Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

29 July 2007

More on Impeaching Gonzales


Just after I wrote my previous post about impeaching Alberto Gonzales, further evidence of his lying to Congress came up. He renewed his testimony that there had been no significant disagreement about the executive’s illegal spying activities before the media disclosed them. In so doing, he flatly contradicted testimony of two other high executive officials—former Deputy Attorney General James Comey and FBI Chief Robert Mueller.

Gonzales’ apparent lie provoked recent calls to prosecute him for perjury. Four Democratic Senators asked for the appointment of a special prosecutor for that purpose.

In my mind, their response was like taking someone who has wiped out your whole family to small claims court. Here’s why.

The dispute with Gonzales is not really about lying, let alone the technical legal concept of statutory perjury. It is about political power and the survival of our constitutional Republic.

For the last six years, three men—George W. Bush, Dick Cheney, and Karl Rove—have systematically muscled Congress out of its traditional position as a co-equal branch of government. In making foreign policy and war, they have excluded Congress from any role other than impotent critic. They have done so despite overwhelming public opposition to their policies, as reflected in last year’s congressional elections and numerous more recent polls. With respect to justice, they have deprived Congress of effective power to investigate, let alone correct, political interference with the impartiality and professionalism of our public prosecutors. In oversight generally, they have cited frivolously extravagant claims of executive privilege to deny Congress the facts it needs to do its job. By these means and others, they have transformed the so-called “people’s government” into something that is beginning to resemble the executive branches in Russia and China.

This is not a matter of perjury. It is not a “gotcha” like the impeachment of President Clinton for lying about a sexual indiscretion. It is an unprecedented grab for power. Left unchallenged, it has the potential to change our form of government forever. We could lose our Republic.

Just as the dispute is not really about perjury, it is also not really about Gonzales. He is just a symbol of the Bush Administration’s wanton disregard of and contempt for Congress. Yet because he is such a ludicrous and universally despised figure, he is an easy target. He is the best place for Congress to start pushing back. If Congress can’t or won't push back on him, then it won’t push back at all.

So what does Congress do in answering this historic political challenge? Its members act like a bunch of clueless lawyers. Not only that: they act like low-level lawyers, not legal strategists. They obsess about proving Gonzales’ perjury, as if before a jury. They ask their political adversaries for help in making their case. It would be difficult to imagine a more feckless response to the historic gauntlet thrown at their feet.

The idea of preparing a technical case of legal perjury is ludicrous for two reasons. First, far more is at stake. This is not Bill Clinton redux; it is a crisis in constitutional government.

Second, the legal standards of technical perjury are irrelevant. The Democratic majority in the House is quite sufficient to impeach (indict) Gonzales. In the subsequent trial, the Senate is the jury. It answers to no one. If two thirds of Senators believe, as I do, that Gonzales was not telling the truth when he said “I don’t recall” over seventy times in answering Congress’ questions, that is enough to remove him from office. If two-thirds of Senators believe, as I do, that the real goal of Gonzales’ lies was to muscle Congress out of a meaningful role in policy making and executive oversight, then they have a far greater motive for conviction and removal than they did with Bill Clinton.

Ultimately, that is why focusing on perjury related to intelligence activities is inappropriate and unnecessary. The executive’s argument for privilege or secrecy is strongest with regard to intelligence about suspected terrorist activities. Why open up that can of worms? Gonzales appears to have lied aplenty with regard to the firing of federal prosecutors—a matter involving no war power or foreign policy—and that is enough to impeach and remove him.

Ultimately, the questions at issue are political, not legal. Are two-thirds of Senators sufficiently fed up with the loss of their constitutional turf to do something about it? Will they use the independent power that the Founders gave them?

They have already declined to use the power of the purse to change a self-evidently failing war policy. But the reasons for that decision are complex. Questions of war strategy and the president’s legitimate role as commander in chief muddy the waters.

In contrast, the questions surrounding the firing of federal prosecutors are much simpler: does the executive have the power to make a political purge of our public prosecutors and get away with it, frustrating congressional oversight by stonewalling all attempts to investigate? As a uniquely self-wounded political actor, Gonzales provides a special opportunity to redress the executive’s unprecedented grab for power using Congress’ only other self-sufficient source of countervailing power: impeachment.

If two-thirds of Senators cannot find the courage to use that power to get their turf back from a failed and despised administration, then we might as well prepare ourselves for the fate of Rome. We can all watch helplessly while a feckless and corrupt legislature, preoccupied with fund raising and earmarks, acquiesces in our slow descent to empire. Our free press and ability to comment will only make the fall that much more poignant. We can yet avoid the fate of Rome, but only if our legislators wake up and put constitutional government above party loyalty.


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