Copyright © 2007, by Leonard R. Jaffee, Curriculum Vitae
If you want Cheney impeached (or if, like me, you want Bush impeached, too), you need to understand the governing law and the practical realities. Too many good-hearted folks clamor just emotionally for Cheney's removal. Too many dis-serve the cause by ranting rather than arguing with solid fact and law. Too many do not appreciate the hard reality and real utility of pressing Congress to remove Cheney.
The Constitution's Impeachment and Removal Provisions: Text and Reality
The US Constitution's Article I § 2 clause 5 says: "The House of Representatives...shall have the sole Power of Impeachment," and neither that clause nor any other constitutional provision limits that power or the means or mode of its use.
So: Only the House can impeach. No other governmental entity or officer, not even the President or Supreme Court, can participate in any way, or redress an impeached official's claim of denial of due process. The House need not rest impeachment on proof beyond reasonable doubt or a preponderance of evidence or even on substantial evidence or probable cause of believing the official can be convicted (by the Senate).
The impeachment process is not a trial, or even analogous to a grand jury proceeding. It is unique. The House can impeach if merely its simple majority votes to impeach.
But impeachment is just the beginning of the process that determines whether an official shall be removed from office. Article I § 3 clause 6 says the Senate "shall have the sole Power to try all Impeachments," and "no Person shall be convicted without the Concurrence of two thirds of the Members present." Article II § 4 says: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article III § 2 says impeachments are not tried by jury. (Therefore, the Senators, alone, try impeachments.)
So, the Senate is limited by a two-thirds concurrence rule. But, otherwise, like the House when it considers impeachment, the Senate is unrestrained. Its procedures and actions are not subject to judicial scrutiny. A convicted official cannot seek judicial redress.
If the impeached official is the President, the Supreme Court's Chief Justice presides at the Senate trial. But still the Senate makes the rules. The Chief Justice cannot overrule any procedural action of the Senate or overturn its decision. Judicial evidence rules do not govern. The Senate need not rest its decision on proof beyond reasonable doubt or any particular level of proof. The Chief Justice keeps order -- like a traffic light. But the Senate parliamentarian determines when the light is red or green -- tells the Chief Justice the rules and how they apply. Recall Bill Clinton's Senate trial.
The only issue is whether two thirds will vote for conviction. If two thirds find the official guilty, the finding is "just." Sixty seven thought conviction factually, logically, legally, and morally sound -- despite contrary arguments of 33 others. Most Senators are lawyers or hold law degrees. They know what justice is. Right?
So, the Senate could find Cheney guilty even if no court would. The Senate's power does not suffer the technical constraints that limit judicial power; and an impeached official's conviction does not require that the official violated criminal law. The question is whether two thirds concur that the official's conduct was a "high Crime" or ["high"] "Misdemeanor" because it perverted the official's office, corrupted government, threatened the Republic or our democracy, or damaged the public welfare the official swore to protect.
Still, the vital matter lives in a different universe. Cheney has committed many high Crimes and Misdemeanors. Yet, all or near-all Republican Senators, some Democrats, and Joe Lieberman would not vote to convict -- unless the People demand Cheney's ouster loudly enough to scare about 28 resistant Senators into voting for it. So, Cheney may stay in office -- however strong the case made against him.
But so what? Impeachment -- even just impeachment process -- could mend our Republic's direction.
The House Democrat majority is not large, and some House Democrats are anti-progressive or lack guts. Still, if the Democrat base's great preponderance, most independents, and enough Republican voters demand Cheney's removal, progressive House-members may be able to marshal a simple majority willing to pass at least one article of impeachment. The chance is real.
Impeachment would bear tumultuous effect despite it would not lead to removing Cheney. The impeachment-supporting investigations, disclosures, and arguments would embarrass, fatally, not just Cheney, but Bush, his administration, and, more importantly, the Republican machine. The process's ardor and an impeachment article's passage would manifest a critical, powerful solidarity of progressives and right-minded others (even libertarians, like me).
The People will know that impeachment was justified and that, in some part, government remains true to its service of the People. The People will know that if impeachment does not lead to removing Cheney, the reason will not be truth, but corrupt politics -- just as the People know that sometimes righteous indictments do not produce convictions only because of extortion or bribery of witnesses, jurors, prosecutors, or judges, or judicial bias, error, or lame-brainedness, or prosecutorial mistake, neglect, or incompetence.
The US Constitution's Article I § 3 Clause 7 says: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office...under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." That provision implies that even if impeachment does not lead to the Senate's convicting Cheney, the impeachment's premises -- the "high Crimes" or ["high"] "Misdemeanors" -- may be grounds of prosecuting Cheney in federal or state court.
Many good-hearted folks think they just "know" all Cheney's horrible crimes. But their "knowledge" is both debatable and too narrow.
Few appreciate adequately the matter of proof. The House need not follow the many stringent legal rules governing criminal trials. But if the House impeaches Cheney for a "high Crime" or ["high"] "Misdemeanor" though the record does not bear strong factual or legal basis, the impeachment's House supporters will be open to charges of wrong-minded viscous partisanship.
Still, House progressives need not trouble themselves to produce an atomic-bomb-powerful impeachment basis -- or shy from seeking Cheney's impeachment because they cannot produce such a case. They must establish merely a factually and legally adequate one -- strong enough to enjoy credibility among a substantial majority of the People.
Many (even Kucinich and his Bill's co-sponsors) do not see enough of the possibly provable bases of Cheney's impeachment. For some, the difficulty is their thinking that impeachment is closely analogous to judicial criminal-law process and that "Treason, Bribery, or other high Crimes and Misdemeanors" must mean acts that current federal law makes crimes.
What Are "High Crimes and Misdemeanors"?
In Bill Clinton's Senate trial, Clinton's lawyers (and many Senators, even some Republicans) argued that "or other high Crimes and Misdemeanors" implies a set of offenses qualitatively very like Treason and Bribery (of an official). So, Clinton was not guilty because his crimes occurred as infractions committed in or regarding a civil lawsuit concerning purely private conduct, not conduct affecting government or the nation's welfare or integrity, as may an official's treason, bribery, or bribe-acceptance.
The argument is right. Would Cheney use it? It could help Cheney if impeachment rests only on technical terms of specific criminal-law statutes (other than bribery or treason laws). Cheney could argue that "mere" technical statutory crimes are not "high Crimes and Misdemeanors," because such crimes do not pervert the office of the Vice Presidency, corrupt the federal government, threaten the Republic or our democracy, or injure, seriously, the public welfare -- as may "Treason" or "Bribery."
But the argument could hurt Cheney. It implies that he committed a "high Crime" or ["high"] "Misdemeanor" if, intentionally, wilfully, or recklessly, he did an act that was not a technical statutory crime yet, still, like the "Treason" or "Bribery" Article II § 4 references, was an act that perverted his office, corrupted the federal government, threatened the Republic or our democracy, or injured, seriously, the public welfare.
So, a vital question is: What constitutes the "Treason" or "Bribery" that Article II § 4 references?
"Treason" and "Bribery" are very ambiguous terms. They are ambiguous for three kinds of reasons.
New York law bears many different definitions of "bribe" or "bribery." Three examples ought suffice.
One statute requires that if the alleged bribe is a bribe of a "labor official," the official must not have coerced the alleged briber to give the official the value alleged. What is a "labor official"? What is "coercion"? What kind of pressure does it involve? Does "coercion" denote only the crime of coercion or coercion of any kind?
Another statute says: "A person is guilty of bribery...when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced."
What does "public servant" include? A State-House janitor? What does "any benefit" include? A kiss?
What is the meaning of "understanding"? An "understanding" does not equal an "agreement" -- especially since the statute used "agreement" as a distinct alternative of "understanding." Is an "understanding" present if just the briber thinks he "understands" that the other party will do a certain act? Some acts are crimes merely because they are attempts, or intentions acted upon -- even though the thing attempted or intended cannot occur or the actor is mistaken concerning whether the act may produce an intended result.
A third statute says a person is guilty of bribery if:
The third statute's focus is on the crime of the bribe's recipient. The bribe's goal is narrower, too. The second statute operates on the broad concept "influence." The third operates on the narrower premises "agreement or understanding that" the bribe-recipient will "perform his duties improperly" or will "not...give his best efforts in a sports contest."
Right now, federal statutes criminalize not only "bribery" of officials, jurors, witnesses, and sources of information relevant to a criminal case, but also, among other kinds of conduct, these acts:
But federal law will absorb the New York definition. Examples: (a) If a person tries to do a New York sports-bribe two or more times, that person may be guilty of a federal racketeering crime -- a violation of the "Racketeer Influenced and Corrupt Organizations Act," the federal anti-racketeering law, known as "RICO." (b) If the briber travels interstate or across national borders or uses facilities of interstate or foreign commerce to do a New York bribe in New York, he commits a federal felony.
At any time in any place, whatever the then-prescribed meaning (which includes scope of application), an accused is not guilty unless he intended to "bribe" a person the "bribing" of whom was, then, a crime. "Intent" is an ambiguous term. Sometimes, not always, it does not mean determined intent (or only determined intent) but doing something wilfully or recklessly. And the law has changed and may change further concerning how "intent" may be proved.
A lobbyist takes a Senator to an expensive restaurant and buys the Senator's dinner. Did the lobbyist intend to induce the Senator to corrupt his duty or office or to introduce, oppose, or vote for or against certain legislation though otherwise the Senator would do the contrary? Or did the lobbyist intend only to create close, friendly rapport, so that she (the lobbyist) could pose proper legislative prospects legitimately but more facilely? If the latter, the lobbyist did not commit a crime. If the former, maybe the lobbyist tried to buy legislation and, so, maybe she committed "bribery."
But the matter is also the intent of the Senator dining with the lobbyist -- the way the Senator reacts to the lobbyist's conduct. Even if the lobbyist intends to bribe the Senator and admits so, still the Senator did not accept the bribe unless he appreciated that a bribe was being made and "accepted" it.
Even if the Senator "accepted" the bribe, still perhaps the Senator might not commit a crime unless he gave the lobbyist what she wanted and quite because of the bribe. If before the dinner and solely for legitimate reason the Senator had determined to pursue exactly what the bribe sought, the case might be a criminal-type agreement but the Senator not guilty of a crime, because the Senator did not manifest or pursue the agreement with a criminal act. (The lobbyist might have committed only attempted bribery.)
The Senator achieves passage of a bill that gets the lobbyist's client what it wants, but the bill is proper and the Senator's motive was not the bribe but a legitimate legislative goal the Senator had determined to attain even before the dinner. The Senator may have obtained unjust enrichment and the lobbyist may have been hoodwinked. But the Senator may not have committed a crime.
A Senator takes a lobbyist to dinner. He wants the lobbyist to help marshal support for legislation that may be a source of eventual, large, post-retirement business-gain for the Senator. He says: "I'll be more friendly to your legislative interests if you further my legislative objectives that may profit me after I retire."
But the Senator did not state, ever, that he would sell legislation that otherwise he would not sponsor or support. The Senator did not say he would provide the lobbyist some kind of economic benefit, somehow, or help the lobbyist get legislation passed, if she helped the Senator pass certain legislation he sought partly for eventual, post-retirement gain. So, the Senator might not have committed "bribery." Also, whatever the current possibly applicable "bribery" definition, judicially sufficient proof may be illusive.
Yet the Senator's official conduct might become biased, illegitimately, if the lobbyist agreed to help him. Would such possible bias be, or show, a federal bribe-felony?
The Constitution's "Framers" did not mean to make an official's impeachment, conviction, and removal depend upon such niceties. "Bribery" is a species of corruption. If, clearly, an official corrupts his office by means that enough reasonable people would call bribery despite current criminal law or courts would not call it such, then the official commits the kind of "Bribery" Article I § 3 Clause 7 condemns.
Article I § 3 Clause 7 and the other impeachment/removal provisions provide for the security of the Republic, not for criminal prosecution of individuals who violate prohibitions of particular criminal laws. So, if an official does an act that common sense calls bribery and the act corrupts the official's office or duty and threatens the integrity of the Republic or the public welfare, then the official commits Article I § 3 Clause 7 "Bribery."
Now consider "high...Misdemeanors." At times of US history and now in some places or conditions, "misdemeanor" might mean some kind of duty-violation worse than mere mistake or simple negligence but not bad enough to be treated as a crime. An historic example is "indecent cremation." A traffic-law violation could be a misdemeanor. "Public intoxication" and "disorderly conduct" may be misdemeanors -- though such acts offend some sensibilities but do no real harm.
"Misdemeanor" means mis-conduct or mis-deed, a concept immensely broad. Some locales call misdemeanor-doers "misdemeanants," not "criminals."
So, "high...Misdemeanors" may seem an oxymoron if not just bad usage. But when the Framers produced the constitution, "misdemeanor" had a very different legal meaning.
Eighteenth century English and Anglo-American judicial law (the common law) held that a misdemeanor was any offense not treason or a felony. Some "misdemeanors" could be virtually identical to felonies but not treated as felonies because of a legal quirk. If one burned another's house, one committed the felony "arson." But if one burned one's own house, one committed a misdemeanor -- "house burning" -- despite one's act endangered innocent others or could have cost a fire insurer a claim-payoff.
When the Framers produced the constitution, common law courts called acts crimes (felonies or misdemeanors) because the acts were inherently criminal. An act was inherently criminal much because of its effect. If one burned one's own house and the burning caused a neighbor's house also to burn, likely one committed not just the misdemeanor "house burning" but also the felony "arson." Surely "arson" is a felony -- a "higher" crime" -- because an innocent victim suffers great actual harm.
So, surely the impeachment matter is not whether a court would hold an official's act a felony or misdemeanor or whether the act violates a crime-statute. The matter is whether the act violates a duty of office and does so at a level "high" enough to pervert the office, corrupt government, threaten the Republic, our democracy, or the public welfare, as can some kinds -- only some kinds -- of bribery or treason.
If an individual bribes an athlete or labor-official, no one can be impeached. The same would be true if an official did the bribing but the official's conduct and effect were just private -- did not involve the official's office or pubic duty. If an individual commits treason without involving an official, no one can be impeached.
A US official gives money to a charity. The official knows the charity will use his donation to provide food to starving peasants who give lodging, sometimes, to foreign revolutionaries whom a Presidential directive labeled "terrorists" and "enemies of the United States." Most people consider the directive fraudulent or corrupt. The official may not have committed Article I § 3 Clause 7 "Treason" -- though, perhaps, he violated a statute that defines treason fittingly.
Title 18 US Code § 2381 says: "Whoever, owing allegiance to the United States, ...adheres to their enemies, giving them aid and comfort...is guilty of treason...." If one feeds starving peasants who aid a US "enemy," perhaps one gives indirect "aid" to the "enemy."
So, an official may commit an impeachable offense even if the official's office-perverting or nation-threatening act is not the subject of some federal criminal-law prohibition. The act may be an impeachable offense if the act is a subject of a criminal-law prohibition of just one of our states or even if no criminal statute, or any statute, addresses such act.
Near-entirely, federal officials' duties and limitations do not depend on criminal law -- federal or state. They depend on civil legislation, civil rules, civil regulations, and the federal constitution. Our treaties are parts of our federal legislative law. Officials are sworn to uphold the constitution and all federal legislation having any bearing upon their offices. Our treaties make various international rules at least indirectly parts of our federal law. So, our officials are sworn also to uphold such international rules.
Suppose a high official violates certain international rules wilfully, often -- despite she knows the violations stir the ire of foreign nations or informal foreign powers that are willing and able to hurt our nation. The violations weaken international accords and institutions -- weaken them badly enough to threaten their demise -- and cause allies to shift their alliances away from us, harmfully.
The official has not violated any federal criminal law or even any specific, non-criminal federal statute. But the House would not be remiss if it determined that she committed a "high Crime" or ["high"] "Misdemeanor" very like "Treason," and the Senate would not be remiss if it convicted her.
Ordinarily, state laws do not govern the conduct of federal officials. But sometimes they do.
Our federal constitution left certain matters to state prerogative. Some federal legislation does the same.
If state law manifests a state prerogative, federalism requires that federal officials either uphold or respect that state law. The states yielded power to the federal government only according to the "understanding" that the federal government would respect and even sometimes defend the states' retained powers and prerogatives and surely not trespass upon them.
A certain federal official uses his office, corruptly, to violate a state's law occurring in a field of retained state prerogative. The official violates the federalism that is part of the core of our constitution. He harmed public welfare and the Republic's integrity. His act may be a "high Crime" or ["high"] "Misdemeanor."
Sometimes federal law incorporates state law. Federal bribery-law and RICO do.
Many times an official uses his office to commit state-law extortion by interstate wire. If judged according to federal law, the extortion would not be a crime (but non-criminal coercion). Still, the official may have committed a federal RICO violation. His state-law extortions may be high Crimes and Misdemeanors if they pervert his office or harm the Republic, our democracy, or the public welfare.
What High Crimes and Misdemeanors has Cheney Committed?
(1) Perjury, obstruction of justice, misprision, related crimes
Cheney has lied often to the public, to officials, to Congress, and to our allies. He has lied not only with positive statements but also by keeping truth secret or withholding information so that people (officials or not) will be misled to advantage his and the Bush administration's illegal or unconstitutional objectives and goals concerning Iraq. Still, criminal law does not make a lie a crime unless it constitutes a malfeasance like perjury, obstruction of justice, misprision, or fraud that violates a crime-statute that fits the lie's type.
Cheney has avoided testifying under oath and making affidavits. So, perjury is not a good charge. Still, Cheney has lied, kept truth secret, or failed to disclose vital information in ways and contexts that may "elevate" his lies to obstruction of justice, misprision, criminal fraud, or obstructing a Congressional inquiry or investigative proceeding (contrary to 18 US Code § 1505).
When, with lies and other corrupt or corrupting means, Cheney fostered the government's deceiving Congress into resolving (conditionally) to permit Bush to invade Iraq, Cheney violated 18 USC § 1505 — despite he did not testify to Congress or a Congressional Committee or make a statement to Congress by any other means. Cheney "corruptly" influenced, obstructed, or impeded or endeavored to influence, obstruct, or impede "the due and proper exercise of the power of inquiry under which" an "inquiry or investigation" was "being had by" the House or Senate or a Committee of either or a Joint Committee of Congress.
The Department of Justice has not begun investigating whether the Bush administration committed federal crimes (like violation of the War Crimes Act) in invading and occupying Iraq or doing acts that prepared the political, diplomatic, or military way for the invasion. But we ought not be amazed if we discover that Cheney is much responsible for the lack of investigation and that he has committed obstruction of justice, misprision, extortion, bribery, or fraud to prevent an investigation's beginning.
Cheney has lied, kept truths secret, covered up facts, or withheld information to prevent law-enforcement officials' considering whether various Iraq-related private acts (like Haliburton's or certain journalists') were federal crimes. His lies and concealments may be, or pursue, "misprisions" -- criminal concealments of crime, maladministrations of office, improper performances of official duty, or misappropriations or misuses of public funds -- even if no law enforcement agent has begun an investigation his deceits could affect.
An official may misappropriate or misuse public funds by causing the government to grant an improper contract. Cheney committed such misprision when he arranged no-bid Iraq-deals for Haliburton, of which he was, and is, a major stockholder. He committed the misprision with lies misrepresenting that emergency required quick, no-bid deals and that he made the deals for proper purpose, not corruptly for corrupt ends.
If, as is not unlikely, Cheney was privy to the causes or circumstances of the "loss" of trillions of dollars of Pentagon funds that "vanished" shortly before 9/11 and if the vanishing was embezzlement, his concealing his knowledge could constitute misprision. If the trillions were spent partly to provide indirect funding of the Iraq war or to create a political climate conducive to invading Iraq or spent on any unauthorized or private object, the misappropriation would be embezzlement. If, as is not unlikely, Cheney was involved, he may be involved feloniously in embezzlement of public funds and guilty of misprision for concealing it.
The Iraq war's Congress-appropriated military funding occurred because of Cheney's lies -- not for legitimate reason. So, the funds were misappropriated, and Cheney's lies caused the misappropriation. Therefore, his conduct was misprision.
Cheney knew he was speaking falsely or withholding truth or vital information to get our nation into unjustified war for illicit motivations: power-lust, oil-greed, and money-avarice -- of Cheney and his corrupt cohorts. He misused information, miscast it, misrepresented it, published parts out of context to make false meaning -- all to plunge our nation into the catastrophe of Iraq -- an illegal war of aggression fraught with war crimes and "crimes against humanity," the war itself a war crime and "crime against humanity."
Cheney knew the war would be the catastrophe it is. Various intelligence sources warned the catastrophe would occur. Cheney wanted the catastrophe. He wanted us stuck in Iraq, in permanent bases, forever, or until Iraq's oil fields are sucked dry. His reason was not the security or legitimate interest of the United States. His reason was his and his cohorts' quest of power and private gain.
So, Cheney's lies were "high Crimes and Misdemeanors" -- at least because he told his lies to enable the commission of "high Crimes and Misdemeanors."
Were Cheney's lies frauds? Just civil frauds? Criminal frauds? "High Crimes and Misdemeanors"?
Moslty, fraud involves lying to deceive an individual or private entity -- not government -- into relying on the lie and suffering private detriment for the reliance. Cheney's Iraq lies were not such -- not by design.
One can commit fraud by deceiving government -- making "fraudulent claims" that misallocate public funds. Haliburton lied to get and gain from Iraq war contracts. Cheney knew Haliburton's lies -- fostered and supported them, with his lies. He was Haliburton's conspirator, accomplice, and major stockholder.
Still, Cheney's Iraq-related lies were not fraud because they misled the People or the press or our allies. Sometimes, a person commits criminal fraud by misleading the public. But in near-all such cases, the harm injures the market (as if a drug company deceives the drug-buying population to believe a harmful drug is safe). The harm is not one of impairing the general public welfare or the citizenry's standing as the People.
Cheney's lies did harm US markets -- among others, employment, education, petroleum, petroleum-dependent industry and commerce, industries that suffer when the military/industrial complex draws public funds and other resources away from non-military uses. His lies harmed many markets also because they thrust the US deeply into debt -- so that the US lost weight in balance of trade, the dollar lost value and (in some places) the position of standard value-measure, and US citizens lost real income and buying power.
Such market effects alter wealth-distribution. Wealth-distribution affects, greatly, the distribution of political power, the public welfare, our democracy itself, and our Republic and its international standing.
May Cheney's lies be frauds if they sought just to deceive a branch or agency of the federal government, but did not facilitate "fraudulent claims" and did not harm the market but hurt only the public? Maybe.
Cheney worked his lies directly and through others by mail and interstate wire (television, interstate phone or fax, perhaps interstate email). If, by mail or interstate wire, an official pursues an artifice of fraud that would deprive the public of its right of honest government services, he commits mail fraud or wire fraud.
Cheney's lies led to the Iraq war. The war shifted -- massively -- federal government time and effort and federal money away from domestic programs and useful diplomacy. The war misallocated civil and military personnel and non-human resources, so that they have not been sufficiently available for handling domestic troubles -- not just like Hurricane Katrina, but also ordinary important public ills.
Cheney worked his fraud-scheme numerous times. His artifices influenced many through many fraudulent mail or wire communications. So, his conduct may be "racketeering" -- a RICO violation.
Cheney's Iraq lies may be frauds according to other particular federal statutes. They may violate criminal or quasi-criminal protections various states provide their citizens. If so, they may violate Cheney's oath of office and Constitutional duty (which includes not violating the principle of federalism or states' rights).
His Iraq lies parallel criminal-law frauds that harm individuals, businesses, markets, or government acting as contractor/proprietor. But they are worse -- even if not criminal frauds according to federal or state law.
B. War crimes, "crimes against humanity," mass murder, mass mayhem
Cheney knew his fraudulent preemptive war violated international law. He knew it violated the UN resolution that passed not long before the invasion: he knew the US needed (so asked for) a second UN resolution, an invasion-authorizing one, which the UN did not pass. He knew a "war of aggression" is a war crime. He knew that when such war causes hundreds of thousands of civilian casualties and millions of dislocations, it is a "crime against humanity." He knew the war's premises were frauds. They were his frauds, which he committed and caused others to commit, and which he tried to conceal with further frauds.
Alone and with conspirators, Cheney deceived Congress into authorizing the invasion, which he planned before he became Vice President. He did not plan it because Iraq was, ever, or could become, a security threat. He did not plan it because Saddam was a monster; for, Saddam was a monster when he was a US ally, and, with Reagan's urging or resources Reagan supplied, slaughtered more than 500,000 Iranians and thousands of Kurds, many with chemical weapons. Cheney planned the Iraq invasion to control Iraq's oil.
Since the Iraq war is Cheney's illegal war of aggression, every time a US soldier killed or maimed an Iraqi, Cheney committed murder or criminal maiming, just as a Mafia Don commits murder every time his "soldiers" kill for him. Since the war's premises were and remain only frauds Cheney committed or caused others to commit, each time a US soldier was a casualty, Cheney committed a crime.
So, Cheney is guilty of many thousands of murders and criminal maimings -- mass murder, mass mayhem. Being products of Cheney's war of aggression, the mass murder and mass mayhem are war crimes and "crimes against humanity" -- as is dislocation of 2 million Iraqis. Those crimes are also violations of US treaties and accords and the War Crimes Act. The war itself is a vast crime of Cheney's doing. Since the murder and mayhem happened because of criminal acts Cheney did in the US and with criminal misuse of the US military, those crimes violated not just the War Crimes Act, but other US domestic criminal laws.
Murder is, ordinarily, a crime of state law. But it can be a federal crime when the murderer crosses a state or federal border to commit the murder -- as Cheney did, by traveling interstate to market his war with his lies and connivances, and through the US troops he caused to travel interstate and be deployed illegally in Iraq -- at least if the murderer acts "as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so." (18 US Code § 1958)
The proof problem is tying Cheney's Iraq war murders to money-gain he expected to get from US control of Iraq oil and no-bid war contracts he set unlawfully. But that problem is not tougher than proving a Mafia Don arranged that a Mafia "soldier" cross a state line to murder a person who stood in the way of the Don's making a lucrative deal with some third party. Cheney is filthy rich in Haliburton stock and options.
Since Cheney was responsible for thousands of murders of Iraqis and "felony murders" of US troops (troops' deaths occurring while they acted as tools of Cheney's felonies), Cheney's crimes may be RICO felonies. RICO makes state-law murder a federal felony if the murder:
Even if he did not commit murder according to any federal or state criminal law, he committed a massive war crime and a massive "crime against humanity." Those crimes hurt the Republic and our democracy enormously -- monstrously.
They hurt the People many ways -- bodily and economically. They will continue to hurt the Republic, our democracy, and the People for many decades -- because they plunged the nation deeply into debt, because of the unhealthful and cruel wealth-redistribution they caused, because they injured hugely our nation's international standing, and because they impaired vastly our national security, partly by advancing the terrorism Cheney's war feigned to arrest.
C. Extortion and Racketeering
The Hobbs Act (a federal criminal statute) says: A person commits a federal felony if "in any way or degree" the person "obstructs, delays, or affects commerce...by...extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section." "Extortion" means "obtaining...property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."
Cheney conspired to use threat of loss of liberty, property, or economic opportunity to force, or cause others to force, many (perhaps many thousand) US soldiers to submit to being deployed to Iraq. "If you do not go, you will be confined, tried by court-martial, imprisoned, and dishonorably discharged with loss of pay, pension, and economic opportunity. I can promise you so, because of my 'official right'."
So, maybe Cheney extorted or conspired to extort many US soldiers. Surely, Cheney's conduct obstructed, delayed, or affected commerce. Surely Cheney used threats of force and fear to make many thousand soldiers travel or not travel or to affect commerce -- as otherwise they would not.
The only question is the matter of "obtaining...property." The extortionist need not obtain or seek property for himself. No one needs actually to obtain property. An extortionist can commit extortion by seeking to cause a victim to yield property to any other person, even if the yielding does not gain the extortionist anything, even if the extortionist does not seek to benefit the person who obtains the victim's property.
So, the question reduces to whether, directly or through another or others, Cheney attempted to cause the coerced soldiers to yield property to others. That question implies the question of what is "property."
"Property" is not a thing (like a house or book). "Property" is a right respecting a resource, even an intangible resource, a right a court will enforce against some relevant "world." Because of the Hobbs Act's "extortion" definition, the right must be transferrable, since it must be obtainable by another.
Did Cheney at least attempt (directly or through others) to coerce soldiers to yield to others some judicially enforceable rights respecting resources? Many soldiers (especially reservists and national guard) yielded transferrable job rights, housing rights, enforceable contractual expectations, or other transferrable property -- because they were deployed. When a soldier lost such right, someone else got a correlative benefit, and the benefit may have been the "obtaining" of the victim's "property."
Example: An Iraq-deployed soldier's landlord kept a lease-security deposit and obtained the leased premises, which the landlord re-let for higher rent. Cheney knew such "obtaining of property" would occur and detriment the soldier and benefit the landlord and Cheney's objectives; hence Cheney intended so.
If Cheney's coercive acts were not Hobbs Act "extortions," they may have been state-law extortions. State-law extortions are not, themselves, federal crimes. But if a perpetrator affects commerce by using an "enterprise" to commit such extortions twice or more within a ten-year period, he may violate RICO.
Credible evidence suggests Cheney committed other extortions. Often enough, Cheney used economic carrots and sticks to get various federal officials to facilitate or not expose his frauds that stirred our Iraq-invasion and its misled Congressional support. Example: The carrot is better pay or better job-security. The stick is job-loss, hence wage-loss. Wages are assignable -- "obtainable." If the stick strikes, job-loss occurs; the employer keeps (hence obtains) the victim's wages, or another employee obtains them.
Cheney directed the government (an "enterprise"), or conspired to do so, to pursue such extortions (of soldiers or federal officials) thousands of times. So, Cheney's acts may constitute a vast RICO-violation.
Likely, the current Supreme Court would nix such view of the Hobbs Act and RICO. The reason would not be the statutory language or history or any logic, but a mix of two irrelevant (but politically potent) apprehensions: (1) Republican agenda includes curtailing extortion-prosecution and RICO-prosecution of Republican officials and big business. (2) Cheney and his cronies are key Republicans.
Still, for the House and Senate, the Supreme Court's inclination is irrelevant. The Supreme Court does not determine the meaning of "high Crimes and Misdemeanors." The House and Senate do. Their determinations are not subject to judicial review or limited by judicial precedent or any statute. Even if Cheney's coercions are not technical federal or state-law crimes, they were high Crimes and Misdemeanors. They perverted Cheney's office monstrously and harmed, hugely, our Republic.
D. Exposing a covert CIA agent: Valerie Plame
Quite enough evidence shows that Cheney bore primary criminal responsibility for exposing Valerie Plame and that he did so to retaliate against her husband, ambassador Wilson, because Wilson exposed a set of lies Cheney was using to deceive Congress and the public into supporting the illegal Iraq invasion he had planned before he took office. Quite enough evidence shows also that Cheney conspired in his crime with Bush, Rumsfeld, Rice, Scooter Libby, Karl Rove, and others of the Bush administration.
Cheney violated a federal statute that makes criminal the exposing of a covert CIA agent. He attempted to commit misprision with coercion, perhaps even extortion. He exposed Wilson's wife, Ms. Plame, not just to punish Wilson, but also to coerce Wilson to shut up and stop undermining Cheney's Iraq plan. Cheney's act implied that if Wilson did not shut up, Cheney would harm Wilson or his wife further.
Cheney's crime hurt Ms. Plame and Mr. Wilson personally and injured Ms. Plame's CIA career. Those harms were unscrupulous. But, concerning impeachment, the critical matter is that Cheney's crime was part of his huge, complex wrong of deceiving Congress, the public, and several ally-nations (and attempting to deceive the UN) into supporting Cheney's Iraq war plan. Cheney got his way -- and his way was not only a vast set of many domestic crimes, war crimes, and "crimes against humanity," but also a great and ongoing harm of the Republic, our democracy, and US public welfare.
2. Warrantless surveillance
Cheney pressed compliance of Department of Justice officials who thought the warrantless surveillance program illegal. Cheney supported the program publically more than several times.
Surely, the surveillance program violated the fourth amendment. But a fourth amendment violation is not a federal crime -- only a basis of a civil lawsuit. So, one question is whether a federal statute makes the program's designers or implementers federal felons. Another question is whether the designers or implementers have committed "high Crimes and Misdemeanors," even if not federal statutory crimes.
At 50 US Code § 1809, the Foreign Intelligence Surveillance Act ["FISA"] says:
The Commander in Chief controls the waging of a war -- though he can engage in a "war" (rather than an emergency defensive military operation) only if Congress authorizes him and only subject to Congress's monitoring to determine whether the authorization ought to continue, expand, or cease or the war's policy change. If the Iraq and Afghan wars were like WWII, Bush would have inherent power of undertaking military or military-related security action within the US, even though the war had not reached within US borders. But the Iraq and Afghanistan wars are not like WWII.
Bush and Cheney claim, still, that Iraq's government was involved in 9/11. But surely, indisputably, Iraq's government bore no connection with 9/11 and did not ever threaten the internal security of the US. Bush and Cheney claim also that now Iraq threatens US internal security because it is a training arena of al Qaeda operatives who would come to the US to commit more 9/11s. Perhaps the claim will have merit someday (because of the manifest criminal hubris of Bush and Cheney). But right now it is bogus.
Right now, no real evidence suggests al Qaeda operatives will travel from Iraq to the US to cause massive destruction, or any destruction. All real evidence indicates the contrary.
The "War on Terror" is not a war. It is -- if anything but an empty, ungrammatical slogan -- just a haphazardly coordinated scheme of reducing risks of terrorism that may threaten the US. The would-be terrorists are not soldiers or even paramilitary forces of any nation. No single "terrorist organization" (except Bush's government) -- not even al Qaeda -- controls even a substantial quantum of either the various terrorists or would-be terrorists. Terrorists are such because they use terror to try to achieve myriad, oft-unrelated objectives -- not because they join in fighting a war.
So, Bush has no inherent power to conduct warrantless wartime espionage in the US -- even if during WWII the Commander in Chief authority enabled FDR or Truman to conduct such domestic espionage. Also, Congress took over the matter by enacting FISA -- during the "Cold War," which, like the "War on Terror," was not war. Bush cannot overrule Congress's FISA provisions or create alternative ones. Bush must obey that law and execute it faithfully. Congress was empowered to enact FISA. The President must obey and execute faithfully all valid federal laws.
Cheney argues that, impliedly, Congress's 2003 conditional Iraq-war-approval authorized the Executive to conduct the surveillance program despite FISA disallows it and the war-approval conditions were not satisfied, ever. The argument is false -- and would be even if the approval conditions had been satisfied.
FISA provides expressly that the Executive may conduct warrantless surveillance only during the first 15 days of a "war." A "war" is a war "declared by Congress." (50 USC § 1811) Congress did not declare, or even authorize, the Iraq war: Bush began it without satisfying the conditions of Congressional approval. Bush invaded a sovereign nation (Iraq) illegally. The surveillance program was operating long after the illegal invasion's first 15 days. Iraq's violence has not threatened to reach within US borders.
Congress's conditional war-approval said nothing of domestic security operations -- surely nothing concerning US official espionage conducted against US citizens within the US borders. Congress was fully aware of FISA. Surely Congress would not have expected that its conditional war-approval would amend FISA implicitly despite the approval says nothing concerning US official domestic espionage and despite, expressly, FISA limits warrantless electronic surveillance to the first 15 days of a Congress-declared war.
But did Cheney engage in the program's electronic surveillance or disclose information the program surveillance produced? Cheney was a designer of the program. If, as is near-certain, he designed it while knowing it would be implemented, he may have committed a crime of engaging in illegal surveillance as an accomplice or accessory before the fact. Every time the program manifested in illegal surveillance, it did so because of, or with, Cheney's design, pressure, or support. If a person conspires to rob a bank and also supplies and presses the effected plan, he is guilty of the robbery.
But sometimes the Supreme Court insists a person cannot be convicted of being a conspirator, accomplice, or accessory unless the substantive crime is set by a statute that provides expressly for liability of conspirators, accomplices, or accessories. The Court has made mysterious the matter of when the Court will require that the statute provide expressly for conspirator, accomplice, or accessory liability.
So, though near-certainly Cheney violated FISA by designing the warrantless surveillance program, causing its implementation, or pressing for its continuance, the Supreme Court might say he did not commit an FISA crime. But if he did violate FISA, he committed a massive number of felonies. The program violated FISA.
This much is clear: the program was Cheney's evil child. Proof is available and compelling. Cheney pressed publically, often, for the program and pressed dissenting Department of Justice officials to change their positions or shut up. That conduct violated the fourth amendment. Even if it was not an FISA crime, it constituted a grave, gargantuan set of high Crimes and Misdemeanors. It involved great and immensely repeated undermining of core aspects of the structure of the Republic and great and immensely repeated perversion of Cheney's office and constitutional duty.
3. "Extraordinary rendition," Geneva Conventions violations, torture, illegal domestic detentions of US citizens and others lawfully present in the US
These high Crimes' ostensible motivation is "national security" -- protecting the US from "global terror." The ostensibly desired effect includes disrupting or destroying alleged al Qaeda cells anywhere they occur and also weakening or crushing every terrorist organization and every terror scheme.
The real motivations are very different -- international domination (not just military, but economic and political) and control of oil and natural gas. They are Cheney's motivations -- more even than Bush's.
"War on Terror" is not a mere ungrammatical, empty slogan, but bogus -- and dark irony, because Cheney's US is the worst terrorist of all. Cheney and his neocon ilk do not care whether terrorists injure US citizens -- except if the injury enables them to justify their further pursuit of illegitimate world-dominance and maximum control of oil and natural gas. 9/11 was their greatest boon. They are thankful for it.
These truths are vital not for some hyper-liberal or conspiracy-theory reason, but because other nations and societies know they are truths and, therefore, pray for means of weakening US power or of hurting the US. These truths explain much of the growth of "terrorism" directed against the US or US interests and allies.
The world knows: The CIA has been perpetrating "extraordinary renditions" that take the kidnaped (and they are kidnaped) into torture. The world knows official US torture occurred in Abu Ghraib. Guantanamo is a nest of official violations of our constitution and the Geneva Conventions -- a nest of illegal detentions, tortures, and inhumane deprivations. The Bush administration has detained, secretly and illegally, hundreds of US citizens it kidnaped -- kidnaped in the US; and it has tortured even them.
Those wrongs have destroyed our nation's barely-deserved previous reputation of fairness, justice, decency, and obedience of the rule of law. Those wrongs have inspired a proliferation of anti-US terrorism and growth of creation of terrorists and terrorist groups.
The Bush administration's "extraordinary renditions," Geneva Conventions violations, torture-programs, illegal domestic detentions of US citizens and others lawfully present in the united states -- all such Bush administration crimes -- have hurt, badly, perhaps irretrievably, our nation's world standing and weakened our nation politically and economically in the international theater. So, though those wrongs are crimes of great magnitude according to both US and international law, they are more significant because they have done immense harm to our Republic, our democracy, and our national public welfare.
Cheney is the root and central force of these crimes. He pressed Bush and Rumsfeld to establish a program of torture and illegal detention in Iraq, Afghanistan, and Guantanamo. He pressed the Department of Justice to produce policy papers supporting torture. He pressed the military and Department of Justice to detain illegally and torture many hundreds of US citizens in domestic military bases. He pressed the CIA to do its "extraordinary renditions." He argued publically that our Republic, its government, and its People ought to support these crimes. He authored or forced and steered the Executive Orders and agency directives.
He did those things because they furthered the neocon plans he established before he took office. Those plans manifested in the national defense aspects of the infamous neocon "Project for the New American Century." The national defense aspects were set out in a document titled "Defense Policy Guidance of 1992," a neocon national "security" strategy.
The document's "philosophy" resided in reports of James Mann, author of "The Rise of the Vulcans" (2004), and ideological/strategic teachings of Richard Perle, Albert Wohlstetter (mentor of Perle and Paul Wolfowitz), and Andrew Marshall, head of the Pentagon Office of Net Assessment. The document was drawn by Wolfowitz, Scooter Libby, and Zalmay Khalilzad -- under supervision of Cheney, then the first President Bush's Defense Secretary and designer of our criminally trumped-up Panama invasion that (to keep Canal Zone control) did innocent civilians and their country evils far worse than any of the Iraq war.
The planners, including Cheney, agreed -- much because of Cheney's arguments -- that their strategies and goals required that some great catastrophic harm befall the US, so that a neocon Executive could foster widespread domestic fear that would enable the neocon Executive to move the US into a position of virtually total world-domination. If they got such an opportunity, they would use any conceivable device to maximize the opportunity's realization.
So, Cheney is guiltier than most -- or the most guilty. His malfeasances have not been merely violations of our constitution, various federal laws, and several important international laws, treaties, and accords. They have been quintessential "high Crimes and Misdemeanors."
Cheney has been lying publically concerning both whether Iran has supplied weapons to Iraq "insurgents" and Taliban "insurgents" and whether Iran has or soon will have nuclear weapons or enriched uranium of quality needed for making atom bombs. Other Bush administration officials -- and Bush -- have been telling the same lies. Because of Cheney's fraud-infested part of our Iraq invasion/occupation and his control of Bush, we can infer that Cheney has been scripting the Iran lies of Bush and his administration.
The intelligence community and informed atomic-weapons experts say Iran does not have atomic weapon development capacity -- and could not for some years. Still, many think Cheney's lies are truths, because (near-criminally) major mainstream "news" sources have, too often, treated the lies as if sure facts. We have had some raw luck, though. Defense Secretary Robert Gates and the Afghan occupation's NATO commander, General Dan McNeil, have denied at least the lie that Iran is arming the Taliban.
Cheney's conduct does not constitute merely attempting to do in Iran what he did in Iraq. His conduct is doing harm right now to our Republic and its security. His conduct is creating a real risk of Iran's becoming quite the threat Cheney claims, falsely, that it is. His conduct is inflaming further the Islamic world's ire and increasing the "terrorist" activity the ire produces. His conduct lends credence to the propaganda of bin Laden and al Qaeda, and that effect worsens the pre-existing threat bin Laden and al Qaeda posed to the security of the US and its international interests.
So, in publishing his lies concerning Iran and in inducing Bush and other Bush administration officials to tell the same lies, Cheney has done crimes that parallel his Iraq deceits. So, Cheney's Iran lies are "high Crimes and Misdemeanors."
5. Unitary Executive
Very likely, the Supreme Court's Chief Justice and Justices Alito, Scalia, and Thomas -- perhaps Justice Kennedy, too -- would hold that the constitution permits the Unitary Executive that, for nearly two decades, Cheney has contrived to create. Very likely, the same Justices would uphold Bush's signing statements and his Executive Order that presumes, contrary to the Presidential Records Act, to make Presidential papers secret forever and to make many more records "Presidential." But the impeachment and removal "decider" -- the ultimate and only "decider" -- is not the President or the Supreme Court. It is Congress.
The Unitary Executive theory's first premise is legitimate -- that each government branch is obliged to act only within the limits of the powers the constitution gives it. The next premise is invalid, but seems legitimate -- that if one branch (the Executive) believes the constitution requires or permits it not to follow a certain act of another branch (Congress or Judiciary), it (Executive) must, or may, refuse to follow that act.
Congress makes the laws. The Executive must execute those laws faithfully. The Judiciary -- only the judiciary -- determines what the law is, what statutes mean, what the constitution requires or prohibits. The judiciary -- only the judiciary -- determines whether a statute violates the constitution or permits the Executive to disregard all or part of it.
If the President thinks a Congressional Act is invalid, he must veto it or seek judicial determination of the matter. The President cannot refuse to execute a statute he has signed into law and no federal court has invalidated -- just as he cannot refuse to obey a final federal-court judgment or decree.
The Unitary Executive theory denies these fundamental rules of our Republic. It says the Executive has unilateral power of determining whether a federal statute is valid, binding, or enforceable. It says the President can refuse, unilaterally, to execute any federal statute the President says he need not enforce.
Such false premises explain Bush's very prolific use of "signing statements" -- which he means to stand as premises of his not executing statutes he does not like. An obvious question is: Why does not the President's veto power -- the President's only constitution-supplied Congressional-Act-avoidance device -- imply, necessarily, that the President has no other lawful means of disregarding a federal statute, except obtaining a judicial determination that the statute is invalid or otherwise not binding or enforceable?
The Unitary Executive theory's grievously false premises are Cheney's. Cheney has said, frequently since the Reagan era, that the Executive's power was diminished wrongly by the lodestar case Marbury v. Madison, 5 U.S. 137 (1803), which held the Judiciary bore sole control of what the laws and the constitution say, hence whether a law is invalid or does not command obedience. Cheney has said frequently that the Executive can determine, for itself, whether the Executive need not execute or obey a federal law.
In our current dire circumstance owed to the Bush administration's evil use of 9/11, the Unitary Executive theory's most horrendous manifestation is the Bush administration's claim that Congress's war-declaring power is impotent, that Congress does not control war-starting, war-limiting, and war ending, that the Commander in Chief power enables Bush to conduct whatever wars, invasions, or military adventures he wants. That claim explains also the Bush administration's claim that it can violate all of the Bill of Rights if the Bush administration deems such violation indicated by Bush's "War on Terror."
The vital matter is: Bush's signing statement proliferation, Bush's authorization of warrantless electronic surveillance of millions of US citizens, Bushes invading Iraq without obtaining a second, specifically authorizing Congressional resolution and second specifically authorizing UN resolution, and Bush's many other invalid, presumptuous acts exceeding Executive power -- all were Cheney's ideas. Bush does not have brainpower enough to conceive the scheme of using signing statements to relegate Congress to something like the English Parliament of Henry VIII's reign. Cheney has the evil brainpower.
Cheney's Unitary Executive has undermined our constitution and all it created and protects. It has caused vitally unconstitutional alteration of the balance of Congressional, Executive, and Judicial powers. It has created a politico-legal climate that enabled Bush to become an autocrat and to trash the essentials of our democracy and civil liberties. So, Cheney's conduct constitutes "high Crimes and Misdemeanors."
6. Usurping Executive power and violating the separation of powers -- to commit misprision
This matter is ironic, because of Cheney's ferocious advancement of the Unitary Executive theory. Cheney claims his office is not part of the Executive Branch, but the independent office of the Vice Presidency.
Cheney says he is not part of the Executive because he has some legislative duties -- duties of the President of the Senate. That claim implies, necessarily, also the claim that he is not part of the Legislative and not bound by Senate rules, since he has Executive duties, too. So, Cheney claims he is a separate, independent government branch, his own distinct branch. But the constitution created only three branches of government -- not a fourth branch of Cheney Vice President. Cheney's claims are trash, but toxic trash.
Cheney's Senate duties are minimal, mostly ministerial. He can break vote-ties, but ties are infrequent. He presides at Senate proceedings; but his presiding means he applies Senate rules according to the counsel of the Senate parliamentarian.
Cheney was not elected to the Senate, but to the Vice Presidency. His job's bulk is Executive. In many provisions, the constitution treats him as Executive official. One such provision is Article II § 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
But assume, for sake of argument, that Cheney is partly part of the Legislative Branch. No matter. Still he is part of the Executive Branch, too. In his Executive Branch capacity, he is subject to all the rules, laws, and constitutional provisions that govern Executive Branch officers. Again, one proof is Article II § 4.
Cheney makes his claim to support his not complying with Executive Orders or other Presidential directives that regulate treatment of classified documents, declassification of documents, and disclosure of non-classified documents, and that require all Executive Branch officials to report their document-treatment to the Information Security Oversight Office. When the Oversight Office protested Cheney's refusing to report and demanded that he obey the pertinent directives, Cheney sought to abolish the Oversight Office.
So, Cheney's real claim is that he is autonomous and above and beyond the law and constitution. His claim's most immediately salient purpose is to clothe himself with autonomous privileged power that enables him to disclose or make secret whatever he likes, however and whenever he wants -- so that he can cover up his high Crimes and Misdemeanors or pressure other government officers or Congress-members to do his bidding or not interfere with his schemes.
Cheney's claim is not just fraudulent. It is a grave abuse of office. It pursues and manifests in misprisions, violations of the Separation of Powers, and usurpation of Executive authority. The misprisions, their pursuit, and the pursuit's fraudulent means threaten the Republic and our democracy. The power-usurpation is akin to insurrection -- despite not sought by violence. These offenses are "high Crimes and Misdemeanors."
7. Violations of laws of states of the US
Earlier this essay explained that Cheney violated RICO by committing or being complicit in acts of extortion, murder, and mayhem that violate state laws. Here the matter is different.
Soon after he took office, Cheney conferred with numerous high executives and directors of Enron, Haliburton, and other major corporations of the energy industry. The conference concerned development of US energy policy. A 7-to-2 Supreme Court decision prevented the public's learning who attended the conference and what transpired in it -- not because the Supreme Court decision itself did so, but because a lower court mis-read and misapplied the decision, which did not grant Cheney the secrecy he claimed, but told the lower court to reconsider the case vis-a-vis a few matters it had not considered earlier.
Still, we know: (a) The conferee-list did not include representatives of environmental or conservation organizations but only energy-industry big-shots -- highest executives of Enron and other giant energy-firms that supplied a great piece of the funding of the Bush/Cheney campaign. (b) Cheney had been Haliburton's CEO and was a major Haliburton stockholder. And we can trace the conference's aftermath.
The Bush administration has taken every opportunity -- and created artificial opportunities -- of consigning the public's environmental, conservation, and energy-related economic interests to the mercies of the energy industry, which includes interests in which Cheney and the Bush family share, greatly. The Cheney energy policy -- and its implementation -- diminished, substantially and detrimentally, the states' prerogatives respecting regulation of energy, energy-markets, and the quality of energy sources and how their uses influence the economies, environments, and public health interests of affected states.
During the 2001 California energy crisis and just before Cheney disclosed the national energy policy Cheney, Ken Lay, and other Energy moguls framed corruptly for the Bush administration, the Federal Energy Regulatory Commission [FERC] learned that power companies were shutting production plants fraudulently to drive up prices. Cheney muscled FERC into sealing the evidence. When then-California-Governor Gray Davis questioned whether the supply-shortage was legitimate and refused to raise electric rates, Cheney attacked Davis publicly — blamed Davis for the shortage and said Davis bankrupted Pacific Gas and Electric Co.
Then, FERC Chairman Herbert resisted Cheney's (and Ken Lay's) scheme of opening the nation's transmission lines to Enron and other corrupt firms. Cheney had Herbert removed.
How ironic and hypocritical! The Republican Party, American conservatism, and Bush and Cheney espouse federalism and support of states' rights. Still, irony and hypocrisy are not impeachable offenses.
But Cheney's conduct violated his oath of office. He swore to uphold the constitution -- not to violate its provisions that would interfere with his advantaging big energy-firms. The tenth amendment saves to the states all powers and prerogatives the states did not cede, expressly, to the federal government. Cheney's energy policy's implementation has violated, designedly, the laws and prerogatives of many states and each such state's trusteeship of the welfare of its residents.
Not federal, but state land holds or supplies much of the energy-resources of the US. Those resources are not federal, but allocable by the states and subject to state regulation. Congress may be able to regulate, even preemptively, the use of those state-land energy-resources because they affect interstate commerce. But Congress has not done so in a way that could validate Cheney's policy and its effects.
Congress's energy, environmental, conservation, and public health laws save to the states various powers and prerogatives. Cheney's conduct and ensuing energy policy disregarded those laws, as if they were jokes stuffed in fortune cookies.
Cheney's energy-policy-formation and the policy itself constituted "high Crimes and Misdemeanors." They manifested and furthered corruption. They harmed or threatened the Republic, its federalism, its security, our democracy, the national public welfare, and the public welfare of each of our nation's states.
8. Corrupting federal environmental agency action to corrupt US Senate election process
In January 2002, Karl Rove gave a power-point presentation to at least 50 federal Interior Department managers. The presentation sought the Department's diverting Klamath Basin water to Oregon farmers to assure re-election of Republican Senator Gordon Smith (Oregon), who, at the time, appeared likely to lose.
In March 2002, Interior Secretary Norton reversed long-standing policy, and, with the press covering the event, Norton and Smith released thousands of gallons of water to 220,000 acres of farmland. The policy-shift killed 77,000 salmon, including 30,000 endangered-species coho. It was the largest fish-kill in the West's history. Norton's act rested on a coerced fraudulent "scientific" assessment of the likely effect the salmon would suffer. Smith was reelected. In 2005, federal courts held the action improper and prohibited diverting Klamath water for agricultural use when water levels drop beneath a certain point.
In June 2007, the Washington Post exposed the fact that Cheney was the behind-the-scenes mastermind of that illegal fish-kill, the underlying coerced fraud, and the consequent corruption of a federal election. Not just the mastermind, Cheney managed all the evil that enabled the scheme to work. In this instance, too, Cheney's acts were quintessential high Crimes and Misdemeanors -- even if, with some cagey or worse means, Cheney constructed protections against being held guilty of violating a federal criminal law.
Neither legal technicalities nor Supreme Court biases control impeachment, Senate trial, or removal. The House may impeach Cheney and the Senate convict him even if he did not violate a criminal, civil, or international law or a treaty, accord, or convention. The question is whether Cheney's acts harmed the People and the nation, as an ordinary criminal's acts harm an individual, group, community, town, or state.
The practical question is whether the House will find proof enough to make a House majority feel adequately comfortable in voting to impeach Cheney. That question reduces to the matter of whether enough House-members will search doggedly enough, fast enough. If enough do, they will find sufficient proofs of all the high Crimes and Misdemeanors this essay describes. Maybe the Senate will not convict Cheney. But if the House votes to impeach, the People will be served greatly.
This much is sure: If Cheney's vile acts are not "high Crimes and Misdemeanors," no acts are. If their magnitude does not command impeachment, nothing can. Nixon's rather few offenses seem piddling mischiefs when compared with Cheney's abundant and immense high Crimes and Misdemeanors.
The People need a House Bill that seeks Bush's impeachment, too. Bush is guilty of all the high Crimes and Misdemeanors Cheney has committed. Better evidence shows much of Bush's guilt. The People need to tell politicians and their aides that the People demand good government, a government of public servants who serve all of the People, and that the People will not endure less, ever again, and will punish everyone who commits a crime against the People's interests, however lofty the transgressor.
The Framers did not provide for impeachment and removal of the President and Vice President or include the 9th amendment as pretty political dressing, like a whore's lace. The Framers wanted to assure that the United States would not suffer the English or European experience of the Framer's time.
In modern Europe -- even England -- citizenries can vote out a whole government at any time. They do so not seldom. Europe thrives.
Among the European systems' inspirations -- among the French Revolution's inspirations -- were our constitution, its impeachment provisions, and the 9th amendment, which says: "The enumeration...of certain rights, shall not be construed to deny or disparage others retained by the people." The 9th amendment manifests certain technical concerns of Madison. But also it reflects Jefferson's belief that the People retain a right of creating new government -- even, if necessary, by some manner of revolution -- whenever the People feel existing government does not serve them.
Leonard R. Jaffee, Professor of Law Emeritus
Synopsis of Curriculum Vitae: