Has Obama Committed an Impeachable Offense?

I was talking with my wife this morning about the dust-up between the CIA and the Senate Select Committee on Intelligence (chaired by California Senator Dianne Feinstein) that came to a head earlier this week when Feinstein, in the well of the Senate, denounced the CIA for searching her Committee's computers without a warrant to find out the source of the supposed leak of the so-called Panetta Review to her Committee.

In the process of reviewing all the developments that had taken place, I happened to mention that the McClatchy newspaper chain reported separately this past week that Obama's CIA, apparently with Obama's blessings, has withheld from the Committee over the past five years some 9,000 pages of  documents that pertain to the CIA's secret torture programs from 2001-04.  "If proven," I said, "that allegation in the McClatchy story clearly rises to the level of an impeachable offense."

The McClatchy Story

"You know," I continued, "they impeached Nixon over a lot less." I immediately corrected myself. "Well, they didn't actually impeach Nixon. Nixon resigned before the full House voted on Articles of Impeachment, because Senator Barry Goldwater told Nixon that, impeachment in the House now certain, Nixon did not retain enough support in the Senate to survive the resulting trial. Nixon  may have wanted to preserve his pension benefits by resigning."

My wife said, "Oh, I wish you would write about this so I could share it with everyone on my Facebook list."

Being a dutiful husband, I had no choice but to accede to her wishes.

Thinking about Nixon's impeachment and the long chain of events known collectively as 'Watergate' brought back some vivid memories, of Sam Ervin's Committee, of Judge John Sirica, of Special Prosecutor Archibald Cox and the Saturday Night Massacre, of Deep Throat, Woodward and Bernstein, of Rosemary Woods and the missing 17-minutes of tape. And Tricky Dick himself. I had just finished my freshman year of high school and would be starting my sophomore year that coming September of 1974, so I listened to these events on the radio - my family not owning a television - with a morbid fascination, neigh obsession, that only an adolescent teenage male in a persistently rebellious state can muster.

I remember the House Judiciary Committee considered several proposed Articles of Impeachment, among them the secret and illegal bombing of Cambodia, the obstruction of justice enveloped in Nixon's instructions to his aides to use the CIA to interfere with the FBI's inquiry, the abuse of power contained in ordering Pentagon Papers leaker Daniel Ellsberg's psychiatrist's office burglarized to try to get dirt on Ellsberg. Eventually, the House Judiciary Committee settled upon Abuse of Power and Obstruction of Justice as the principal Articles of Impeachment.

So has Obama's stiff-arm of the Senate Select Committee for the past five years risen to the level of an impeachable offense? And is it worse than what Nixon stood accused of? I must tentatively but sadly answer "yes" to both counts.

Article II, Section 4 of the United States Constitution provides 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." Historically, this has meant that the House hears the case for impeachment and votes it up or down. A vote in favor of impeachment - analogous to a grand jury indictment in criminal court - results in a subsequent trial being held in the Senate, upon the conclusion of which the impeached official is either acquitted and remains in office or convicted on a 2/3 vote and removed from office.

These procedural niceties aside, what exactly constitutes an impeachable offense? Bribery and Treason are fairly unambiguous but what does "other high Crimes and Misdemeanors" mean? For an answer to that, we should turn to then-Congressman Gerald Ford of Michigan who stated, a few years before the main events of Watergate had transpired, that "An impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history.” (Ironically, Ford said this on April 15, 1970, just as Nixon, Kissinger and other goombahs were ginning up the secret land invasion of Cambodia that would lead to the tragedy of Kent State and Jackson State Universities.) Was Ford articulating the -- gasp! -- secular humanist notion of 'moral relativism'? Was the Republican Ford of the party of  'Family Values' a covert apostle of situational ethics?  Hardly. Instead, what Ford seems to be getting at is that an impeachable offense and the impeachment process is always fundamentally political in nature, relying as it does on notions of a 'majority vote' and so on (as opposed to a criminal trial where a guilty vote must be unanimous in order to convict).

So, at its most base level, Obama's decision to allow the CIA to withhold 9,000+ documents from the Senate Committee could easily be deemed an impeachable offense by any House determined to check the powers of the Executive Branch. If such is the case, then why hasn't a rabid Republican House already impeached Obama? Leaving aside the crass political consideration that House Republicans will never impeach Obama for actions they would like a Republican President to have the power to do and thus do not want to establish a precedent that could be applied to future Republican presidents, there are other reasons why the House may not have impeached Obama yet. At this point, Obama would be unlikely to be convicted in any Senate trial where Democrats have a majority, even though his alleged offense has been against the Senate. At this point in his second term, Obama is still personally liked by most Americans, even though increasing numbers are beginning to disapprove of his conduct in office. Even with that mounting disapproval, though, I suspect few Americans yet believe that Obama has committed offenses worthy of the label of 'high crimes and misdemeanors'.

Here I must disagree. As Charles Pierce put it in a magisterial column in Esquire's The Politics Blog this past week, "By the Constitution, this isn't even a hard call. The Senate has every legal right to investigate what was done in the name of the American people during the previous decade. It has every legal right to every scrap of information relating to its investigation, and the CIA has an affirmative legal obligation to cooperate. Period." To the extent that President Obama has been ordering the CIA, or authorizing the CIA, not to comply with its obligation to cooperate with the Senate, Obama is abusing the powers of his office and obstructing justice. That, my friends, constitutes a 'high crime and misdemeanor.' That, my friends, is an impeachable offense.

The Charles Pierce column

Ah, but is it worse than what Nixon did? I would argue that it is not as evil as the secret bombing of Cambodia, one of the high crimes of which Nixon stood accused, since that crime comprised within it what the Nuremberg trials had established as the 'supreme crime against the peace.' But the secret Cambodia bombing was not an Article of Impeachment voted out of Committee. (Maybe Dems wanted their own presidents to be able to bomb other countries secretly without congressional approval or oversight? Nah, can't be, because Dems have principles. Right  . . . and if you believe that I have a bridge to sell you in Brooklyn.) So, of the articles that were voted out of Committee, namely abuse of power and obstruction of justice, are they less serious than Obama's offense?

I think so, because Nixon abused his powers to single out another political party and individuals opposed to his policies in southeast Asia. But Obama is abusing his powers to obstruct the workings of a co-equal branch of government. Co-equal - that means that the Legislature is the equal of the Executive, not its inferior. In ordering the CIA to withhold documents from a co-equal branch with constitutionally-ordained oversight responsibilities, Obama undermines the very fabric of our constitutional order. That is a far more serious offense than anything with which Nixon was ever charged.