The Democrats’ Impeachment Road Map

by Byron York

It's finished, ready to go -- and waiting for November.

There’s a word you won’t find in the text of Democratic Rep. John Conyers’s new “investigative report” on the Bush administration, “The Constitution in Crisis: The Downing Street Minutes and Deception, Manipulation, Torture, Retribution, and Coverups in the Iraq War, and Illegal Domestic Surveillance.” And the word is…impeachment. Yet the 350-page “Constitution in Crisis,” released last week, is, more than anything else, a detailed road map for the impeachment of George W. Bush, ready for use should Democrats win control of the House of Representatives this November. And Conyers, who would become chairman of the House Judiciary Committee — the panel that would initiate any impeachment proceedings — is the man who could make it happen.

While it’s absent in the body of the report, the I-word does appear a few times in Conyers’s 1,401 footnotes, which include citations of authorities ranging from the left-wing conspiracy website to the left-wing antiwar sites and to the left-wing British newspaper the Guardian to the left-wing magazines The Nation and Mother Jones to the left-wing blogosphere favorite Murray Waas to the New York Times columnists Paul Krugman, Maureen Dowd, Bob Herbert, and Frank Rich to former Clinton aide Sidney Blumenthal to the New Yorker’s Seymour Hersh. (Sources for “The Constitution in Crisis” even include one story co-written by the disgraced Internet writer Jason Leopold.) Relying on such material, Conyers has created what might be called the definitive left-wing blogger’s history of the Bush administration. “I would like to thank the ‘blogosphere’ for its myriad and invaluable contributions to me and my staff,” Conyers writes in the report’s introduction. “Absent the assistance of ‘blogs’ and other Internet-based media, it would have been impossible to assemble all of the information, sources and other materials necessary to the preparation of this report.”

But Conyers’s report is more than the world’s longest blog post. Far more seriously, it is the foundation for possible articles of impeachment, detailing charge after charge against the president. “Approximately 26 laws and regulations may have been violated by this administration’s misconduct,” Conyers wrote Friday in a message posted simultaneously on the DailyKos and Huffington Post websites. “The report…compiles the accumulated evidence that the Bush administration has thumbed its nose at our nation’s laws, and the Constitution itself.”

A few months ago, when there was speculation that Democrats planned to impeach Bush if they won the House, the party’s leadership moved quickly to stop the discussion. In May, a spokesman for House Minority Leader Nancy Pelosi told the Washington Post that Pelosi had told her fellow Democrats “impeachment is off the table; she is not interested in pursuing it.” But Conyers, who would likely be the single-most important person in the undertaking, was never on board. “There’s no way I can predict whether there will ultimately be an impeachment proceeding underway or not,” he said last week in an interview with the liberal website “The Constitution in Crisis” is Conyers’s sign that, should the opportunity arise, he is ready to go.

Conyers’s report is divided into two parts. The first accuses the Bush administration of a variety of crimes involving the war in Iraq, and the second of crimes involving what the administration calls the terrorist-surveillance program and what its critics call “domestic spying.” In many areas, legal analysts, Republicans and even some Democrats, might find Conyers’s case so tenuous and ill-sourced as to be laughable. But even a cursory reading of “The Constitution in Crisis” shows that the man who might be chairman is very, very serious.

On the war, Conyers argues that the Bush administration’s case for war, its decision to go to war, and its conduct of the war have been, in essence, an exercise in criminal fraud. The report lists four laws which Conyers says the president violated in the run-up to the war:

Committing a Fraud Against the United States (18 U.S.C. 371)
Making False Statements to Congress (18 U.S.C. 1001)
War Powers Resolution (Public Law 93-148)
Misuse of Government Funds (31 U.S.C. 1301)

On the question of committing a fraud against the United States, Conyers argues that President Bush, intent on “avenging [his] father and working with the neo-cons,” made the decision to go to war in Iraq before asking Congress for the authority to do so. That is the heart of the alleged fraud; every act that followed, Conyers writes, was part of the crime — even if those actions do not, at first glance, appear to be criminal acts. “‘Defrauding the government’ has been defined quite broadly and does not need an underlying criminal offense and alone subjects the offender to prosecution,” Conyers writes in a legal analysis section. “While this statute is similar to obstructing or lying to Congress…it is broader. It covers acts that may not technically be lying or communications that are not formally before Congress.”

Besides the alleged fraud, Conyers also contends that the administration’s preparations for war — the moving of military equipment and personnel to the Gulf region — violated at least two other laws. “Our investigation has found that there is evidence the Bush Administration redeployed military assets in the immediate vicinity of Iraq and conducted bombing raids on Iraq in 2002 in possible violation of the War Powers Resolution, Pub. L. No. 93-148, and laws prohibiting the Misuse of Government Funds, 31 U.S.C. 1301,” he writes. And key elements of the president’s case for war, Conyers says, violated yet another statute. “We have found that President Bush and members of his administration made numerous false statements that Iraq had sought to acquire enriched uranium from Niger,” the report continues. “In particular, President Bush’s statements and certifications before and to Congress may constitute Making a False Statement to Congress in violation of 18 U.S.C. 1001.”

In the next section of the report, Conyers alleges that the administration, in its treatment of prisoners, both in Iraq and in the broader war on terror, has violated three laws:

Anti-Torture Statute (18 U.S.C. 2340-40A)
The War Crimes Act (18 U.S.C. 2441)
Material Witness (18 U.S.C. 3144)

Conyers suggests that American officials might be tried under the War Crimes Act for “grave breaches” of the Geneva Conventions, and might also be liable under the Anti-Torture Statute. “Those who order torture, or in other ways conspire to commit torture, can be held criminally liable under this statute,” the report says. “The statue doesn’t require a person to actually commit torture with his own hands.” Conyers singles out the two attorneys general of the Bush presidency, John Ashcroft and Alberto Gonzales, as potential targets of prosecution.

From the war itself, Conyers moves to the issue of what the report calls “coverups and retribution” related to the war. “Inevitably, information began to seep out exposing the many falsehoods and deceptions concerning the Iraq war,” the report says. “The release of this information — including information detailing the Niger-Iraq uranium forgers — led members of the Bush administration to react with a series of leaks and other actions designed to cover up their misdeeds and obtain retribution against the critics.” In the course of that reaction, Conyers suggests, the president and his aides broke four laws:

Obstructing Congress (18 U.S.C. 1505)
Whistleblower Protection (5 U.S.C. 2302)
The Lloyd-LaFollette Act (5 U.S.C. 7211)
Retaliating against Witnesses (18 U.S.C. 1513)

The most famous case of alleged retribution, of course, involved the former ambassador Joseph Wilson, but Conyers broadens his charges to include alleged retribution against several others who have publicly disagreed with the administration, including former General Eric Shinseki, former Treasury Secretary Paul O’Neill, and former counterterrorism chief Richard Clarke. Conyers also places antiwar protester Cindy Sheehan on the list, and even an ABC News reporter named Jeffrey Kofman. (In that case, the administration, unhappy with a report Kofman had done, allegedly told The Drudge Report about a profile of Kofman published in the gay publication The Advocate, thereby sending out word that Kofman was gay — although the fact that he was profiled in The Advocate suggested that Kofman was already quite open about that fact.) In the case of Sheehan, Conyers describes the administration’s allegedly criminal acts this way:

Instead of meeting with Sheehan, the administration and other conservative media outlets began to attack Sheehan. Columnist Maureen Dowd noted that the “Bush team tried to discredit ‘Mom’ by pointing reporters to an old article in which she sounded kinder to W. If only her husband were an undercover C.I.A. operative, the Bushies could out him. But even if they send out a squad of Swift Boat Moms for Truth, there will be a countering Falluja Moms for Truth.”

The attacks continued as Fred Barnes of Fox News labeled Sheehan a “crackpot.” Conservative blogs then started talking about Sheehan’s divorce…The president also joined in on the attack by criticizing Sheehan as unrepresentative of most military families he meets….

The final part of “The Constitution in Crisis” is a long discussion entitled “Unlawful Domestic Surveillance and the Decline of Civil Liberties Under the Administration of George W. Bush.” In this matter, Conyers alleges that the president and the administration have broken five laws:

Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.)
National Security Act of 1947 (50 U.S.C. chapter 15)
Communications Act of 1934 (47 U.S.C. 222)
Stored Communications Act of 1986 (18 U.S.C. 2702)
Pen Registers or Trap and Trace Devices (18 U.S.C. 3121)

“The warrantless wiretap program disclosed by The New York Times,” Conyers writes, “directly violates the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801; and the warrant requirement of the Fourth Amendment, and, just as dangerously, threatens to create a precedent that may be used to violate numerous additional laws. The NSA’s domestic database program disclosed by USA Today also appears to violate the Stored Communications Act and the Communications Act of 1934. In addition, the administration appears to have briefed members of the Intelligence Committees regarding these programs in violation of the National Security Act, 50 U.S.C. 401, and we have found little evidence they provided useful intelligence or law enforcement information.”

Most of Conyers’s discussion of surveillance is familiar to anyone who has followed the issue, but some readers may be surprised by his suggestion that the administration, in addition to all of its other alleged crimes, broke the law when it notified Congress about the NSA surveillance program. The administration informed eight top officials in the House and Senate — four Republicans and four Democrats — about the program. Conyers argues that was a crime. “Briefings of this nature would appear to be in violation of the National Security Act of 1947, which governs the manner in which members of Congress are to be briefed on intelligence activities,” he writes. “The law requires the president to keep all members of the House and Senate Intelligence Committees ‘fully and currently informed’ of intelligence activities. Only in the case of a highly classified covert action (when the U.S. engages in operations to influence political, economic or military conditions of another country) does a statute expressly permit the president to limit briefings to a select group of members. Covert actions, pursuant to the statute, do not include ‘activities the primary purpose of which is to acquire intelligence.’“

It would take a long discussion — perhaps one as long as “The Constitution in Crisis” itself — to do justice to all of Conyers’s allegations. The same might be said of his sources. For example, one analysis of the administration’s alleged misconduct that Conyers apparently finds quite persuasive — he cites it six times in “The Constitution in Crisis” — is an article originally published by the left-wing website Entitled “Bush’s Uranium Lies: The Case for a Special Prosecutor That Could Lead to Impeachment,” it was written by a Connecticut lawyer named Francis T. Mandanici. Readers might remember Mandanici from Whitewater days, when he engaged in a personal crusade against Kenneth Starr, filing ethics complaint after ethics complaint against the independent counsel. Readers with longer memories might recall that before Mandanici attacked Starr, he was fixated on the Bush family. In a November 1992 story about the savings-and-loan investigation involving the first President Bush’s son Neil, the Washington Post reported the following:

A federal grand jury in Denver investigating the failure of Silverado Banking, Savings and Loan Association heard from an unusual witness yesterday — a Connecticut lawyer with no firsthand knowledge about the Colorado S&L’s collapse, who says that President Bush’s son Neil should face criminal charges for violating banking laws while serving on Silverado’s board.

In a rare legal proceeding, the grand jury investigating Silverado’s collapse spent 1 1/2 hours meeting with Francis Mandanici, a Bridgeport public defender who persuaded the panel to listen to what he has to say about the case.

Motivated by what he admits is a long-standing grudge against President Bush, Mandanici said he researched thousands of pages of documents in the Silverado case and developed what he contends is evidence of a dozen felony violations by the president’s son.

Today, Mandanici seems to be pursuing a similar course with George H. W. Bush’s other son George. As for his motivation, Mandanici once told the online magazine Salon, “I guess I never left the ‘60s.”

Besides Mandanici and the entire liberal side of the New York Times columnist lineup, other writers cited in “The Constitution in Crisis” include left-wing journalists and bloggers Glenn Greenwald, Robert Dreyfuss, and Larisa Alexandrovna. “The Constitution in Crisis” also cites the occasional unknown writer like Carmen Yarrusso, who, according to a search of the Nexis database, seems to have written mostly letters to the editor — and who in 1998 was described in a brief article in the Boston Globe as being “a humorist from Brookline, N.H.”

Conyers’s defenders will no doubt argue that such writers make up a minority of the sources cited in “The Constitution in Crisis.” But the interpretive structure of the report is undoubtedly inspired their work — and that of similar writers in the left-wing blogosphere. And the nature of the other sources on which the report is based — newspaper articles, transcripts of interviews, and previously released government documents — also suggests that the Conyers report is not the product of a real investigation. Conyers would likely respond by saying that as a member of the minority party in the House, he has no power to issue subpoenas, compel testimony, and demand the production of documents from the administration. That’s true. But if he were to win such power, it seems fair to say that he has already decided the conclusions he will reach.

Reading Conyers’s various statements on the Huffington Post, where he is a regular contributor, it’s clear that Conyers believes his case against George W. Bush has not received enough attention. And indeed, “The Constitution in Crisis” has been overlooked by many major press outlets. It shouldn’t be. The point is not the legitimacy, or lack of legitimacy, of Conyers’s charges. It is the fact that Conyers might be just a few months away from the chairmanship of the House Judiciary Committee. If he wins that seat, and he moves toward impeachment — and how could he not, if he believes the president broke not one, not two, not three, but 26 laws and regulations? — observers who haven’t been paying attention might express surprise or call such action precipitous. To that, Conyers can answer, correctly, that no one should be surprised. After all, he’s been making the case for a long time, whether or not anyone was listening.

 – Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.