FEIN: Impeachable offenses?

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By Bruce Fein

COMMENTARY:

Have President Bush and Vice President Richard Cheney committed impeachable offenses for which the duumvirate should be convicted and removed from office by duping then-House Majority Leader Richard K. Armey into supporting legislation authorizing war against Iraq with twin lies -- that Iraqi President Saddam Hussein had personal ties to Osama bin Laden's terrorist network; and that Saddam had miniaturized nuclear weapons, which could be unleashed by employing al Qaeda as a delivery system?

The facts - uncontradicted by either Mr. Bush or Mr. Cheney - are chronicled in Barton Gellman's new book "Angler."

In late September 2002, Majority Leader Armey met the vice president in H-208 in the Capitol Building. Mr. Armey was no liberal or RINO (Republican In Name Only). He adamantly opposed taxes and earned a stellar 97 percent rating from the American Conservative Union during his long years in Congress. But Mr. Armey initially opposed an Iraqi war authorization because Saddam was no menace to the security of the United States. If Mr. Armey voted no, he would give political cover to any Democrat or Republican Doubting Thomas to vote likewise and probably foil an Iraqi war resolution.

Mr. Cheney's mission was to flip Mr. Armey. He succeeded by stooping to lies that bettered the instruction of President Clinton's perjury in Monicagate that occasioned Mr. Clinton's impeachment. According to Mr. Armey, Mr. Cheney sounded the tocsin that Iraq's "ability to miniaturize weapons of mass destruction, particularly nuclear," had been "substantially refined since the first Gulf war." They were "miniaturizing weapons, developing packages that could be moved even by ground personnel." Not a crumb of intelligence supported these falsehoods.

Without any supporting evidence, Mr. Cheney also maintained that al Qaeda was "working with Saddam Hussein and members of his family." He falsely added that "we now know [Iraq] ha* the ability to develop these [nuclear] weapons in a very portable fashion, and they have a delivery system in their relationship with organizations such as al Qaeda."

The vice president's lies convinced Mr. Armey to vote in favor of the Iraqi war resolution. Relying on the deceit, the majority leader explained his flip-flop on the floor of Congress: "If you're going to conduct a war on terrorism, then you must stop that person who is most likely and most able to arm the terrorists with those things that will frighten us most."

After discovering the truth, Mr. Armey lamented he could probably have prevented the Iraqi war debacle: "Had I known or believed then what I believe I know now, I would have publicly opposed the resolution right to the bitter end, and I believe I might have stopped it from happening, and I believe I would have done a better service to my country had I done so."

Indeed, the war in Iraq has diverted hundreds of billions of dollars that could have been better spent upgrading defenses at home; strengthened Iran, arch-enemy of the United States; caused vastly more American deaths and injuries than did the Sept. 11, 2001 terrorist attacks; and made the United States less safe by creating new enemies in Iraq by flouting its sovereignty and killing innocent civilians in pursuing genuine insurgents or terrorists.

Under the law of impeachment, Mr. Bush is responsible for the misdeeds of his agents in the executive branch, including the vice president. James Madison, father of the Constitution, amplified in the House of Representatives that the president would be subject to impeachment, "if he suffers [his subordinates] to perpetrate with impunity high crimes and misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses." Vice President Cheney, in contrast to other executive branch officials, does not serve at the pleasure of the president.

But in approaching Mr. Armey in support of Mr. Bush's legislative initiative authorizing war against Iraq, Mr. Cheney was acting as Mr. Bush's agent for whom the president was accountable.

Article II, section 4 of the Constitution declares the, "president [and] vice president ... shall be removed from office on impeachment for, and conviction of ... high crimes and misdemeanors." Alexander Hamilton explained in Federalist 65 that impeachable high crimes and misdemeanors are "political" offenses because "they relate chiefly to injuries done immediately to society itself." James Iredell, later appointed to the Supreme Court by President George Washington, made explicit at the North Carolina ratification convention that presidential duplicity with Congress over war or comparable matters of great national moment would be an impeachable offense.

Although his statement specifically addressed lies to the Senate, its rationale applies equally to deceit of the House of Representatives to obtain an authorization for war: "The president must certainly be punishable for giving false information to the Senate. ... If it should appear that he has not given them full information, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true nature of things been disclosed to them - in this case, I ask whether, upon an impeachment for a misdemeanor upon such an account, the Senate would probably favor him."

Mr. Armey should be summoned to testify under oath before the House Judiciary Committee about his statements in "Angler" implicating Mr. Bush and Mr. Cheney in lies to dupe the House of Representatives over war in Iraq. The president and vice president should be given an opportunity to respond under oath but subject to cross-examination.

If the totality of evidence corroborates Mr. Armey's recollection, shouldn't the House immediately vote to impeach Mr. Bush and Mr. Cheney and send their cases for trials in the Senate? Wouldn't that action honor the original intent of the Founding Fathers that the Bush administration professes to cherish?

• Bruce Fein is a constitutional lawyer at Bruce Fein & Associates Inc. and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy" (Palgrave Macmillan).