The Liberty Papers

Bruce Fein, a conservative who served as Deputy Attorney General under Ronald Reagan, and who has been associated with groups such as the American Enterprise Institute, makes the case at Slate:

Under Dick Cheney, the office of the vice president has been transformed from a tiny acorn into an unprecedented giant oak. In grasping and exercising presidential powers, Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III. The most recent invention we know of is the vice president’s insistence that an executive order governing the handling of classified information in the executive branch does not reach his office because he also serves as president of the Senate. In other words, the vice president is a unique legislative-executive creature standing above and beyond the Constitution. The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney’s multiple crimes against the Constitution clearly qualify.

Fein then goes on to catalog what he thinks should be some of the areas of inquiry of a possible impeachment move:

The vice president asserted presidential power to create military commissions, which combine the functions of judge, jury, and prosecutor in the trial of war crimes. The Supreme Court rebuked Cheney in Hamdan v. Rumsfeld. Mr. Cheney claimed authority to detain American citizens as enemy combatants indefinitely at Guantanamo Bay on the president’s say-so alone, a frightening power indistinguishable from King Louis XVI’s execrated lettres de cachet that occasioned the storming of the Bastille. The Supreme Court repudiated Cheney in Hamdi v. Rumsfeld.

The vice president initiated kidnappings, secret detentions, and torture in Eastern European prisons of suspected international terrorists. This lawlessness has been answered in Germany and Italy with criminal charges against CIA operatives or agents. The legal precedent set by Cheney would justify a decision by Russian President Vladimir Putin to kidnap American tourists in Paris and to dispatch them to dungeons in Belarus if they were suspected of Chechen sympathies.

(….)

Mr. Cheney has championed a presidential power to torture in contravention of federal statutes and treaties.

He has advocated and authored signing statements that declare the president’s intent to disregard provisions of bills he has signed into law that he proclaims are unconstitutional, for example, a requirement to obtain a judicial warrant before opening mail or a prohibition on employing military force to fight narco-terrorists in Colombia.

(…)

The vice president has orchestrated the invocation of executive privilege to conceal from Congress secret spying programs to gather foreign intelligence, and their legal justifications. He has summoned the privilege to refuse to disclose his consulting of business executives in conjunction with his Energy Task Force, and to frustrate the testimonies of Karl Rove and Harriet Miers regarding the firings of U.S. attorneys.

These are all, I think, serious matters, and it’s encouraging to see conservatives like Fein recognizing and denouncing the legacy of the Bush-Cheney Administration, but I think there’s a serious question as to whether any of the things Fein mentions constitute impeachable offenses under the Constitution.

The Congressional impeachment power is set forth in Article II, Section 4 of the Constitution, which states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Nothing that Fein mentions can be considered to constitute treason, which is the only crime defined in the Constitution, and there’s no evidence or allegation of bribery. So that leaves open the question of whether there are any high crimes or misdemeanors.

As much as a disagree with the Bush Administration, and as much as I think Cheney has done great harm to the Office of the Vice-President and the country, the fact remains that each one of the items that Fein cites in his article are, in the end, arguments over policy and the extent of Presidential power in a time of quasi-war. Unlike Watergate, where Richard Nixon at the very least participated in a conspiracy to obstruct justice, there’s no direct evidence of a crime having been committed. Even Clinton’s impeachment, which I think was a political mistake, involved commission of a crime, perjury under oath before a Federal Judge.

It’s clear that Fein, like many of us, disagrees with the Vice-President and thinks he went overboard in the years after 9/11. But that’s a policy disagreement, and that’s what elections are for.

I addressed this issue back in March when Chuck Hagel was speculating about President Bush’s impeachment, and this observation is equally applicable today:

Hagel’s comments also make it clear why the Founders limited the impeachment power the way that they did. If Congress had the authority to attempt to remove the President, Vice-President, or Justice of the Supreme Court at will, then separation of powers would become a meaningless concept, and the President would become a mere minister serving at the pleasure of whichever party has majority control of the Legislative Branch. That is what the Parlimentary system, which existed in England at the time the Constitution was written, is all about. Had the Founders wanted to mimic it, they very could have. The fact that they didn’t leads to the conclusion that they wanted co-equal branches of government for a reason.

The chance to deal with Dick Cheney was back in November 2004, but, thanks largely to the fact that Bush/Cheney was facing an incredible inept Democratic ticket, the Vice-President remained in office at the end of the day. Moreover, he’ll be out of office after noon on January 20, 2009. It’s not worth trashing the Constitution to get rid of him earlier.