The Founders Had an Idea for Handling Alberto Gonzales By Adam Cohen

Dandelion Salad

By Adam Cohen
The New York Times

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Sunday 19 August 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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