The House Committee on the Judiciary Majority Staff has written a Final Report to Chairman John Conyers, Jr. last month (March 2009),
REINING IN THE IMPERIAL PRESIDENCY: Lessons and Recommendations Relating to the Presidency of George W. Bush, with a very important Foreward by Rep. John Conyers (D-MI). In this blog, I will be focusing on Conyers’ explanation of the lack of impeachment during the 110th Congress, and the way forward. My approach is different from that of vyan in his blog, Conyers calls for Special Prosecutor on Bush Crimes – Updated

We have heard much of Conyers’ analysis before. Conyers states (p. 10),

Many think these acts rise to the level of impeachable conduct. I agree. I have never wavered in my belief that this President and Vice-President are among the most impeachable officials in our Nation’s history, and the more we learn the truer that becomes.


Many would agree with this assessment, which makes it unbearably frustrating that Speaker Pelosi famously took impeachment off the table at the beginning of the 110th Congress. But then Conyers came to a different conclusion than many others:

However, as I have said, while President Bush and Vice President Cheney have earned the dishonorable eligibility to be impeached, I do not believe that would have been the appropriate step at this time in our history, and I would like again to briefly explain why that is the case.

Many of us remember Conyers’ “Constitution in Crisis: The High Crimes of the Bush Administration and a Blueprint for Impeachment,” written during the 109th Congress, when the Republicans were in control. Despite the title, Conyers reminds us that the report “did not call for impeachment. Rather, it concluded that there was substantial evidence of impeachable misconduct and that there should be a full investigation by a select Committee armed with subpoena power.”

When many people persisted in misunderstanding this conclusion, Conyers wrote again, in an essay published in The Washington Post titled “No Rush to Impeachment” quoted in the new report (p.11),

So, rather than seeking impeachment, I have chosen to propose comprehensive oversight of these alleged abuses. The oversight I have suggested would be performed by a select committee made up equally of Democrats and Republicans and chosen by the House speaker and the minority leader. The committee’s job would be to obtain answers – finally. At the end of the process, if – and only if – the select committee, acting on a bipartisan basis, finds evidence of potentially impeachable offenses, it would forward that information to the Judiciary Committee. This threshold of bipartisanship is appropriate, I believe, when dealing with an issue of this magnitude.

Why such a timid conclusion? After all, it is the purpose of impeachment to establish the very things that Conyers wanted from the Select Committee, and the process of impeachment offers enhanced subpoena powers. And in any event, the 110th Congress, with its majority in the House, spurned Conyers’ recommendation. No Select Committee was named, and the closest thing to such a hearing conducted by the House Judiciary Committee near the end of the 110th Congress: “Hearing on: Executive Power and Its Constitutional Limitations,” Wednesday 07/25/2008 – (Full Committee), with a witness list that included Dennis Kucinich, Elizabeth Holtzman, Bob Barr, Bruce Fein, and a bunch of others. It was a pale substitute for the Select Committee that Conyers had argued for.

Why did the 110th Congress fail so miserably, despite a Democratic Majority in the House, and a hairline majority in the Senate? Conyers wrote (p. 12)

I would suggest that this argument ignores the text and history of the Constitution. There is nothing mandatory about using the power to impeach when wrongful conduct is shown, and the decision whether or not to impeach was always intended to be subject to the politics at the time. We live in a democracy, after all.

Conyers’ political assessment was this (p. 12):

The simple fact is, despite the efforts of impeachment advocates, the support and votes have not been there, and could not reasonably be expected to materialize. It takes 218 votes in the House and 67 votes in the Senate to impeach and remove a president from office. The resolution I offered three years ago to simply investigate whether an impeachment inquiry was warranted garnered only 38 cosponsors in the House, and the Democratic Leader of the Senate labeled it “ridiculous.” Impeachment resolutions against Vice President Cheney and President Bush offered by my friend and colleague Dennis Kucinich only garnered 27 and 11 House cosponsors, respectively.

[Emphasis added.]

My contention has been that Conyers’ pessimism was unjustified, and that in any case, the leadership of the House (including Conyers himself as chair of the House Judiciary Committee) could control the process. That is, I think that if an official impeachment hearing would have been allowed to begin, Conyers could
1. Refer it to the Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties,
2. Keep it locked in the subcommittee until evidence collected until sufficient support had built to develop articles of impeachment that are grounded in abundant evidence.
3. Keep the investigation going in the full committee until such time as there was sufficient support to bring articles of impeachment to the floor of the House.

I remember that during Watergate, the leadership of the Congress did not know at the beginning of the investigations whether the outcome would be favorable or not. They trusted the process, and began the investigation before knowing what the outcome would be. Yet it was the work of the investigations that exposed the evidence that eventually led to Nixon’s resignation.

Conyers knows this Watergate history very well; he was a member of Congress at the time. In fact, Conyers voted on the Articles of Impeachment against Nixon in July 1974. But during Watergate, the investigations were led in Congress first by the US Senate. According to the Wikipedia,

The Senate Watergate Committee was a special committee convened by the United States Senate to investigate the Watergate burglaries and the ensuing Watergate scandal after it was learned that the Watergate burglars had been directed to break into and wiretap the headquarters of the Democratic National Committee by the Committee to Re-elect the President, President Richard Nixon’s re-election campaign fund raising organization. The formal, official name of the committee was the Select Committee on Presidential Campaign Activities… Hearings opened on May 17, 1973, and the Committee issued its seven-volume, 1,250-page report on June 27, 1974.

The House Judiciary Committee got involved in July 1974:

the House of Representatives began formal investigations into the possible impeachment of the President. The committee’s opening speeches included one by Texas Representative Barbara Jordan . The House Judiciary Committee voted 27 to 11 on July 27, 1974 to recommend the first article of impeachment against the President: obstruction of justice. The second (abuse of power) and third (contempt of Congress) articles were passed on July 29, 1974 and July 30, 1974, respectively.

So in Conyers’ mind, it seems that the Senate should take the lead by appointing a Select Committee, and impeachment in the House should begin only after the Select Committee issues its report. In the 110th Congress, the Senate was closely divided between Democrats and Republicans, and the Democrats controlled it only with the assistance of one Socialist (Bernie Sanders) and one independent (Joe Lieberman). Although Conyers doesn’t say so explicitly, he apparently felt that the Senate had to move first.

But here’s what Conyers has to say in overview of the situation and the way forward (pp. 14-15):

The lesson I took away from Watergate and the Vietnam era spying abuses was that much of the work of reining in an Imperial Presidency takes place after the change in Administrations. It was only due to the work of the Church Committee and other reviews initiated after President Nixon resigned that we were able to pass historic legislation such as the Federal Campaign Finance Act, the Foreign Intelligence Surveillance Act, the Independent Counsel Act, the Ethics in Government Act, and the Presidential Records Act. It was Pecora Commission’s work after the Wall Street Crash in 1929 that helped lay the ground work for the New Deal banking and securities reforms.

Likewise, I believe now is when much of the work to remedy the excesses of the most recent Imperial Presidency begins. That is why this Report recommends that the Judiciary Committee and the Congress pursue any unresolved subpoenas and document requests left over from the last Congress; that we create a “blue-ribbon” commission or similar select committee, along the lines of the 9/11 Commission, to investigate these matters and report to Congress, the President, and the public; and that the incoming Administration finally begin an independent criminal review of activities of the outgoing Administration, such as enhanced interrogation, extraordinary rendition, and domestic warrantless surveillance.

The 541 page Report goes on to make a total of 50 policy recommendations. But this should be enough for us to get a sense of Conyers’ game plan. Note that this game plan involves
(a) a “blue-ribbon” commission or similar select committee, along the lines of the 9/11 Commission, to investigate these matters and report to Congress, and
(b) an independent criminal review by the Obama administration of activities of the Bush Administration.

This is essentially modeled on Watergate. The problem is, will Congress step up to the plate and resume its role in the balance of powers, taking its oath of office seriously, or will it continue to be dysfunctional?

Bob in HI