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Grounds to impeach Gonzales
Newsday
BY PETER M. SHANE
April 11, 2007

If Attorney General Alberto Gonzales does not resign soon, the House Judiciary Committee should start an inquiry into his possible impeachment.

There is much evidence to suggest that the attorney general perjured himself before Congress regarding the firing of eight U.S. attorneys, but no matter what Gonzales says about these cases when he testifies before the committee next week, the narrow focus of the hearings won't begin to touch the full range of grave concerns that now exist about his fidelity to the rule of law.

Congress needs to consider whether Gonzales has so abused his office by trampling on the powers of the legislative branch of government that even if he committed no felonies, he has inflicted serious injury to the Constitution.

The grounds for impeachment, "high crimes and misdemeanors," are not limited to violations of criminal law, but encompass all attempts to subvert the Constitution by those sworn to protect and defend it.

Only one cabinet officer, Secretary of War William Belknap, has ever been impeached. The Senate acquitted him in 1876 of alleged involvement in kickbacks from military contracts after the Civil War, but he appears to have won the vote only because he had the good sense to resign before it was taken.

The reason to consider such severe action against Gonzales is not that he is the second-worst cabinet officer in history. It is because, faced with an administration unprecedented in its arrogance toward the other branches of government, impeachment - if justified on the facts - may be the best way to restore our constitutional checks and balances.

No one need worry that this could occur easily. Even though impeachment would take only a majority vote in the House, conviction in the Senate would require the approval of two-thirds of the senators present and voting. The attorney general could be removed based only on a bipartisan consensus.

In Gonzales' case, the steadily unfolding revelations of possibly partisan motivation in the dismissal of the eight U.S. attorneys and admissions of scandalous mishandling of FBI national security letters only corroborate his utter recklessness in the deployment of executive power. These developments follow his role in approving warrantless electronic surveillance in defiance of the Foreign Intelligence Surveillance Act.

They are consistent in spirit with his agreement, as White House counsel, to sanction aggressive interrogation techniques and truncated trials for enemy combatants, including U.S. citizens, in violation of U.S. statutes and international treaty obligations. In light of the attorney general's misleading testimony on U.S. attorneys, Congress would be within its rights to investigate whether he testified truthfully during his 2005 confirmation hearing about his involvement in these earlier matters.

On Gonzales' watch, and presumably with his advice, President George W. Bush has interposed roughly 1,400 objections to statutory provisions he has signed into law because, by his lights, Congress was treading on his imagined powers as head of the executive branch.

Hundreds of these objections use the now-famous phrase "unitary executive," which stands for the theory that the president is commander in chief not only of the Army and Navy, as the Constitution specifies, but also of every civilian officer or employee of the executive establishment, which the Constitution does not say.

Based on this theory, the president, with Gonzales' approval, has objected to dozens of routine requirements to supply information to Congress, on the grounds that the Constitution gives the president complete control over who in the executive branch can say what, and when, to the national legislature.

Bush, again presumably with Gonzales' advice, has objected to statutes specifying qualifications for federal officers on the ground that the statutory imposition of even commonsense minimum standards intrudes on the president's power to nominate whom he pleases.

In investigating the attorney general's role, rather than pursuing the possible impeachment of the president or vice president, the House can legitimately deliberate upon the administration's seeming indifference to the rule of law without risking the public appearance of wanting to redo the 2004 election or achieve payback for the impeachment of President Bill Clinton.

In the case of the U.S. attorney firings, when the White House begins to insist that its partisan political agenda trumps every other consideration in the administration of public laws, it is essential that Congress push back. And in the case of an attorney general seemingly indifferent to the rule of law in so many instances, Congress must investigate and, if appropriate, impeach and remove.

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