From Impeachment to … Censure?

In the past month, the concept of impeachment has gained currency in public dialogue, making appearances across the spectrum -- from mainstream media to the town halls of Vermont and California.

But just as the public is warming to the idea, Democratic Senator Russ Feingold has added another term into the mix: censure. Now it seems that those who were previously in support of impeachment have jumped to espouse censure -- as though the terms were synonymous. A popular site for impeachment news, "Afterdowningstreet.org" can now be reached through the url "Censurebush.org."

I think there is a danger in embracing this approach; reframing the movement from impeachment to censure is akin to softening the blow before we have even made a proper fist.

First, it's important to acknowledge the importance of Feingold's message. His call for action on the president's illegal conduct -- and the deafening silence from his fellow politicians -- is an important piece of the machinery that could push Americans to ask the right questions.

Furthermore, Feingold's public appearances on CNN and interviews with mainstream media outlets are solidifying the knowledge that many lawyers have already digested: President Bush's warrantless wiretap program is illegal and falls easily into the impeachable category of high crimes and misdemeanors.

When CNN's Soledad O'Brien questioned whether there was still doubt about the legality of the program, Feingold retorted,

There is no serious debate about whether the president was within the law. This is the game of intimidation and it's working. Obviously, they've got you thinking that there's a legal basis for this when there isn't. Even Republican Senators have said this isn't within the law. What we do know, what the President has admitted is that it was not within the FISA, so president broke the law.

While acknowledging that the NSA program is "a lot more like an impeachable offense than anything President Clinton ever did," Feingold fails to follow through, arguing that censure, rather than impeachment, is "a way to restore constitutional order on a bipartisan basis."

But the argument makes little sense. There is no escaping the fact that publicly chastising this president is a partisan issue. It seems unlikely that those who oppose impeachment will be inclined to support Feingold's political call for censure.

Even outside of the appeal for bipartisan support, the notion that censure would restore order is misleading. Feingold told the press, "Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president."

With all due respect to Feingold's boldness, this statement is simply incorrect.

What censure is (and isn't)

Censure resolution was used only once before; back in 1834. President Andrew Jackson rejected it as illegal and unconstitutional. Jackson had a point -- the Constitution makes very clear that the only resolution for presidential crimes is impeachment. Given President Bush's consistent claims to expansive executive power, it would be out of character for him to not argue the unconstitutional nature of a censure just as Jackson did.While Feingold indicated that his move for censure is a possible precursor to impeachment, there is neither legal precedent nor connection between the two.

The most recent talk of censure came during the Clinton impeachment proceedings. But in that context, it was discussed as a carrot, functioning as a corollary to the de facto stick -- impeachment. In other words, it was thought of as a potential gesture of good will to be extended to Clinton if he cooperated by being more forthcoming in questioning.

Even within this framework, Republicans quickly trashed the idea. Rep. Lindsey Graham (R-S.C.) said, "This censure idea without an admission on the president's part, is a political cop-out." Tom DeLay made clear that he viewed censure as "unsatisfactory and unconstitutional." And Rep. Jerrold Nadler (D-N.Y.) pointed out that, "Anyone who thought the president should be impeached beforehand will still think so, and anyone who thought that the president should not be impeached will think that."