Insiders passed on the word that former Vice President Al Gore would not go so far as actually to call for the impeachment of George Bush, and indeed he did not. The crowd at the Daughters of the American Revolution Constitution Hall were disappointed. But they were left with a great deal to chew on. Mr. Gore all but gave the impression that impeachment itself is simply a constitutional formality, necessarily ensuing upon such behavior as the president is clearly guilty of. Congress, said Mr. Gore, should hold hearings into “serious allegations of criminal behavior on the part of the president, and they should follow the evidence wherever it leads.” Yes, the chief executive has inherent powers to act in national crises, but the president has crossed the line into criminal acts, “breaking the law repeatedly and persistently,” bringing “our republic to the brink of a dangerous breach in the fabric of our Constitution.”
Well, is he or is he not? We have heard, coming from the lips of one of the senior Democrats in the land, the direct charge that the president may be engaging in criminal behavior.
How is the uncommitted voter to react? Those who are sophisticated in weighing the questions at hand know that it is not easy to objectify the limits of Executive power, and Mr. Bush has pretty well settled for telling us that the measures he has undertaken fall within his competence “to use all necessary and appropriate force against those . . . persons” he believes might have been, or might in the future be, engaged in terrorist aggression. Not easy to prove, abuse, yet some abuse is inevitable given what the National Security Agency and the FBI have been asked to do. That is, to examine conversations and written exchanges which, compositely, could transmute into a powder-keg airplane heading at top speed into the Capitol.
Mr. Gore is appealing to voters who are prepared to believe that abuse is written into Mr. Bush’s interpretation of his authority, and that that would be revealed if an investigation got to the bottom of what is now going on.
Those who want an answer to the question, Is Mr. Bush exceeding his authority? are not easily satisfied. It was decided at the launch of the republic that the Supreme Court was not available to give “advisory judgments.” The Court is not going to intervene in executive and legislative life to deal with hypothetical complaints. To engage the attention of the Court, you have to address it as a plaintiff, charging constitutionally prohibited activity.
The political meaning of this is that at this moment, the curious and apprehensive voter can’t be guided in any conclusive way. There are two difficulties. The first is that the data needed to pass sound judgments aren’t available. Nobody is going to tell the president that he has to hand over a list of the people whose telephone conversations he has intercepted, with the reasons why those interceptions were undertaken. A second difficulty is that it is inconceivable that an investigative panel would agree that the investigation of, say, Ramad el-Sein, was not only preposterous, but revealing of malefaction by those who undertook to tap his phone.
This means that Mr. Gore’s charge that allegations of criminal conduct by Mr. Bush are “serious” cannot be substantiated. All that can be done is to debate, as we have been doing for about two hundred years, the proper reach of executive power. Two lawsuits have been filed which are nothing more than showboat legal feints, the kind of thing the American Civil Liberties Union, which is a party in one of the lawsuits, was born to do. What isn’t going to happen is anything that can be taken as a dispositive finding, constitutional or moral, on the questions raised by Mr. Gore in his talk to an assembly of frustrated American dissidents.
Al Gore was active, seven years ago, in defending President Bill Clinton, who actually was impeached. He stressed in those days the integrity of the Constitution and the need to treat soberly the powers of the president, and the derivative respect owed to those powers by the legislature. Mr. Gore’s speeches during that period are relevant reading today.