He?s Impeachable, You Know
By FRANK BOWMAN
Published: May 3, 2007
Columbia, Mo.
IF Alberto Gonzales will not resign, Congress should impeach him. Article II of the Constitution grants Congress the power to impeach ?the president, the vice president and all civil officers of the United States.? The phrase ?civil officers? includes the members of the cabinet (one of whom, Secretary of War William Belknap, was impeached in 1876).
Impeachment is in bad odor in these post-Clinton days. It needn?t be. Though provoked by individual misconduct, the power to impeach is at bottom a tool granted Congress to defend the constitutional order. Mr. Gonzales?s behavior in the United States attorney affair is of a piece with his role as facilitator of this administration?s claims of unreviewable executive power.
A cabinet officer, like a judge or a president, may be impeached only for commission of ?high crimes and misdemeanors.? But as the Nixon and Clinton impeachment debates reminded us, that constitutional phrase embraces not only indictable crimes but ?conduct ... grossly incompatible with the office held and subversive of that office and of our constitutional system of government.?
United States attorneys, though subject to confirmation by the Senate, serve at the pleasure of the president. As a constitutional matter, the president is at perfect liberty to fire all or some of them whenever it suits him. He can fire them for mismanagement, for failing to pursue administration priorities with sufficient vigor, or even because he would prefer to replace an incumbent with a political crony. Indeed, a president could, without exceeding his constitutional authority and (probably) without violating any statute, fire a United States attorney for pursuing officeholders of the president?s party too aggressively or for failing to prosecute officeholders of the other party aggressively enough.
That the president has the constitutional power to do these things does not mean he has the right to do them without explanation. Congress has the right to demand explanations for the president?s managerial choices, both to exercise its own oversight function and to inform the voters its members represent.
The right of Congress to demand explanations imposes on the president, and on inferior executive officers who speak for him, the obligation to be truthful. An attorney general called before Congress to discuss the workings of the Justice Department can claim the protection of ?executive privilege? and, if challenged, can defend the (doubtful) legitimacy of such a claim in the courts. But having elected to testify, he has no right to lie, either by affirmatively misrepresenting facts or by falsely claiming not to remember events. Lying to Congress is a felony ? actually three felonies: perjury, false statements and obstruction of justice.
A false claim not to remember is just as much a lie as a conscious misrepresentation of a fact one remembers well. Instances of phony forgetfulness seem to abound throughout Mr. Gonzales?s testimony, but his claim to have no memory of the November Justice department meeting at which he authorized the attorney firings left even Republican stalwarts like Jeff Sessions of Alabama gaping in incredulity. The truth is almost surely that Mr. Gonzales?s forgetfulness is feigned ? a calculated ploy to block legitimate Congressional inquiry into questionable decisions made by the Department of Justice, White House officials and, quite possibly, the president himself.
Even if perjury were not a felony, lying to Congress has always been understood to be an impeachable offense. As James Iredell, later a Supreme Court justice, said in 1788 during the debate over the impeachment clause, ?The president must certainly be punishable for giving false information to the Senate.? The same is true of the president?s appointees.
The president may yet yield and send Mr. Gonzales packing. If not, Democrats may decide that to impeach Alberto Gonzales would be politically unwise. But before dismissing the possibility of impeachment, Congress should recognize that the issue here goes deeper than the misbehavior of one man. The real question is whether Republicans and Democrats are prepared to defend the constitutional authority of Congress against the implicit claim of an administration that it can do what it pleases and, when called to account, send an attorney general of the United States to Capitol Hill to commit amnesia on its behalf.
Frank Bowman is a law professor at the University of Missouri-Columbia.
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