On July 13th, veteran journalist Bill Moyers invited constitutional experts Bruce Fein and John Nichols onto his weekly show, The Bill Moyers Journal, to discuss impeachment and its applicability to the Bush Administration. Ultimately, the liberal Nichols and the conservative Fein, both citing the U.S. Constitution, argued that Congress should impeach President Bush and Vice President Cheney. The reaction to the impeachment episode was overwhelming. The Journal’s blog erupted with over 400 responses, ranging from stinging attacks on Moyers, his guests and PBS to passionate calls for impeachment legislation. It also prompted PBS to re-air the episode just over a month later. More recently, The American Prospect made impeachment its cover story and the subject of opposing viewpoints authored by two of the magazine’s senior editors. This extensive media coverage of the ongoing impeachment debate, in which those for and against have clearly articulated their respective arguments, is not at all surprising, for not only is impeachment controversial, but it is also infrequent. Therefore, in those rare instances when impeachment does arise, writers, scholars and pundits alike are quick to throw their two cents in.

But before examining the current arguments for and against impeachment, it’s vital to understand its historical context. The Constitution makes no fewer than six specific references to impeachment. Article I, Section 2 states that the House of Representatives alone are entrusted with “the sole power of Impeachment.” The subsequent section assigns the trial of impeachments to the Senate, with a two-thirds majority needed for conviction. The most pronounced reference to impeachment appears in Article II, Section 4, stating that “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” (“high” crimes in 18th-century legal terms meaning crimes against the state).

Since the Constitution’s inception, articles of impeachment have been filed against nine presidents in all. Many associate impeachment with the presidencies of Andrew Johnson (violated “Tenure of Office Act” by dismissing cabinet chief), Richard Nixon (obstruction of justice, misuse of intelligence agencies for political purposes, contempt of Congress) and Bill Clinton (perjury, obstruction of justice), but few can name the remaining six: John Tyler (abuse of veto power), Grover Cleveland, Herbert Hoover (misadministering Federal Reserve Board), Harry Truman (illegal exertion of executive power), Ronald Reagan (sale of arms to Iran) and George H.W. Bush (committing to war without Congressional approval, conspiracy, bribery). And as allegations mount regarding the forms of governance exhibited by the Bush Administration, the possibility that George W. Bush will be added to that list of impeached presidents before his term ends appears ever the more likely.

Although some consider Bush’s presidency to have been corrupt from day one, intent on fixing intelligence around pre-existing policies and protecting the interests of the country’s plutocratic elite, the tipping point for many Americans in the impeachment debate came on December 17, 2005—the day Bush admitted to authorizing a warrantless wiretapping program that violated the Foreign Intelligence Surveillance Act (FISA). Former Congresswoman Elizabeth Holtzman, who sat on the House Judiciary Committee during the Nixon impeachment investigations, wrote of Bush’s wiretapping admission: “It wasn’t until revelations that President Bush directed the wiretapping of hundreds, possibly thousands, of Americans, in violation of the Foreign Surveillance Act…that I felt that same sinking feeling in my stomach as I did during Watergate.”

Soon after the New York Times broke the wiretapping story, the earliest discussions of impeaching President Bush, and also Vice President Cheney, began appearing. In March of 2006, several towns in Vermont, most notably the southern city of Newfane, drafted their own articles of impeachment that they submitted to their U.S. Representatives, urging them to file official articles of impeachment against Bush.

Today, almost two years after Bush confirmed his administration’s practice of illegally listening in on phone conversations and reading the e-mails of American citizens, the impeachment debate has reached a full roar, pitting two distinct ideological camps against each other. Interestingly, the conversation between those for and against impeachment transcends the partisan divide—there are both liberals and conservatives, Democrats and Republicans, on both sides of the current impeachment discussion. But to effectively conclude whether the House of Representatives should in fact investigate Bush (and possibly Cheney) on the grounds of committing high crimes and misdemeanors worthy of impeachment, one must critically examine the arguments of both sides.

The consensus among those in favor of impeaching Bush is that the President has committed the following high crimes and misdemeanors: misleading Congress and the public regarding the threat from Iraq in order to justify an invasion of Iraq; ordering the National Security Agency to conduct warrantless wiretaps in violation of FISA; condoning the torture of prisoners in violation of the Geneva Conventions; and acting in a manner that violates the President’s oath of office.

Aside from these specific accusations, there are several main arguments calling for the impeachment of the President and Vice President. The first is that if Bush and Cheney go unchecked by Congress for their blatant abuses of executive power—for example, preventing Joshua Bolten, Harriet Miers and Karl Rove from testifying before the House and Senate Judiciary Committees on grounds of “executive privilege”—it will set a precedent defining the future powers of the executive branch. John Nichols, who appeared on the Journal’s impeachment episode and is also a Washington correspondent for The Nation, writes, “If Bush and Cheney are not held accountable, this Administration will hand off to its successors a toolbox of powers greater than any executive has ever held—more authority, concentrated in fewer hands, than the Founders could have conceived or would have allowed.” Bruce Fein, who appeared alongside Nichols back in July and who specializes in constitutional law, put it more bluntly when he stated that the Bush Administration is “setting precedents that will lie around like loaded weapons anytime there’s another 9/11.”

If the House does indeed investigate the allegations brought against Bush and Cheney—regardless of whether they result in impeachable crimes or not—it will still force accountability on the part of the President and Vice President while also warning future executive officials against such abuses. As Nichols explains in his book The Genius of Impeachment, “The most substantial impeachment efforts may go nowhere in any official sense, but still have the practical and desired impact of holding an out-of-control executive’s feet to the fire and signaling to future presidents that they can and will be checked by Congress.”

Nichols also describes in his book how impeachment inquiries and investigations into the alleged high crimes and misdemeanors of the Bush Administration will spark a national discussion about the conduct of the current administration, and, in a broader sense, the state of American government. “The benefit of an impeachment fight to an opposition party comes not in the removal of an individual who happens to wear the label of another party,” writes Nichols, “but in the elevation of the discourse to a higher ground where politicians and voters can ponder the deeper meaning of democracy and the republican endeavor.” Again, even if impeachment proceedings fail in an official sense, the process itself provides an opportunity for an increasingly disenfranchised citizenry to engage in political discourse and discuss issues vital to our democracy.

The most recognizable argument against impeaching Bush and Cheney comes from the person who would gain the most from their removal: House Democratic Leader and Speaker Nancy Pelosi. Soon after her party’s triumph in the 2006 midterm elections, earning Democrats majorities in the House and Senate, Pelosi adamantly declared on 60 Minutes that impeachment was “off the table.” She went on to say that Democrats “are not about getting even” with Republicans. Since that initial announcement, Pelosi has been steadfast in her refusal to entertain talks of impeachment, even going so far as to threaten Rep. John Conyers of Michigan with removal from his chairmanship of the House Judiciary Committee if an impeachment inquiry were opened.

Sanford Levinson, a Professor of Government at the University of Texas School of Law, argues against impeachment on several levels—first, by pointing to the certain failure of any impeachment inquiries against Bush or Cheney. In his article “Impeachment: The Case Against,” published in The Nation, he describes the push for impeachment as an “entirely fruitless campaign,” and writes that “there is simply no possibility that Bush will actually be removed from office.” He allows that impeachment would be a good idea if it had any chance of success—but writes that, even if the House did find Bush guilty of high crimes and misdemeanors, “there is no possibility that constitutionally required two-thirds of a nearly even divided Senate would vote to convict an impeached George W. Bush.”

Washington Post columnist and The American Prospect executive editor Harold Meyerson agrees with Levinson, and, furthermore, makes an important distinction between the successful Nixon impeachment and current attempts to impeach Bush and Cheney. In the case of Nixon’s impeachment, Meyerson writes, those Republicans that ultimately voted to impeach Nixon did so because they knew that his replacement would be Republican Gerald Ford. Therefore, the Republican Party wasn’t losing the presidency with the removal of its leader. In the current situation, Meyerson explains, there is absolutely no way that Republicans will vote for impeachment because “removing Bush and Cheney would make Pelosi (literally, the San Francisco Democrat) president—a change that would result in a massive shift in every policy that Republicans care about.”

Meyerson also makes his own argument regarding the legitimacy of Bush and Cheney’s replacement in an impeachment scenario. If the President and Vice President were in fact removed, thus making Madam Speaker Pelosi president, the leader of our country would be an official sent to Congress by an electorate that constitutes one-435th of the United States. Although this is exactly what the Constitution intends, Meyerson rightfully argues that “such a process would raise huge doubts about the political legitimacy of the new president.”
Lastly, there is a shared opinion among impeachment opponents that any proceedings or inquiries will distract politicians and citizens away from more important issues like Iraq or the “war on terror.” Nation columnist and CounterPunch co-founder/editor Alexander Cockburn writes in a recent column titled “How the Democrats Blew It in Only 8 Months” that the left is “distracted” by the “phantasm of impeachment.” He asks readers, “Why all this clamor to launch a proceeding surely destined to fail, aimed at a duo who will be out of the White House in sixteen months?” Cockburn continues on to say, “Right now the impeachment campaign in a distraction from the war and the paramount importance of ending it.” Echoing Cockburn in his own arguments, Levinson warns of pursuing impeachment, describing it as a “dangerous distraction from the pressing problems facing the country.”

Without a doubt, there are flaws and weaknesses in the arguments for and against impeachment presented here. For example, several of the articles of impeachment brought against Bush may not constitute crimes in a court of law. Despite evidence suggesting that Bush committed felonies by violating the conditions of FISA and the Geneva Conventions, the accusations that Bush violated his oath of office and subverted American democratic principles may not amount to impeachable “high Crimes and Misdemeanors” in a legal sense. If Bush or Cheney testifies in an impeachment hearing and claims not deliberate deception but mere incompetence resulting in colossal lapses of judgment, neither can be accused of committing crimes. Such is nature of impeachment—an executive can be impeached only for “high Crimes and Misdemeanors,” not for incompetence or maladministration. However fictitious or Machiavellian Bush and Cheney’s case for going to war was, as Meyerson explains, “making a legal case that they knowingly lied to get us into the war would be difficult.”

For those against impeaching Bush and Cheney, their arguments are equally subject to contention. Do not forget that impeachment is a Constitutional tool intended by the Founders to reign in an executive when he or she has abused executive power—it was never intended to be a tool for political retribution. Thus, when Pelosi says that Democrats “are not about getting even” with Republicans, she fails to comprehend that impeachment has never been about getting even—it is about utilizing the Constitution to check executive abuses of power.

When Levinson argues that impeachment is destined to fail and therefore is not worth pursuing, he ignores that which Nichols champions about the impeachment process, in that it need not succeed for it to hold executives accountable and to signal future presidents that abuses of power will not go unchecked. “This is the genius of impeachment,” Nichols writes in his book. “The specific legislative process need not be completed for it to change history…It can be stalled by partisan majorities loyal to an irresponsible leader and still extract a measure of accountability from him.”

Finally, for those like Cockburn and Levinson, who argue that impeachment is no more than a distraction from more pressing issues, the question begs to be asked: Is our government, in all its size and scope, incapable of dealing with two issues of national importance at the same time? Can it not pursue a positive course of action in Iraq and proceed with impeachment inquiries? All criticisms regarding the inabilities and partisan agendas of politicians aside, with 435 Representatives and one hundred Senators in Congress, it is hard to believe that our national government is incapable of presiding over both issues simultaneously.

Whether one supports or opposes impeachment, remember that the act of impeachment is a Constitutional power. The merits of impeachment should never fall victim to partisan agendas, or become accessory to political maneuverings. Any politician who opposes impeachment for fear it might damage his or her party’s chances in an upcoming election is slandering the Constitution and violating his or her oath of office. And when this does happen, it is up to the public and the free press to remind politicians what they pledged an oath to protect. In the end, our elected officials would do well to heed the words of the late Henry B. Gonzalez, a former House Representative from Texas who filed articles of impeachment against three different presidents during his thirty-seven years in Washington.

“We did not pledge an oath of allegiance to the president,” Gonzalez once said, while on the House floor, “but to the Constitution, which is the highest law of the land.”