About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, October 16, 2010

The Age of Impeachment: American Constitutional Culture since 1960

[Update: Talking about Nixon, good NYT article on campaign donation disclosure put in a historical context.]

David E. Kyvig's book is interesting and worthwhile in providing the details and background to the serious attempts at impeachment in the last fifty years, after providing a quick summary of the history up to then. When a federal judge is currently being tried with very little coverage, it is useful to learn about the three impeachment trials during the 1980s involving judges, two others never getting that far.  We also learn about Fortas, Douglas and the presidential impeachment developments.

My concern is with the thesis that somehow this was an "age of impeachment" as such, or rather, that it is particularly troubling that it was.   The author leans toward seeing impeachment as it was for much of our history -- a little used development, one that often (see Andrew Johnson, Justice Samuel Chase or somewhat trivial seeming judicial impeachments)  done for questionable reasons.  The message seems to be that it was rarely necessary, aside from Nixon and perhaps the random judicial case that probably was no major concern either.

Things get off on the wrong foot, after all, with "Impeach Warren" signs and all.  But, the effort -- even among conservatives like William Buckley Jr. -- was not really taken seriously.  The targeting of Abe Fortas was portrayed as a novel political attack, but the book is a bit selective here. It doesn't address the issue that other lame duck Presidents beforehand had trouble confirming end of term nominees.  And, Fortas' conflict of interest (including as a presidential adviser) was a red flag.   As to Douglas, he was not your average justice and the failure was a useful lesson ala Chase about the limits of impeachment.  Some aspects of the situation were troubling, including Nixon's involvement.  Still, overall, other than a partisan effort by some conservatives later, judicial impeachments don't seem that notable after this Warren Court interlude, particularly with the expanded judiciary and more attention given modern media and fairly benign judicial councils set up to keep track of things.

The book does see impeachment as a sort of unwieldy process, drawn out and messy, as seen in the Nixon case.  Yes.  The book notes that the Nixon case in effect stereotyped "necessary" impeachments to cover the narrow situation there, a situation that didn't even take into consideration his bombing of Cambodia.   This opened the path (along with a distaste with attacking Reagan personally and the whole mess of impeachment, it's so much trouble, makes us look bad etc.)  of treat Iran Contra at best as bad policy.  But, impeachment if nothing else is meant to address such "encroachments" of congressional prerogatives and dangerous foreign adventures is exactly the sort of thing the Framers were worried about when putting limits on executive power.

The book correctly notes that letting Reagan off the hook because he seemed out of the loop and all is rather ironic since "the buck stops here" is a primary purpose for having a single executive.  The author suggests the Congress did not adequately take Iran Contra seriously, noting as well that later evidence showed that Reagan was aware of what was going on.  Likewise, the independent counsel eventually determined the vice president also knew what was going on, making his pardon of various participants particularly nefarious.

But, this seems more a matter of investigatory laxness, since he treats opposition to the last President as basically political.  This drove me crazy since he repeatedly cites ways he broke the law and his constitutional duties.  A lack of will to prosecute doesn't mean there is no grounds of prosecution.  Pelosi taking impeachment off the table was cited as a reflection of what the framers thought impeachment should cover.  I was not aware that this was that if something wasn't supported by the people or political will.  If lying us into war, torture, breaking the law, etc. is not covered, what is?  The book ended on such a lame note.

It is true that impeachment was on the table a lot more after 1960.  But, only relatively speaking. Fact is, only a handful of judges were targeted (at least one not impeached arguably correctly), a few convicted, and none until now after around 1990.  Reagan's impeachment was never really seriously considered.  Nixon was clearly a special case.  I would argue that Bush was too.  The fact that Republican presidents in recent years warranted impeachment and Republicans wrongly targeted a President for one is notable.  On that front, we did have an "age" of impeachment.

How bad it was in each case is another question.