy combatant status, the kidnappings in - dungeons abroad, all in secret and never disclosing anything to Congress or the American people. Indeed, we couldn't even be discussing some of these issues here like the foreign intelligence collection program if it weren't leaked to the New York Times. If he had his way, this would be secret forever....
Read entire article at Bill Moyers Journal (PBS)
Impeachment...the word feared and loathed by every sitting president is back. It's in the air and on your computer screen, a growing clamor aimed at both President Bush and Vice-President Cheney.
This week's news only agitated the clamor. The president acknowledged that someone in his administration did leak the name of a CIA agent to the press, but he said let's move on - even as he refused to let his former White House counsel testify to Congress about political influence at the Justice Department.
So the talk in Washington was of executive arrogance. All the more so as the Democratic House voted to withdraw US troops from Iraq by next spring despite a threat of veto by President Bush. A public opinion poll from the American Research Group reports that more than four in ten Americans - 45 per cent-favor impeachment hearings for President Bush and more than half -54 per cent - favor putting Vice President Cheney in the dock.
Are these the first tremors of a major shock wave…or just much ado about nothing? First, let's take a look at the last time a president found himself fighting off an impeachment campaign. It happened less than a dozen years ago. And what was the issue:
President Bill Clinton: I did not have sexual relations with that woman, Miss Lewinsky...
Bill Moyers: But he did. And even after that denial in early 1998, President Clinton lied again seven months later - this time under oath to a federal grand jury. But that very evening he had a change of heart.
President Bill Clinton: "Indeed, I did have a relationship with Miss Lewinsky that was not appropriate. In fact, it was wrong….I know that my public comments and my silence about this matter gave a false impression. I misled people, including even my wife. I deeply regret that."
Bill Moyers: For one powerful Republican member of Congress, an apology wasn't enough. Tom Delay, then the majority whip of the House, convinced speaker Newt Gingrich and Republican leaders that Clinton's lie called for nothing less than removing the president from office - impeachment. Special prosecutor Kenneth Starr was commissioned to gather the evidence. Starr eventually sent 36 boxes of evidence to the capitol. They catalogued his investigation of Clinton's finances, a sexual harassment suit filed by Paula Jones and sting operations mounted by the prosecutor to uncover the details of the Lewinsky affair. Nearly 500 pages summarizing the report were quickly posted on the internet. For the next month, the house judiciary committee waded through the report. What the case meant depended largely on party affiliation. Democrats insisted it all came down to lying about sex.
Rep. Robert Wexler (D-FL): The president betrayed his wife ...he did not betray his country
Bill Moyers: Republicans, who controlled the House, argued it was about something more important.
Rep. Bill McCollum (R-FL): Truthfullness is the glue that holds our justice system together
Rep. Bob Barr (R-GA): With his conduct and his arrogance...William Jefferson Clinton has thrown a gauntlet at the feet of the Congress.
Rep. John Conyers Jr. (D-MI): This is not Watergate. This is an extramarital affair.
Rep. James Sensenbrenner (R-WI): Even the president of the United States does not have the license to lie.
Rep. Robert Wexler (D-FL): Wake up, America, they are about to impeach our president.
Bill Moyers: on october 5, 1998, the house judiciary committee authorized a full impeachment inquiry……only the third u.s. president in history to be seriously threatened with removal from office. The constitution says a president may be impeached for "treason, bribery or other high crimes and misdemeanors". Experts were called to interpret those words:
Leon Higginbotham Jr., Former US Appeals Court Judge: There has never been, never been an impeachment proceeding on this miniscule level...
Arthur Schlesinger, Jr., University of New York: All the independent counsel's charges thus far derive from the president's lies about his sex life. His attempts to hide personal misbehavior are certainly disgraceful. But if they are to be deemed impeachable, then we reject the standards laid down by the framers in the Constitution and trivialize the process of impeachment.
Prof. Alan Dershowitz, Harvard University: The only reason the majority of this committee cares about perjury is because they believe that President Clinton, their political opponent, is guilty of it.
Bill Moyers: The House Judiciary listened…and then drafted two articles of impeachment accusing Clinton of perjury…a third accusing him of obstruction of justice and yet a fourth, of making false statements. A week later, December 19, 1998, the full House met to consider the articles. They approved two of them…one for perjury…another for obstruction of justice. Republican leaders called for Clinton to resign. He didn't, and now it was the Senate's constitutional task to conduct the impeachment trial ordered by the House. The Senators met behind closed doors …and on Friday, February 12, 1999, the verdict was delivered to the chief justice of the Supreme Court.
Chief Justice William Rehnquist: Is not guilty as charged in the second article of impeachment.
President Clinton: I want to say again to the American people how profoundly sorry I am for what I said and did to trigger these events and the great burden they have imposed on the Congress and on the American people.
Bill Moyers: One of the fellows you're about to meet wrote the first article of impeachment against President Clinton. Bruce Fein did so because perjury is a legal crime. And Fein believed no one is above the law. A constitutional scholar, Bruce Fein served in the Justice Department during the Reagan administration and as general counsel of the Federal Communications Commission. Bruce Fein has been affiliated with conservative think tanks such as the American Enterprise Institute and the Heritage Foundation and now writes a weekly column for THE WASHINGTON TIMES and Politico.com.
He's joined by John Nichols, the Washington correspondent for THE NATION and an associate editor of the CAPITOL TIMES. Among his many books is this most recent one, THE GENIUS OF IMPEACHMENT: THE FOUNDERS' CURE FOR ROYALISM. Good to see you both. Bruce, you wrote that article of impeachment against Bill Clinton. Why did you think he should be impeached?
Bill Moyers: Bruce you wrote that article of impeachment against Bill Clinton. Why did you think he should be impeached?
Bruce Fein: I think he was setting a precedent that placed the president above the law. I did not believe that the initial perjury or misstatements - that came perhaps in a moment of embarrassment stemming from the Paula Jones lawsuit was justified impeachment if he apologized. Even his second perjury before the grand jury when Ken Starr's staff was questioning him, as long as he expressed repentance, would not have set an example of saying every man, if you're president, is entitled to be a law unto himself. I think Bush's crimes are a little bit different. I think they're a little bit more worrisome than Clinton's. You don't have to have -
Bill Moyers: More worrisome?
Bruce Fein: More worrisome than Clinton's - because he is seeking more institutionally to cripple checks and balances and the authority of Congress and the judiciary to superintend his assertions of power. He has claimed the authority to tell Congress they don't have any right to know what he's doing with relation to spying on American citizens, using that information in any way that he wants in contradiction to a federal statute called the Foreign Intelligence Surveillance Act. He's claimed authority to say he can kidnap people, throw them into dungeons abroad, dump them out into Siberia without any political or legal accountability. These are standards that are totally anathema to a democratic society devoted to the rule of law.
Bill Moyers: You're talking about terrifying power but this is a terrifying time. People are afraid of those people abroad who want to kill us. Do you think, in any way, that justifies the claims that Bruce just said Bush has made?
John Nichols: I think that the war on terror, as defined by our president, is perpetual war. And I think that he has acted precisely as Madison feared. He has taken powers unto himself that were never intended to be in the executive. And, frankly, that when an executive uses them, in the way that this president has, you actually undermine the process of uniting the country and really focusing the country on the issues that need to be dealt with. Let's be clear. If we had a president who was seeking to inspire us to take seriously the issues that are in play and to bring all the government together, he'd be consulting with Congress. He'd be working with Congress. And, frankly, Congress, through the system of checks and balances, would be preventing him from doing insane things like invading Iraq.
Bruce Fein: In the past, presidents like Abe Lincoln, who confronted a far dire emergency in the Civil War than today, sought congressional ratification approval of his emergency measures. He didn't seek to hide them from the people and from Congress and to prevent there to be accountability. And, of course, Congress did ratify what he had done. Secondly, sure, times can be terrifying. But that also should alert us to the fact that we can make mistakes. The executive can make mistakes.
Take World War II. We locked up 120,000 Japanese Americans, said they were all disloyal. Well, we got 120,000 mistakes. They lost their property. They lost their liberty for years and years because we made a huge mistake. And that can be true after 9/11 as well. No one wants other downgrade the fact that we have abominations out there and people want to kill us. But we should not inflate the danger and we should not cast aside what we are as a people. We can fight and defeat these individuals, these criminals, based upon our system of law and justice. It's not a - we have a fighting constitution. It's always worked in the past. But it still remains the constitution of checks of balances.
Bill Moyers: A fighting constitution -
Bruce Fein: It's a fighting constitution that enables us-
Bill Moyers: What do you mean?
Bruce Fein: That with the - with the consent of Congress and the president working hand in glove with consistent with due process of law, we have the authority to suspend habeas corpus in times of invasion or rebellion. It has enabled us to defeat all of our enemies consistent with the law.
Bill Moyers: Congress did not stand up to George Bush for five years when it was controlled by Republicans. And I don't see any strong evidence that the Democrats are playing the role that you think the Congress should be playing.
Bruce Fein: That is correct. But it doesn't exculpate the president that Congress has not sought immediately to sanctions his excesses.
Bruce Fein: - exactly right. And Bill, this could not happen if we had a Congress that was aggressive, if we had a Congress the likes of Watergate when Nixon was president and he tried to - obstruct justice and defeat the course of law. We have a Congress that basically is an invertebrate.
Bill Moyers: But why is Congress supine?
John Nichols: They are supine for two reasons. One, they are politicians who do not - quite know how to handle the moment. And they know that something very bad happened on September 11th, 2001, now five years ago, six years ago. And they don't know how to respond to it. Whereas Bush and Karl Rove have responded in a supremely political manner to it and, frankly, jumped around them. That's one part of the problem.
Bill Moyers: Jumped around Congress?
John Nichols: Jumped around Congress at every turn. I mean, they don't even tell them, they don't consult with them. They clearly have no regard for the checks and balances. But the other thing that's - in play here - and I think this is a - much deeper problem. I think the members of our Congress have no understanding of the Constitution. And as a result, they - don't understand their critical role in the governance of the country.
They - it - when the Republicans are in charge, they see their job as challenging - or as supporting the president in whatever he does, defending him, making it possible for him to do whatever he wants. When the Democrats are in charge, they seem to see their role as trying to score political points as opposed to what ought to be sort of a - common ground of -
Bill Moyers: - because the fact of the matter is approaching an - election year, you don't really think, do you, that the Democrats want to experience a backlash by taking on a Republican president in an election-
John Nichols: Well, it -
Bill Moyers: - or that the Republicans want to impeach an administration that they elected in 2000 and reelected in 2004? There is a political element here, right?
Bruce Fein: There's always going to be a political element, Bill. But in the past, there's always been a few statesmen who have said, "You know, the political fallout doesn't concern me as much as the Constitution of the United States." We have to keep that undefiled throughout posterity 'cause if it's not us, it will corrode. It will disappear on the installment plan. And that has been true in the past. When we had during Watergate Republicans and remember Barry Goldwater, Mr. Republican, who approached the president and said, "You've got to resign." There have always been that cream who said the country is more important than my party. We don't have that anymore.
Bill Moyers: It seems to me the country is ahead of Congress on this. How do you explain all this talk about impeachment today out across the country?
John Nichols: People don't want to let this go. They do not accept Nancy Pelosi's argument that impeachment is, quote/unquote, off the table. Because I guess maybe they're glad she didn't take some other part of the Constitution off the table like freedom of speech. But they also don't accept the argument that, oh, well, there's a presidential campaign going on. So let's just hold our breath till Bush and Cheney get done.
When I go out across America, what I hear is something that's really very refreshing and very hopeful about this country. An awfully lot of Americans understand what Thomas Jefferson understood. And that is that the election of a president does not make him a king for four years. That if a president sins against the Constitution - and does damage to the republic, the people have a right in an organic process to demand of their House of Representatives, the branch of government closest to the people, that it act to remove that president. And I think that sentiment is afoot in the land.
Bill Moyers: This is the first time I've heard talk of impeaching both a president and a vice-president. I mean, this - as you saw in that poll, more people want to impeach Dick Cheney than George Bush. What's going on?
Bruce Fein: Well, this is an unusual affair of president/vice-president, where the vice-president is de facto president most of the time. And that's why most of people recognize that these decisions, especially when it comes to overreaching with executive power, are the product of Dick Cheney and his aide, David Addington, not George Bush and Alberto Gonzalez or Harriet Miers, who don't have the cerebral capacity to think of these devilish ideas. And for that reason, they equate the administration more with Dick Cheney than with George Bush.
Bill Moyers: Bruce, you talk about overreaching. What, in practical terms, do you mean by that?
Bruce Fein: It means asserting powers and claiming that there are no other branches that have the authority to question it. Take, for instance, the assertion that he's made that when he is out to collect foreign intelligence, no other branch can tell him what to do. That means he can intercept your e-mails, your phone calls, open your regular mail, he can break and enter your home. He can even kidnap you, claiming I am seeking foreign intelligence and there's no other branch Congress can't say it's illegal - judges can't say this is illegal. I can do anything I want. That is overreaching. When he says that all of the world, all of the United States is a military battlefield because Osama bin Laden says he wants to kill us there, and I can then use the military to go into your homes and kill anyone there who I think is al-Qaeda or drop a rocket, that is overreaching. That is a claim even King George III didn't make -
Bruce Fein: - at the time of the Revolution.
John Nichols: Can I - can I -
Bruce Fein: That is clearly overreaching.
John Nichols: Let me keep us on Cheney for a second here, because that is -
Bill Moyers: You think Cheney should be subject to impeachment hearings?
John Nichols: Without a doubt. Cheney is, for all practical purposes, the foreign policy president of the United States. There are many domestic policies in which George Bush really is the dominant player. But on foreign policy Dick Cheney has been calling the shots for six years and he continues to call the shots. Remember back in 2000, in the presidential debates, George Bush said America should be a humble country in the world, shouldn't go about nation building. And Dick Cheney, in the vice-presidential debate, spent eight minutes talking about Iraq.
Now the fact of the matter is that on foreign policy, Dick Cheney believes that the executive branch should be supreme. He said this back to the days when he was in the House during Iran-Contra. He wrote the minority report saying Congress shouldn't sanction the president in any way, President Reagan.
Bill Moyers: And he's always taken an expansive -
John Nichols: Right.
Bill Moyers: - view of presidential power.
John Nichols: And put these pieces together. If Cheney believes in this expansive power. You've got a - unique crisis, a unique problem because the vice-president of the United States believes that Congress shouldn't even be a part of the foreign policy debate. And he is setting the foreign policy. I mean -
Bill Moyers: I served a president who went to war on his own initiative, and it was a mess, Vietnam, Lyndon Johnson. There wasn't serious talk about impeaching Lyndon Johnson or Hubert Humphrey. Something is different today.
Bruce Fein: Yeah, of course, the - difference is one thing to claim that, you know, Gulf of Tonkin resolution, was too broadly drafted. But we're talking about assertions of power that affect the individual liberties of every American citizen. Opening your mail, your e-mails, your phone calls. Breaking and entering your homes. Creating a pall of fear and intimidation if you say anything against the president you may find retaliation very quickly. We're claiming he's setting precedents that will lie around like loaded weapons anytime there's another 9/11.
Right now the victims are people whose names most Americans can't pronounce. And that's why they're not so concerned. They will start being Browns and Jones and Smiths. And that precedent is being set right now. And one of the dangers that I see is it's not just President Bush but the presidential candidates for 2008 aren't standing up and saying -
Bruce Fein: - "If I'm president, I won't imitate George Bush." That shows me that this is a far deeper problem than Mr. Bush and Cheney.
Bill Moyers: That struck me about your writings and your book. You say your great - your great fear is that Bush and Cheney will hand off to their successors a toolbox that they will not avoid using.
John Nichols: Well, let's try a metaphor. Let's say that - when George Washington chopped down the cherry tree, he used the wood to make a little box. And in that box the president puts his powers. We've taken things out. We've put things in over the years.
On January 20th, 2009, if George Bush and Dick Cheney are not appropriately held to account this administration will hand off a toolbox with more powers than any president has ever had, more powers than the founders could have imagined. And that box may be handed to Hillary Clinton or it may be handed to Mitt Romney or Barack Obama or someone else. But whoever gets it, one of the things we know about power is that people don't give away the tools. They don't give them up. The only way we take tools out of that box is if we sanction George Bush and Dick Cheney now and say the next president cannot govern as these men have.
Bruce Fein: Well, that's accurate but also we do find this peculiarity that Congress is giving up powers voluntarily. because there's nothing right now, Bill, that would prevent Congress from the immediate shutting down all of George Bush's and Dick Cheney's illegal programs. Simply saying there's no money to collect foreign intelligence-
Bill Moyers: The power of the purse-
Bruce Fein: - the power of the purse. That is an absolute power. And yet Congress shies from it. It was utilized during the Vietnam War, you may recall, in 1973. Congress said there's no money to go and extend the war into Laos and Cambodia. And even President Nixon said okay. This was a president who at one time said, "If I do it, it's legal." So that it we do find Congress yielding the power to the executive branch. It's the very puzzle that the founding fathers would have been stunned at. They worried most over the legislative branch in, you know, usurping powers of the other branches. And -
Bill Moyers: Well, what you just said indicts the Congress more than you're indicting George Bush and Dick Cheney.
Bruce Fein: In some sense, yes, because the founding fathers expected an executive to try to overreach and expected the executive would be hampered and curtailed by the legislative branch. And you're right. They have basically renounced - walked away from their responsibility to oversee and check. It's not an option. It's an obligation when they take that oath to faithfully uphold and defend the Constitution of the United States. And I think the reason why this is. They do not have convictions about the importance of the Constitution. It's what in politics you would call the scientific method of discovering political truths and of preventing excesses because you require through the processes of review and vetting one individual's perception to be checked and - counterbalanced by another's. And when you abandon that process, you abandon the ship of state basically and it's going to capsize.
John Nichols: Can I mention another branch of government?
Bill Moyers: Yeah, sure.
John Nichols: Let me mention the unspoken branch of government, which is the fourth estate: The media. The fact of the matter is the founders anticipated that presidents would overreach. And they anticipated that at times politics would cause Congress to be a weaker player or a dysfunctional player. But they always assumed that the press would alert the people, that the press would tell the people. And the fact of the matter is I think that our media in the last few years has done an absolutely miserable job of highlighting the constitutional issues that are in play. You know, you can't have torture and extraordinary rendition. You cannot have spying. You cannot have a - lying to Congress. You cannot have what happened to Joe Wilson and Valerie Plame, you know?
Bill Moyers: When she was outed and they tried to punish -
John Nichols: Plotted out of the vice-president's office without question. Notations of the vice-president on news articles saying, "Let's go get this guy." Right? You know, you can't have that and not have a media going and saying to the president at press conferences, you know, "Aren't - isn't what you're doing a violation of the Constitution?" Now, just imagine if the - if the members of the White House Press Corps on a regular basis were saying to Tony Snow, "But hasn't what the president's done here violated the Constitution?" The whole national dialogue would shift. And Congress itself would suddenly become a better player. So I'm not absolving Congress. I'm certainly not absolving Bush and Cheney. But I am saying that we have a media problem here as well.
Bruce Fein: Let me underscore one of the things that you remember, Bill, 'cause I was there at the time of Watergate. And this relates to one political - official in the White House, Sara Taylor's testimony. And claiming that George Bush could tell her to be silent.
Bill Moyers: That was a great moment when Sara Taylor said, "I took an oath to uphold the president." Did you see that?
Bruce Fein: Yes. And that was like the military in Germany saying, "My oath is to the Fuhrer, not to the country." She took an oath to uphold the Constitution of the United States. I did, too, when I was in the government. There's no oath that says, "I'm loyal to a president even if he defiles the Constitution."
John Nichols: Ever.
Bill Moyers: Just this week Harriet Miers, the president's former counsel, did not show up to testify before the congressional hearing. What do you make of that in regard to this issue of power?
Bruce Fein: Well, it shows how far we've come from even the mon - monarchical days of Richard Nixon where he didn't have the audacity to tell John Dean, "No, you can't testify before the Watergate committee about conversations you had with me about obstructing justice or otherwise."
Bill Moyers: John Dean was his counsel -
Bruce Fein: White House counsel -
Bill Moyers: - just as Harriet Miers -
Bruce Fein: - is to President Bush. Yes.
Bill Moyers: And Nixon said to Dean, "You must go up there and testify"?
Bruce Fein: No. He didn't attempt to impose any objection at all. And Dean, of course, broke the Watergate story that led to Nixon's impeachment and the House's judiciary committee -
Bill Moyers: And look what -
Bruce Fein: - and resignation. And now we have a comparable situation where a Harriet Miers could perhaps expose things regarding President - Bush's knowledge of the electronic surveillance program or the firing of U.S. attorneys, which seems to contradict what Alberto Gonzalez has said about White House involvement. And yet President Bush is saying, "You can't talk, Harriet Miers, because I don't want any of that political or legal embarrassment." And unlike John Dean who brought the Constitution forward with his testimony, Harriet Miers still is silent.
Bill Moyers: And you would put that in the bill of particular about impeachment?
Bruce Fein: Certainly with regard to the one example of the abuse of presidential authority, seeking to obstruct a legitimate congressional investigation by a preposterous assertion of executive privilege. Remember, in a democracy, in - under the Constitution, transparency and sunshine is the rule. The exception is only for matters of grave national security secrets. That certainly doesn't apply here.
Bill Moyers: How does the Scooter Libby affair play into this? Do you think that people - I mean, how did the Scooter Libby thing play into this? People seem really angry about this. And this is, to me, where the tipping point came.
John Nichols: If it wasn't for the president's commutation of Scooter Libby's sentence, we would not be sitting at this table and talking right now.
Bill Moyers: About impeachment?
John Nichols: About impeachment. That sentence opened up a dialogue in this country and even in Congress. A number of members of Congress stepped up and signed on to Dennis Kucinich's articles of impeachment against Vice-president Cheney after the Scooter Libby commutation.
John Nichols: We're talking tonight because of the Scooter Libby affair. And -
Bill Moyers: You mean the impeachment -
John Nichols: You - we're at this table because the fact of the matter is that impeachment has moved well up the list of things we can talk about because of the Scooter Libby affair. Now, should it be the - one that tipped it? I think Bruce and I would probably both agree no. There are probably more important issues. But the Scooter Libby affair gets to the heart of what I think an awfully lot of Americans are concerned about with this administration and with the executive branch in - general, that it is lawless, that - it can rewrite the rules for itself, that it can protect itself.
And, you know, the founders anticipated just such a moment. If you look at the discussions in the Federalist Papers but also at the Constitutional Convention, when they spoke about impeachment, one of the things that Madison and George Mason spoke about was the notion that you needed the power to impeach particularly as regards to pardons and commutations because a president might try to take the burden of the law off members of his administration to prevent them from cooperating with Congress in order to expose wrongdoings by the president himself. And so Madison said that is why we must have the power to impeach. Because otherwise a president might be able to use his authority and pardons and such to prevent an investigation from getting to him.
Bill Moyers: Are you suggesting that Libby had the goods on Cheney and Bush?
John Nichols: I think the bottom line is Scooter Libby was involved in conversations that, frankly, if those conversations were brought up, the American people would be very helpful to our discourse about whether we entered this war illegally and whether we've continued this war in ways which we never should have.
Bruce Fein: I think the spark against the Libby commutation is a little bit different focus. I think it's less on the idea he's covering up for Cheney or Bush than the indication that Bush is totally heedless of any honor for law and accountability. That he has special rules for him and his cabinet. You may recall at the outset of the investigation he said, "Anybody in my office who is responsible for this leak will not work for me." Karl Rove was shown to leak and Karl Rove was still sitting in the White House. And he says, "Well, he will issue a commutation here." But he's not issued commutations in similar circumstances to anybody else.
Moreover, the perjury of the obstruction of justice of Libby is a carbon copy of Clinton, which Republicans, including me, supported. That's why I said you've got to give a stiff sentence here. How can you say that Clinton's deserves impeachment and here you're communing someone who did the same thing. And it's that sort of outrage that this is now a sneering attitude towards everybody else. "I am king. You play by other people's rules, but as long as I am in the White House, I get to play by my rules." That is something that-
Bruce Fein: - offends everybody.
Bill Moyers: Sneering is not an impeachable offense.
Bruce Fein: Screening in isolation is not but this is combined with all of the other things he's done outside the law. The intelligence gathering, the enemy combatant status, the kidnappings in - dungeons abroad, all in secret and never disclosing anything to Congress or the American people. Indeed, we couldn't even be discussing some of these issues here like the foreign intelligence collection program if it weren't leaked to the New York Times. If he had his way, this would be secret forever....