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The Republicans don’t appear to know the first thing about Congress’ impeachment power. They construe it as a legal mechanism devoid of ideological meaning, one applied only to a single individual when he lies
under oath, even when his lies do not touch on public business.
In fact, the framers intended impeachment to be a countervailing power
against an entire branch of government, to be threatened constantly and used to prevent and punish all usurpations of power. Applying the original
understanding, not just Clinton, but his entire army of appointed officials, as well as the permanent bureaucracy, is subject to being tossed out.
There may be no precedent for impeachment due to lying about sex, as gleeful historians have already told the House hearings. But what this overlooks is that Clinton and his administration are impeachable on dozens,
if not hundreds, of violations of the public trust. It is enough that he
and his regime have wielded power not granted to them in the Constitution.
In the debates on the Constitution, the skeptics feared that the president would act as a monarch, and usurp power. The Federalists shot back that this could never be the case. Why? First, the president must be elected every four years. Second, his appointments and war powers are subject to
Congressional oversight. Third, and most important (said Hamilton), he is
“at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to the forfeiture of life and estate
by subsequent prosecution in the common course of law.”
This power of impeachment was a necessary condition for winning the support of the moderate Anti-Federalists, who preferred a decentralized confederation of states, but were willing to consider the idea of a nearly
powerless federal government. If Congress had not been given the power to
oust a would-be tyrant from office, the checks and balances of the Constitution would have been a self-evident fiction.
What was impeachable? Not usually private crimes, which would be handled
in a normal court of law, but political actions injurious to the country at
large. William Rawle’s 1825 book, “A View of the Constitution,” a widely
circulated text, provides examples.
Power is always “liable to abuse,” Rawle writes, which is why the impeachment threat prevents “the fondness frequently felt for the inordinate extension of power, the influence of party and of prejudice, the seduction of foreign states, or the baser appetite for illegitimate emolument.” If that sounds like modern government as we know it, it’s because there
haven’t been nearly enough impeachments.
The impeachment threat was supposed to hang over the presidency like the
sword over Damocles. There were to be constant rumblings about impeachment in the House and demands for the president’s head in the Senate.
And to what end was the power of impeachment to be used? Only one, which is the same end as the Constitution itself: to protect the rights and
liberties of the people against their infringement by a despotic government. If a president assumed powers that were not his, and injured the freedom of the citizens, he was to be impeached, period. To even discuss impeachment apart from the purpose of the enterprise, as the Republicans are doing, is
Further, according to Rawle, Congress’ impeachment power is not just to
be used against the president and vice president. It extends to the entire
executive branch, and to anyone under the president whose conduct “might be productive of the most serious disaster.” This follows logically from the
purpose of the impeachment power itself, which, to be effective, must necessarily apply to the president’s henchmen.
How can this be applied today? Leave aside Monica and forget the independent counsel. Clinton should have been impeached at the very start
of his term in 1993, with the FBI-BATF assault on the Branch Davidian church
in Waco, Texas. And everyone in the Justice Department who had anything to do with planning it should also have been impeached. Is perjury in a sexual-harassment case really worse than mass murder?
The list of Clinton’s high crimes and misdemeanors only begins there. It
extends to imperious executive orders, bombings of innocent foreigners, gun
grabbing in violation of the Bill of Rights, the raiding of the Exchange
Stabilization Fund to bail out Mexico, the financial shenanigans used to
keep government agencies running after Congress shut them down, his giving and taking of bribes, and much, much more.
A Congress serious about its history would impeach the heads and managers of nearly every federal agency on grounds that they have exercised arbitrary power. If the Supreme Court disagreed and tried to intervene, Congress would impeach the judicial branch too. If this fast track to freedom sounds unthinkable to Republicans, all the more proof that their talk of the framers and the Constitution is just the usual partisan posturing.