MEMORANDUM
To: Rep. John Conyers, Jr.
From: John C. Bonifaz
Date: May 22, 2005
RE: The President’s Impeachable Offenses
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The recent
release of the Downing Street Memo provides new and
compelling evidence that the President of the United
States has been actively engaged in a conspiracy to
deceive and mislead the United States Congress and the
American people about the basis for going to war against
Iraq. If true, such conduct constitutes a High Crime
under Article II, Section 4 of the United States Constitution:
“The President, Vice President, and all civil
officers of the United States shall be removed from
office on impeachment for, and conviction of, treason,
bribery, or other high crimes and misdemeanors.”
In light of the emergence of the Downing Street Memo,
Members of Congress should introduce a Resolution of
Inquiry directing the House Judiciary Committee to launch
a formal investigation into whether sufficient grounds
exist for the House of Representatives to exercise its
constitutional power to impeach George W. Bush, President
of the United States.
The Downing Street Memo
On May 1, 2005, The Sunday Times of London published
the Downing Street Memo. The document, marked “Secret
and strictly personal – UK eyes only,” consists
of the official minutes of a briefing by Richard Dearlove,
then-director of Britain’s CIA equivalent, MI-6,
to British Prime Minister Tony Blair and his top national
security officials. Dearlove, having just returned from
meetings with high U.S. Government officials in Washington,
reported to Blair and members of his Cabinet on the
Bush administration’s plans to start a preemptive
war against Iraq.
The briefing occurred on July 23, 2002, months before
President Bush submitted his resolution on Iraq to the
United States Congress and months before Bush and Blair
asked the United Nations to resume its inspections for
alleged weapons of mass destruction in Iraq.
The document reveals that, by the summer of 2002, President
Bush had decided to overthrow Iraqi President Saddam
Hussein by launching a war which, Dearlove reports,
would be “justified by the conjunction of terrorism
and WMD [weapons of mass destruction].” Dearlove
continues: “But the intelligence and facts were
being fixed around the policy.” Dearlove also
states that “[t]here was little discussion in
Washington of the aftermath after military action.”
British Foreign Secretary Jack Straw states that “[i]t
seemed clear that Bush had made up his mind to take
military action, even if the timing was not yet decided.”
“But,” he continues, “the case was
thin. Saddam was not threatening his neighbours, and
his WMD capability was less than that of Libya, North
Korea, and Iran.”
British officials do not dispute the document’s
authenticity, and, on May 6, 2005, Knight Ridder Newspapers
reported that “[a] former senior U.S. official
called [the document] ‘an absolutely accurate
description of what transpired’ during the senior
British intelligence officer’s visit to Washington.”
“Memo: Bush made intel fit Iraq policy,”
The State, Knight Ridder Newspapers, May 6, 2005.
Why a Resolution of Inquiry is Justified
On May 5, 2005, you and 88 other Members of Congress
submitted a letter to President Bush, asking the President
to answer several questions arising from the Downing
Street Memo. On May 17, 2005, White House press secretary
Scott McClellan told reporters that the White House
saw “no need” to respond to the letter.
“British Memo on U.S. Plans for Iraq War Fuels
Critics,” The New York Times, May 20, 2005, A8.
The Framers of the United States Constitution drafted
Article II, Section 4 to ensure that the people of the
United States, through their representatives in the
United States Congress, could hold a President accountable
for an abuse of power and an abuse of the public trust.
James Madison, speaking at Virginia’s ratification
convention stated: “A President is impeachable
if he attempts to subvert the Constitution.” James
Iredell, who later became a Justice of the U.S. Supreme
Court, stated at North Carolina’s ratification
convention:
The President must certainly be punishable for giving
false information to the Senate. He is to regulate all
intercourse with foreign powers, and it is his duty
to impart to the Senate every material intelligence
he receives. 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 state 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.
On July 25, 1974, then-Representative Barbara Jordan
spoke to her colleagues on the House Judiciary Committee
of the constitutional basis for impeachment. “The
powers relating to impeachment,” Jordan said,
“are an essential check in the hands of this body,
the legislature, against and upon the encroachment of
the Executive.”
Impeachment, she added, is chiefly designed for the
President and his high ministers to somehow be called
into account. It is designed to ‘bridle’
the Executive if he engages in excesses. It is designed
as a method of national inquest into the conduct of
public men. The framers confined in the Congress the
power, if need be, to remove the President in order
to strike a delicate balance between a President swollen
with power and grown tyrannical and preservation of
the independence of the Executive.
The question must now be asked, with the release of
the Downing Street Memo, whether the President has committed
impeachable offenses. Is it a High Crime to engage in
a conspiracy to deceive and mislead the United States
Congress and the American people about the basis for
taking the nation into war? Is it a High Crime to manipulate
intelligence so as to allege falsely a national security
threat posed to the United States as a means of trying
to justify a war against another nation based on “preemptive”
purposes? Is it a High Crime to commit a felony via
the submission of an official report to the United States
Congress falsifying the reasons for launching military
action?
In his book Worse Than Watergate (Little, Brown and
Company-NY, 2004), John W. Dean writes that “the
evidence is overwhelming, certainly sufficient for a
prima facie case, that George W. Bush and Richard B.
Cheney have engaged in deceit and deception over going
to war in Iraq. This is an impeachable offense.”
Id. at 155. Dean focuses, in particular, on a formal
letter and report which the President submitted to the
United States Congress within forty-eight hours after
having launched the invasion of Iraq. In the letter,
dated March 18, 2003, the President makes a formal determination,
as required by the Joint Resolution on Iraq passed by
the U.S. Congress in October 2002, that military action
against Iraq was necessary to “protect the national
security of the United States against the continuing
threat posed by Iraq...” Dean states that the
report accompanying the letter “is closer to a
blatant fraud than to a fulfillment of the president’s
constitutional responsibility to faithfully execute
the law.” Worse Than Watergate at 148.
If the evidence revealed by the Downing Street Memo
is true, then the President’s submission of his
March 18, 2003 letter and report to the United States
Congress would violate federal criminal law, including:
the federal anti-conspiracy statute, 18 U.S.C. §
371, which makes it a felony “to commit any offense
against the United States, or to defraud the United
States, or any agency thereof in any manner or for any
purpose...”; and The False Statements Accountability
Act of 1996, 18 U.S.C. § 1001, which makes it a
felony to issue knowingly and willfully false statements
to the United States Congress.
The United States House of Representatives has a constitutional
duty to investigate fully and comprehensively the evidence
revealed by the Downing Street Memo and other related
evidence and to determine whether there are sufficient
grounds to impeach George W. Bush, the President of
the United States. A Resolution of Inquiry is the appropriate
first step in launching this investigation.
The following is suggested language for this resolution:
Directing the Committee on the Judiciary to undertake
an inquiry into whether sufficient grounds exist to
impeach George W. Bush, the President of the United
States.
Whereas considerable evidence has emerged that George
W. Bush, President of the United States, has engaged
in a conspiracy to deceive and mislead the United States
Congress and the American people as to the basis for
taking the nation into war against Iraq, that George
W. Bush, President of the United States, has manipulated
intelligence so as to allege falsely a national security
threat posed to the United States by Iraq, and that
George W. Bush, President of the United States, has
committed a felony by submitting a false report to the
United States Congress on the reasons for launching
a first-strike invasion of Iraq: Now, therefore, be
it
Resolved, That the Committee on the Judiciary is directed
to investigate and report to the House of Representatives
whether sufficient grounds exist to impeach George W.
Bush, President of the United States. Upon completion
of such investigation, that Committee shall report thereto,
including, if the Committee so determines, articles
of impeachment.
Conclusion
The Iraq war has led to the deaths of more than 1,600
United States soldiers and tens of thousands of Iraqi
civilians. Thousands more have been permanently and
severely injured on both sides. More than two years
after the invasion, Iraq remains unstable and its future
unclear. The war has already cost the American people
tens of billions of taxpayer dollars at the expense
of basic human needs here at home. More than 135,000
U.S. soldiers remain in Iraq without any stated exit
plan.
If the President has committed High Crimes in connection
with this war, he must be held accountable. The United
States Constitution demands no less.
###
The writer is an attorney in Boston specializing
in constitutional litigation. In February and March
2003, John C. Bonifaz served as lead counsel for a coalition
of United States soldiers, parents of U.S. soldiers,
and Members of Congress (led by Representatives John
Conyers, Jr. and Dennis Kucinich) in a federal lawsuit
challenging President George W. Bush’s authority
to wage war against Iraq absent a congressional declaration
of war or equivalent action. Bonifaz is the author of
Warrior-King: The Case for Impeaching George W. Bush
(NationBooks-NY, 2004, foreword by Rep. John Conyers,
Jr.), which chronicles that case and its meaning for
the United States Constitution.
J. Elliot, Debates in the Several State Conventions
on Adoption of the Constitution, As Recommended by the
General Convention at Philadelphia in 1787 (Washington:
1836), vol. 3 at 500.
Id., vol. 4 at 127.
The full text of Representative Jordan’s
opening statement to the House Judiciary Committee on
July 25, 1974, can be found here:
The full text of the President’s March 18,
2003 letter can be found here:
As Dean writes:
With one pathetic (yet false) exception, this report
explains that the president made his determination by
inexplicably relying on alleged congressional findings
of fact, which did not exist. Congress made no such
findings, and if it had done so, it surely would not
have required the president make his determinations.
Bush, like a dog chasing his tail who gets ahold of
it, relied on information the White House provided Congress
for its draft resolution; then he turned around and
claimed that this information (his information) came
from Congress. From this bit of sophistry, he next stated
that these congressional findings were the basis of
his “determination.”
Worse Than Watergate at 148-149.
