The CNN report took up the issue primarily in response to Republican Sen. Chuck Hagel's recent comments about impeachment. Anchor Wolf Blitzer introduced the idea this way: "They used to be just whispers, quiet conversations about impeaching the president, but now as we just saw, they're getting a little bit louder." As an example, CNN played a clip from Hagel's interview on ABC's This Week (3/25/07), where he said, "Any president who says I don't care or I will not respond to what the people of this country are saying about Iraq or anything else, or I don't care what the Congress does, I am going to proceed, if a president really believes that, then...there are ways to deal with that."
While that comment doesn't necessarily relate to impeachment—presumably Kucinich is accurately referring to provisions of the United Nations charter forbidding aggressive war—it nonetheless earned a "reality check," with Costello insisting: "The Constitution makes it clear, you can dislike a president all you want, but the only way a president can be impeached is if he is found guilty of high crimes and misdemeanors."
There are several problems with Costello's formulation. "High crimes and misdemeanors" does not necessarily refer to a president breaking a statutory law. As many commentators have noted (e.g., Center for Constitutional Rights, "Articles of Impeachment Against George W. Bush"; Elizabeth Holtzman in the Nation, 1/12/06), the framers (specifically George Mason and Alexander Hamilton) crafted that language deliberately to allow for political deliberations over what might constitute an impeachable offense. The move to impeach Richard Nixon, for example, was marked by a serious debate over the question of whether impeachment should solely address violations of federal law, or take a broader view, in line with the debate that took place among the framers of the Constitution. The three articles of impeachment that were before the House at the time of Nixon's resignation included one based on indictable offenses, one based on political abuses, and one that was a mixture of the two.
As the American Bar Association explains on its website, "What precisely constitutes 'high crimes and misdemeanors' is... uncertain because the courts have not specifically defined or interpreted the term, unlike other constitutional clauses." The ABA adds that "many experts agree that there are different standards for impeachable and criminal conduct."
Right after Costello's "reality check," Blitzer interviewed former Defense Secretary William Cohen, who contradicted what Costello had just presented as "reality," arguing: "I would only take issue with the notion that a president could only be impeached for high crimes and misdemeanors. We went through this. It doesn't necessarily mean a crime as we define a felonious crime, but rather it could be an abuse of power." Cohen then undermined the idea that Bush might meet such a standard, saying that "the notion that you're talking about impeachment at this point for political differences, I think, is off the base." So on the question of what exactly constitutes a "high crime," should CNN viewers believe the network's journalist, or another guest?
If CNN accepts its own reporter's view that only a narrow definition of "high crimes and misdemeanors" applies, it is worth mentioning that Bush's warrantless domestic wiretapping plan violated the Federal Intelligence Surveillance Act (FISA). Ironically, the very legal expert CNN tapped to analyze the impeachment debate is on the record elsewhere arguing that Bush's FISA violation could very well be an impeachable offense. As Salon.com reported (12/20/05), "According to Turley, there's little question Bush committed a federal crime by violating the 1978 Foreign Intelligence Surveillance Act." So even by that narrow standard, Bush arguably met it by violating FISA law. As Salon quoted Turley: "The fact is, the federal law is perfectly clear.... At the heart of this operation was a federal crime. The president has already conceded that he personally ordered that crime and renewed that order at least 30 times. This would clearly satisfy the standard of high crimes and misdemeanors for the purpose of an impeachment."
As was clear during the Clinton administration, impeachment is a political decision made by Congress. When CNN tells viewers that "high crimes and misdemeanors" only refers to violations of federal statutes, it is taking an arguable legal position and turning it into a fact. In doing so, CNN is treating an issue endorsed by millions of Americans—the impeachment of George W. Bush—as a fringe issue in conflict with the Constitution.
ACTION: Tell CNN's Situation Room to clarify its "reality check" on the nature of impeachable offenses, and to add more voices to its discussion of impeachment—including experts who argue that Bush could be guilty of "high crimes and misdemeanors."