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Impeachment and the Democrats

Bruce Fein of the American Freedom Agenda talks about impeachment, the Bush administration, and whether politicians should uphold the Constitution or put political considerations fist.

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PAUL JAY, SENIOR EDITOR, THE REAL NEWS NETWORK: Thank you for joining us for the next part of our interview with Bruce Fein. We’re discussing the broader implications of Scott McClellan’s testimony to Congress. Bruce Fein’s the founder of the American Freedom Agenda. He served in the US Justice Department under President Reagan and was an adviser to Congressman Ron Paul. Thanks for joining us again, Bruce.

BRUCE FEIN, AMERICAN FREEDOM AGENDA: Thank you for inviting me.

JAY: The Democratic Party leadership has been against the idea of impeachment, even though some congressional members and some members of the Senate are for it. Dennis Kucinich has put forward articles of impeachment both against Cheney and Bush. Congressman Wexler has done the same. But here’s the reaction of Senator Dorgan when confronted by a journalist, Sam Husseini from The Real News Network.

SEN. BYRON DORGAN, D-NORTH DAKOTA: I do not support an impeachment resolution, and I do not believe the Senate would ever seriously consider one at this point.

SAM HUSSEINI, JOURNALIST: But is that a political speculation on your part? Or is that an upholding of your—?

DORGAN: It’s just a calculation that we have a lot of other things to be doing at this point. This administration will be gone soon, and I don’t believe that there’s an appetite or an interest in the Senate to pursue that.

JAY: How do you react to Senator Dorgan’s comments?

FEIN: Well, I think they’re thoroughly unpersuasive. Nothing is more important than keeping the checks and balances of the United States Constitution undisturbed, because if we don’t get the institutional arrangements right, we will get no policy decisions right. We will get policies like the Iraq quagmire, and the decisions that have ended up with foreign policy—.

JAY: But he says the administration’s going to change in a few months anyway, so what’s the point of all this?

FEIN: The point is very simple. It was stated, if you remember, from Julius Caesar: the evil men do lives after them; the good is oft interred in their bones. The fact is that when you set precedents of usurpation, they lay around like loaded weapons ready for use for any successor, so that if Bush and Cheney are not impeached, everything that they’ve done that’s gone unsanctioned becomes a safe harbor for every future president, whether it be McCain, Obama, or others. We don’t have any history of presidents surrendering power back; we don’t have the candidates saying, "Oh, if I’m the president, I’m surrendering power back. I will not initiate warfare without the consent of Congress. I will not suspend habeas corpus. I will not have military commissions. I will not spy in contradiction of any federal law confining my ability to gather foreign intelligence." So that is the real danger. If they are not impeached, it sets the ceiling, the ceiling that every future president can live under, of usurpations and arrogations of power that belong to the people of the United States and the Congress. Let me just give you one example. What President Bush and Cheney have done and said, "We can tell the Congress you can’t even talk to our executive branch officials about oversight matters. We can run secret government." That’s what they’ve said with regard to Joshua Bolton and Harriett Myers. Well, that ends oversight. It means we no longer have government by the consent of the governed; we won’t know what government is doing. They tried to hide everything, whether it’s Valerie Plame, or the true information about Iraq or Iran, or otherwise. And if that is not impeachable, then we have one-branch government that will be inherited by the future president in 2009, and that justifies impeachment by itself.

JAY: Let me read you a quote from Barack Obama on the question of impeachment. He was quoted in philly.com. It’s something he said at a meeting during the primaries.

(TEXT ON SCREEN): You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody is above the law — and I think that’s roughly how I would look at it.

JAY: Based on what we know with McClellan’s testimony and other evidence, has this bar been met?

FEIN: Yes, and I think Senator Obama’s response is defective in major respects. The Founding Fathers made clear that an impeachable offense didn’t mean you have to actually commit a crime, although that may justify impeachment; that an impeachable offense was a crime against the Constitution. It was a crime against society, by destroying the architecture that keeps checks and balances working, preventing one arm of government becoming oppressive because it no longer lacks checks [sic]. It doesn’t require a crime. Indeed, in the debates concerning the ratification of the Constitution in North Carolina, it was said by a future Supreme Court justice, "Oh, if the president lied to the Senate about an important element of a treaty, that would be impeachable." So Obama has it all wrong when he thinks you have to prove a violation of the criminal code in order to obtain impeachment. But if we go beyond that, I mean, an example would be, for instance, it’s not a crime to tell a subordinate you can’t testify before Congress, even though it’s a violation of the Constitution. That, in my judgment, is an impeachable offense, to prevent Congress from exercising oversight. But even if we go to the public record and use his own standard, criminality, this president has boasted that for more than five years he flouted a criminal provision, the Foreign Intelligence Surveillance Act, by spying on US citizens to gather foreign intelligence without warrants. That, under the FISA law, is a federal felony. So if that’s the standard, it’s been met. So we should be going forward.

JAY: But there’s a realpolitik to this. Over the next four or five months heading towards the election, should the American public attention, public opinion, be focused on impeachment hearings or on the election? And Obama’s argument is the election should be the focal point, which then raises the question, as a Part 2, shouldn’t this be something that happens after, in theory, there’s an Obama election, where one goes back and—?

FEIN: Well, listen, it’s silly. You can’t impeach someone who’s out of office.

JAY: Not impeach him. You could conduct hearings that would lead to criminal—.

FEIN: Yeah, but we’re talking about impeach—. I understand, but remember, criminal prosecutions really omit the most egregious violations of our Constitution, which is the separation of powers, which is the secrecy, which is the signing statements, which is the suspension of habeas corpus or use of military commissions. All of those sorts of things, kidnappings abroad, the secret interrogations abroad, sending people to Egypt and elsewhere for torture, all of those things, they may fall short of criminality, but they need to be impeached. You’re saying that unless you commit a felony, you’re entitled to remain in power and exercise that authority? Even if you did—. So that answer is not good enough, "Well, you could criminally prosecute them for some things afterwards," ’cause the main attacks on the Constitution would go unrebuked. Moreover, if we then ask, well, what about the criminality that he suggests that he might pursue afterwards? Well, what new does he have to discover?

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Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.