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The New York Times
Editorial OBSERVER
The Founders Had an
Idea for Handling
Alberto Gonzales
By ADAM COHEN,
nytimes.com on the Web, August 19, 2007
William Belknap, Ulysses S. Grant’s
disgraced secretary of war, is experiencing a revival. Impeached in 1876
for taking bribes, he has become the inspiration for a movement to remove
Attorney General Alberto Gonzales from office. Impeachment is usually
thought of as limited to presidents, but the Constitution not only allows the
impeachment of Cabinet members, in Belknap’s case, it was actually done.
Impeaching Mr. Gonzales has moved beyond the hypothetical, now that Jay Inslee,
Democrat of Washington, and five other prosecutors-turned-representatives have
introduced a resolution to conduct an impeachment inquiry. Congress is
wary, and not only because of post-Clinton impeachment hangover. The
grounds set out in the Constitution are vague, and the Democrats do not want to
be seen as overreaching.
Members of Congress should keep in mind, however, that the founders gave them
the impeachment power for a reason — and Mr. Gonzales’s malfeasance is just the
sort they were worried about.
The Constitution provides for impeachment for “treason, bribery, or other high
crimes and misdemeanors.” Not a clear formula, but it wasn’t meant to be.
Impeachment, Alexander Hamilton explained in Federalist 65, cannot be “tied
down” by “strict rules, either in the delineation of the offense” by the House,
or “in the construction of it” by the Senate.
The founders did not want impeachment to be undertaken so casually that, in
James Madison’s words, the president and other officers effectively served at
the “pleasure of the Senate.” But they also did not want to limit it to a
few specific offenses. The phrase “other high crimes and misdemeanors” was
intended to give Congress leeway.
Impeachment was one of the important checks and balances the founders built into
the Constitution. At state ratification conventions, it was promoted as a
tool for Congress to rein in any officeholder who “dares to abuse the power
vested in him by the people.”
Impeachment of Mr. Gonzales would fit comfortably into the founders’ framework.
No one could charge this Congress with believing that executive branch members
serve at the “pleasure of the Senate” or the House. Speaker Nancy Pelosi
has indicated that impeachment of President Bush is “off the table,” and there
has been little talk of impeaching Vice President Dick Cheney or others in the
administration.
Congress has heard extensive testimony about how Mr. Gonzales’s Justice
Department has become an arm of a political party, choosing lawyers for
nonpartisan positions based on politics, and bringing cases — including
prosecutions that have put people in jail — to help Republicans win elections.
Mr. Gonzales’s repeated false and misleading statements to Congress are also
impeachable conduct. James Iredell, whom George Washington would later
appoint to the Supreme Court, told North Carolina’s ratification convention that
“giving false information to the Senate” was the sort of act “of great injury to
the community” that warranted impeachment.
The United States attorneys scandal is also the sort of abuse the founders
worried about. Top prosecutors, most with sterling records, were
apparently fired because they refused to let partisan politics guide their
decisions about whether to prosecute. Madison, the father of the
Constitution, noted in a speech to the first Congress that “wanton removal of
meritorious officers would subject” an official to impeachment.
If the House began an impeachment inquiry, Mr. Gonzales would most likely resign
rather than risk the unpleasantness of the hearings, and the ignominy of being
removed. Congress should think of it as a constitutional tap on the
shoulder, to let the attorney general know that the time has truly come for him
to go. If Mr. Gonzales did resign, this Congress would most likely be more
gracious than the one in 1876, which ignored Mr. Belknap’s hurried resignation
and impeached him anyway.
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