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By Josh Marshall
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Posted: 08/03/07 06:43 PM [ET] |
As you no doubt know, this past Sunday, The New York Times called on the Congress to impeach Attorney General Alberto Gonzales and remove him from office if Solicitor General Paul Clement does not step forward and appoint a special prosecutor to investigate whether Gonzales perjured himself in testimony before Congress and committed various other bad acts related to the U.S. attorneys firing scandal and the White House’s warrantless wiretapping program. And now Rep. Jay Inslee (D-Wash.) has moved to begin an investigation in the House to do just that.
Leave it to President Bush to take us down so many unexplored and untrodden cul-de-sacs and byways of the U.S. Constitution. This is certainly one of them. For while impeaching Cabinet secretaries is clearly allowed by the Constitution, it has in effect never been tried.
Judges have been impeached with relative frequency, if we consider the two-plus centuries of history under the U.S. Constitution. And that’s not surprising when we figure there are quite a few federal judges; that no one can fire them; and that they have lifetime tenure.
In practice we’ve impeached three presidents, though technically Nixon wasn’t impeached because his resignation short-circuited the process that had already commenced.
But to the best of my knowledge only one Cabinet secretary has ever been impeached. That was Ulysses S. Grant’s secretary of war, William Belknap, way back in 1876 for gross corruption in office. And what is highly relevant for the present discussion is that this was after Belknap had resigned from office.
According to the historian of the Senate, “Belknap, tipped off in advance that a House committee had unearthed information implicating him in the acceptance of bribes in return for lucrative Indian trading posts, rushed to the White House and tearfully begged President Ulysses Grant to accept his resignation at 10 o’clock on the morning of March 2, 1876. Around 3 o’clock that afternoon, representatives, furious at both the president and Belknap for thwarting them, impeached Belknap by voice vote anyway.”
That means in almost 220 years , the impeachment power has never been used to remove a Cabinet secretary.
But the reason isn’t that hard to figure, given the structure of our government. The normal course when a Cabinet secretary has been implicated in grave wrongdoing or has lost the confidence of the overwhelming number of senators (which I think Gonzales clearly has, though partisan loyalty has kept many Republicans from saying it openly) is for him or her to resign.
And if they won’t see fit to resign the president fires them, since if nothing else, the person can’t fulfill the responsibilities of office under those debilitating circumstances.
But then there is the big “unless” — unless the president is party to the crimes and wrongdoing that have placed the Cabinet secretary in jeopardy.
And that is clearly the case we have here, which explains the historical anomaly that the possibility of Gonzales’s impeachment is even a topic of serious conversation.
In the U.S. attorneys scandal and in the maneuverings over domestic surveillance, the wrongdoing isn’t unique to Mr. Gonzales. In both cases it is clear he was merely executing the orders of the president or other high-level officials in the White House. So firing Gonzales wouldn’t remove the problem. Indeed, it would escalate the problem for the White House dramatically because it would bring each scandal and each investigation directly to the president’s doorstep. Gonzales isn’t a liability. His current role in these overlapping investigations is more like a fire break, insulating everyone in the White House as long as he stays in office.
Of course, there is an extra wrinkle. Gonzales isn’t any Cabinet secretary — not the secretary of state or the interior. He’s the attorney general, which means that he’s the one who can and is bottling up numerous other investigations into the president and his appointees, even ones in which he is not directly implicated, though admittedly he seems to be tied to most in one way or another.
Impeaching Gonzales, even in his currently debilitated state, would still require the support of almost 20 Republican senators. Not a likely prospect. But if Gonzales goes, the Democratic Senate is never going to give the president another Gonzales — another ethically compromised loyalist who will run the Justice Department with the guiding principle of protecting the president. And that makes him, for the president, quite literally irreplaceable.
Marshall is editor of talkingpointsmemo.com . His column appears in The Hill each week. E-mail:
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