California Congressman Darrell Issa is one of the most conservative Republican members of the House Judiciary Committee. So it should come as no surprise that he offered an appropriately cautious and responsible solution for the Constitutional conflict created when members of the Bush administration ordered federal agents to raid the Capitol Hill office of a sitting member of Congress.
"We have the power to impeach the attorney general," Issa told Tuesday's Judiciary Committee hearing titled: "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?"
Much of the Washington press corps, which maintains a familiarity with the Constitution that is roughly equivalent to its acquaintance with the truth, dismissed Issa's suggestion that the committee might want to consider the ultimate political sanction for Attorney General Alberto Gonzales. The Washington Post's lamentable Dana Milbank, who stands ever ready to ridicule any defense of the Constitution, huffed that the California congressman was being "dramatic."
Dramatic? Let's hope so, because the times are dramatic, and the concerns that have been raised by the raid on Louisiana Congressman William Jefferson's office demand a response that is equal to them.
There is no question that Gonzales, a champion of executive overreach since his days as White House counsel, used the Constitution as a doormat when he ushered FBI agents into Jefferson's office. The investigation of Jefferson, a Tom DeLay-sleazy member of the House who conveniently for the ever-political Gonzales happens to be a Democrat, had already yielded more than enough evidence of wrongdoing. The raid was, as George Washington University law professor Jonathan Turley described it: a "gratuitous insult" motivated not by necessity but by "raw arrogance."
The raid was, as well, what former Reagan Justice Department aide Bruce Fein said it to be during the Judiciary Committee hearing: "Unconstitutional."
The whole concept of a separation of powers between equal branches of government demands that Congress respond aggressively and appropriately to the raid — not in defense of William Jefferson, but in defense of the principle that the executive branch does not have the authority to send its foot soldiers into the offices of the legislative branch.
If the precedent of the raid on Jefferson's office stands, this administration — which has already signaled its intention to track down and prosecute whistleblowers and others who might dissent from its imperial impulses — will not stop in the office of one ethically-challenged congressman from Louisiana. And future administrations will retain, rather than return, the powers that have been seized.
When he denounced the raid at the hearing, Texas Republican Louie Gohmert said, with rather more flourish than has come to be expected from a member of this Congress: "I'm not defending any Jefferson except for Thomas Jefferson."
The fact is that Thomas Jefferson would have approved Issa's resort to talk of impeachment, the Constitutional remedy that the founders intended to be used to maintain the integrity of the federal government, especially at times when the executive branch began to mirror the regal excesses of the monarchy they had so recently been discarded.
To be sure, it was a bit absurd for Issa and other Republicans to be calling the administration to account on this particular abuse when there are so many others worthy of impeachment. As Maryland Democrat Chris Van Hollen reminded the committee on Tuesday, it is possible to point to a "number of examples of overreaching by the executive branch where there's been a total lack of oversight by this Congress: the torture memorandum, detainees, enemy combatants, signing statements, domestic surveillance, data-mining operations."
Fein, the former Reagan Justice Department official, echoed Van Hollen, suggesting to the committee that the raid on Jefferson's office was merely "an additional instrument of the Bush administration to cow Congress" — in keeping with what he described as the administration's regularly expressed "claim of inherent presidential authority to flout any statute that [the chief executive] thinks impedes his ability to gather foreign intelligence, whether opening mail, conducting electronic surveillance, breaking and entering, or committing torture."
Add to that bill of particulars clear evidence that the president, the vice president and administration aides employed deceit and chicanery to organize the invasion and occupation of two foreign countries without a Declaration of War — or a plan — and the outline for articles of impeachment begins to take shape.
But let us not get ahead of ourselves here. Most members of Congress are only beginning to recognize their oversight responsibilities — and the awesome powers that go with them.
As Gohmert of Texas told the committee: "I've been so much more concerned about the judiciary overreaching in power, and I really had not looked at the executive." Only since it was recently revealed that the president has ordered a massive program to monitor and review the phone calls made by Americans on American soil — what the congressman referred to as the "phone logs and things" — has he "become more concerned."
Yes, of course, that's an embarrassing admission for a member of the Judiciary Committee to make. But at least Gohmert and other Republicans are expressing concern. And, at long last, a Republican member of Congress has dared to suggest that a member of a lawless Republican administration might rightly be the subject of impeachment.
That is a small measure of progress. But it is progress that the founders would have celebrated and encouraged. Indeed, as George Mason reminded the Constitutional Convention 219 years ago this summer: "No point is of more importance than that the right of impeachment should be continued."
By John Nichols
Reprinted with permission from The Nation