EXECUTIVE POWER AND ITS 

CONSTITUTIONAL LIMITATIONS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 25, 2008 

Serial No. 110–200 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

EXECUTIVE POWER AND ITS CONSTITUTIONAL LIMITATIONS 

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EXECUTIVE POWER AND ITS 

CONSTITUTIONAL LIMITATIONS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 25, 2008 

Serial No. 110–200 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

(III) 

C O N T E N T S 

JULY 25, 2008 

Page 

OPENING STATEMENTS 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 1 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 3 

The Honorable Robert Wexler, a Representative in Congress from the State 

of Florida, and Member, Committee on the Judiciary ...................................... 4 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Member, Committee on the Judiciary .................... 5 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Committee on the Judiciary .......................................... 5 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Member, Committee on the Judiciary ................................. 10 

The Honorable Daniel E. Lungren, a Representative in Congress from the 

State of California, and Member, Committee on the Judiciary ....................... 11 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Member, Committee on the Judiciary ................................. 12 

The Honorable Mike Pence, a Representative in Congress from the State 

of Indiana, and Member, Committee on the Judiciary ..................................... 13 

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas, and Member, Committee on the Judiciary .............................. 15 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Member, Committee on the Judiciary ..................................... 18 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Member, Committee on the Judiciary ................................. 19 

The Honorable Hank Johnson, a Representative in Congress from the State 

of Georgia, and Member, Committee on the Judiciary ..................................... 20 

The Honorable Tammy Baldwin, a Representative in Congress from the State 

of Wisconsin, and Member, Committee on the Judiciary ................................. 21 

The Honorable Keith Ellison, a Representative in Congress from the State 

of Minnesota, and Member, Committee on the Judiciary ................................. 26 

WITNESSES 

The Honorable Dennis J. Kucinich, a Representative in Congress from the 

State of Ohio 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 28 

The Honorable Maurice Hinchey, a Representative in Congress from the 

State of New York 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 32 

The Honorable Brad Miller, a Representative in Congress from the State 

of North Carolina 

Oral Testimony ..................................................................................................... 33 

Prepared Statement ............................................................................................. 35 

The Honorable Walter Jones, a Representative in Congress from the State 

of North Carolina 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 72 

Page

IV 

The Honorable Elizabeth Holtzman, former U.S. Representative from New 

York 

Oral Testimony ..................................................................................................... 73 

Prepared Statement ............................................................................................. 75 

The Honorable Bob Barr, former U.S. Representative from Georgia and 2008 

Libertarian Nominee for President 

Oral Testimony ..................................................................................................... 81 

Prepared Statement ............................................................................................. 84 

The Honorable Ross C. ‘‘Rocky’’ Anderson, Founder and President, High 

Roads for Human Rights 

Oral Testimony ..................................................................................................... 98 

Prepared Statement ............................................................................................. 100 

Mr. Stephen Presser, Raoul Berger Professor of Legal History, Northwestern 

University School of Law 

Oral Testimony ..................................................................................................... 129 

Prepared Statement ............................................................................................. 131 

Mr. Bruce Fein, Associate Deputy Attorney General, 1981–1982, and Chairman, American Freedom Agenda 

Oral Testimony ..................................................................................................... 145 

Prepared Statement ............................................................................................. 147 

Mr. Vincent Bugliosi, Author and former Los Angeles County Prosecutor 

Oral Testimony ..................................................................................................... 150 

Prepared Statement ............................................................................................. 151 

Mr. Jeremy A. Rabkin, Professor of Law, George Mason University School 

of Law 

Oral Testimony ..................................................................................................... 152 

Prepared Statement ............................................................................................. 155 

Mr. Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan Center for Justice 

at NYU School of Law 

Oral Testimony ..................................................................................................... 160 

Prepared Statement ............................................................................................. 162 

Mr. Elliott Adams, President of the Board, Veterans for Peace 

Oral Testimony ..................................................................................................... 171 

Prepared Statement ............................................................................................. 172 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Committee on the Judiciary ....... 7 

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 16 

Prepared Statement of the Honorable Tammy Baldwin, a Representative 

in Congress from the State of Wisconsin ........................................................... 23 

Material submitted by the Honorable Walter Jones, a Representative in Congress from the State of North Carolina .............................................................. 38 

Material submitted by the Honorable Bob Barr, former U.S. Representative 

from Georgia and 2008 Libertarian Nominee for President ............................. 175 

Material submitted by the Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Committee on the Judiciary ....... 191 

Material submitted by the Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Committee on the Judiciary ....... 194 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 239 

(1) 

EXECUTIVE POWER AND ITS 

CONSTITUTIONAL LIMITATIONS 

FRIDAY, JULY 25, 2008 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:19 a.m., in room 

2141, Rayburn House Office Building, the Honorable John Conyers, 

Jr. (Chairman of the Committee) presiding. 

Present: Representatives Conyers, Nadler, Scott, Watt, Lofgren, 

Jackson Lee, Waters, Wexler, Cohen, Johnson, Sherman, Baldwin, 

Schiff, Wasserman Schultz, Ellison, Smith, Lungren, Pence, King, 

Franks, and Gohmert. 

Staff Present: Perry Apelbaum, Staff Director and Chief Counsel; 

Ted Kalo, Deputy Chief Counsel; Benjamin Staub, Majority Professional Staff Member; and Crystal Jezierski, Minority Counsel. 

Mr. CONYERS. Good morning. The Committee will come to order. 

We face few issues more difficult, complex or important than separation of powers in general and excesses of the executive branch 

in particular. As our first great civil libertarian, in my mind, 

Thomas Jefferson wrote, ‘‘The greatest calamity which would befall 

us would be submission to a government of unlimited powers.’’ 

So, it is for that reason that the Founders gave Congress the 

power to oversee the executive branch as well as the power of the 

purse, the power to decide when the country goes to war, and the 

power to remove through the constitutional process officers who 

may have violated their oath. And so it is for these same reasons 

that the Founders created independent courts to operate as a check 

on the two political branches and to serve as the final protector of 

our precious rights and liberties. 

It is no secret that I have grave concerns about the excesses and 

the exercises of the executive branch authority as has been used 

in this present Administration. And at my direction, this Committee has spent a considerable portion of its time, energy and resources investigating allegations concerning the politicization of the 

Department of Justice; the misuse of signing statements; misuse of 

authority with regard to detention, interrogation and rendition of 

detainees and others; possible manipulation of intelligence regarding the Iraq war; improper retaliation against critics of the Administration, including the outing of Valerie Plame; and excessive secrecy by the Administration, including the misuse of various privileges and immunities. 

2 

I believe the evidence on these matters is both credible and substantial and warrants direct answers from the most senior members of the Administration, under oath if at all possible. 

This Member, the second-longest serving in the Congress, has a 

40-year track record of opposing governmental injustice by both Republican and Democratic Presidents. Regardless of who the next 

President is and who is in the congressional majority next year, 

Congress and the American people will be struggling with the legacy of these excesses. 

By the same token, I have good friends on my own side of the 

aisle who say we have done too little and too late. I would remind 

all of us that in the prior Congress, when I wasn’t Chairman, I 

held forums on the Presidential election in Ohio, what went wrong 

in that election; the Downing Street minutes hearings; hearings on 

warrantless wiretapping. And there have been at least two comprehensive reports made on these matters. 

In this Congress, the Committee on Judiciary has held more than 

45 separate public hearings on these matters, bringing in a range 

of witnesses, including the former Attorney General; a couple of 

past Attorneys General; also two heads of the Justice Department 

Office of Legal Counsel; two current and former Deputy Attorneys 

General; the special counsel, Patrick Fitzgerald; the Department of 

Justice White House liaison, Monica Goodling; the former Secretary of State of Ohio, Kenneth Blackwell; Douglas Feith; Scott 

McClellan; Ambassador Joseph Wilson, to name a few. 

We have pursued criminal contempt against Harriet Miers, the 

President’s former lawyer, and Josh Bolton, his chief of staff, in the 

Department of Justice and in Federal court. And we expect to take 

action against Karl Rove for his refusal to obey our Judiciary Committee-issued subpoena. 

I have also been involved, as have other Members on the Committee, opposing the spying on Americans and wiretapping phones 

and warrantless surveillance, and have opposed many of the modifications in the wrong direction, in my view, of the FISA bill. We 

have helped initiate numerous Inspector General investigations 

and Office of Professional Responsibility investigations and have 

passed legislation into law limiting abusive United States Attorney 

appointments. 

And we are not done yet. We do not intend to go away until we 

achieve the accountability that the Congress is entitled to and the 

American people deserve. I believe it is in all our interests to work 

together to rein in any excesses of the executive branch, regardless 

of whose hands it is in, Democratic, Republican, Libertarian, or 

independent. 

Whether it was the suspension of habeas corpus during the Civil 

War, the Palmer raids during World War I, the internment of Japanese Americans during World War II, COINTELPRO that came 

out of the White House during Vietnam, we know the executive 

branch can and does overreach frequently during times of war. As 

one who was included on President Nixon’s enemies list, I am all 

too familiar with the specter of an unchecked executive branch. 

And the risk to our citizens’ rights are even graver today, as the 

war on terror has no specific end point. 

3 

And so I conclude, our great challenge as a Committee, as the 

Congress, as a people, is to find a way to work together to protect 

these rights and develop a record and a process for addressing and 

correcting the abuses, a process that will stand the test of time, in 

a manner that serves our Nation and our Constitution. I hope today’s hearing will be a beginning to make progress in that direction. 

And I am pleased now to recognize the Ranking Member of the 

Judiciary Committee from Texas, the distinguished Member, 

Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Chairman, if last month it appeared we hosted a book-of-themonth club, this week it seems that we are hosting an anger management class. Nothing is going to come out of this hearing with 

regard to impeachment of the President. I know it, the media 

knows it, and the Speaker knows it. The Democratic leadership has 

said time and again they have no intention of bringing any impeachment resolution for the President or the Vice President to the 

House floor. 

Why is that? It is because they know it won’t pass. That is because there is no evidence to support impeachment. To quote a 

Democratic Member of this Committee during the Clinton impeachment, Congress, quote, ‘‘has no authority to forcibly remove the 

President simply because they dislike him or disapprove of his actions,’’ end quote. And another Democratic Member of this Judiciary Committee said yesterday he did not think that the President 

had committed any crime. 

After holding 32 hearings and listening to over 120 witnesses, 

the Members of the Judiciary Committee have found no evidence 

of any criminal wrongdoing by the President or the Vice President. 

Meanwhile, congressional approval ratings have sunk to a record 

low. Only 9 percent of those polled believe that Congress is doing 

a good job. That makes President Bush’s approval rating of 32 percent look pretty good. 

The American people have a low opinion of Congress because 

Congress wreaks of partisanship. This partisan hearing contributes 

to that view. Instead of partisan bickering and bitterness, we 

should consider bipartisan legislation to reduce the price of gas, reduce crime, and secure the borders. 

Speaker Pelosi came into office promising to govern in a, quote, 

‘‘respectful, bipartisan way.’’ Yet there is nothing bipartisan about 

this hearing she suggested or the Speaker’s recent comments about 

the President himself. 

Americans are tired of bitter partisanship and want solutions 

that unite our country. They want lower gas prices. They want to 

keep their children safe from violent crime and sexual predators. 

And they want to live, work and raise their families in the United 

States free from terrorist attacks. 

The relentless efforts of some individuals to malign the outgoing 

Administration only demeans and harms the institution of Congress. This hearing will not cause us to impeach the President. It 

will only serve to impeach Congress’s own credibility. 

Mr. Chairman, before I yield back, I want to read, with your permission, an excerpt from the House rules. And let me say at the 

4 

outset that I have confidence that our own Members, as well as our 

witnesses, will abide by these rules, as you always have yourself. 

And, in fact, you have always encouraged witnesses to do so. 

But let me quote from the rules with regard to references to the 

President. This is a quote: The rules ‘‘do not permit the use of language that is personally offensive toward the President. Personal 

criticism, innuendo, ridicule or terms of opprobrium are not in 

order,’’ end quote. 

Thank you, Mr. Chairman. I will yield back. 

Mr. CONYERS. I thank the gentleman. 

I am now pleased to recognize the distinguished Member of the 

Judiciary Committee, the Honorable Robert Wexler of Florida. 

Mr. WEXLER. Thank you, Mr. Chairman. Is this for purposes of 

an opening statement? 

Mr. CONYERS. Yes. 

Mr. WEXLER. Thank you so much. 

Thank you, Mr. Chairman. I applaud your tenacity and courage 

for calling for this hearing. 

For the past few months, I have vigorously argued that this 

Committee should immediately begin impeachment hearings. The 

allegations made against the Bush White House documents serious 

abuses that, if proven, would certainly constitute high crimes. 

The White House is charged with deliberately lying to Congress 

and the American people and manipulating intelligence regarding 

weapons of mass destruction in Iraq, ordering the illegal use of torture, firing U.S. attorneys for political purposes, denying the legitimate constitutional powers of congressional oversight by blatantly 

ignoring subpoenas, among countless other crimes. 

Never before in the history of this Nation has an Administration 

so successfully diminished the constitutional powers of the legislative branch. It is unacceptable, and it must not stand. This is not 

how our Founders so carefully and delicately designed our democracy. 

In a deliberate effort to reduce the power of this Congress and 

obstruct our ability to provide oversight over the executive branch, 

President Bush has ordered Karl Rove, Harriet Miers, Josh Bolton 

and other Administration officials to simply ignore Congress by refusing to testify. This failure of Administration witnesses to even 

appear is unprecedented in the history of our Nation. The Bush 

White House has distorted the concept of executive privilege beyond recognition in order to hide White House wrongdoings. 

Faced with this litany of wrongful actions, I am convinced that 

the most appropriate response to this unprecedented behavior is to 

hold hearings for impeachment. 

The power of impeachment, which our Founding Fathers provided to the House of Representatives, was designed precisely for 

this type of wrongdoing. I fully recognize the significance of holding 

impeachment hearings, and I have not come to this position lightly, 

not one bit. But when an Administration takes actions that amount 

to high crimes, we, the representatives of the people, are left with 

no option other than to seek impeachment and removal from office. 

Our Government was founded by a delicate balance of powers, 

whereby one branch carefully checks the other branches to prevent 

5 

a dangerous consolidation of power. The actions of this White 

House have eviscerated this careful balance. 

This is not a Democratic or Republican issue. This is an American issue. Without these checks and balances, a President can run 

roughshod over any law with impunity. Congress must end this 

disturbing pattern of behavior. And, in these circumstances, unfortunately the only option left is impeachment hearings. 

We have been down this road before. Yes, we have. In 1973, articles of impeachment were introduced against President Nixon after 

he inappropriately tried to use executive privilege to bury evidence 

of his wrongdoings. I think it would be helpful to delve more deeply 

into what happened during the Nixon administration, particularly 

as it relates to the obstruction of the oversight powers of this Congress. 

Mr. Chairman, I thank you so much for having this hearing and 

giving the American people an opportunity to hear about how we 

can begin to take our Government and our country back. Thank 

you. 

Mr. CONYERS. You are welcome. 

I have been reminded by a Member on the Committee that there 

are to be no reactions. As much as we want to applaud and cheer 

the statements that we totally approve of, let’s restrain ourselves, 

please. 

I am very pleased now to recognize the Chairman of the Crime 

Subcommittee, Bobby Scott, the distinguished gentleman from Virginia. 

Mr. SCOTT. Thank you very much, Mr. Chairman. 

Just very briefly, if government is to work with three branches 

of government, we have to understand the executive power and its 

constitutional limitations. So there are a number of issues that we 

have to address, such as the politicization of the Department of 

Justice, including hiring policy and the use of Department of Justice resources and powers in violation of the Constitution, we have 

to find out whether or not crimes were committed which resulted 

in us getting into Iraq, and who has authorized what virtually everyone in the world outside of this Administration considers torture. We have to figure out how we can do an investigation if the 

Department of Justice does not enforce subpoenas when witnesses 

refuse to cooperate with our investigations. 

So this hearing on executive power and its constitutional limitations will not only help us define those limitations but also recommend ways to enforce those limitations. 

I thank you, Mr. Chairman, for holding the hearing. 

Mr. CONYERS. Thank you. 

I am now pleased to recognize Steve King, the distinguished gentleman from Iowa, who is the Ranking Member on the Immigration 

Subcommittee. 

Mr. KING. Thank you, Mr. Chairman. 

I would notice, Mr. Chairman, in your opening remarks you used 

the phrase, ‘‘power to remove.’’ And as I read that in my Constitution, that is actually impeachment. We are here having impeachment hearings before the Judiciary Committee. 

It is an astonishing thing to me to think that I was sitting back 

there in 1998, in December 1998, watching what went on here. It 

6 

was one of the inspirations to me, the reason I am sitting here, bigger than anything else, is because I sat out there and I was influenced significantly by both sides of this in ways I won’t go into. 

But this is an impeachment hearing. And whether it is to be 

called the ‘‘power to remove,’’ these are impeachment hearings before the United States Congress. I never imagined I would ever be 

sitting on this side when something like this happened. 

And as I’ve watched the Bush administration in every day of 

these 71⁄2 years, I didn’t see anything along the way that would 

have indicated to me by an objective judgment that we would be 

sitting here with these impeachment hearings today. 

But here is what I will tell you is going on. We have had this 

parade of 45 separate public hearings, as the Chairman said in his 

opening statement, 45 of them. Among them, the chief of staff for 

the Vice President of the United States, David Addington, the successor of Scooter Libby, I might add. And I would point out that 

it is pretty rare if you can find anybody out in the crowd that can 

actually say what it is that Scooter Libby actually did. 

Along the list, Doug Feith, Attorney General John Ashcroft just 

last week, Scott McClellan. Forever the press secretary of the 

President of the United States will be looked at skeptically and 

probably be locked out of the inner sanctum of what goes on in the 

White House because Scott McClellan came here and testified. And 

even though there wasn’t any new information there, he gave his 

view on what the President should have done 3 years after the fact. 

And Joe Wilson, referenced by the gentleman from Florida, Ambassador Joe Wilson, whose integrity demonstrated before this witness was the least impressive of any witness that I have seen before this Committee in 6 years. And, in fact, Joe Wilson’s report before the CIA, which is now a public document, says—and he testified, sitting right where Mr. Kucinich is right now—he testified before this Committee and before the world that he had been debriefed within 2 hours of his return from 2 weeks in Niger by two 

CIA agents, and those CIA then had debriefed him in his home. 

That report I think he thought was going to remain secret in perpetuity. But, in fact, that report is a public document. I will make 

that report available today. 

And in that document, it says that he met with the former Prime 

Minister of Niger, Mayaki. Mayaki had met with Iraqi representatives, four of them, who were seeking expanded commercial relations in Niger. And the only thing that Niger has to sell is yellow 

cake uranium. And Mayaki said, ‘‘That is what the conversation 

was about. I downplayed it because I didn’t want to get crossways 

with the United States.’’ That will be in a public document today. 

Mr. CONYERS. Does the gentleman wish to introduce it into the 

record? 

Mr. KING. I do wish to introduce it into the record. My staff has 

it on the way. I thank the Chairman. 

[The material referred to follows:] 

7 


A-1.eps
8 


A-2.eps
9 


A-3.eps
10 

Mr. KING. And that is some of the framework that is not considered here by the majority side. And that is the value of this evidence that we are hearing come from, say, the gentleman of Florida 

and others. 

And so I would point out that the 16 words, by the way, supported by the CIA report of Ambassador Wilson’s, the President’s 

16 words in his State of the Union address on January 28, 2003, 

were supported by the CIA report from Ambassador Joe Wilson. 

Weapons of mass destruction—every intelligence agency in the 

world that I know of, including the Israelis, including Western Europe, all agreed with the same thing. Those don’t become lies. That 

is the best intelligence that we had. 

So we are here, impeachment hearings before the United States 

Congress. 

I am just going to quote quickly the Chair and the Chairman of 

the Constitution Subcommittee. I am not going to tell you which 

said what. Here is one from the impeachment hearings. You can 

figure it out on your own. I think you will know. 

A 1998 impeachment hearings, quote: ‘‘We are using the most 

powerful institutional tool available to this body, impeachment, in 

a highly partisan manner. Impeachment was designed to rid this 

Nation of traitors and tyrants,’’ closed quote, presumably and not 

something else. 

And here is another quote from a different Chair: ‘‘It is an enormous responsibility and extraordinary power. It is not one that 

should be exercised lightly. It certainly is not one which should be 

exercised in a manner which is or would be perceived to be unfair 

or partisan,’’ close quote. 

I close my statement. And I look forward to hearing and watching this unfold. 

Mr. Chairman, I yield back. 

Mr. CONYERS. I thank the gentleman, and would remind him 

that we are gathered here today this morning on a hearing on the 

Executive Power and Its Constitutional Limitations. To the regret 

of many, this is not an impeachment hearing. To have an impeachment hearing, the House of Representatives has to vote to authorize that a Committee begin an inquiry. And that has not taken 

place yet. 

I would now recognize the distinguished gentlelady from California, the Chair of the Immigration Subommittee, Zoe Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman, for convening this important hearing. 

In January of this year, I requested that this Committee hold a 

hearing to develop a common understanding of the role of impeachment in the history of the United States and a common understanding of the impeachment standards set forth in the Constitution. And I welcome this opportunity to explore the issues of executive power and its constitutional limitations. 

I have a unique view of the history of impeachment. As you 

know, Mr. Chairman, I served on the staff of Congressman Don Edwards during the impeachment of Richard Nixon and, of course, 

also served as a Member of this Committee during the impeachment of President Clinton. The two efforts could not have been 

more different. 

11 

I would note that the impeachment of Richard Nixon consumed 

14 months. And if you add in the Senate’s action, because the information gathered there was material to the effort here; plus the evidence gathered by a very active prosecutor that was just voluminous, really going to the issue of whether high crimes and misdemeanors had been committed by President Nixon. And, really, 

the definition of high crimes and misdemeanors is rogue action that 

really undercuts the very core system of government. I won’t belabor the Clinton impeachment but will simply say that his actions, 

though reprehensible, did not undercut the entire system of American Government. 

Over the past 7 years, I have watched us go down roads I 

thought this country would never go down. I have watched the Administration take actions that I previously thought were unimaginable in our Nation that is governed by the Constitution. And, regrettably, for those years when the Republicans were in the majority in Congress, that broad push of executive power was too often 

ratified by the legislative branch of Government. 

With just a few months left in this 110th Congress, I am particularly interested in hearing from witnesses about strategies to reverse the expansion of executive power that has jeopardized the 

careful balance between the three branches of Government that 

help preserve our freedom and our democracy. 

It is my judgment that President Bush is the worst President our 

country has ever suffered, making judgments that have jeopardized 

our national security, impaired our economy, diminished the freedom and civil liberties of the American people. This hearing is an 

important step forward in examining how our free America can be 

restored. 

I thank you, Mr. Chairman, and yield back. 

Mr. CONYERS. Thank you. 

I am pleased now to recognize the gentleman from California, 

Dan Lungren, who has not only been a Congressman, but was the 

chief law enforcement officer for California before he returned to 

the Congress. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

I have deep respect for you, Mr. Chairman. We have worked together in the past on a nonpartisan basis. But I must express my 

disappointment in today’s hearing. 

When I was a kid growing up, the worst epithet that could be 

thrown at Republicans was ‘‘Herbert Hoover.’’ Now it is ‘‘Richard 

Nixon,’’ and I wondered how long it would be before we found that. 

I guess it was the second gentleman on the Democratic side to 

bring that up. 

It is unusual, as anyone who has watched this Committee would 

know, that every Member is given a right to actually give an opening statement. We appreciate the fact that we were informed this 

morning that that would happen today, unusual though it is. One 

wonders what we are becoming here. When I was a kid growing up, 

we used to watch the Friday night fights, and now it looks like we 

have the Friday morning show trials. 

I have great respect for many of the witnesses here that I know. 

It doesn’t mean I don’t have respect for the others, but I just know 

12 

a number of the witnesses, current Members, former Members with 

whom I served, others that I knew in previous Administration. 

I am somewhat perplexed, Mr. Chairman, though, because in 

your opening statement you made reference to removal of the 

President. I believe those were your words. And yet you have assured us these are not impeachment hearings. 

Mr. Jones told me that he was invited here to talk about his bill, 

which is not impeachment, so I hope we will keep that in mind as 

we go forward with other opening statements. 

Maybe what we are here for is something called impeachmentlite. We won’t go through the process of impeachment, but we will 

make every allegation against the President, some of which has already been said, and leave the press with the opportunity to print 

the fact that the President is accused of impeachable offenses but 

perhaps leaving not out the fact that we are not taking, as the 

Chairman told us, steps toward impeachment. 

It is sort of in that Never-Never Land of accusing the President 

of impeachable offenses but not taking actions to impeach him, 

which I guess impugns him but does not impeach him. But maybe 

it has the same effect in the court of public opinion. 

As I understand it, our notion of high crimes and misdemeanors 

contained in the Constitution comes from the English common law, 

and it refers to acts that are inconsistent with the obligations and 

duties of office that involve putting personal and partisan concerns 

ahead of the interests of the people and demonstrate the unfitness 

of the man to the office. 

It has seldom been sought in the history of the United States, 

because that is a high bar. And I think, just as it is a tragedy that 

we have moved in the direction of criminalizing differences of political opinion to the detriment of this country and to the detriment 

of vigorous public debate, when we loosely throw around terms of 

‘‘high crimes and misdemeanors’’ and loosely make references to 

disagreements we have with the chief executive, as deep as they 

may be, in the context of impeachment and high crimes and misdemeanors, in my judgment, we do violence to the Constitution and 

the seriousness of actions which would be impeachable. And for 

that, I am sorry. 

This is occurring just months before the President will leave office. We know from the statements of the Speaker of the House 

there is no reasonable expectation that impeachment proceedings 

will proceed. So one has to wonder why. 

Thank you very much, Mr. Chairman. 

Mr. CONYERS. The Chair is pleased to recognize now the Chair 

of the Constitution Subcommittee in the Judiciary, the distinguished gentleman from New York, Jerry Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. 

I won’t take the full 5 minutes because I am eager to hear the 

testimony of the witnesses. But I must say, I have heard some of 

my colleagues on the other side of the aisle say that this hearing 

and many of the investigations of the full Committee and my Subcommittee have conducted are a waste of time or worse. 

I had the misfortune to be here during the investigation and impeachment of President Clinton, who, at worst, lied about an affair. 

13 

It had to be one of the most demeaning and prurient circuses to 

which I have ever been subjected. 

In this case, we are involved with far more serious allegations: 

allegations including violations of the anti-torture laws of this 

country, violations of the FISA laws, criminal prohibition against 

warrantless wiretapping, illegal detentions, political interference 

with prosecutions, and a host of other serious, illegal and possibly 

criminal acts which, by many definitions, would be classified as 

high crimes and misdemeanors. 

I think it is vital that we look into these questions. So I thank 

the Chairman for holding these hearings, and I look forward to the 

testimony of the witnesses. 

And I hope that anyone who thinks that inquiring into the excesses of the executive branch and into what appears to be a concerted effort in every different aspect of law to destroy the power 

of the Congress and the Judiciary and to limit our power to protect 

the liberties of the American people against encroachments by the 

executive are a waste of time, I hope they will rethink what they 

are doing here. 

Thank you. I yield back the balance of my time. 

Mr. CONYERS. The Chair is pleased now to recognize the distinguished gentleman from Indiana, Mike Pence, who serves on the 

Foreign Affairs Committee, as well as the Judiciary Committee. 

Mr. PENCE. Thank you, Mr. Chairman. 

I note this hearing is entitled ‘‘Executive Power and Its Constitutional Limitations.’’ And I want to say, I accept the Chairman’s assurance that it was not his intention to convene a hearing today 

on the subject of impeachment. But I know that many here today 

on both sides of the rostrum and many looking in are anxious to 

debate whether the 43rd President of the United States should be 

impeached. And I would like to address myself to that issue in my 

opening remarks. 

We have already heard from the distinguished Ranking Member 

and other colleagues about arguments against having this hearing. 

I can’t add to those arguments. These types of hearings, my concern is, do intentionally or unintentionally take us down the road 

of the criminalization of American politics. And I deeply regret 

that. 

Now, putting those objections aside, let me say emphatically, I 

see absolutely no credible basis for the impeachment of President 

George W. Bush. The Constitution provides in article 2, section 4, 

that, ‘‘The President, the Vice President and all civil officers of the 

United States shall be removed from office on impeachment for and 

conviction of treason, bribery and other high crimes and misdemeanors.’’ Now, certainly the President has not been accused of 

treason or bribery, so that leaves high crimes and misdemeanors. 

Now, let me direct my attention to my colleague on the left today 

and in every respect, Mr. Kucinich from Ohio. I think the gentleman knows of my respect and affection for him. I appreciate his 

passion and his focus, and I do not begrudge him his efforts in pursuing this cause. I just believe the gentleman from Ohio is deadwrong on our history and on facts and on the Constitution. 

In his testimony today, Professor Presser has provided us with 

an exhaustive overview of what the Framers of the Constitution inVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
14 

tended by the phrase, ‘‘high crimes and misdemeanors.’’ Taking 

cues from the Framers in ‘‘The Federalist Papers,’’ the English 

common law, and the text of the Constitution, Professor Presser 

sets forth the belief of the Framers that the President must have 

put his personal interests above the Constitution and the laws of 

the Nation, thereby violating his oath of office. 

Of course, the Constitution provides the House of Representatives with the sole power of impeachment, article 1, section 2, 

clause 5. But that does not mean we should act without regard to 

the Framers’ intent or, frankly, without regard to our own good 

judgment and discretion. 

I started looking at whether the President has violated his oath 

of office, specifically by putting his personal interests above those 

of the country or by committing other acts obviously criminal such 

as lying under oath. 

Now, I want to say emphatically, I believe President Bush is a 

man of integrity. I believe he has led this Nation with distinction 

during some of her darkest hours. 

Many in this room have not agreed with the President on every 

one of his policy decisions, and I am one of those people. As late 

as Wednesday of this week, my colleagues on this Committee will 

know that I vigorously debated a Member of this Administration on 

an issue upon which we disagreed. 

But disagreements on policy with any President or Administration do not and must not, in and of themselves, give rise to impeachment. The Framers did not intend impeachment as a political 

device to be used whenever the majority party in Congress is unhappy with the President and wants to get rid of him. The bar is 

much higher than that, and ought to be. 

President Bush has, in my view, conducted himself throughout 

his tenure in a manner that is not only consistent with his oath 

of office, but let me say emphatically here, from that dreadful day 

in September of 2001 to this, I believe President George W. Bush 

has consistently put the American people’s needs before his own. 

Now, the issues up for discussion before resolutions in this body, 

I believe, include a range of accusations: improper politicization of 

the Justice Department, misuse of executive branch authority, alleged misuse of authority in denying Congress and the American 

people an opportunity to engage in oversight. These issues ought 

to be debated. 

But let me say emphatically, there is no evidence in these allegations of the President putting his personal interest above those of 

the Nation. There is no evidence in these allegations of the President violating his oath of office. There is no evidence I have seen 

emerge from the multitude of hearings and investigations on the 

President and this Administration that have taken place throughout the 110th Congress which shows the existence of a high crime 

or a misdemeanor. 

In short, let me say about the elephant in the room, about which 

this hearing apparently is not, let me say, I believe there has been 

no high crime or misdemeanor committed, and therefore there 

should be no serious consideration of the impeachment of President 

George W. Bush. 

And I yield back. 

15 

Mr. CONYERS. The Chair recognizes the distinguished gentlelady 

from Texas, who is a Subcommittee Chair on Homeland Security 

and a senior Member of the House Judiciary Committee, the Honorable Sheila Jackson Lee. 

Ms. JACKSON LEE. Mr. Chairman, thank you very much for yielding. 

And let me thank this Committee for accepting the institutional 

responsibility that the Congress and the House Judiciary retains. 

This is not a personal discussion. It is an institutional discussion 

and a very, very vital hearing. 

Although Americans may be experiencing high prices at the gas 

pump, there may be concerns about tornadoes and hurricanes, certainly there are concerns regarding the economy, the Congress still 

cannot abdicate its responsibility for protecting the Constitution. 

Mr. Chairman, I would like to just simply offer for the record the 

opening words of the Constitution: ‘‘We, the people of the United 

States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote 

the general welfare, and secure the blessings of liberty to ourselves, 

our posterity, do ordain and establish the Constitution for the 

United States of America.’’ 

It is unique; it is finite. It offers a distinctive role for this country 

and this Congress. And we must act. 

We are being deliberative today. We are not being accusatory, 

but we are recognizing the responsibility of this particular Committee. 

As I note, two former Members of Congress, Congresswoman 

Holtzman and Congressman Barr, both having experienced impeachment, I believe their presence today or their willingness to be 

here today connotes the seriousness of this hearing. We cannot dictate as to what the ultimate outcome will be, but we can take advantage of the responsibilities of this particular body and this particular Congress. 

Now, let me cite the reasons why I believe that this is an appropriate process that we are going through and that we have every 

right to, again, be fact-finding so that we can make judgments as 

to how we protect the Constitution of the United States of America. 

It is clear in this document that Congress has the right to declare war. In article 1, section 8, it is clear that there was a resolution of which I opposed in 2002. That was not a declaration of war. 

The question, even though it might be utilizing the War Powers 

Act, the question is whether or not this institution of the presidency, whether or not this Administration went forward on a war 

that was not declared under the rules of the Constitution and 

whether the presentation of the question of war violated the Constitution in how it was presented. 

There are questions of torture and whether or not there was the 

direction of this particular Administration, institutional administration, to, in essence, contravene international law and thereby 

contravene the Constitution of the United States of America. 

There is a question as to why an individual who admits to involvement in the exposing of a CIA agent, which I raise generically 

as to whether in times before that action could be treasonous, is 

whether or not that individual, Mr. Karl Rove, has refused repeatVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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edly to appear before this body, and whether or not that is an institutional question or whether this Constitution is being protected. 

Then, of course, we are well-familiar with the Saturday Night 

Massacres, when individuals resigned in the Nixon administration. 

But my question is whether or not the seeming question of the firing of U.S. attorneys, again, has to do with any institutional statement of the relationship between individuals who are supposed to 

be beyond politics. That is a question of protecting the Constitution. 

Then, lastly, let me say that we have watched over a series of 

years, and I think my colleagues have watched this, the Congress 

passing laws and then the laws being contravened by signing statements. I introduced legislation H.R. 5684 to talk about the concept 

of signing statements which contravene the intent of this body. I 

suggest that we have the right to prohibit the funding for signing 

statements. But it is an institutional question of whether or not, 

in the checks and balances, the executive is overruling the constitutional right of this Congress. 

So, Mr. Chairman, I adhere to this document. It is a beautiful 

document. It has given me, through the 13th and 14th amendment, 

as an African-American, the privilege of sitting here today and 

being viewed as a first-class citizen instead of a second-class citizen. 

I, frankly, believe that this is a time that we hold this Constitution, endear it, and view this as an institutional question of whether or not we adhere to the concept that we have organized this Nation to form a more perfect union. I believe we have. 

And I yield back, and look forward to the witnesses. 

[The prepared statement of Ms. Jackson Lee follows:] 

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, COMMITTEE ON THE JUDICIARY

Mr. Chairman, thank you for your leadership in convening today’s very important 

hearing probing the reaches of Executive power and its Constitutional limitations. 

I would also like to thank the ranking member the Honorable Lamar S. Smith, and 

welcome our extremely distinguished witnesses. 

In recent years the reputation of the Administration has been tarnished. This 

Committee has no greater challenge and obligation to the nation than to ensure that 

there are appropriate checks in balances between the power wielded by the Executive and Congress. Because ours is a system of checks and balances, we as members 

of Congress have a duty to make sure that one branch of government does not upset 

the balance of power between the three co-equal branches of government. 

Congress has the power to ensure that the Executive does not overstep its bounds. 

There are a myriad of ways that Congress can exert its power. Among the ways that 

Congress can exercise its power is through appropriation, the appointment process, 

exercising oversight over the Executive, enactment legislation, or even establishing 

a select Committee to probe any abuse of power by the Administration. 

In probing the limits of the power of any administration, we must consider the 

impact of signing statements. To some, the topic may seem abstract or esoteric or 

arcane. But you and I and most members of this Committee understand that what 

has been going on in the Administration regarding the misuse and abuse of signing 

statements poses, as the American Bar Association’s Task Force on Signing Statements has observed, as a real threat to our system of checks and balances and the 

rule of law. 

It is for this reason that in the last Congress I introduced H.R. 5684, the ‘‘Congressional Lawmaking Authority Protection Act’’ or CLAP Act of 2006, which (1) 

prohibited the expenditure of appropriated funds to distribute, disseminate, or publish presidential signing statements that contradict or are inconsistent with the legislative intent of the Congress in enacting the laws; and (2) bars consideration of 

17 

any signing statement by any court, administrative agency, or quasi-judicial body 

when construing or applying any law enacted by Congress. I am proud to say that 

the Chairman was one of the original co-sponsors of my bill. 

I have reintroduced this legislation in substantially the same form in the 110th 

Congress, except that the new bill, H.R. 264, makes clear that the limitations of the 

law do not apply to presidential signing statements that are not inconsistent with 

the congressional intent. This is not a hard test to administer. Like the late Justice 

Potter Stewart said about obscenity: ‘‘it may be hard to define, but you know it when 

you see it!’’ 

As an aside Mr. Chairman, might I say this to those who would question whether 

the Congress has the power to ban the use of appropriated funds to publish or distribute signing statements: regardless of whether it is wise to do so, if no one seriously can question Congress’ constitutional authority to terminate the Executive’s use 

of appropriated funds to wage military operations, a fortiori, Congress has the constitutional authority to withhold from the president funds needed to distribute a 

signing statement that undermines the separation of powers! 

Let me state clearly and for the record my concern with the abuse and misuse 

of signing statements. 

Presidential signing statements seek to alter Congress’ primacy in the legislative 

process by giving a President’s intention in signing the bill equal or greater standing to Congress’ intention in enacting it. This would be a radical, indeed revolutionary, change to our system of separated powers and checks and balances. 

Bill signing statements eliminate the need for a President ever to exercise the 

veto since he or she could just reinterpret the bill he signs so as to make it 

unobjectionable to him. Such actions deprive Congress of the chance to consider the 

president’s objections, override his veto, and in the process make it clear that the 

president’s position is rejected by an overwhelming majority of the people’s representatives. Since few presidents wish to suffer a humiliation so complete and public they have strong incentive to work closely with the Congress and are amenable 

to negotiation and compromise. This is precisely the type of competitive cooperation 

the Constitution contemplates and which bill signing statements threaten! 

Although presidents have used signing statements since the Monroe Administration, they really came to prominence during the administration of Ronald Reagan, 

who issued 276 signing statements, 71 of which (26%) questioned the constitutionality of a statutory provision. The Reagan Administration’s goal, as articulated 

by then-Office of Legal Counsel lawyer, now Associate Justice Samuel Alito, was to 

establish the signing statement as part of a statute’s legislative history which courts 

would use in interpretation. This met with limited success because while the Court 

referenced signing statements in two major cases, there is no indication that it accorded them any weight. 

President George H.W. Bush issued 214 signing statements during his single 4- 

year term raising 146 constitutional objections. President Bill Clinton issued 391 

but raised only 105 constitutional objections. Thus, out of a total of 881 signing 

statements, 322 constitutional objections were raised to the bills signed by Presidents Reagan, the first Bush, and Clinton during the twenty (20) year span from 

1981–2001. 

The record of the present Administration is dramatically different and confirms 

that such power has been more aggressively used and to an historically unprecedented degree. In less than six years, the current occupant of the White House 

issued more than 125 signing statements, raising more than 800 constitutional objections by himself. As the ABA Task Force put it: 

From the inception of the Republic until 2000, Presidents produced signing 

statements containing fewer than 600 challenges to the bills they signed. 

According to the most recent update, in his one and a half terms so far, 

President George W. Bush (Bush II) has produced more than 800. 

Mr. Chairman, according to Professor Christopher Kelley, an expert on presidential signing statements, as of January 12, 2007, the Executive has issued 150 

signing statements challenging 1,149 provisions of law. 

Not coincidentally, the Administration’s signing statements have challenged the 

constitutionality of extremely high-profile laws such as the reporting provisions 

under the USA PATRIOT Act of 2005, and the McCain Amendment prohibiting torture. The president’s statements have essentially asserted that the Executive does 

not believe that he is bound by key provisions of the legislation. They seek to further a broad view of executive power and the Administration’s view of the ‘‘unitary 

executive,’’ pursuant to which all the powers lodged in the Executive and administrative agencies by Congress is somehow automatically and constitutionally vested 

in the President himself. 

18 

In general, the Administration’s signing statements do not contain specific refusals to enforce provisions or analysis of specific legal objections, but instead are broad 

and conclusory assertions that the president will enforce a particular law or provision consistent with his constitutional authority, making their true intentions and 

scope unclear and rendering them difficult to challenge. 

What makes the Administration’s use of presidential signing statements doubly 

problematic is his demonstrated and documented reluctance to raise his constitutional objections in a veto message to Congress, as contemplated by the Constitution. Indeed, the President has vetoed few bills (one was on the embryonic stem 

cell), notwithstanding the more than 1,000 constitutional objections he has raised 

during this same period of time. 

It seems obvious to intelligent observers that the Administration t is trying to 

game the system and frustrate the system of checks and balances so carefully crafted by the Framers. Rather than risk a showdown with the Congress over some 

claimed constitutional right he thinks he possesses but cannot articulate or defend 

in the light of day, the Administration simply signs the law as if he accepts its constitutional validity and then summarily issues a signing statement saying the Administration will comply with the law only to the extent it feels legally bound to 

do so, which of course, it doesn’t. 

This sort of shenanigan would embarrass and anger the Founding Fathers. Embarrass them because the action is cowardly, which was hardly to be expected of 

the Chief Executive of the United States. It would anger them because it makes a 

mockery of the system of checks and balances they so carefully crafted. 

So thank you again, Mr. Chairman, for convening this timely and important hearing. I am looking forward to hearing from the witnesses and considering their responses to the committee’s questions. 

Mr. CONYERS. The Chair recognizes the distinguished gentleman 

from Arizona, Trent Franks, who is the Ranking Member on the 

Constitution Committee. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, the title of this hearing is ‘‘Executive Power and 

Its Constitutional Limitations.’’ And I want to take the Chairman 

at his word this morning that this hearing is not about impeachment, and therefore I hope we can expect that none of the witnesses will even mention the word ‘‘impeachment.’’ But perhaps a 

more appropriate subject for our hearing today would be the congressional dereliction of its constitutional duty to protect the American people. Mr. Chairman, I say that based on this Committee’s 

abysmal record on furthering legislation that would actually make 

the American people safer from terrorist attacks. 

I am the Ranking Member on the Constitution, Civil Rights and 

Civil Liberties Subcommittee. And during this Congress, the Democratic majority of that Subcommittee has held no less than 11 hearings on the subject of providing more rights to known terrorists. 

Those hearings have included six hearings designed to impugn the 

integrity of public servants who have done nothing other than to 

work tirelessly within the limits of the Constitution to defend this 

country against murdering terrorists who plan day and night to kill 

as many Americans as possible. 

Those hearings also included one designed to grant unprecedented litigation rights to terrorists so that they can use our lawyers and our own Federal courts to sue the very people who they 

try to kill and who are trying to bring them to justice. 

And those hearings have also included one to provide greater restrictions to the Government’s ability to seek business records in 

terrorist investigations, restrictions that would provide terrorists 

even greater rights than domestic criminals regarding business 

records that the Supreme Court has held are subject to absolutely 

no protections under the fourth amendment. 

19 

Amidst all of this, Mr. Chairman, the Subcommittee on the Constitution has not held one single hearing designed to make it easier 

for the Government to track down, detain and bring our terrorist 

enemies to justice. 

Mr. Chairman, the coincidence of jihadist terrorism and nuclear 

proliferation I believe is one of the most dangerous circumstances 

facing the human family today. Osama bin Laden said, quote, ‘‘It 

is our religious duty to gain nuclear weapons.’’ And every day Iran 

continues to enrich uranium to build a nuclear weapon. Terrorists 

bide their time. 

Mr. Chairman, there may well be a day when we would all wish 

we could revisit this day again and when we could try to reorder 

our priorities and perhaps better appreciate a President who was 

willing to subordinate his popularity with the American people in 

order to protect them. 

And, Mr. Chairman, I know that the full Committee does not address itself to any of these subjects today. Instead, it conducts a doover hearing that amuses our terrorist friends greatly and that 

would make Alice in Wonderland roll her eyes. 

And I yield back, Mr. Chair. 

Mr. CONYERS. The Chair recognizes the gentleman from Tennessee, Steve Cohen, who serves with distinction on the Administrative and Commercial Law Subcommittee, as well as the Intellectual Property Committee. 

Mr. COHEN. Thank you, Mr. Chairman. 

Thank God we are not in Kansas any longer. I am very proud 

to be a Member of this Committee and appreciate your having 

these hearings on the executive powers. 

I have only served here in this Congress now for a mere 19 

months, but I have served 29 years as a legislator, both as a county 

commissioner and a State Senator. There were four Governors who 

I served as a State Senator at the time and four Governors I 

worked with. And I have great pride in the legislative branch of 

Government and the duty to be a check and balance on abuses of 

the executive. And I think that is what this hearing is about. 

What I have seen in my 19 months with hearings here is a contemptuous conduct by this Administration toward this Congress 

and toward the whole idea of checks and balances. The idea that 

anybody can restrain this Administration is beyond them. 

Last August I worked with one of the Members of the second 

panel, Mr. Fein, and we were working on impeachment articles for 

the former Attorney General of the United States, Alberto Gonzalez. Before we could bring those articles, General Gonzalez chose 

the wiser course, a little late, but he chose to resign. 

Ms. Monica Goodling testified, but only after she was granted immunity. One does not seek immunity, generally, unless there has 

been some criminal conduct. The Attorney General’s Office is part 

of the executive. Apparently there were, at least in Ms. Goodling’s 

eyes, criminal conduct that was carried on by the executive, an 

agency of this particular Administration, that could have been uncovered by questioning by this Committee. That alone makes these 

hearings relevant. 

But the fact is, these hearings will restore the faith of the American people and the idea that the executive cannot run roughshod 

20 

over the legislative process and that this Congress is standing up 

after 6 years of one-party rule and exercising its proper role of 

check and balance. 

With that, I yield back the remainder of my time, Mr. Chairman, 

and proudly look forward to these hearings. 

Mr. CONYERS. The Chair recognizes the gentleman from Georgia, 

Hank Johnson, a lawyer, magistrate and one who serves with great 

distinction on the Crime Committee, as well as the Intellectual 

Property Committee. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

As a Member of the House Judiciary Committee, an attorney, 

and former magistrate judge, I understand the high standards that 

we must hold our public officials to. Every elected official, from dog 

catcher to the President, has one boss, and that is the American 

people. And once that bond is broken, once Administration officials 

feel they are no longer accountable to the American people, then 

action must be taken. 

As the American people count down the final 6 months of this 

now infamous Bush administration, the prevailing political opinion 

has been that impeachment should be taken off the table. With 

only 6 months left, what would be the point, people ask? They 

argue that the American people would view impeachment as being 

overzealous partisanship which would harm our prospects for electing a Democratic President and adding to the Democratic Party’s 

majority in November. 

But I ask, would impeachment be a vehicle to restore life and vitality to the delicate system of checks and balances, which is the 

hallmark of our Constitution and which this Administration has 

shattered, aided and abetted by the do-nothing Republican-controlled rubber-stamp Congress which failed to exercise its constitutional responsibility to oversee the operations of the executive 

branch of our Government? 

If lying about consensual sexual activity fits the bill for impeachment, then certainly lying to the American people about the reason 

for invading Iraq, a sovereign nation, which invasion resulted in 

the deaths of countless Iraqi citizens and 4,127 American service 

men and women, along with the maiming of over 30,000 Americans, certainly that qualifies as an impeachable offense. 

There are other activities: warrantless wiretapping of Americans; 

torturing and kidnapping and detaining numerous prisoners, foreign enemy combatants, prisoners, whatever they could be classified as. The fact that we have become a severely surveilled population now, with the abuses of the PATRIOT Act, all done under 

the cloak of Government secrecy, political spying, the attacks on 

academic freedom, the politicization of the Justice Department, selective prosecutions—so many areas fertile for inquiry by this Congress. 

And I am proud to have been a Member of the Judiciary Committee because this one has exercised vigorously its constitutional 

responsibility to oversee the operations of the executive branch. 

And so while, Mr. Chairman, today’s hearing is not an impeachment hearing, I fear that in the event that the current Administration continues with its secret actions, with motives and purposes 

that are not known or not revealed, if this Administration, during 

21 

the last 6 months, decides to attack the sovereign nation of Iran, 

then Americans will look back and think and rethink whether or 

not it would have been worth pursuing impeachment at this time 

to deter any further misdoing by this Administration. 

And I will yield back. 

Mr. CONYERS. I am inclined to remind everyone in the hearing 

room, there are guests today, and because of the importance of respecting our proceedings, please refrain from any actions of support 

or opposition to or for or against the views that are being expressed 

by the Members and the witnesses that will soon follow. 

Tammy Baldwin is a distinguished Member of the Committee. 

She serves on the Crime Committee, and I recognize the gentlelady 

from Wisconsin. 

Ms. BALDWIN. Thank you, Chairman Conyers. I ask unanimous 

consent to submit my full statement for the record. 

Mr. CONYERS. Without objection, so ordered. 

Ms. BALDWIN. On January 20, 2009, the next President and Vice 

President of the United States will stand before the American people and take an oath of office, swearing to preserve, protect and defend the Constitution of the United States. This commitment and 

obligation is so fundamental to our democracy that our Founders 

proscribed that oath in our Constitution. They also provided for the 

removal of the President and Vice President for, among other 

things, high crimes and misdemeanors. 

Presidents and Vice Presidents do not take that oath in a vacuum. They are informed by the actions and inactions of past Presidents and Congresses, who establish these precedents for the future. What this Congress does or chooses not to do in furthering 

the investigation of the serious allegations against this Administration and if just cause is found to hold them accountable will impact 

the conduct of future Presidents perhaps for generations. 

Mr. Chairman, there are those who would say that holding this 

hearing, examining whether or not the President and Vice President broke the law, is frivolous. I not only reject this, I believe 

there is no task more important for this Congress than to seriously 

consider whether our Nation’s leaders have violated their oath of 

office. The American public expects no less. It is, after all, their 

Constitution. No President or Congress has the authority to override that document whereby We the People conferred upon the 

branches of government limited and defined power and provided for 

meaningful checks and balances. 

Over the past several years, serious questions have been raised 

about the conduct of high-ranking Administration officials in relation to some of the most basic elements of our democracy: respect 

for the rule of law, the principle of checks and balances, and the 

fundamental freedoms enshrined in the Bill of Rights. In other 

words, the American people are in doubt as to whether Administration officials have fulfilled their oaths of office to preserve, protect, 

and defend our Constitution. And their concerns are not insignificant. 

Americans want to know whether our Nation’s highest-ranking 

officials broke the law to justify the invasion of Iraq. Many in our 

Nation and around the world wonder whether, today, the Bush 

White House is planning to illegally attack Iran. They wonder, too, 

22 

whether their private conversations are being listened to by government officials unconcerned about restraints placed upon them 

by the Constitution; whether our Nation is holding individuals in 

secret prisons, denying them even the right to appear before a 

judge or to be represented by an attorney, or to confront their accusers. They wonder who authorized torture and rendition. They 

wonder whether this Administration will forever change what it 

means to be an American. 

Yet our efforts on behalf of the American people to hold the 

White House accountable for numerous credible allegations of 

abuse were blocked at each step. The list of congressional subpoenas with which Administration officials refuse to comply is long. 

Most recently, Karl Rove, the President’s senior adviser, defied congressional subpoena to testify on allegations of politicization at the 

Department of Justice. This Administration has soundly rebuffed 

nearly every attempt to investigate and made true accountability 

impossible. 

As we know, the Framers of our Constitution called for impeachment only in the case of high crimes and misdemeanors. The standard is purposely set high because we should not impeach for personal or political gain, only to uphold and safeguard our democracy. 

Sadly, in my judgment, at least two high-ranking Administration 

officials have met that standard. Although the call to impeach is 

one that I take neither easily nor lightly, I now firmly believe that 

impeachment hearings are the appropriate and necessary next 

step. 

I yield back the remainder of my time, Mr. Chairman. 

[The prepared statement of Ms. Baldwin follows:] 

23 

PREPARED STATEMENT OF THE HONORABLE TAMMY BALDWIN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF WISCONSIN


Baldwin-1.eps
24 


Baldwin-2.eps
25 


Baldwin-3.eps
26 

Mr. CONYERS. Keith Ellison is not only a former State legislator 

from Minnesota, but he has been a trial lawyer for over 15 years 

and serves with distinction on the Immigration Committee and the 

Constitution Committee of Judiciary. 

Mr. ELLISON. Mr. Chairman, thank you for these hearings. 

I appreciate this opportunity very much. I have been waiting for 

it for quite a long time. Thank you very much. 

Let me just be very direct and to the point, and I will submit my 

full statement for the record. It is important to get the facts on the 

record, to get people under oath, and to dig up the information that 

we need to form the basis of a decision as to how we should go forward. That alone is an important reason for these proceedings and 

for these hearings. The due process of getting the facts out on the 

table are critical. You simply can’t jump to an outcome or a result. 

And so these hearings are critical and I think important simply because of the fact-gathering process that they require. 

Also, second point, powers unused are lost. And our Constitution 

contemplated a three-part system of government, in which each one 

would hold the other accountable. The Constitution does not contemplate a branch of government acquiescing or deferring to another. If that happens, our constitutional system breaks down, and 

it does not work. We could end up with an imperial presidency, 

which is something the Framers never contemplated. 

For those reasons, whether or not we are in the Democratic or 

Republican administration, it is critical for Congress as an institution to hang onto its powers. And yet, the Constitution doesn’t give 

Congress an unlimited number of ways to hold the executive accountable. We all know about the power of the purse. That one 

works. We know that. We also know that there are other things we 

can do. We can try to wall off money restrictively. We can pass limited resolutions. But at the of the day, the most powerful tool for 

reining in the executive is that of impeachment. That is how you 

get the executive to pay attention and to balance the delicate constitutional framework. The system doesn’t work if one branch acquiesces to another. 

I am so happy to be here. My colleagues have laid out ample 

basis for inquiry: Iraq, signing statements, the denial of basic 

human rights, a surveillance society, many other factors. And I 

know we will have a good and fruitful hearing on those matters. 

Thank you. I yield back. 

Mr. CONYERS. Thank you. The Members of Congress that have 

asked to come before the Committee today are, of course, the gentleman from North Carolina, Mr. Jones; the gentleman from North 

Carolina, Brad Miller; the gentleman from New York, Maurice Hinchey; and the gentleman from Illinois—Ohio, Dennis Kucinich. 

Dennis Kucinich chairs the Domestic Policy Subcommittee of 

Oversight and serves also on the Education and Labor Committee. 

He is a former mayor of the City of Cleveland and is a tireless advocate for peace and justice. 

We welcome him here today. 

TESTIMONY OF THE HONORABLE DENNIS J. KUCINICH, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Mr. KUCINICH. May I proceed, Mr. Chairman? 

27 

I want to thank the Chair for this opportunity to testify. 

And I want to recognize my colleagues on both sides of the aisle, 

Ranking Member Smith, and my colleagues from the House, who 

I work with, who are my friends, who I respect their integrity and 

their honor. 

And I think it is important that we proceed among ourselves in 

that way so that we can be of service to our Nation in the highest 

manner. 

Our country has been at war in Iraq, and has occupied the 

streets and villages of Iraq for 5 years, 4 months, and 6 days. The 

war has caused the deaths of 4,127 American soldiers and the 

deaths of as many as 1 million innocent Iraqis. The war will cost 

the American people upwards of $3 trillion and is the main contributing factor to the destruction of our domestic economy. 

Mr. Chairman, I would ask unanimous consent to enter S.J. Res. 

45 and H.J. Res. 114 into the record. 

Mr. CONYERS. Without objection, so ordered. 

[See Appendix, pages 240 and 245.] 

Mr. KUCINICH. The primary justifications for going to war, outlined in the legislation which the White House sent to Congress in 

October of 2002, have been determined conclusively to be untrue. 

Iraq was not continuing to threaten the national security interests of the United States. 

Iraq was not continuing to possess and develop a significant 

chemical and biological weapons capability. 

Iraq was not actively seeking a nuclear weapons capability. 

Iraq did not have the willingness to attack the United States. 

Iraq had not demonstrated capability and willingness to use 

weapons of mass destruction. 

Iraq could not launch a surprise attack against the United States 

or its Armed Forces. 

Therefore, there was not an extreme magnitude of harm that 

would result in the United States—that would result to the United 

States and its citizens from such an attack. The aforementioned did 

not justify the use of force by the United States to defend itself. 

Iraq had no connection with the attacks of 9/11 or with alQaeda’s role in 9/11. 

Iraq possessed no weapons of mass destruction to transfer to 

anyone. 

Iraq had no weapons of mass destruction and, therefore, had no 

capability of launching a surprise attack against the United States 

or its Armed Forces, and no capability to provide them to international terrorists who would do so. 

However, many Members of Congress relied on these representations from the White House to inform their decision to support the 

legislation that authorized the use of force against Iraq. We all 

know present and former colleagues who have said that if they 

knew then what they know now, they would not have voted to permit an attack upon Iraq. 

The war was totally unnecessary, unprovoked, and unjustified. 

The question for Congress is this: What responsibility does the 

President and members of his Administration have for that unnecessary, unprovoked, and unjustified war? The Rules of the House 

prevent me or any witness from utilizing familiar terms. But we 

28 

can put two and two together in our minds. We can draw inferences about culpability. 

Mr. Chairman, I ask unanimous consent to enter H. Res. 333, H. 

Res. 1258, and H. Res. 1345 into the record. 

Mr. CONYERS. Without objection, so ordered. 

[See Appendix, pages 255, 273 and 440.] 

Mr. KUCINICH. I request that each Member read the three bills 

that I have authored, bills which are now awaiting consideration 

by the Judiciary Committee. I am confident that the reader will 

reach the same conclusions that I have about culpability. 

What then should we do about it? 

The decision before us is whether to honor our oath as Members 

of Congress to support and defend the Constitution that has been 

trampled time and again over the last 7 years. 

The decision before us is whether to stand up for the checks and 

balances designed by our Founding Fathers to prevent excessive 

power grabs by either the judicial, legislative, or executive branch 

of government. 

The decision before us is whether to restore faith in government, 

in justice, and in the rule of law. 

The decision before us is whether Congress will endorse with its 

silence the methods used to take us into the Iraq war. 

The decision before us is whether to demand accountability for 

one of the gravest injustices imaginable. 

The decision before us is whether Congress will stand up to tell 

future Presidents that America has seen the last of these injustices, not the first. 

I believe the choice is clear. I ask this Committee to think and 

then to act now in order to enable this Congress to right a very 

great wrong and to hold accountable those who misled this Nation. 

I thank you. 

[The prepared statement of Mr. Kucinich follows:] 

PREPARED STATEMENT OF THE HONORABLE DENNIS J. KUCINICH, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF OHIO

Our country has been at war in Iraq, and has occupied the streets and villages 

of Iraq for five years, four months, and 6 days. The war has caused the deaths of 

4,127 American soldiers and the deaths of as many as one million innocent Iraqis. 

The war will cost the American people upwards of $3 trillion and is the main contributing factor to the destruction of our domestic economy. 

We are borrowing money at high rates of interest to fight an illegal war for oil, 

so that the oil companies can make record profits while charging our constituents 

$5 a gallon for gas. Food prices are increasing, the temperature of the planet is increasing, our dependence on fossil fuel is increasing, and poverty is increasing. How 

in the world could this have happened to our country? 

Mr. Chairman, I would ask unanimous consent to enter S.J. Res. 45 into the 

record. The primary justifications for going to war, outlined in the legislation which 

the White House sent to Congress in October of 2002, have been determined conclusively to be untrue: 

• Iraq did not pose ‘‘a continuing threat to national security’’ 

• Iraq was not ‘‘continuing to possess and develop a significant chemical and 

biological weapons capability . . .’’ 

• Iraq was not ‘‘actively seeking a nuclear weapons capability’’ 

• Iraq was not ‘‘supporting and harboring terrorist organizations’’ 

• Iraq had not ‘‘demonstrated its willingness to attack, the United States’’ 

• Members of Al Qaeda were not ‘‘known to be in Iraq’’ 

29 

• Iraq had not ‘‘demonstrated capability and willingness to use weapons of 

mass destruction . . .’’ 

• Iraq could not ‘‘launch a surprise attack against the United States or its 

Armed Forces’’ 

• Therefore there was not an ‘‘extreme magnitude of harm that would result 

to the United States and its citizens from such an attack’’ 

• The aforementioned did not ‘‘justify action by the United States to defend 

itself’’ 

• Iraq had no ‘‘ongoing support for international terrorists’’ 

• Iraq had not demonstrated ‘‘development of weapons of mass destruction.’’ 

However, many Members of Congress relied on these representations from the 

White House to inform their decision to support the legislation that authorized the 

use of force against Iraq. We all know present and former colleagues who have said 

that if they knew then what they know now, they would not have voted to permit 

an attack upon Iraq. 

The war was totally unnecessary, unprovoked and unjustified. The question for 

Congress is this: what responsibility do the President and members of his Administration have for that unnecessary, unprovoked and unjustified war? The rules of the 

House prevent me or any witness from utilizing familiar terms. But we can put two 

and two together in our minds. We can draw inferences about culpability. 

Mr. Chairman, I would ask unanimous consent to enter H. Res. 333, H. Res. 1258, 

and H. Res. 1345 into the record. I request that each Member read the three bills 

I have authored, bills which are now awaiting consideration by the Judiciary Committee. I am confident the reader will reach the same conclusions that I have about 

culpability. 

What, then, should we do about it? 

The decision before us is whether to honor our oath as Members of Congress to 

support and defend the Constitution that has been trampled time and again over 

the last seven years. 

The decision before us is whether to stand up for the checks and balances designed by our founding fathers to prevent excessive power grabs by either the judicial, legislative or executive branch of government. 

The decision before us is whether to restore faith in government, in justice, and 

in the rule of law. 

The decision before us is whether Congress will endorse with its silence the methods used to take us into the Iraq war. 

The decision before us is whether to demand accountability for one of the gravest 

injustices imaginable. 

The decision before us is whether Congress will stand up to tell future Presidents 

that America has seen the last of these injustices, not the first. 

I believe the choice is clear. 

I ask this committee to think, and then to act, in order to enable this Congress 

to right a very great wrong and to hold accountable those who have misled this Nation. 

Mr. CONYERS. Our next Member of Congress to testify is our distinguished colleague, Maurice Hinchey, who serves as a Member of 

both the Committee on Appropriations, on the Natural Resources 

Committee, and also serves on the bicameral Joint Economic Committee, and a leader in the Progressive Caucus. He has been a 

longstanding opponent of the war in Iraq, an outspoken advocate 

for environmental reforms and economic justice. 

Welcome. 

TESTIMONY OF THE HONORABLE MAURICE HINCHEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mr. HINCHEY. Mr. Chairman, I thank you very much. 

This has been a very, extraordinarily interesting experience just 

sitting here listening to you and to the other Members of this 

House Judiciary Committee, which is one of the most significant 

Committees in this Congress, with one of the greatest elements of 

30 

responsibility, particularly with regard to doing the job which is of 

such great importance for all of us, which is to defend and protect 

the Constitution of the United States. 

So I deeply appreciate what you have done here, Mr. Chairman, 

and all the Members of this Committee as well, in being here for 

this particular purpose, to focus attention on this particular issue. 

We have a main responsibility, as I said, to protect and defend 

that Constitution and maintain the separation of powers to ensure 

that we do not have one aspect of this government which dominates all the rest of it and particularly we do not have a President 

who attempts to dominate all of the lawful activities of our Nation 

and completely dominate all the significant decisions that are 

made. And we have seen that so clearly in the context of this Administration. 

But I think we have seen it also in the context of corruption and 

incompetence. And I think that this Administration has been dominated throughout by those two words, corruption and incompetence. And that needs to be addressed. We need to be sure that, 

in the future, we have a President who understands his obligations 

and responsibilities, and who lives up to those obligations and responsibilities, and who works responsibly with the other two 

branches of government. 

Now I think, with regard to the situation in Iraq and this terrorist operation which has dominated so much of what this Administration has done, the proper kind of attention has to be directed 

to the situation from the very beginning. And if you look at that 

situation from the very beginning, one of the things that you see 

is that 2 months before the election of November 2000, there was 

a meeting with the President and the intelligence operation, the director of intelligence to inform him about one of the major problems that we had to confront as a Nation, which was the fact that 

Osama bin Laden and al-Qaeda was determined to attack the 

United States. That was a message which was delivered down in 

Crawford, Texas, in September of 2000. 

Following that, there were more than 40 intelligence briefings 

delivered to the top levels of this Administration, from January 

2001 through September 10 of 2001, including references, all of 

those, all of those briefings included references to al-Qaeda, references to bin Laden, and the fact that they were determined to 

engage in various forms of attack. The most prominent one of those 

PDBs, for example, was the one that was made public, which was 

delivered on August 6, which was so obvious, particularly in its 

headline, about those facts. 

The warnings to the White House about Osama bin Laden were 

extended and consistent, and should have promoted actions to prevent the attack of September 11, but they did not. And why they 

did not is a major question that we need to be confronting, I believe, as a Congress, particularly here in the House of Representatives. 

Another example of that is how Richard Clarke sent consistent 

warnings to the National Security Adviser, Condoleezza Rice, 

throughout that same period of time in 2001, providing information 

that should have been adhered to. 

31 

After the attack of September 11, we engaged in a direct attack 

of course on the Taliban and al-Qaeda in Afghanistan. And that attack, of course, was very successful. It disrupted the Taliban. It put 

in a new government in that country. 

But also it did something else, which is extraordinarily interesting. That military invasion of Afghanistan failed to follow up on 

bin Laden and allowed him to escape up into the Tora Bora Mountains. And that escape was provided by, most directly, by the Secretary of Defense in his direction to pull our military forces back 

and not follow up on that attack. And I think that that was clear 

that the reason for that was that they did not want to capture bin 

Laden, because if we had captured him, if our military had captured him, it would have been much more difficult for them to attempt to justify an attack against another country which had nothing to do with the attack of September 11 but which they were attempting to manipulate the intelligence, and did so initially with 

a certain amount of success, manipulating intelligence to try to 

show that there was a direct connection between Iraq and the attack of September 11, which of course there was not. 

And then they went on to say that there were weapons of mass 

destruction in Iraq, and that those weapons of mass destruction 

were threatening the safety and security of the United States and 

other countries, and we should act against that in the form of an 

invasion. And of course, the information that was given over and 

over again was that there was no clear evidence. And that information was given by United Nations inspectors, inspectors from the 

United States, and from the intelligence of the United States. 

Nevertheless, they chose to ignore all of that. Then the one that 

got a substantial amount of attention was the warnings that the 

Administration ignored, which included a memo that the National 

Intelligence Council sent to the White House in January of 2003 

that stated that the uranium claim which this Administration was 

making, that that uranium claim was baseless and should be laid 

to rest. 

We remember how just prior to that vote in October of 2002, 

there were those kinds of statements about that uranium claim. 

And then, just prior to the invasion in March of 2003, 2 months 

prior to that, how numerous statements were being made by members of the Administration talking about the potential for nuclear 

invasion and saying things, for example, over and over again on a 

number of occasions, we do not want a smoking gun to be a mushroom cloud. All of that was designed to manipulate the decision, 

which was unfortunately made by this Congress, to vote to give the 

President the authority to engage in some kind of military activity, 

which he carried out, against Iraq. 

All of those circumstances need to be examined very, very carefully. And they need to be examined because of the terrible damage 

that all of that has done to the present set of circumstances that 

we are confronting as a Nation, both militarily, internationally, and 

economically right here at home. And the danger that it offers and 

really opens the door for in the future for other Presidents to engage in similar kinds of activities, which would put this Nation 

once again not only in physical danger but in the danger of eliminating the basic provisions of the Constitution of the United States 

32 

and undermine the democratic principles of our country, which 

need to be sustained. 

I think that the situation that we are confronting now is one of 

the most difficult that we have had in the history of our country. 

And the word impeachment has been mentioned over and over 

again by Members of the Judiciary Committee on a number of occasions and again this morning. And I think, frankly, that, based 

upon all of the things that this Administration has done, it is probably the most impeachable Administration in the history of America because of the ways in which it has clearly violated the law. 

One of the most clear examples of that is the State of the Union 

address in January of 2003. And in that State of the Union address, the President knew that what he was stating about the nuclear weapons program had been told to him that was false. It was 

not true. There was no documentation backing it up. And at the 

last minute of course, he switched and tried to put the responsibility onto the British. But all of that, of course, was very, very untrue. And the circumstances that we are confronting, I think, have 

to be dealt with. And I think the responsibility of this Committee 

needs to focus on all of those elements, to examine them carefully, 

and to see the way in which this Administration has behaved, the 

dangerous set of issues that we need to confront as a result of that 

behavior, and to engage in actions that are going to try to ensure 

that the basic democratic principles of our country are not going to 

be undermined, that they are going to be protected and strengthened with regard to future Presidents and future Congresses. 

And so I thank you, Mr. Chairman, for everything that was said 

today by the Members of this Committee and for the opportunity 

to be here with you. 

Thank you very much. 

[The prepared statement of Mr. Hinchey follows:] 

PREPARED STATEMENT OF THE HONORABLE MAURICE HINCHEY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK

I would like to extend my appreciation to my dear friend Chairman Conyers and 

Ranking Member Lamar Smith, and members of the Committee, for giving me this 

opportunity to participate in this very important hearing on ‘‘Executive Power and 

its Constitutional Limitations.’’ 

This is a very important hearing, and I am honored to be a part of it. The Members who do not sit on the House Judiciary Committee, including myself, were invited to this hearing today because of certain actions we have taken as Members 

of Congress to highlight the behavior of this administration. While our actions varied, our purpose for acting can be linked to one common dominator—we do not believe that anyone is above the laws of these United States. I have no doubt that 

under the current administration, administrative officials have intentionally gone 

outside the bounds of the law and should be held accountable. 

I think this is the most impeachable administration in the history of our country. 

This administration has successfully put its own interests above the interests of the 

American people, which is why in August of 2007, I introduced two companion bills 

to Senator Feingold’s censure resolutions in the House. Both bills, H.Res. 625 and 

H.Res. 626, outline a very comprehensive argument in favor of censuring several administrative officials. 

H.Res.625 would censure administration officials because of their role in stating 

the case for invading Iraq. The resolution would also condemn administrative officials for failing to plan for the inevitable civil conflict and humanitarian strife in 

Iraq. Finally, the resolution would also reprimand the administration for overstretching the military with prolonged deployments that have damaged U.S. efforts 

to be prepared for other conflicts. 

33 

H. Res. 625 would condemn administration officials for launching the warrantless 

surveillance program and for instituting and following extreme policies on torture, 

the Geneva Conventions, and detainees at Guantanamo Bay. The resolution would 

also condemn the politically—motivated firings of U.S. Attorneys. 

I was unwilling to sit idly by and watch these abuses take place. Especially after 

evidence in how the administration responded to individuals that posed a dissenting 

view or a threat to its policies came to light—two obvious examples of this being 

the disclosure of the identity of CIA Operative Valerie Plame and the treatment of 

certain federal prosecutors. 

The Founding Fathers of this great country set up a system of Checks and Balances to make certain that the three branches of government did not abuse their 

power. They did not set up the system of Checks and Balances as an option but 

rather an obligation which is why I consider it to be imperative to offer my voice 

on behalf of so many others who could not speak out of fear. Someday we will all 

be judged by what we did, or worse, what we did not do when confronted with these 

abuses. Inaction is simply not an option. I will leave you with this final thought, 

President Theodore Roosevelt once said, ‘‘No man is above the law and no man is 

below it; nor do we ask any man’s permission when we ask him to obey it.’’ Administration officials past, present and future should be no exception. 

Mr. CONYERS. Congressman Brad Miller is known for his work 

on the Financial Services Committee to protect homeowners from 

predatory lending practices. In addition, he is on the Foreign Affairs Committee, as well as the Science and Technology Committee, 

where he Chairs the Investigations and Oversight Committee. 

We welcome you here this morning. 

TESTIMONY OF THE HONORABLE BRAD MILLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

Mr. MILLER. Chairman Conyers, Ranking Member Smith, Members of the Committee, thank you for the invitation to testify this 

morning. 

Our constitutional system of checks and balances assumes a certain jostling between the President and Congress. But the Bush administration’s refusal to provide information to Congress and to the 

American people; the Bush administration’s insistence on acting in 

secret is more dangerous and more sinister than just an extravagantly ambitious claim to executive branch powers. 

Control of information stifles dissent. It insulates an Administration from challenge, either by Congress or by critics. Control of information is incompatible with democracy. Informed criticism, as 

annoying as it frequently is to people with power, is the stuff of democracy. 

Democracy dies behind closed doors. It is Congress’s duty to 

throw the doors open and keep them open in future Administrations, Democratic and Republican alike. A great American political 

scientist, Woodrow Wilson, said that it is the proper duty of Congress to look into every affair of government and to talk much 

about what it sees. It is meant to be the eyes and the voice, to embody the wisdom and will of its constituents. 

The many disputes between Congress and the President, and it 

is not just Miers and Bolton and Rove, every Committee has been 

stiff-armed by the Bush administration in our exercise of our oversight powers. Those disputes will not be resolved before the election 

in November or by the inauguration in January, but those disputes 

will not be moot next year. We must continue our effort to learn 

how the Bush administration has used the powers of government, 

34 

and we must restore the balance of powers between Congress and 

the President, regardless of who is President and regardless of 

which party is in the majority in Congress. 

I have introduced one bill just last week to restore Congress’s 

checks on Presidential power, especially the power to act in impregnable secrecy. And I expect to introduce another shortly. 

Ms. Lofgren asked for practical suggestions on how to right the 

balance between the branches of government, how to restore the 

separation of powers and the checks and balances that the Founders of this Republic intended. And that has been my aim. 

Now, the first bill, H.R. 6508—Chairman Conyers is a cosponsor; 

Mr. Nadler is as well, as well as Ms. Sa ́nchez, and obviously, I 

would welcome additional supporters—would allow the House to 

ask a court to appoint a special prosecutor for a criminal contempt 

of Congress charge where the United States Attorney refuses to 

present the case to the grand jury. In recent history, Congress has 

enforced our authority to take evidence by referring contempt 

charges to the U.S. Attorney under a 1857 criminal statute. There 

is not a lot of wiggle room in the language of the statute. The 

House, the Senate may submit contempt charges to the U.S. Attorney, whose duty it shall be to bring the matter before the grand 

jury for its action. 

Now, despite that unequivocal statutory requirement, when Congress referred contempt charges, criminal contempt charges, 

against Josh Bolton and Harriet Miers, Attorney General Mukasey 

refused to allow the U.S. Attorney to present the charges to the 

grand jury. He argued that criminal prosecution is exclusively an 

executive branch power, and Congress cannot compel the executive 

branch to bring a criminal prosecution regardless of what the statute said. 

In a 1987 decision, the Supreme Court held that a trial court 

could appoint a private prosecutor to bring a contempt of court proceeding where the appropriate prosecuting authority denied the 

Court’s request to prosecute. The Supreme Court held that a trial 

court’s power to appoint a private prosecutor was based on the trial 

court’s inherent power of self-protection. 

If the judiciary were completely dependent on the executive 

branch to redress direct affronts to its authority, the Supreme 

Court said, it would be powerless to protect itself if that branch declined prosecution. Congress cannot depend entirely on the executive branch to redress direct affronts to Congress, to Congress’s authority any more than the courts can, especially when the affront 

is by the executive branch itself. 

Second, the U.S. Justice Department’s Office of Legal Counsel is 

little known to the general public, but it exercises remarkable 

power. The Bush administration has fully realized the potential for 

the abuse of the OLC’s power. The Bush administration has, instead of seeking disinterested legal opinions from the OLC, the 

Bush administration has demanded and gotten exactly the opinions 

from the OLC that it wanted. And the Bush administration has received those opinions and acted on those opinions in secret, placing 

the opinions beyond any challenge. Even when the OLC obligingly 

advised the Bush administration that the Bush administration 

could just ignore the requirements of statute, the Bush administraVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
35 

tion asserts no exigent circumstances, no practical necessity for 

that breathtaking claim of power by the OLC. That they can exercise in secret that legal power, it is simply a calculated expansion 

of Presidential power at the expense of Congress and the courts. 

I am now working with Senator Feingold and with others on legislation to require the OLC to report opinions to Congress, especially where the OLC decides that the executive branch can just ignore statutory requirements. 

James Madison wrote, the Founders of our Republic provided 

against the usurpation of power by providing each branch of government the necessary constitutional means and personal motives 

to resist encroachment of the others. Madison wrote that the constant aim is to divide and arrange the several branches in such a 

manner as that each may be a check on the other, that the private 

interests of every individual may be a sentinel of public rights. 

The Bush administration’s claim that the President alone decides, in its own unreviewable discretion, what to tell Congress and 

the American people is an encroachment that we must resist. And 

by jealously asserting our rights under the Constitution, we defend 

the public rights. Thank you. 

[The prepared statement of Mr. Miller follows:] 

PREPARED STATEMENT OF THE HONORABLE BRAD MILLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA

Thank you for the invitation to testify this morning. 

Our constitutional system of checks and balances assumes a certain jostling between the President and Congress, but the Bush Administration’s refusal to provide 

information to Congress or to the American people is more dangerous and more sinister than just an extravagantly ambitious claim to executive branch powers. Control of information stifles dissent and insulates an administration from challenge, 

either by Congress or by critics. Control of information is incompatible with democracy. Informed criticism, as annoying as it is for many in power, is the stuff of democracy. 

Democracy dies behind closed doors. It is Congress’ duty to throw the doors open 

and keep them open in future administrations, Democratic and Republican alike. A 

great American political scientist, Woodrow Wilson, said that it is ‘‘the proper duty’’ 

of Congress ‘‘to look into every affair of government and to talk much about what 

it sees. It is meant to be the eyes and the voice, and to embody the wisdom and 

will of its constituents.’’ 

The many disputes between the Bush Administration and Congress will not be 

moot if not resolved before the election in November or the inauguration in January. 

Congress must continue the effort next year to learn how the Bush Administration 

used the powers of government. And we must restore the balance of powers between 

Congress and the President, regardless of who is president and which party is in 

the majority in Congress. 

I have introduced one bill to restore Congress’ checks on presidential power, especially the power to act in impregnable secrecy, and I expect to introduce another 

shortly. 

The first bill, HR 6508, would allow the House to ask a court to appoint a special 

prosecutor for a criminal contempt of congress charge where the United States Attorney refuses to present the case to the grand jury. In recent history, Congress has 

enforced our authority to take evidence by referring contempt charges to the U.S. 

Attorney under an 1857 criminal statute. There’s not a lot of wriggle room in the 

statute: the House or Senate may submit contempt charges to the U.S. Attorney, 

‘‘whose duty it shall be to bring the matter before the grand jury for its action.’’ Despite that unequivocal statutory requirement, when Congress referred criminal contempt charges against Josh Bolton and Harriet Miers, Attorney General Mukasey 

refused to allow the U.S. Attorney to present the charges to the grand jury. He argued that criminal prosecution is exclusively an executive branch power, and Congress cannot compel the executive branch to bring a criminal prosecution regardless 

of what the statute said. 

36 

In a 1987 decision, the Supreme Court held that a trial court could appoint a private prosecutor to bring a contempt of court proceeding where ‘‘the appropriate prosecuting authority’’ denied the court’s request to prosecute. The Supreme Court held 

that the trial court’s power to appoint a private prosecutor was based on the trial 

court’s ‘‘inherent power of self-protection.’’ ‘‘If the Judiciary were completely dependent on the Executive Branch to redress direct affronts to its authority,’’ the Supreme 

Court said, ‘‘it would be powerless to protect itself if that Branch declined prosecution.’’ 

Congress cannot depend entirely on the executive branch to redress affronts to 

Congress’ authority any more than the courts can, especially where the affront is 

by the executive branch itself. 

Second, the U.S. Justice Department’s Office of Legal Counsel is little known to 

the public, but exercises remarkable power. The Bush Administration has fully realized the potential for the abuse of the OLC’s power. Instead of seeking disinterested 

legal opinions, the Bush Administration has demanded and gotten exactly the opinions it wanted from the OLC. And the Bush Administration has received and acted 

on the OLC’s opinions in secret, placing the opinions beyond challenge, even when 

the OLC obligingly advised that the Bush Administration could simply ignore statutory requirements. The Bush Administration asserts no exigent circumstances, no 

practical necessity for the breathtaking claim that the OLC can secretly excuse the 

administration from legal requirements. It is simply a calculated expansion of presidential power at the expense of Congress and the courts. 

I am now working with Senator Feingold on legislation to require the OLC to report opinions to Congress, especially where the OLC decides that the executive 

branch can just ignore statutory requirements. 

According to James Madison, the founders of our republic provided against the 

usurpation of power by providing each branch of government ‘‘the necessary constitutional means and personal motives to resist encroachments of the others.’’ 

Madison wrote that ‘‘the constant aim is to divide and arrange the several offices 

in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel of the public rights.’’ 

The Bush Administration’s claim that the president alone decides—in his own 

unreviewable discretion—what to tell Congress and the American people is an encroachment we must resist. And by jealously asserting our powers under the Constitution, we defend the public rights. 

Mr. CONYERS. Walter Jones, long-serving Member of the House 

of Representatives from North Carolina, who serves on the Armed 

Services Committee, the Financial Services Committee and has 

been known for working across the aisle to craft bipartisan legislation; the War Crimes Act under President Clinton, the Constitutional War Powers Resolution, which he introduced with our Judiciary Committee colleague William Delahunt only last year. 

We are pleased that you could be with us today. 

TESTIMONY OF THE HONORABLE WALTER JONES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

Mr. JONES. Mr. Chairman, thank you very much. 

And I want to thank you and this Committee for holding this 

hearing, for giving me an opportunity to speak on the issue of Presidential signing statements. This hearing today is about trust. It is 

about the American people, and can they trust their government? 

Just as the American people have access to the text of bills that 

are signed into law, they should have easy and prompt access to 

the content of Presidential signing statements that could affect how 

those laws will be executed. 

To enable a more complete public understanding and trust of our 

Nation’s laws, the Congress should also be able to call for the executive’s explanation and justification for a Presidential signing 

statement. 

37 

The history of Presidential signing statements dates back to the 

19th century. President James Monroe issued the first signing 

statement in 1821. However, a September 17th, 2007, Congressional Research Service report noted that U.S. Presidents, and I 

quote, have increasingly employed the statements to assert constitutional and legal objections to congressional enactments. In 

doing so, Presidents sometimes communicate their intent to disregard certain provisions of bills they have signed into law. 

According to the CRS, President Clinton issued 381 signing 

statements while in office; 70 of these statements raised legal and 

constitutional objections. President George W. Bush has issued at 

least 152 signing statements; 118 of these statements have contained over 800 constitutional challenges or objections. 

According to the American Bar Association, and I quote, ‘‘from 

the inception of the Republic until the year 2000, Presidents have 

produced signing statements containing fewer than 600 challenges 

to bills they signed.’’ 

That tells a great deal. 

I continue, because future Presidents are likely to continue this 

practice, Congress should act now to pass legislation to ensure 

proper understanding and disclosure of these signing statements. 

To address this issue, I have introduced H.R. 5993, the Presidential Signing Statement Act, which would, first, require the 

President to provide copies of signing statements to congressional 

leadership within 3 days of being issued; second, require signing 

statements to be published in the Federal Register; third, require 

executive staff to testify on the meaning and justification for Presidential signing statements at the request of the House or the Senate Judiciary Committee; and fourth and last, provide that no moneys may be used to implement any law accompanied by a signing 

statement if any provision of the act is violated. 

This bill directly addresses the recommendation of the American 

Bar Association Task Force on Presidential Signing Statements. 

Mr. Chairman, I would like to submit a copy of the ABA report 

for the record. 

[The material referred to follows:] 

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Mr. CONYERS. Without objection, so ordered. 

Mr. JONES. Because it is critical that we preserve the division of 

power in our government and public understanding of our Nation’s 

laws, I hope this Committee will seriously consider the merits of 

H.R. 5993. 

In closing, let me express my appreciation for Senator McCain’s 

pledge to never use—to never use—signing statements if elected. I 

hope that Senator Obama and candidate Bob Barr each will say 

the same thing, that they will not issue signing statements should 

they be elected President of the United States. 

Mr. Chairman, we must reveal public trust. The public trust in 

Congress and the White House is at an all time low. This hearing 

and the passage of legislation like H.R. 5993 and other legislation, 

I believe, will help to rebuild the public’s trust. 

Mr. Chairman, thank you for convening this hearing and giving 

me the opportunity to further discuss what I think is a very important issue to the Constitution of America. 

Thank you, sir. 

[The prepared statement of Mr. Jones follows:] 

PREPARED STATEMENT OF THE HONORABLE WALTER B. JONES, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA

Mr. Chairman, thank you for the opportunity to testify regarding the use of presidential signing statements. To me, what we’re really talking about today is trust: 

for our Nation to be free and strong, the people must trust their President to enforce 

the law. When the President bypasses the will of the people, expressed through Congress, and decides what provisions of law will and will not be enforced, the President goes beyond the Constitutional authority given to him by our Founding Fathers. 

Presidential signing statements are official pronouncements that a President may 

make when signing a bill into law for a variety of purposes: to express thanks to 

legislators, to acknowledge matters of historical significance, or, to state that the 

President does not intend to enforce a specific section of the bill when signed into 

law because he does not believe it to be constitutional. While expressing thanks or 

making note of an historic piece of legislation is an appropriate use of a presidential 

signing statement, the increasing use of signing statements to declare the President’s intent to ignore the will of Congress is unacceptable. 

While signing statements have been used since the Monroe Administration in the 

early 19th century, their use to qualify or nullify legislation has grown dramatically 

in recent history. According to a September 2007 Congressional Research Service report entitled ‘‘Presidential Signing Statements: Constitutional and Institutional Implications,’’ President Clinton issued 381 statements during his presidency, 70 of 

which, or 18 percent, raised constitutional or legal objections. That report also noted 

that as of late last year, President George W. Bush had issued 152 signing statements, 118 of which, or 78 percent, stated constitutional or legal objections. 

The American Bar Association (ABA) convened a Task Force on Presidential Signing Statements and the Separation of Powers Doctrine in 2006. That Task Force examined the increased use of signing statements by presidents to effectively line-item 

veto provisions of bills that they do not intend to enforce. The report issued by the 

Task Force in August of 2006 cited numerous constitutional objections in signing 

statements by President Bush. I have submitted a copy of that report for the record. 

Specifically, the report notes signing statements objecting to provisions in a law 

banning the use of U.S. troops in combat against rebels in Colombia, as well as a 

law requiring background checks for civilian contractors in Iraq. 

The American people deserve to know the truth about these signing statements— 

what they say and what they mean. That is why I have introduced H.R. 5993, the 

Presidential Signing Statements Act. This bill addresses the recommendation of the 

ABA Task Force that the Congress and the public be fully informed about the use 

of presidential signing statements by requiring that signing statements be sent to 

Congressional leadership within 3 days of issuance and published in the Federal 

Register. H.R. 5993 would also allow the House and Senate Judiciary Committees 

to request testimony on the meaning and justification for any signing statement. 

73 

Lastly, H.R. 5993 would provide that if any of the provisions I’ve mentioned are not 

complied with, funding of the underlying bill would be denied. 

I would like to conclude my statement by expressing my appreciation for Senator 

McCain’s pledge never to use signing statements if elected president. I would encourage Senator Obama to do the same. Our Nation is suffering from a lack of trust: 

how can our electorate trust their elected officials when the Executive power disregards provisions of bills passed by Congress and signed into law? The use of signing statements must be examined by the public, and it is my belief that my bill and 

this hearing today will serve that purpose. Mr. Chairman, I thank you for the opportunity to speak to the Committee on this important issue. 

Mr. CONYERS. I thank you and all of our congressional colleagues 

who constitute panel one. 

Mr. CONYERS. We will now invite panel two to come up, all nine 

of our witnesses, many of whom are former Members of Congress: 

Elizabeth Holtzman, seat number one; Bob Barr; former Mayor 

Rocky Anderson; Professor Steven Presser; former Associate Deputy Attorney General Bruce Fein; author and former prosecutor 

Vincent Bugliosi; Professor Jeremy Rabkin; Elliott Adams of Veterans for Peace; and Frederick Schwarz, senior counsel at the 

Brennan Center for Justice. 

Would all of you please take your seats? 

Elizabeth Holtzman is well known to everybody here. First of all, 

one of her latest books I am holding in my hand. And it deals with 

the constitutional removal of George Bush, written by her with 

Cynthia Cooper, who is also here in the audience. But she served 

as a Congresswoman in New York from 1973 to 1981. And she was 

a Member of the House Judiciary Committee we are proud to report. During the Nixon impeachment, she served with great distinction, and has since then become the only elected woman district 

attorney in Brooklyn, New York, and then, following that, the only 

woman ever elected as New York City Comptroller. 

We have your statement, Congresswoman Holtzman, and everybody else’s, which will be entered into the record. 

And we invite you to proceed. Welcome to the Committee again. 

TESTIMONY OF THE HONORABLE ELIZABETH HOLTZMAN, 

FORMER U.S. REPRESENTATIVE FROM NEW YORK 

Ms. HOLTZMAN. Thank you very much, Mr. Chairman, Members 

of the Committee. 

For me, it is a privilege to be here. I had the great honor of serving on this Committee with your esteemed Chairman, John Conyers, during the Nixon impeachment proceedings, and I know the 

critical and historical role this Committee has played in preserving 

and protecting democracy and the Constitution in this country. It 

is a great honor to be here. And I want to thank the Chair for his 

leadership in calling this hearing. 

I will try to summarize my written testimony to you, which is 

that—and start by saying that the Framers developed the power of 

impeachment and put it in the hands of Congress to protect the democracy. And as unpleasant as that burden is, it can’t be ignored, 

and it can’t be shrugged aside. The buck stops here in this Committee room, in the House of Representatives, and the Congress of 

the United States in terms of protecting the democracy against a 

President, against an Administration, against executive officials 

who run amok. There is no avoiding that. 

74 

I believe that there are grounds to make a prima facie case of 

impeachment with respect to high Administration officials. I said 

prima facie, and I mean that. Anyone accused should have a full 

opportunity to present his side of the argument and defend and 

justify his actions. 

I will briefly state what I believe the grounds would be prima 

facie. The first category would be the systematic refusal to obey the 

law. In the Constitution, the President is required to take care that 

the laws are faithfully executed. I often call that a double whammy. It was so important that the President has to take care and 

be faithful in the execution of the laws. We learned that in the 

third grade. The President executes the laws. Congress makes the 

laws. 

There is substantial evidence that the Administration repeatedly 

failed and refused to obey the requirements of the Foreign Intelligence Surveillance Act, which was enacted in light of the abuse 

in Watergate when Richard Nixon illegally wiretapped, and was 

designed to prevent any repetition of unilateral Presidential wiretapping because of the abuses seen. Nonetheless, we know that the 

FISA court repeatedly, was not gone to for the purposes of obtaining approval, as the law required. 

A second area in terms of systematic refusal to obey the law 

would be the Administration’s response to the Geneva Conventions, 

the Conventions Against Torture, both of which are the law of the 

land under the Constitution, and the War Crimes Act of 1996 and 

the Anti-Torture Act. All of those acts and acts prohibit the mistreatment of detainees and set strict limits on interrogations. Two 

of the laws make such mistreatment a Federal crime, with the 

death penalty in the event that death occurs in the commission of 

that crime, which means no statute of limitations in cases where 

death results. The penalties are serious. 

Nonetheless, as we know, there has been waterboarding, which 

has been admitted, which most nations believe constitutes torture. 

But even if waterboarding doesn’t constitute torture, it certainly 

constitutes cruel and inhuman treatment, which is or used to be a 

crime under the War Crimes Act of 1996. The Administration has 

the responsibility under the Take Care Clause to enforce the Geneva Conventions, the Convention Against Torture, the Anti-Torture 

Act, and the War Crimes Act. 

In my opinion, the evidence at this point suggests that those conventions and those laws have been systematically ignored. 

I won’t mention signing statements to any degree because I think 

the prior panel discussed that at length. 

You also have the misuse of executive privilege. This is another 

area, by the way, that was a basis for the impeachment of Richard 

Nixon. The improper claim of executive privilege not only subverts 

the legitimate operations of Congress, but it can rise to an impeachable offense when it is used to shield improper or illegal executive branch activities. A most recent example, an egregious example, is the refusal to provide to a House Committee the FBI statements of Vice President Cheney’s interview with them. There isn’t 

even a colorable ground on which executive privilege can be 

claimed with respect to that statement. 

75 

Deceptions with respect to the Iraq war. Others have talked 

about that. I believe very strongly that deceptions in connection 

with the war-making power subvert the Constitution of the United 

States. As many of you have alluded to just today, Congress plays 

an essential role in the war-making decision of the United States. 

It is in the Constitution repeatedly. When an Administration deceives the Congress, it undermines the ability of the Congress to 

make a reasoned decision. And the decision about war-making is 

the most serious and grave and consequential one that the Congress can ever make. Those deceptions, I believe, are rampant. 

The real question before us is what is to be done. I don’t think 

that this Committee or this Congress can shirk the responsibility 

that the Constitution put in its hands. Of course, this is very late 

in the session of Congress, and the options are limited, but there 

are still options. 

I believe the remedy that the Constitution provides, and the one 

that is most appropriate in this situation, is an impeachment inquiry. Why? It would send the clearest signal of the constitutional 

limits on abuse of Presidential power. It would also educate the 

public about the appropriate limits of executive power and the importance of checks and balances. And beyond that, it would also 

give those people in the Administration against whom accusations 

are leveled an appropriate forum in which to respond, which I believe is the American way. 

Mr. KING. Mr. Chairman, the witness’s time has expired. 

Ms. HOLTZMAN. I thank the Chair and the Committee for the opportunity to be here. 

[The prepared statement of Ms. Holtzman follows:] 

PREPARED STATEMENT OF THE HONORABLE ELIZABETH HOLTZMAN

Chairman Conyers, members of the Committee, I thank you for the privilege of 

appearing before you on the issue of the Executive Power and its Constitutional 

Limitations. Having served on this Committee during the impeachment proceedings 

against President Richard Nixon, in the company I might add of your esteemed 

Chair, I want to express my enormous respect for this Committee and its critical 

role in preserving our democracy. 

During my service on this Committee, I acquired a niche expertise on impeachment. This is frankly not expertise one would voluntarily seek. The issue of impeachment, after all, arises only when a president has abused the great trust placed 

in his hands, something that few people, despite party or political predilection, like 

to see happen. Looking back at the Nixon impeachment proceedings, I remember 

that, much as I disagreed with his policies, he was still my president, and it was 

painful and sobering to vote for his impeachment, a sentiment I believe all of my 

colleagues on the Committee shared, Democrat and Republican alike. 

But sad as the responsibility to deal with impeachment is, it cannot be shrugged 

off. The framers put the power to hold presidents accountable in your hands. Our 

framers knew that unlimited power presented the greatest danger to our liberties, 

and that is why they added the power of impeachment to the constitution. They envisioned that there would be presidents who would seriously abuse the power of 

their office and put themselves above the rule of law. And they knew there had to 

be a way to protect against them, aside from waiting for them to leave office. 

I will spell out briefly the grounds that I believe make out a prima facie case of 

impeachment for certain Administration officials. I have written about the grounds 

at greater length elsewhere, including in my book, co-authored with Cynthia Cooper, 

entitled The Impeachment of George W. Bush. If the Committee wishes, I would be 

pleased to provide additional details. 

Before I go any further I want to issue a caveat. A prima facie case is just that. 

It doesn’t mean than an impeachable offense has in fact been committed. Anyone 

accused must be given a full opportunity to rebut the charges and justify the questioned conduct. It is imperative that this principle be adhered to as it was in the 

76 

Nixon impeachment process. It was precisely the fairness of those proceedings to the 

President, not just the strong evidence of abuse of power, that persuaded the American people that impeachment was the appropriate remedy. 

The abuses of power related to this Administration fall into several categories. 

SYSTEMATIC REFUSAL TO OBEY THE LAW

The first abuse of power has to do with the systematic refusal to obey the law. 

One of the key constitutional responsibilities of a president, as set forth in the constitution, is to implement the laws. The framers use an elegant term for this: a 

president must, in their words, ‘‘take care that the laws be faithfully executed.’’ The 

responsibility is so serious that it is phrased almost redundantly: a president must 

‘‘take care’’ and ‘‘faithfully’’ execute. 

The principle is instilled in all of us as school children, where we learn at an early 

age that the Congress makes the laws and the president carries them out. 

But has this principle that is enshrined in our constitution and the oath of office 

been adhered to? Let’s consider these examples: 

1. The Foreign Intelligence Surveillance Act. 

This law was enacted partially in response to President Richard Nixon’s illegal 

wiretapping where, falsely claiming national security, he wiretapped journalists and 

his own staffers. (This wiretapping was one of the many grounds for his impeachment). FISA was also enacted after disclosures of surveillance abuses by federal 

agencies. The 1978 law was designed to prevent these abuses by barring unilateral 

presidential wiretapping and requiring special court approval instead. 

Starting in the fall of 2001, President Bush authorized wiretapping on at least 

45 separate occasions without obtaining FISA court approval. He claimed that as 

Commander in Chief of the army and navy he was empowered to disregard FISA. 

But no president may simply override laws for this reason. The Supreme Court considered just this issue in Youngstown v. Ohio, where President Truman wanted to 

seize steel mills faced with a strike in order to ensure a continued supply of armaments for the Korean War. He claimed that as Commander in Chief he could do 

so. The Supreme Court rejected his position. In one of the most famous opinions in 

American jurisprudence, Justice Robert Jackson wrote: ‘‘No penance would ever expiate the sin against free government of holding that a President can escape control 

of executive powers by law through assuming his military role. . . .’’ Justice Jackson, the former chief US prosecutor at the Nuremberg trials, alluded to the excesses 

of executive power seen in totalitarian regimes and warned that if we allowed the 

president’s Commander in Chief role to swallow up the checks and balances of our 

constitution, we would be starting down the road to military dictatorship. 

2. The Geneva Conventions, the Convention against Torture, the War Crimes Act of 

1996 and the anti-Torture Act. 

The Geneva Conventions and the Convention against Torture ban torture. As ratified treaties, they are the law of the land under the constitution. Further, the antiTorture Act makes it a federal crime to engage in torture abroad. President Bush 

has repeatedly said we ‘‘don’t do torture,’’ but is this true? The US has recently admitted that water boarding was used against three detainees. Water boarding has 

been considered torture by most countries, including the United States itself under 

prior administrations. Just recently, a committee of the British Parliament determined that US denials about torture could no longer be credited. 

In addition to water boarding, detainees were subjected to many other forms of 

serious abuse, as is clear from various reports done after the Abu Ghraib disclosures. That mistreatment has been further documented in a number of recent books, 

including The Dark Side, by Jane Mayer. 

Apart from torture, the Geneva Conventions and the War Crimes Act of 1996 bar 

cruel and inhuman treatment of detainees. Thus, even assuming that water boarding, stress positions, threatening use of dogs, exposure to temperature extremes and 

other similar abuses did not constitute torture singly or in combination, these practices likely constituted cruel and inhuman treatment and thus violated the War 

Crimes Act. Although the Act was made retroactively inoperative in the fall of 2006 

as part of the Military Commissions Act at the Administration’s request, the law 

was still in effect up to that time. 

The role of top Administration officials in detainee mistreatment has not been 

fully elucidated, but various investigations undertaken after the Abu Ghraib disclosures make it clear that the mistreatment was set into motion once the President 

decided, in February 2002, to remove all the protections of the Geneva Conventions 

from Al Qaeda, and some Geneva protections from the Taliban. 

77 

President Bush has recently acknowledged that he was aware of the actions of 

his Principals Committee, a group of National Security Council members who reportedly gathered to approve specific forms of mistreatment during the interrogation 

of various detainees. Did he know about and approve the techniques of interrogation 

mentioned above? If so, did that violate the anti-Torture statute and the War 

Crimes Act, and/or constitute a serious abuse of power and an impeachable offense? 

Under the Geneva Conventions, the United States is required to bring to justice 

those who violate the Conventions. Pursuant to the duty to faithfully execute the 

laws, a president must take care that this mandate as well as relevant US statutes 

such as the anti-Torture and the War Crimes Act of 1996 are properly enforced. Yet, 

it appears that this requirement may not have been met. Former Secretary of Defense Donald Rumsfeld, who admitted to ‘‘ghosting’’ a detainee, which might have 

violated the Geneva Conventions and US war crimes statutes, was put in charge 

of the investigation. No higher ups were held responsible and the investigations did 

not cover top officials of the Administration. 

The mistreatment of detainees is not just morally wrong and likely illegal, but 

it has brought disrepute to the United States and endangered our citizens and soldiers by inflaming anti-American sentiment in Iraq, Afghanistan and elsewhere in 

the world and by setting a precedent for the mistreatment of captured US troops. 

3. Signing Statements. 

President Bush has issued at least 750 signing statements in connection with his 

signing certain bills into law. The statements indicate that the President will not 

be bound to carry out all or parts of the laws in question. 

Under the constitution, once a bill becomes law, a president must implement the 

law under the ‘‘take care’’ clause. If a president does not like the bill, the president 

may veto it, but pursuant to the carefully calibrated system of checks and balances, 

once the bill is vetoed, Congress has the power to override the veto, thereby making 

the bill law despite the president’s opposition. 

Signing statements that are not acted upon create no serious constitutional issue. 

But, the General Accountability Office examined the signing statements of this Administration and reported that the Administration has in fact refused to enforce or 

implement laws in connection with which signing statements were issued. 

The wholesale refusal to enforce duly enacted laws may well be viewed as a failure to carry out the constitutional ‘‘take care’’ duty. Signing statements coupled with 

the failure to implement the law might also be viewed as nullifying the veto provisions of the constitution and undermining the role of Congress in making the laws. 

MISUSE OF EXECUTIVE PRIVILEGE

Another area of possible Administration abuse of power has to do with the abuse 

of executive privilege. 

Under the constitution, Congress has the power to inquire into executive branch 

operations in furtherance of its legislative powers. The improper claim of executive 

privilege subverts the legitimate operations of Congress and may rise to the level 

of an impeachable offense, as occurred in the Nixon proceedings. 

Recently, Attorney General Michael B. Mukasey announced that executive privilege was invoked to prevent the disclosure to the House Committee on Oversight 

and Government Reform of Vice President Cheney’s interview with the FBI about 

the Valerie Plame affair. Executive privilege protects the confidentiality of advice 

given to a president by his advisors. But the document being shielded by this invocation of executive privilege was not confidential advice to the President, but rather 

a statement made by the Vice President to the FBI, a law enforcement agency. 

There was also no confidentiality in that statement because such statements are 

typically presented to prosecutors and the grand jury and may even be shared with 

the public, if a trial involving the contents of the document takes place. There is 

no colorable basis on which executive privilege can be asserted with respect to this 

document. 

This claim is reminiscent of President Nixon’s claims of executive privilege with 

respect to the illegal break in into the offices of Daniel Ellsberg’s psychiatrist. The 

break in was designed to obtain materials to smear Ellsberg, a prominent opponent 

of the Vietnam War. President Nixon did not want this break in disclosed and used 

various false claims of national security and executive privilege to keep it from Congress and Watergate prosecutors. The break in and its concealment were part of the 

Nixon impeachment proceedings. 

Ironically, the Plame matter, about which the House Committee was inquiring, 

also may have involved an effort to smear and retaliate against a war critic, in this 

case, former Ambassador Joseph Wilson, Plame’s husband, for charging that President Bush had taken the country into the Iraq war on a basis of deception. Congress 

78 

was clearly entitled to explore whether executive power was abused in the Plame 

matter. 

Similar extreme claims of executive privilege have been made in connection with 

Congress’ efforts to examine the so-called US Attorneys’ scandal. In response to the 

invocation of executive privilege with respect to their testimony, former and present 

Administration officials, Harriet Miers, Joshua Bolten and Karl Rove, have refused 

even to appear before Congress in response to subpoenas seeking information about 

what role the White House may have played in the scandal. Congress has every 

right to inquire into whether federal prosecutors were fired to stymie politically 

harmful prosecutions or whether prosecutors were urged by top Administration officials to prosecute innocent persons. 

As the Nixon impeachment process shows, assertions of executive privilege to 

shield improper or criminal conduct rather than to protect legitimate White House 

advice may constitute an impeachable offense. 

DECEPTIONS LEADING TO THE IRAQ WAR

The deceptions, exaggerations and misstatements made by high level Administration officials to drive the country into the tragically mistaken Iraq war subvert the 

constitution and may constitute an impeachable offense. 

Hearings should have been held to determine what President Bush knew and 

when he knew it with respect to each and every claim he made as to why the country needed to go to war, but that regrettably was not done. Nonetheless, the latest 

report from the Senate Intelligence Committee concludes that one of the major 

claims made by top Administration officials to justify an attack on Iraq, a country 

that did not attack us—namely that Saddam Hussein was linked to 9/11—was not 

supported by intelligence. The Committee also found that the claim repeated by top 

Administration officials before the war that Saddam would hand off weapons of 

mass destruction to terrorists to attack us, thereby suggesting that Iraq posed a serious threat to the United States, was not supported by intelligence. It found a similar lack of support for a number of other pre-war Administration claims. 

Although top Administration officials contended that Iraq’s purchase of aluminum 

tubes and its alleged efforts to purchase Niger yellow cake were evidence of Iraq’s 

efforts to reconstitute its nuclear weapons program, there was more than enough 

information at high levels of the Administration to raise serious doubts about these 

contentions. 

As I explain in my book, presidential deception of Congress in connection with 

war-making is an impeachable offense. This is so because the constitution contemplates that Congress will be at least an equal partner with the president on decisions to go to war (aside from emergency situations, which this was not). Deceiving 

Congress undermines its ability to play the deliberative role the framers intended. 

We know the tragic consequences for the country of this flawed decision-making 

process. 

What is to be done? 

The question before this Committee is how to respond to the assault on the constitution, the rule of law and our system of government resulting from actions taken 

by this Administration. 

Doing nothing is not an option. The failure to act will further fuel the culture of 

impunity that has grown up around this Administration. The failure to act will send 

a strong message to future presidents that they need not obey the law, that they 

can deceive the country and the Congress into future wars and that they can treat 

Congress with contempt, obstructing legitimate efforts by Congress to exercise responsible oversight over the executive branch, without serious consequences for 

them. 

What is to stop future presidents of either party from doing the same or going 

further? 

As a former prosecutor, I know that unless serious misconduct results in a correspondingly serious penalty, there is a grave likelihood that the misconduct will 

be repeated. The absence of a penalty breeds cynicism, disrespect for the law and 

suggests that the misconduct is not so bad, after all. 

Congress needs to assert its constitutional prerogatives to check serious executive 

branch abuses, not because it craves power, but because our democracy depends on 

it. Our system counts on each branch of government to act as a counterweight to 

the other branches. If any branch fails to do its job and check the abuses of another 

branch, the system as a whole may fail, and our liberties will be endangered. Think 

of how far down this dark road of unchecked powers we have gone already: secret 

surveillance without judicial review, secret prisons, secret torture and mistreatment, 

79 

secret executive orders and possible politicized prosecutions—not to mention a tragic 

war begun on a basis of deception and misstatement. 

The options before Congress for response, at this late stage, are very limited— 

but Congress still has options. 

The remedy the constitution provides, and the one most appropriate to the 

present situation, is an impeachment inquiry. It would send the clearest signal of 

the constitutional limits on abusive presidential power. It would also educate the 

public about the appropriate limits of executive power and the importance of checks 

and balances in our constitutional system. That is what happened as a result of the 

impeachment process during Watergate. 

I am not unrealistic, however. I understand the great time constraints and the 

virtual impossibility of completing a full-blown impeachment inquiry before this session of Congress is over. Nonetheless, there are compelling, pragmatic reasons—as 

well as a constitutional imperative—to commence an inquiry now, and pursue it in 

a meaningful and, constructive way over the few remaining months. 

Even if an impeachment inquiry is not completed or does not result in an impeachment vote in the House or the Committee, it still should be undertaken. It is 

warranted and since impeachment inquiries cannot be evaded by citing executive 

privilege, initiating an inquiry now would accomplish several valuable purposes: 

a) It would send a clear message to the American people and future presidents 

that the actions engaged in by top Administration officials are serious enough on 

their face to warrant an impeachment inquiry. It would create a precedent whereby 

executive privilege does not effectively vitiate a president’s accountability to Congress, as this Administration has sought to do. This would create a deterrent to future administrations. So would the historic nature of impeachment. Opening an impeachment inquiry would put this Administration in a very small category along 

with only three others in US history that have been the subject of such an inquiry. 

b) Because there is no executive privilege in an impeachment inquiry, pursing 

one would allow the Committee to obtain additional material on presidential and 

vice presidential conduct which the Administration has until now refused to provide. 

That material would disclose the details about Administration actions that are currently secret. Those details would better inform Congress about what the appropriate response to this Administration’s actions should be. They would also better 

inform it about how to avert abuses of power by future presidents. That in itself 

would be an important outcome of new disclosures. Alternatively, if the Administration still refuses to provide the information and documents requested as part of an 

impeachment inquiry, that refusal would itself be an impeachable offense under the 

precedent established in the Nixon proceedings, with the bi-partisan adoption of the 

third article of impeachment holding that the refusal to respond to committee subpoenas in an impeachment proceeding was an impeachable offense; and 

c) It would allow a serious, sober and respectful discussion, in the appropriate 

and constitutionally mandated forum, of whether or not specific Administration officials committed impeachable offenses. The discussion would include a full and fair 

airing of evidence and argument on both sides, both allegations and defenses. As 

I understand it, such a discussion cannot be fully and satisfactorily conducted under 

House rules without a real impeachment inquiry. 

I therefore suggest that the Committee commence an inquiry and send to the 

President and Vice President relatively short and straightforward requests for information—consisting of some key questions and requests for key documents. The 

questions would be similar to what lawyers call interrogatories, and document requests would be made at the same time. The Administration could be given until 

the end of the August recess to respond. 

For example, in the area of abuse of executive privilege, the Committee could ask 

the President to direct the release to the Committee of the transcripts of both his 

and the Vice President’s FBI interviews on the Valerie Plame matter, and if he refused, to provide his constitutional and legal justifications. Similarly, on the Iraq 

war, the President could be asked some questions such as: Given the Senate Intelligence Committee report that US intelligence agencies had no information to the 

effect that there were serious operational connections between Al Qaeda and Saddam Hussein, and given your Administration’s claims otherwise to Congress and the 

American people, what information did you have and what was the source of any 

such information suggesting that there were such connections? On torture, since the 

President claims that we ‘‘do not do torture,’’ he should be asked how he defines 

torture and the basis for that definition. He should also be asked if he approved 

of or authorized water boarding either before or after it was used on detainees. He 

should also be asked to provide copies of all authorizations for interrogations that 

he issued, including those to the CIA, and all legal documents that have not already 

been made public regarding his claimed authority to authorize interrogations that 

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conflict with the constraints contained in the Geneva Conventions, the Convention 

against Torture and US law. Of course, information that affects national security 

or that is classified would have to be properly handled by the Committee. 

When the Committee obtains the President’s responses, or if it becomes clear that 

the White House will not comply with its requests, then the Committee can determine what further steps it needs to take. Those could include a report by the Committee to the House on the results of the inquiry, a decision to refer the matter to 

the next Congress, or even a vote of impeachment if the President stonewalls the 

Committee’s requests. 

The other options for checking executive abuses are less appealing. 

Censure for example is not a constitutional remedy. But even if censure is the 

course Congress takes, before it is adopted, the targets of any censure resolution 

should be given the opportunity to justify and explain their actions. The Congress 

must be seen to be both respectful and fair whether it acts in an impeachment inquiry or votes on censure. 

Some have advocated reforming statutes, and that may be useful. But, I want to 

emphasize to the Committee that presidents intent on putting themselves above the 

law will not obey a new statute any more than they would obey an old one. Statutes 

cannot constrain a president who will not be constrained. 

Criminal prosecutions alone are also not a sufficiently satisfactory answer to 

checking abuses of executive power. Leaving the treatment of these abuses to prosecutors to resolve is simply passing the buck. Congress must exercise its own powers to check the executive. Prosecutors vindicate criminal laws; it is only Congress 

that can vindicate the constitution against a president who abuses the power of his 

office. And some of the most serious abuses may not even be crimes, such as deceiving Congress and the public in connection with the war in Iraq. In the Nixon impeachment, one of the impeachment articles dealt with abuses of power, including 

the misuse of federal agencies and the creation of an enemies list of war opponents 

for the purpose of targeting harassing IRS audits against them. It is not clear that 

Nixon could have been prosecuted for many of those acts, but they were nevertheless among the articles of impeachment, and rightly so. 

That said, prosecutions may play some role in checking those abuses of executive 

power that are violations of the criminal law. The anti-Torture statute, for example, 

makes torture a federal crime and when death results there is no statute of limitations. This means that any Administration officials involved in authorizing or carrying out torture where death resulted could be liable to prosecution for the rest 

of their lives. 

The same was true of the War Crimes Act of 1996. That act had a lower standard 

of liability than the anti-Torture act and criminalized cruel and inhuman treatment 

of detainees. Similarly there was no statute of limitations for prosecutions under 

that Act if death resulted. Concerns about criminal prosecution under the War 

Crimes Act were pressing enough to be brought to the attention of President Bush 

by White House Counsel Alberto Gonzales in his memo to the President of January 

2002. To avoid those prosecutions, Mr. Gonzales recommended making the Geneva 

Conventions inapplicable to Al Qaida and Taliban detainees, a recommendation that 

was partially accepted. 

Thus, while certain Administration officials may argue that water boarding is not 

torture, there is little doubt that water boarding would meet the test of cruel and 

inhuman treatment and would likely violate the War Crimes Act as originally 

adopted. It may have been for that very reason that the Administration, in October 

2006, persuaded Congress, as part of the Military Commission Act, to make the War 

Crimes Act retroactively inoperative. But Congress could overturn that inoperability 

provision and restore the full operability of the Act. Allowing Administration officials to be held liable under the War Crimes Act would go far towards re-establishing respect for the rule of law among high Administration officials, both now and 

in the future. 

Even if Congress chooses the path of statutory reform and/or prosecution, those 

efforts, to be optimally well-informed and effective, would need to take into account 

the kind of disclosures that would be obtained through an impeachment inquiry because it operates outside the constraints of executive privilege. Administration actions on their face fully warrant such an inquiry. Once begun, the inquiry would 

both compel substantive disclosure by the Administration on critical issues and provide a constitutionally appropriate forum for full and civil discussion in which the 

Administration may answer the serious allegations raised. Neither of these things 

would be accomplished without an impeachment inquiry, and both are important to 

defending the constitution, upholding the rule of law and preventing abuses of 

power by future presidents. 

Thank you for your consideration of these views. 

81 

Mr. CONYERS. Congressman—or former Congressman Bob Barr 

came from Georgia, represented his state from 1995 to 2003. He 

was a senior Member on the Judiciary Committee and was vice 

Chairman of the Government Reform Committee. Since leaving the 

House, Congressman Barr has worked extensively on privacy 

issues with organizations like the American Conservative Union 

and the Harvard Kennedy School of Government. 

We are very pleased to have him here today. He is currently the 

2008 Libertarian nominee for President of the United States. 

Welcome back to the Judiciary Committee, Bob Barr. 

TESTIMONY OF THE HONORABLE BOB BARR, FORMER U.S. 

REPRESENTATIVE FROM GEORGIA AND 2008 LIBERTARIAN 

NOMINEE FOR PRESIDENT 

Mr. BARR. Thank you very much, Mr. Chairman. 

It is always a pleasure to come home to this great institution, the 

Congress, and of course this Committee. 

And I very much appreciate the Members here today represented 

by the sitting Ranking Member, Mr. King of Iowa. 

We have heard earlier today, I forget which Members in their 

opening statements, Mr. Chairman, alluded to various poll numbers regarding the Presidency and the Congress and so forth. But 

there was a study recently gauging the public’s awareness of and 

impression of something else that is even more important than political polls, and that is the privacy trust rankings of U.S. Government agencies which is put out annually by the nonpartisan 

Ponemon Institute. 

And very revealing, in this most recent 2008 survey, ranking at, 

not at the top of the list, where the U.S. Postal Service is, which 

might indicate to some the depth of the problem we have that the 

U.S. Postal Service is the most trusted institution in the Federal 

Government, but ranking near the bottom is the Department of 

Justice. Nearly four times as many Americans place their trust— 

would sooner place their trust in the U.S. Postal Service than the 

U.S. Department of Justice. That should concern all of us as Americans and certainly all Members of the Judiciary Committee, certainly, regardless of which side of the aisle they sit on and I think 

points to the very valid reason for the Chair convening this hearing 

today, which hopefully will be the first of many inquiring into and 

following on the earlier work of this Committee to get to the bottom 

of what appear to be certainly problematic uses of executive power 

that did great detriment, great harm to the fundamental institutions of our government, namely checks and balances and separation of powers. 

One does not need to impugn the reputation or the motives of 

any one President, whether the current President or any other 

President, to recognize the validity and importance of the matters 

before this Committee. As one of America’s greatest jurists, Justice 

Louis Brandeis said many years ago, and I quote, the greatest dangers to liberty lurk in the insidious encroachment by men of zeal, 

well meaning, but without understanding. 

It is up to this Committee to provide that understanding, to point 

out to the American people those instances, of which they are legion with the current Administration, in which, to be most chariVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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table, that understanding of the institution of liberty is sorely lacking. 

Most recently, two of America’s current jurists I think echoed in 

their own way in different contexts the sentiments of Justice Brandeis. For example, Supreme Court Justice Anthony Kennedy in a 

majority opinion, 5-4 majority opinion, regarding the value and 

place of habeas corpus as an underpinning, not just of our society 

but of Western Civilization itself, said, and I quote him, the laws 

and Constitution are designed to survive and remain in force in extraordinary times. Liberty and security can be reconciled, and in 

our system, they are reconciled within the framework of the law. 

And another of America’s current jurists, appointed by President 

Reagan to the D.C. Court, you can fight the war, quote, you can 

fight the war on terrorism and lose everything if you have no civil 

liberties left when you get through fighting the war. 

We have heard from some of the earlier members of the first 

panel and Members of this learned Committee on some of the specific instances of executive branch and separation-of-power abuses 

that we have witnessed with regard to the current Administration 

and in recent years. Some of these trends began before the current 

Administration but have been taken to new and unprecedented levels. And those are recounted to certainly a less eloquent extent 

than we have heard already in my written remarks, which I know 

the Chair will introduce into the record. But there are a number 

of specifics that I think need to be mentioned. 

We have heard reference to the secret OLC opinions, Office of 

Legal Counsel, by this Administration. Here, again, this is nothing 

new, but the degree and depth and secrecy of which I think is new 

and very, very troubling, again, as an activity that undermines respect for the rule of law, separation of powers, and the legitimate 

power of the Congress to conduct oversight of the executive branch. 

I quote just one, and we still don’t even know the extent of even 

this one memorandum from 2001 because it remains still classified, 

but this was a memorandum that indicated that, quote, the fourth 

amendment had no application to domestic military operations, 

close quote. I mean, what in the heck is the Administration talking 

about, first of all, about domestic military operations? And secondly, to display the audacity to declare that the fourth amendment does not reach and does not surround those operations, whatever they are, with the protections of the fourth amendment to our 

Constitution. 

That is the depth I think of the lack of understanding of the fundamental institutions of our government that have been displayed 

by and disdained by the current Administration at a level taking 

them far beyond those problems that we have seen in prior Administrations. This is not a problem with a particular President. It is 

not a problem with a particular Administration, although the degree to which these problems have manifested themselves with the 

current Administration is problematic. This is an institutional concern. 

For one thing, Mr. Chairman, every Administration in my view, 

and I think history bears this out, takes the power that it inherits 

from its predecessor and considers it a floor, not a ceiling. So if we 

don’t get a handle on this now in some form or fashion, the next 

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Administration and the one after that, regardless of party, will 

take these abuses, these powers, these liberties with the fundamental institutions of our government, and take them to even higher and higher levels. 

So I commend the Chair and the Members of this Committee for 

taking hold of something that could not possibly be more important, and that is the fundamental underpinnings of our constitutional system of government. 

I thank the Chair. 

[The prepared statement of Mr. Barr follows:] 

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PREPARED STATEMENT OF THE HONORABLE BOB BARR


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Mr. CONYERS. Thank you very much. 

I note that our former colleague to your right was nodding her 

head on occasion. 

The Chair is very happy to welcome the former Mayor of Salt 

Lake City, Utah, who had served as mayor from 2000 up until earlier this year. And after he left just recently, he founded an organization called the High Road For Human Rights, dedicated to facilitating grass roots advocacy on issues of torture, genocide, global 

warming, and human trafficking. He now serves as that organization’s president. He is known to many of us in the Congress. And 

we welcome him. 

TESTIMONY OF THE HONORABLE ROSS C. ‘‘ROCKY’’ ANDERSON, FOUNDER AND PRESIDENT, HIGH ROADS FOR HUMAN 

RIGHTS 

Mr. ANDERSON. Thank you, Mr. Chairman, Members of the Committee. 

I am honored to address you today, and along with millions of 

others, am pleased that you are considering your solemn responsibility to ascertain and disclose to the American people the nature 

and scope of egregious abuses of power by the Administration. 

Ascertaining and disclosing the truth about these matters is vital 

in order to restore the rule of law and the crucial role Congress 

plays in a system of checks and balances that has been utterly 

eviscerated. 

We still have no idea about the nature and scope of the Administration’s felonious, warrantless wiretapping program. We don’t 

know if dozens, thousands, or millions of Americans have been victims of the illegal spying initiative. How were those communications used? Were my communications intercepted? Were yours? We, 

the American People, are entitled to know. 

United States agents have illegally tortured detainees and have 

kidnapped, disappeared, and tortured, or caused others to torture, 

people around the world, including some like Maher Arar and 

Khalid al-Masri, who had no connection whatsoever to terrorism. 

However, the American people have not learned how this unprecedented, blatantly illegal program operated, whether it is continuing, or the consequences suffered by the people who have been 

subjected to these monstrous human rights abuses. Because the 

courts have blindly accepted the perpetrators’ indication of the 

frighteningly overbroad State Secrets Doctrine and summarily dismissed cases challenging these illegal human rights abusing practices, the American people will learn the truth only if Congress 

meets its responsibilities. 

The Administration has engaged in heinous human rights violations, the most serious breaches of trust, abuses of power injurious 

to the Nation, astounding denials of due process, including indefinite detention without charges or without even a hearing, war 

crimes, crimes against peace, misleading Congress and the American people about threats to our Nation’s security and the supposed 

case for war, and grave violations of treaties, the Constitution, and 

domestic statutory law. 

What are the potential remedies? First, there has never been a 

more compelling case for impeachment. Nothing would speak so 

99 

loudly regarding the principled, nonpartisan commitment of our 

Nation to the rule of law and to our jealous embrace of our constitutional democracy. 

I urge the consideration by Congress of Federal legislation that 

would instruct the courts they are not to consider signing statements when determining the meaning of legislation and provide 

that no one can rely upon signing statements or opinions of the Office of Legal Counsel as a defense for a violation of the law. 

I also urge Congress to seek a declaratory judgment as to the 

legal effect of the Administration’s signing statements. Some members of the Administration appear to be bent on attacking Iran. 

I urge Congress to reassert its vital constitutional role, and not 

just send letters of concern, not just make threats about initiating 

impeachment proceedings, but forbid, by a criminal statute with severe penalties, any attack against Iran, except as permitted under 

the United Nations Charters and the Constitution, absent explicit 

authorization by Congress. 

Special prosecutors should be authorized, designated and assigned to investigate and prosecute violations of the law by members of the Administration. 

Legislation strictly limiting the application of the state secrets 

doctrine should be urgently considered in order that the courts will 

once again provide a meaningful check on abuses of power and violations of the law by members of the executive branch. 

Severe punishment should be provided for any government agent 

who engages in or authorizes torture or cruel, inhuman or degrading treatment of any person being detained anywhere, without exception. 

Congress should make clear what process must be followed before any U.S. treaty obligations are violated or terminated by any 

member of the executive branch, and provide for sanctions in the 

event such process is not followed. 

Vital to our constitutional democracy and to our political and 

moral standing throughout the world is a comprehensive consideration by Congress of what is to be done for the sake of accountability, and to ensure that the horrendous damage to our Nation 

and to much of the rest of the world as a result of the illegal and 

abusive of misconduct of Administration officials—— 

Mr. KING. Mr. Chairman, the gentleman’s time has expired. 

Mr. ANDERSON [continuing]. Again repeated. 

If I could just sum up, the way to get to that accountability and 

deterrence is the appointment of a select Committee similar to the 

Church and Ervin committees or an independent commission 

charged with investigating the abuses and making recommendations concerning reforms—— 

Mr. KING. Mr. Chairman—— 

Mr. ANDERSON [continuing]. That would spell a recommitment to 

our fundamental democratic and moral principles. 

Thank you Mr. Chair. 

[The prepared statement of Mr. Anderson follows:] 

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PREPARED STATEMENT OF THE HONORABLE ROSS C. ‘‘ROCKY’’ ANDERSON


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Mr. CONYERS. Stephen Presser is Northwestern University Law 

School’s Raoul Berger Professor of Legal History. He has been before this Committee at least three times that I can remember, and 

I don’t know where else in the Congress he has appeared. He is a 

frequent commentator on issues of constitutional law, and we are 

proud to welcome him back to the Committee again. 

TESTIMONY OF STEPHEN PRESSER, RAOUL BERGER PROFESSOR OF LEGAL HISTORY, NORTHWESTERN UNIVERSITY 

SCHOOL OF LAW 

Mr. PRESSER. Thank you very much, Mr. Chairman. I appeared 

here in late 1998 to give my views on what constituted an impeachable offense, and I have been invited today to comment on whether 

some suggestions of misconduct by President Bush are acts that 

might appropriately result in impeachment proceedings. 

Impeachment should not simply be at the pleasure of the House 

and conviction at the pleasure of the Senate. There must be some 

standards. And for a President to be impeached, as Congressman 

Pence said earlier today, he must have committed some grave offense that is contrary to his oath to uphold the Constitution and 

laws of his country. He must put his interests above the Constitution and the laws. 

When I appeared here in 1998, I did so because it appeared to 

some Members of Congress that the allegations made against 

President Clinton suggested that over many months he had engaged in deception, lying under oath, concealing evidence, tampering with witnesses, and in general obstructing justice by seeking to prevent the proper functioning of the courts, the grand jury 

and the investigation of the Office of Independent Counsel. Those 

offenses, if they did occur, would clearly have been undertaken for 

personal reasons and to frustrate the workings of our system of justice. 

I have reviewed the allegations made against President Bush, 

but they seem different in character from those made against 

President Clinton, and let me try to hit the highlights here. 

First, the allegations against President Bush include the dismissal of United States attorneys for political purposes. Given, 

however, that Presidents have had complete discretion over the hiring and firing of U.S. attorneys, and given that there is no suggestion that President Bush sought to prosecute innocent defendants, 

I can’t believe that there any grounds for impeachment here. There 

does not seem to be any indication that the Justice Department 

was frustrated from doing its appointed tasks in order to serve the 

personal needs of the President. 

Second, I am unable to discern how the implementation of a particular view of the powers of the executive—the unitary executive 

theory amounts to a high crime or misdemeanor. There is no doubt 

that the Constitution does give considerable discretion to each 

branch of the government to determine for itself the reach of its 

own powers. As near as I can tell, this is what it meant by the theory of the unitary executive. 

In the course of fulfilling his executive responsibilities, particularly in a time of war or national crisis, the President needs the 

freedom to act effectively in the national interest. If a President in 

130 

good faith seeks to act in the national interest rather than in his 

own, his conduct is not impeachable. 

President Bush’s practice of signing statements accompanying 

placing his signature on legislation has also come in for some criticism today. Given that it seems, though, to be a practice followed 

by several Presidents, the practice should probably not be construed as an impeachable offense. A better solution suggested 

today is to pass legislation instructing judges, perhaps, to ignore 

signing statements or making other qualifications. 

In a third set of allegations regarding detention and investigations, what President Bush and his Administration have done in 

seeking to prevent another terrorist attack seems to have been undertaken in good faith, pursuant to the President’s understanding 

of his constitutional powers and with the close oversight of Congress, because Congress has exercised legislative direction in connection with judicial proceedings against enemy combatants, and 

because the courts have stepped in on several occasions to support 

or rebuff what the executive has done. This doesn’t seem to be an 

area of abuse that cries out for the impeachment remedy. 

Fourth, manipulation of intelligence and misuse of war powers. 

Here the concern seems to relate to the representations of weapons 

of mass destruction purportedly possessed by Iraq which later 

turned out not to exist in the quantities and qualities claimed. But 

here what the Bush administration claims to have done was what 

it believed was necessary in our national defense and that of our 

allies, such as Israel. Again, there appears to be no claim that the 

President abused his office for personal reasons that would call for 

his impeachment and removal. 

Improper retaliation against administrative critics and obstruction of justice. Obstruction of justice is an offense that was charged 

against President Clinton, and if there was evidence that the President had sought to obstruct justice, this might be a good impeachment charge, but I haven’t seen any evidence that, in fact, that occurred. 

Six, misuse of authority and denying Congress and the American 

people the ability to oversee and scrutinize conduct within the Administration. Misuse of authority is so general a term that it brings 

to mind the constitutional debate between Mason and Madison 

over whether malAdministration could be an impeachable offense. 

I am not sure this kind of misuse of authority is. 

My time is up, and I will just sum up by saying, Mr. Chairman, 

that impeachment is a radical remedy to be used only in the case 

of executive misconduct that demonstrates that the official has 

used his abuse for venal purposes. I have seen no evidence that 

that occurred. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Presser follows:] 

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PREPARED STATEMENT OF STEPHEN PRESSER


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Mr. CONYERS. Bruce Fein, a long-serving member of the Department of Justice where he served as Associate Deputy Attorney 

General under President Reagan. He has also been before the Congress and forums frequently, and he writes a good deal for a variety of publications. We welcome you here today. 

TESTIMONY OF BRUCE FEIN, ASSOCIATE DEPUTY ATTORNEY 

GENERAL, 1981–1982, AND CHAIRMAN, AMERICAN FREEDOM 

AGENDA 

Mr. FEIN. Thank you, Mr. Chairman and Members of Committee. 

In preparing my testimony, I had indulged the rash assumption 

that I was living under a republican form of government where titles of nobility were forbidden. And the idea of addressing the 

President as His Excellency or His Highness had been repudiated 

more than two centuries ago by our first President, George Washington. 

Much to my surprise on the eve of this hearing, I discovered that 

in certain official quarters there was an insistence on prohibiting 

pejorative references to President George W. Bush or Vice President Richard Cheney; for example, insinuating they he had committed high crimes or misdemeanors. So I puzzled over the dilemma, and then the answer came like an epiphany from Dragnet’s 

Sergeant Friday: I changed the names to protect the guilty. 

Mr. Chairman and Members of the Committee, if President 

George W. Bush had knocked to enter the Constitutional Convention in Philadelphia in 1787, the presiding officer, President George 

Washington, would have denied him admission, and thereby hangs 

an alarming tale. 

The executive branch has vandalized the Constitution every bit 

as much as the barbarians sacked Rome in 410 A.D. The executive 

branch has destroyed the Constitution’s time-honored checks and 

balances, taken the Nation perilously close to executive despotism. 

The executive branch rejects the basic philosophical tenets of the 

United States of America. It does not accept that America was conceived in liberty and dedicated to the proposition that sovereignty 

in a republican forum of government lies with the people, not with 

the executive; that there are no vassals or serfs in the Constitution’s landscape; that every man or women is a king or queen, but 

no one wears a crown; and that the rule of law is the Nation’s civic 

religion, and the Founding Fathers fashioned impeachment as a 

remedy for attacks against the constitutional order. 

And let me identify just three. The President’s claims of war 

power. What he has asserted in the aftermath of 9/11 is that every 

square inch of the world, including the United States, is an active 

battlefield, including where we are sitting at present, and that if 

he has a suspicion, maybe by his gut instinct or otherwise, there 

is al-Qaeda or an international terrorist anywhere, he can use military force, he can impose military law in order to wage war, in his 

view, successfully. He can invade Iran if he thinks that is necessary to succeed in the war against international terrorism irrespective of what this branch may do. 

Now, that truly is an alarming power. That means that we all 

have a sword of Damocles over our heads, because any time any 

President claims that he is fighting international terrorism, he can 

146 

kidnap, arrest, kill anyone he thinks is an international terrorist. 

There is no second-guessing him. He doesn’t go to court and ask 

for probable cause, because in wartime you shoot first and ask 

questions later. 

Now, it is true he hasn’t asserted that authority in the United 

States. He shot rockets in Yemen, Macedonia, elsewhere; not in the 

United States yet. But we shouldn’t have to wait until we have a 

coup before we take protective action. 

I recall in our own colonial history in 1766, after the British Parliament had repudiated the Stamp Act because we had protested 

no taxation without representation, they came back with a declaratory act saying, by the way, even though we withheld that tax now, 

we still have power to regulate you in any manner whatsoever, and 

that fueled the Declaration of Independence. The Founding Fathers 

didn’t say, oh, they haven’t asserted the authority yet; let us wait 

until the tyranny comes. 

Now, a second area relates to the rule of law. When the President says he is seeking to gather foreign intelligence, he can flout 

any restriction that this legislative body has placed in the gathering of foreign intelligence. That is what he did after 9/11. Open 

and notorious, he has confessed. He decided he would flout the Foreign Intelligence Surveillance Act, which placed limits, very modest 

ones, on the ability to gather foreign intelligence because of 40 

years of disclosed abuses by the Church Committee and other Committees of this Congress. 

He also claimed not only could he violate the Foreign Intelligence 

Surveillance Act, but any limitation, in his view—any limitation on 

his ability to gather foreign intelligence was unconstitutional. Thus 

you could kidnap, detain in secret prisons, in violation of limitations, saying, I am gathering foreign intelligence. He could open 

mail, he can burglarize homes, all in the name of gathering foreign 

intelligence, a frightening power, and he has not renounced that to 

this day. 

He has also asserted the right to shield what he has done from 

review and oversight by this body. And just to give an example, if 

you remember your history, and I know Liz does because she was 

here, like me, in Watergate, Watergate brought down President 

Nixon largely because a former White House counsel in the same 

position of Harriet Miers, who refused to show up before this Committee, related the Senate Watergate Committee Oval Office conversations he had with the President of the United States. His 

name was John Dean. And I remember very vividly the entire Nation, including you, Mr. Chairman, had you eyes riveted on his testimony. Oh, it would be wrong to pay off the burglars. And that 

was the reason why we restored the rule of law, because we had 

testimony about the Oval Office conversations, exactly the kind of 

privilege this President is asserting prevents this Congress from 

overseeing anything that this President might have done. 

Mr. KING. Mr. Chairman, the gentleman’s time has expired. 

Mr. FEIN. Let me just conclude, with deference to Congressman 

King, from a quote by Tacitus which I think explains the dilemma 

we confront now. As the Roman Republic degenerated into the 

Roman Empire and dictatorship, he said, the worst crimes were 

dared by few, practiced by more, but tolerated by all. 

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Thank you. 

[The prepared statement of Mr. Fein follows:] 

PREPARED STATEMENT OF BRUCE FEIN

Dear Mr. Chairman and Members of the Committee: 

If President George W. Bush had knocked to enter the constitutional convention 

in Philadelphia in 1787, presiding convention president George Washington would 

have denied him admission. Thereby hangs an alarming tale. The executive branch 

has vandalized the Constitution every bit as much the barbarians vandalized Rome 

in 410 A.D. The executive branch has destroyed the Constitution’s time-honored 

checks and balances and raced the nation perilously close to executive despotism. 

The executive branch rejects the basic philosophical tenets of the United States. It 

does not accept that America was conceived in liberty and dedicated to the proposition that sovereignty in a republican form of government lies with the people; that 

there are no vassals or serfs in the Constitution’s landscape; that every man or 

woman is a king or queen but no one wears a crown; and, that the rule of law is 

the nation’s civic religion. The Founding Fathers fashioned impeachment as a remedy for attacks against the constitutional order. 

I wish these words were hyperbole. But they are not. 

The Declaration of Independence posits that all men and women are endowed 

with certain unalienable rights, including life, liberty, and the pursuit of happiness. 

Those rights are not at the sufferance of the executive branch, of Platonic Guardians, or of any government whatsoever. 

The executive branch, however, has made our natural rights sport for its political 

ambitions and craving for power. After 9/11, the executive branch declared—with 

the endorsement or acquiescence of Congress and the American people—a state of 

permanent warfare with international terrorism, i.e., the war would not conclude 

until every actual or potential terrorist in the Milky Way were either killed or captured and the risk of an international terrorist incident had been reduced to zero. 

The executive branch further maintained without quarrel from Congress or the 

American people that since Osama bin Laden threatens to kill Americans at any 

time and in any location, the entire world, including all of the United States, is an 

active battlefield where military force and military law may be employed at the discretion of the executive branch. For instance, the executive branch claims authority 

to employ the military for aerial bombardment of cities in the United States if it 

believes that Al Qaeda sleeper cells and are nesting there and are hidden among 

civilians with the same certitude that the executive branch knew Saddam Hussein 

possessed weapons of mass destruction. The innocent civilian deaths occasioned by 

the bombings would be no more than regrettable collateral damage in the war 

against international terrorism. Just ask the bereaving Iraqis and Afghanis who 

witness indistinguishable collateral damage daily inflicted by the United States 

military. 

If the executive branch decided to place the nation under military rule, 

unalienable rights to life, liberty, and the pursuit of happiness would be eviscerated. 

Citizens could be arrested and searched at random. Homes could be destroyed without just compensation if the executive branch asserted that they could serve as hiding places for Al Qaeda. Trials for alleged crimes would be by military commissions 

denuded of fundamental due process protections, for example, the right to confront 

adverse evidence. 

It might be said in defense of the executive branch that it has not yet extended 

its claimed military power on a regular basis into the United States. The executive 

branch has directed United States forces to kill or kidnap persons it suspects have 

allegiance to Al Qaeda in foreign lands, for instance, Italy, Macedonia, or Yemen, 

but it has plucked only one United States resident, Ali Saleh Kahlah al-Marri, from 

his home for indefinite detention as a suspected enemy combatant. But if the executive branch’s constitutional justification for its modest actions is not rebuked 

through impeachment or otherwise, a precedent of executive power will have been 

established that will lie around like a loaded weapon ready for use by any incumbent who claims an urgent need. Moreover, the Founding Fathers understood that 

mere claims to unchecked power warranted stern responses. After the British Parliament repealed the 1765 Stamp Tax by the protesting American colonists waving 

the banner of ‘‘No Taxation Without Representation,’’ the Parliament responded 

with the Declaratory Act that insisted that it retained power to govern the colonies 

in all matters whatsoever irrespective of their absence of parliamentary representation. That theory of parliamentary omnipotence, simpliciter, awakened a colonial 

fury that culminated in the Declaration of Independence. The Constitution does not 

require Congress to await the executive branch’s actual imposition of martial law 

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and the indiscriminate use of military force in the United States against American 

citizens before exercising the impeachment power against Administration officials 

who are unworthy stewards of the Constitution. Moreover, the executive branch has 

buttressed its claimed military omnipotence with the unitary executive theory. It 

posits, contrary to centuries of constitutional law and the original intent of the 

Founding Fathers, that any power than can be characterized as executive is shielded from review, inquiry, or checking by any other branch. For example, the power 

to wage war is an executive power. According to the executive branch, that means 

that Congress is powerless to regulate how the Commander in Chief seeks to attain 

victory in Iraq by prohibiting torture, invasions of Iran or Syria, limiting troop levels or permanent military bases, or otherwise. 

The Declaration of Independence instructs that all just powers of government derive from the consent of the governed. And the core principle of self-government is 

that the people must know what their government is doing and why to intelligently 

adapt, shape, and direct their political loyalties or energies. James Madison, father 

of the Constitution, lectured that a people who mean to be their own governors must 

arm themselves with the power that knowledge gives. Democracy resting on popular 

or congressional ignorance is a farce. In addition, sunshine is the best disinfectant. 

The executive branch will be deterred from lawlessness, folly, or maladministration 

by the knowledge that its actions will be made known to the public or Congress in 

a timely fashion. The executive branch ceased authorizing torture once knowledge 

of the practice by the United States in the war against international terrorism entered the public domain. A strong presumption favoring transparency in the executive branch is a constitutional imperative. The presumption is at its zenith in matters of war and peace, as Supreme Court Justice Hugo Black underscored in the 

Pentagon Papers case concerning the Vietnam War; otherwise, the executive branch 

will otherwise concoct reasons for initiating or maintaining war and cause deaths 

to heroic American soldiers as senseless as the Charge of the Light Brigade. 

The Founding Fathers were virtually unanimous that if permitted to be cloaked 

with secrecy the executive branch would distort facts and deceive the people and 

Congress by inflating foreign dangers manifold to justify resort to military force or 

war. As was related to erstwhile White House Press Secretary Scott McClellan, only 

war holds the prospect of crowning a President with fame and leaving his footprints 

in the sand of time by transforming the political globe or major regions. War also 

boosts a President’s immediate popularity, heightens his control over information 

critical to his political fortunes, multiplies his opportunities to favor his political 

friends through appointments and government contracts, and justifies spying on war 

opponents as enemy combatants or potential traitors. 

The executive branch, however, has routinely invoked executive privilege to conceal what the executive branch is doing and why in both national security and domestic matters. The executive branch has employed secrecy to communicate a suboptimal level of candor to the American people and Congress about foreign dangers 

and purported justifications for war. James Iredell, later appointed by President 

George Washington to the United States Supreme Court, advised the North Carolina 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.’’ 

The executive branch deceived the American people and Congress by concealing 

material evidence discrediting the claim that Saddam Hussein possessed weapons 

of mass destruction or was in cahoots with Al Qaeda, chief justifications for invading Iraq in March 2003. The executive branch misled the American people and Congress about the true danger of international terrorism to elicit their endorsements 

for a state of permanent war. The House Judiciary Committee voted an article of 

impeachment against President Richard M. Nixon based in part on his deceit to the 

American people about a bogus internal investigation of the Watergate cover-up. 

The executive branch has invoked executive privilege to prevent Congress and the 

American people from knowing the prime features and the putative intelligence benefits of the Terrorist Surveillance Program undertaken in contravention of the Foreign Intelligence Surveillance Act of 1978, as amended. 

149 

On the domestic front, the executive branch has invoked the privilege to conceal 

from the American people and Congress Vice President Dick Cheney’s interview 

with special prosecutor Patrick Fitzgerald concerning the Valerie Wilson leak investigation. The privilege at its apex was never before thought to extend to vice presidential communications not intended for the president. 

The privilege has been invoked to prevent former White House aides Karl Rove 

and Harriet Meirs from even appearing before Congress regarding the firing of 

United States attorneys and possible obstruction of justice or perjury, and to prevent White House chief of staff Joshua Bolten from responding to document production requests from Congress concerning the same. The executive branch’s counterconstitutional theory of executive privilege is that the President can prevent any 

current or former executive branch official from appearing before Congress to testify 

about communications that were aimed to reach the President or emanated from the 

Oval Office. That would sound the death knell of congressional oversight and the 

public’s right to know what their government is doing and why. It would have permitted President Richard M. Nixon to muzzle former White House counsel John 

Dean from testifying about the Watergate cover-up before the Senate Watergate 

Committee by reciting Oval Office conversations whose disclosures engendered Nixon’s resignation. No decision of the United States Supreme Court has sustained a 

presidential privilege to deny information to Congress. Its assumption that executive officials will shortchange candid advice to the President absent an iron-clad 

guarantee of confidentiality is counterfactual. Every important presidential adviser 

operates on the assumption that what is said in the Oval Office might through leaks 

or waivers of privilege later appear in major media outlets. Thus, former CIA Director George Tenet writes in At the Center of the Storm: ‘‘[T]here are no private conversations, even in the Oval Office.’’ 

The executive branch maintains that it is endowed with constitutional authority 

to gather foreign intelligence in any manner the executive branch wishes in contravention of statutory restraints imposed by Congress. The Constitution, however, 

obligates the executive branch to faithfully to execute the laws, not to sabotage 

them. The executive branch operated the Terrorist Surveillance Program to target 

American citizens on American soil for warrantless electronic surveillance on the executive branch’s say so alone from 9/11/2007 in violation of FISA. The executive 

branch also claims power to torture, kidnap, open mail, or burglarize in violation 

of congressional limitations in the name of collecting foreign intelligence. The multiple victims of executive branch’s authorization of torture, including waterboarding, 

are documented in Jane Mayer’s recent book The Dark Side. The executive branch’s 

lawlessness made the nation less safe by deterring expert FBI agents from participating in key interrogations to avoid complicity in crime and alienating foreign allies like Italy whose sovereignty was violated by a CIA-orchestrated kidnapping of 

Egyptian cleric Abu Omar. 

An American Bar Association Task Force on which I served issued a report delineating the constitutional evils of signing statements that I need not amplify at this 

time. It is another example of the executive branch’s usurpation of legislative powers and scorn for the rule of law. 

In Federalist 65, Alexander Hamilton explained that impeachments would proceed 

‘‘from the misconduct of public men, or, in other words, from abuse of violation of 

some public trust. They are of a nature which may with peculiar propriety be dominated POLITICAL, as they relate chiefly to injuries done to society itself.’’ There is 

no more important task for this Committee than restoring the constitutional equilibrium among the three branches that the Founding Fathers fashioned based on 

their unsurpassed insight into human nature and the inexorable degeneration of unchecked power into tyranny. 

Mr. CONYERS. We are pleased to welcome Vincent Bugliosi, who 

has authored several timely books. I think this is his latest one, 

The Prosecution of George W. Bush for Murder. And he, of course, 

is a well-known former Los Angeles County deputy district attorney remembered for his prosecution of Charles Manson in 1970. He 

has still been very active, and we welcome his appearance before 

the Committee today. 

150 

TESTIMONY OF VINCENT BUGLIOSI, AUTHOR AND FORMER 

LOS ANGELES COUNTY PROSECUTOR 

Mr. BUGLIOSI. Mr. Chairman, and Members of the Committee. I 

have been told that the rules of this House dictate that although 

I can quote what President George Bush said, I am forbidden from 

accusing him of a crime or even any dishonorable conduct, only 

being allowed to use the words ‘‘Bush administration’’ or ‘‘administration officials.’’ This will not make for the best of articulations, 

but I will do the best that I can. 

In my book here, The Prosecution of George W. Bush for Murder, 

I present evidence that proves beyond all reasonable doubt that 

Bush administration officials took this Nation to war in Iraq on a 

lie, under false pretenses, and, therefore, under the law, they are 

guilty of murder for the deaths of over 4,000 young American soldiers who have died so far in Iraq fighting their war. And let us 

not forget the over 100,000 innocent Iraqi men, women, children 

and babies who have died horrible, violent deaths because of this 

war. 

I am fully aware that the charge I have just made is a very serious one, but let me say that at this stage of my career, I don’t have 

time for fanciful reveries. I never in a million years would propose 

a murder prosecution of Bush administration officials if I didn’t believe there was more than enough evidence to convict them and 

that I was standing on strong legal ground. 

What is some of that evidence? Because of time constraints, I am 

only going to mention one piece of evidence today. I have documentary evidence that when George Bush told the Nation on the 

evening of October 7, 2002, that Saddam Hussein was an imminent 

threat to the security of this country, he was telling millions of 

unsuspecting Americans the exact opposite of what his own CIA 

had told Administration officials just 6 days earlier in a classified 

report on October the 1st, that Hussein was not an imminent 

threat. 

But it gets worse. On October 4th, the Bush administration put 

out an unclassified summary version of the classified report so they 

could give it to Congress and the American people, and this unclassified version came to be known as the White Paper. And in this 

White Paper, which I have in front of me, the conclusion of U.S. 

intelligence that Saddam Hussein was not an imminent threat to 

the security of this country was completely deleted. Every single 

one of these all-important words was taken out. So Congress and 

the American people never saw any of this. 

Since we are talking about a matter of war and peace with the 

safety and lives of millions of human beings at that time hanging 

in the balance, and with Congress about to vote in 1 week on 

whether or not it should authorize George Bush to go to war in 

Iraq, what could possibly be worse, I repeat, what could possibly 

be worse or more criminal than the Bush administration deliberately keeping this all-important conclusion from Congress and 

the American people? 

The terrible reality is that the Bush administration has gotten 

away with thousands upon thousands of murders. And we, America, the American people, cannot let them do this. 

151 

During the question-and-answer period, if requested, I will give 

you words from George Bush’s own mouth that I believe will prove 

shocking to most of you folks in this Chamber. 

On December 9th, 1998, a previous House Judiciary Committee 

issued four articles of impeachment against President Bill Clinton 

for doing something infinitely less significant than what the evidence shows the Bush administration did in this case. Indeed, it is 

a calumny, a slander of the highest rank to even talk about them 

in the same breath or on the same page. If a House Judiciary Committee could recommend that President Clinton be impeached for 

what he did, as they say in the law, a fortiori, all the more so, with 

all the highly incriminating evidence that I set forth in my book, 

much of it documentary, you shouldn’t have any difficulty making 

a criminal referral to the Department of Justice to commence a 

criminal investigation of the Bush administration to determine 

whether first degree murder charges should be brought against certain members of this Administration, and I hereby strongly urge 

you to do so. 

Whether Republican or Democrat, all Americans should be absolutely outraged over what the Bush administration has done. How 

dare they do what they did? How dare they? 

This will take a half minute or so to wrap it up. 

Mr. SMITH. I am sorry, have to interrupt you. I am going to ask 

the Chairman to make—— 

Mr. CONYERS. I admonish the—— 

Mr. SMITH [continuing]. A comment or clear the room. 

Mr. BUGLIOSI. May I wrap this up this right here? 

Mr. SMITH. Just a minute please. I am asking the Chairman a 

question. 

A few minutes ago you said you would clear the room if there 

was an outburst, and I think there has clearly been an outburst. 

I leave it up to your discretion. 

Mr. CONYERS. I am not going to clear the room, but I would ask 

the guests here at the hearing to not give any indication of approval or disapproval of any of the statements being made by the 

witnesses. 

Mr. BUGLIOSI. Directly because of this Administration’s war, 

there are well over 100,000 precious human beings in their cold 

graves right now as I am talking to you. Speaking metaphorically, 

I want you to hear, as I do, their cries for justice. I say that it 

would greatly dishonor those in their graves who paid the ultimate 

price because of this war were you not to refer this case to the Department of Justice. 

If we want this Nation to become the great Nation it once was, 

widely respected around the world, we can hardly do this if we 

don’t take the first step of bringing those responsible for the war 

in Iraq to justice. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Bugliosi follows:] 

PREPARED STATEMENT OF VINCENT BUGLIOSI

Within the pages of my book, The Prosecution Of George W. Bush For Murder, 

I present evidence that proves, beyond a reasonable doubt, that Bush administration 

officials took this nation to war in Iraq under false pretenses, and therefore, under 

the law, they are guilty of murder for the deaths of over 4,000 young American solVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00157 Fmt 6633 Sfmt 6621 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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diers who have died so far in Iraq fighting their war. And let’s not forget the over 

100,000 innocent Iraqi men, women, children and babies who have died horrible, 

violent deaths because of their war. 

I am fully aware that the charge I have just made is an extremely serious one. 

But let me tell you that at this stage of my career I don’t have time for fanciful 

reveries. I never in a million years would propose this prosecution if I didn’t believe 

there was more than enough evidence to convict administration officials and that 

I was standing on strong, legal ground. 

What is some of that evidence? Although there is much other evidence in my 

book, because of the press of time, I am only going to mention one piece of evidence 

in this paper. I have documentary evidence that when George Bush told the nation 

on the evening of October 7, 2002, that Saddam Hussein was a ‘‘great danger’’ to 

America who might give his weapons of mass destruction to a terrorist group ‘‘on 

any given day’’ to attack us (meaning, the threat was imminent), he was telling millions of unsuspecting Americans the exact opposite of what his own CIA had told 

administration officials just six days earlier, in a classified report on October 1, that 

Hussein was not an imminent threat. 

But it gets worse. On October 4, the Bush administration put out an unclassified, 

summary version of the classified report so they could give it to Congress and the 

American people. This unclassified version, as you know, came to be known as the 

White Paper. And in this White Paper, the conclusion of U.S. Intelligence that Hussein would only be likely to attack us if he feared we were about to attack him was 

completely deleted. So Congress and the American people never saw any of this. 

Since we’re talking about a matter of war and peace, with the safety and lives of 

millions of human beings hanging in the balance, and with Congress about to vote 

in one week on whether it should authorize President Bush to go to war, what could 

be worse than administration officials keeping this all-important conclusion from 

Congress and the American people? 

Directly because of this administration’s war, there are well over 100,000 precious 

human beings who are in their cold graves, right now, as I am writing these words. 

Speaking metaphorically, I want Congress to hear, as I do, their cries for justice. 

If we want this nation to become the great nation it once was, widely respected 

around the world, we can hardly do this if we don’t take the first step of bringing 

those responsible for the terrible war in Iraq to justice. I would ask the House Judiciary Committee to take whatever measures that are available to them to further 

this objective. 

Mr. CONYERS. Our next witness is—excuse me, our next witness 

is Professor Rabkin, Jeremy Rabkin, professor at George Mason 

University School of Law. Additionally, he taught at Cornell University for over 25 years, is a renowned scholar in international 

law, and was recently confirmed by the United States Senate as a 

member of the Board of Directors of the United States Institute of 

Peace. 

Welcome, Jeremy Rabkin, and we await your testimony. 

TESTIMONY OF JEREMY A. RABKIN, PROFESSOR OF LAW, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW 

Mr. RABKIN. Thank you. I see that a lot of people are very angry 

at the Bush administration. I am not here particularly to defend 

the Bush administration, but I was asked by the Minority. 

I hope I can add a little bit of perspective to this. I think the 

number of previous people testifying have suggested not just that 

the war in Iraq was a mistake, but that there was some kind of 

conspiracy to take the Nation into a war for no good reason at all, 

and that this was done knowingly. 

People who believe that, it seems to me, shouldn’t be wasting 

time on FISA. They shouldn’t be wasting time on secondary issues. 

That is an extraordinary, explosive charge if you think it is really 

true that the President knowingly and deliberately sent the country into a war for reasons which he knew were untrue. We should 

just zero right in on that charge and have a debate about that. 

153 

I don’t know that charge is true. I think it is wildly improbable. 

But that is what we should be talking about. It doesn’t make it 

more credible to say, ‘‘I believe these wild conspiracy charges because the President has abused signing statements and I don’t like 

that. Also there is some dispute about the interpretation of the Geneva Convention; I don’t like that.’’ All these other secondary 

things don’t add credibility to the main sensational, explosive 

charge. 

What I want to do is just remind people in looking at the secondary charges that these sorts of disputes are not unique to this 

Administration. They are nothing new. Let us just remind ourselves, with all the talk about surveillance, that in previous wars, 

right at the beginning and indeed in the Second World War, before 

the beginning, the President authorized the Attorney General, to 

engage in open-ended wiretapping. 

Congresswoman Holtzman mentioned abuses that led up to the 

enactment of FISA in 1978. Right, surveillance activities go back 

decades. This has been a thing that happens frequently in wartime. 

Chief Justice Rehnquist wrote a book—not in defense of the Bush 

administration, he wrote it in the 1990’s—about civil liberties and 

wartime. He tells the story about the dispute within the government about putting more than 100,000 people behind barbed wire, 

Japanese Americans, and he quotes the saying of the Attorney 

General at the time, Francis Biddle, who told the President, this 

is a problem, we shouldn’t be doing this. And Biddle said afterwards, ‘‘I do not think the constitutional difficulty plagued him— 

plagued President Roosevelt. The Constitution has not greatly 

bothered any wartime President.’’ 

Chief Justice Rehnquist was so impressed by those words that he 

not only quoted them in the section of his book about World War 

II, he quotes them in the last two pages of the book at the conclusion: Wartime Presidents don’t take great care about the Constitution; wartime presidents take great care to defend the country because they think that is what they will be judged on. And Chief 

Justice Rehnquist wasn’t making that point in criticism; he was 

making that point, I think, as a former Assistant Attorney General 

for Legal Counsel. He knew this is what Presidents do. 

All I am saying is, keep in mind the context of all the things that 

are being charged against the Bush administration. They thought 

they were acting in wartime. We are now looking back on it 7 years 

later, there hasn’t been another attack, so we now think, ‘‘Oh, really there was no good reason for this.’’ But people had no reason to 

be self-confident as we are now that there wasn’t really much of 

a terror threat. If you keep that in mind, it is much more understandable how people of good faith and sincerity could do things 

which in retrospect we think maybe were excessive and should be 

looked into. 

I just want to say one last thing before I finish, which is, we 

should remind ourselves that we are not looking at this now as historians. There is very deep ideological division in the country, or 

just partisan division in the country. I have to tell you, coming to 

this hearing, the first time I have been in a hearing in quite a few 

years, I am really astonished at the mood in this room. I mean. 

The tone of these deliberations, I think, is somewhat demented. I 

154 

am not saying this to criticize people, I am just saying you should 

all remind yourselves that the rest of the country is not necessarily 

in this same bubble in which people here think it is reasonable to 

describe the President as if he were Caligula. 

We have reasonable differences. We ought to be able to pursue 

those differences without reaching for the most extreme interpretation and the most sensational way of viewing what has happened. 

If the Congress thinks there are things that need to be fixed, you 

have a legislative process. I think to put everything onto the ‘‘somebody must pay for mistakes, and impeachment is the way’’ is to 

make the country ungovernable, because each time you start cranking up this kind of extreme response, it just encourages people on 

the other side to get their backs up and feel, yes, they are our enemies. Our enemies are not Democrats or Republicans, our enemies 

are terrorists abroad who want to kill us. 

Thank you. 

[The prepared statement of Mr. Rabkin follows:] 

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PREPARED STATEMENT OF JEREMY A. RABKIN


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Mr. CONYERS. We have the pleasure of welcoming Frederick 

Schwarz, senior counsel at the very well-known Brennan Center in 

New York. Before heading that up, he was a partner at Cravath, 

et al. He was also once chief counsel to the Senate select committee 

to study governmental operations with respect to intelligence activity, and he chaired the commission that revised New York City’s 

charter. 

We welcome you this afternoon to our proceedings. 

TESTIMONY OF FREDERICK A.O. SCHWARZ, JR., SENIOR COUNSEL, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF 

LAW 

Mr. SCHWARZ. Thank you very much, Mr. Chairman. That Committee was known as the Church Committee, which several of the 

other witnesses have made reference to. 

I have covered details of what is going wrong elsewhere in my 

written testimony and in my book, Unchecked and Unbalanced. I 

would just like to summarize what I think is the most—largest 

problem, which is that in our efforts to protect ourselves, we have 

made the mistake of adopting tactics of the enemy. 

The most important mistake has been with respect to torture. 

And waterboarding, by the way, we prosecuted Japanese soldiers 

for using it against Americans. And we have abandoned the rule 

of law and slipped away from checks and balances, and those all 

have created a serious constitutional problem. 

The Vice President 20 years ago said we should have monarchical powers for the Presidency, and I believe that is his view 

today. The consequence of what we have done is that America has 

been made not only less free, but also less safe. And just to illustrate that with some examples, by abandoning our values and 

choosing instead to adopt some tactics of our vicious enemies, we 

have given enemy recruiters powerful tools to stir up passions in 

the Muslim world. Those tactics have also undermined necessary 

cooperation from our closest allies. Colin Powell said in a letter to 

John McCain just 2 years ago, the world is beginning to doubt the 

moral basis of our fight against terrorism, and that is a terrible 

loss. 

After the rush of support and emotional bonding with America 

immediately after 9/11, we are met with disappointment, caution 

and resistance from even our closest allies. For example, the British now refuse to cooperate with us on lots of intelligence matters 

because they fear they will be used in rendition. 

Now the full story needs to be told, and the full story of the consequences of what has been done needs to be told. I recommend, 

therefore, something different than what is being heard today. I 

recommend that the Congress and the new President sign a bill 

that sets up an independent, nonpartisan and bipartisan investigatory commission that will look at what has been done wrong, look 

at what has been done right, and recommend remedies for things 

that have been done wrong. 

I don’t recommended impeachment, because I believe it is too 

late; that could have been considered earlier. I think it is too late 

now, and the timing now would make it not only impossible to have 

a mature and responsible and detailed investigation, but the timing 

161 

would also make such an investigation more partisan than it ought 

to be. 

We need to know from an investigation the full truth so we do 

not repeat mistakes. We need to know the full truth to produce accountability for those that have committed wrongdoing. And we 

need to know the full truth because to produce the truth begins to 

restore America’s moral luster, which is a great part of our 

strength. 

Now, you could say that putting out the full truth will embarrass 

the country. That has been said before. It might embarrass people, 

but the great strength of America is to remain a people who confront our mistakes and resolve not to repeat them. If we do not do 

that, we will decline, but if we do confront our mistakes, our future 

will be worthy of the best of our past. 

Now let me just conclude with these thoughts. The first thing is 

we must remember that the conduct that has undermined our values and zapped our strength arose in the context of seeking to protect the country from further attacks. But as Justice Louis Brandeis warned in a somewhat different context, at times the greatest 

dangers to liberty lurk in insidious encroachment by men of zeal, 

well-meaning, but without understanding. These issues transcend 

partisanship. They are far more important than the controversies 

that divide us. Indeed, to fully understand these issues should 

bring all Americans together. The development of novel and erroneous constitutional theories has, in my view, led to conduct that 

is contrary to American values, and that has actually made us less 

safe. 

Now, again, there are some words that the Church Committee 

uttered 30 years ago—32 years ago that are no less true today than 

they were three decades ago. The United States must not adopt the 

tactics of the enemy. Means are as important as ends. Crisis always makes it tempting to ignore the wise restraints that make us 

free, but each time we do so, each time the means we use are 

wrong, our inner strength, the strength which makes us free, is 

lessened. 

Now, I believe that with a sober investigation into what has been 

done, both what has gone wrong and what has gone right, we can 

actually bring our country together, and that we can show that, 

when properly respected, our constitutional structure and our core 

fundamental values can, as they have for so many years, provide 

the people of this country and of the world the hope for a better, 

fuller, fairer life. 

Thank you. 

[The prepared statement of Mr. Schwarz follows:] 

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Mr. CONYERS. Finally we have Elliott Adams, national president 

of Veterans for Peace, of which I am a proud member. Mr. Adams 

has served in the Army as a paratrooper in Vietnam, Japan and 

Korea. He has been a mayor, a president of his school board, and 

president of Rotary Club. 

Welcome to the Judiciary Committee. 

TESTIMONY OF ELLIOTT ADAMS, PRESIDENT OF THE BOARD, 

VETERANS FOR PEACE 

Mr. ADAMS. Thank you, Mr. Chairman. It is a pleasure to be 

here. 

Upon leaving the Constitutional Congress in—Convention in 

1787, Ben Franklin was asked, well, Doctor, what have we, a republic or a monarchy? Dr. Franklin reapplied, a republic, if you can 

keep it. 

Honorable representatives, that single sentence sums up the essence of what we are here today for, if we can keep it. In the 

Armed Forces we took an oath, the same oath Congressmen take 

to support and defend the Constitution of the United States against 

all enemies, foreign and domestic. Now as veterans we still take 

that oath seriously. Some of us are gray-haired, long of tooth, but 

are here on the Hill still defending that Constitution. 

Briefly, Veterans for Peace have members from every war this 

country has fought since the World War II. We are 23 years old, 

we have 120 chapters, an NGO seat at the U.N. We have a small 

part of the 1997 Nobel Peace Prize. We provide 85,000 Iraqis with 

drinking water, 57,000 free phone cards and 148 veterans hospitals. We work on Agent Orange victims, both U.S. veterans and 

Vietnam citizens. We support schools and orphanages in Vietnam 

and Afghanistan. We have bought body armor for our soldiers in 

Iraq because the U.S. Government could not provide them with the 

proper equipment. We work deeply in Central America working for 

democracy and free elections. 

With all this work, many of our members have set aside that 

work for what de deemed be more important in defending the very 

democracy of this country by working for impeachment. There can 

be no question whether criminal offenses have been committed by 

members of this Administration. The only question now is what, if 

anything, each Member of Congress will do about it. 

This is not about impeaching a few Administration officials. This 

is about maintaining the structure of our government. All future 

Presidents of both parties will start their Presidency where this 

one leaves off. For Congress to continue to allow the usurpation of 

power and the flaunting of violations of the Constitution to go unanswered is in itself a violation of the law. 

While there is no need to enumerate the long list of impeachable 

offenses committed by officials of this Administration, I cannot escape the visceral pain and indignation that we who served our 

country in combat feel when we find our own government 

condoning and/or committing war crimes and/or crimes against humanity. 

It is appalling as a veteran to hear a discussion that justifies any 

form of torture. In the Army we were taught not to torture not only 

because it was illegal, but because, and especially because, it ruins 

172 

the integrity of the intelligence you gather. Simply put, any victim 

of torture will eventually say whatever their torturer wants them 

to say. 

For us veterans when our time came, we volunteered our very 

lives for this Republic. Now, Congressmen, it is your time, yet I 

hear there is not enough time. Yet I hear, oh, it will hurt one party 

or another party. Or I hear there is not enough of a political will. 

Gentlemen, when our Founding Fathers signed the Declaration of 

Independence, they were not worried about political will or about 

how much time there was or what parties might affect their political future. They were just worried that they were to get hanged 

by the neck. Yet they did the right thing. Now, gentlemen, it is 

your time to stand up. 

And let me close with Einstein’s statement: The world is a dangerous place not because of those who do evil, but because of those 

who look on and do nothing. 

Thank you. 

[The prepared statement of Mr. Adams follows:] 

PREPARED STATEMENT OF ELLIOTT ADAMS

Upon leaving the Constitutional Convention of 1787— 

Ben Franklin was asked: ‘‘Well, Doctor, what have we got—a Republic or a Monarchy?’’ 

Dr. Franklin replied: ‘‘A Republic, if you can keep it.’’ 

Ladies and Gentlemen in that a sentence is the essence of what this hearing is 

about today—‘‘if you can keep it.’’ Right now hanging in the balance, in one pan is 

our republic and all the principles that made the United State a shining beacon of 

freedom around the world and in the other pan is a totalitarian state and all the 

despotism that it brings. 

In the armed forces we took an oath, the same oath congressmen take, ‘‘to support 

and defend the Constitution of the United States against all enemies, foreign and 

domestic.’’ Now as veterans we still take oath very seriously. Which is why we are 

here on the Hill some of us gray haired and getting long in the tooth, but still defending the Constitution. 

Veterans For Peace is comprised of veterans from every war our country has 

fought back to and including World War II. VFP has a long history of important 

work. VFP is 23 years old, has over 120 chapters spread around the country, has 

an NGO seat in the UN, and a small share in the 1997 Nobel Peace Prize. Our 

members help 85,000 Iraqis get safe drinking water, gave 54,000 free phone cards 

to patients in 148 VA hospitals, help Agent Orange victims both US soldiers and 

Vietnamese civilians, aided Hurricane Katrina victims, supports schools and orphanages in Afghanistan & Vietnam, have worked extensively in Central American 

for freedom and fair elections, bought appropriate body armor for soldiers in Iraq 

when the government could not supply it, and organized blood drives. 

But many of our members have set aside all these other important works to defend our democracy by calling for impeachment. 

There can be no question about whether criminal offenses have been committed 

by officials of this administration. The only question now is, what, if anything, you 

ladies and gentlemen are going to do about it. 

There are those who say, ‘‘oh heck, there are only a few months left, just let them 

finish their terms, and then we can get on with our lives like waking from a bad 

dream.’’ But we cannot afford that luxury. This is not about impeaching a few administration officials. This is about maintaining the structure of our government. 

This is about protecting the Geneva Conventions, the Nuremberg Principles, and the 

Law of Land Warfare. This is about defending the rights and freedoms of the US 

citizens. 

This brings to mind the words of Ben Franklin ‘‘Any society that would give up 

a little liberty to gain a little security will deserve neither and lose both.’’ 

The officials of this administration have usurped power from congress, stolen the 

rights of the people, and by ignoring it Congress reinforces it and joins it. All future 

presidents of both parties will start where this presidency leaves off. For Congress 

to continue to allow the usurpation of power and the flagrant violations of the Constitution to go unanswered is in itself be a violation of law. 

173 

While there is no need for re-enumerating the long lists of impeachable offenses 

committed by officials of this administration, I can not escape the visceral pain and 

indignation that we, who served our country in combat, feel when we find our own 

government condoning and/or committing war crimes and/or crimes against humanity. 

I cannot believe that members of our government are trying to obscure and distort 

what is torture and what is not torture. What is human has not changed in the past 

8 years. What is torture has not changed in the past 8 year. The saddest thing to 

me about torture discussion is that it obscures the central point that, except in the 

movies, torture does not work. We were taught do not torture, not only because it 

is illegal, but especially because it ruins the integrity of the information you gather. 

Simply put, any victim of torture will eventually just try to say what ever it is the 

torturer wants them to say. Put another way it is the very power of torture that 

keeps it from giving us the truth. 

As Congressmen you have available to you some of the greatest constitutional 

minds. But I learned in war that sometimes too much information can make it hard 

to see the essence. With your permission I will highlight a few salient points. 

Without impeachment, requests and subpoenas and contempt citations are ignored (Congress has been mocked by an administration that has repeated ignored 

its subpoenas with impunity). 

With impeachment, witnesses are freer to speak, ‘‘executive privilege’’ is gone, and 

subpoenas must be complied with. 

The Constitution discusses impeachment in six places and never once mentions 

other remedies like censure, criminal referrals, legislative ‘‘solutions’’, or even prosecution (except to indicate it can occur separate from impeachment). The drafters 

of the constitution incorporated impeachment as the simple and proper process for 

dealing with all high crimes and even misdemeanors. 

Without impeachment there looms the specter of an audacious broad sweeping 

self-serving pardon, even one that includes, a constitutionally dubious, but not explicitly forbidden, self-pardon! Which would further erode Congress’ place in the balance of power rendering it virtually irrelevant. The only thing a president cannot 

pardon is an impeachment and a conviction in the Senate. But once removed from 

office, he can pardon nobody of anything. 

For us veterans, when our time came, we volunteered our very lives for this republic; for the principle of freedom for all, for equal opportunity for all, to defend 

the Constitution and the principles embodied in the Declaration of Independence, 

to guarantee the opportunity for life, liberty, and the pursuit of happiness. Now it 

is your time, and I hear there is not enough time! Now is your time, and I hear 

it will not be good for one party or the other party! Now is your time, and I hear 

there is not enough political will around you! 

When our founding fathers signed the Declaration of Independence they were not 

worried about political will, how much time there was, or about any parties’ political 

future, they were just worried they were going to be hanged by the neck. But they 

did what was right. Now it is your time 

Einstein said—‘‘The world is a dangerous place, not because of those who do evil, 

but because of those who look on and do nothing.’’ 

Mr. CONYERS. I thank you all, and I am going to ask each one 

of you—no. I am going to ask each one of you to just make a brief 

observation about what you have heard your fellow panelists comment on that you might want to make a remark about, or anything 

else you would like to add to your own testimony. We will begin 

with Congresswoman Elizabeth Holtzman. 

Ms. HOLTZMAN. Thank you, Mr. Chairman. I will try to be brief. 

Sorry, I do have a copy—for other Members of the Committee 

who want more depth, I do recommend my book on the subject 

called The Impeachment of George W. Bush. It is a little bit out 

of date, but it has got a lot of information in it. 

I think the question for this Committee is what is to be done now 

and what can be done now. Prosecution is unrealistic. The Administration will never prosecute itself. Truth commissions, the Administration will stonewall them as they have so many Committees of 

Congress. So what is the realistic remedy? 

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The only remedy, and that is the one the Framers gave to the 

Congress of the United States, the House and the Senate, is the 

remedy of impeachment, because no one can interfere with it. The 

critically important thing about impeachment is that there is no 

executive privilege in impeachment. That becomes an impeachable 

offense. You ask the President to tell you what he knew and when 

he knew it. You ask the President or the Vice President to give you 

the contents of the FBI statement; they don’t do that, that becomes 

an impeachable offense. You can ask them to provide the information under oath. 

You may not be able to finish the task, but you certainly can 

start the task, which will send an important signal not just to this 

President, but to future Presidents, because I completely agree 

with Congressman Barr that this can only be a floor, and God help 

us if that is the case—I mean for the country, the Constitution and 

our democracy. 

Mr. CONYERS. Congressman Bob Barr. 

Mr. BARR. Thank you again, Mr. Chairman. 

Many years ago some of us older folks like yourself and myself 

recall we had a nuclear clock that would count down how close we 

were to nuclear Armageddon. And then back in the 1990’s, I recall 

the national debt clock that would count up the amount over time 

of the national debt. 

Mr. Chairman, what we are facing now is a constitutional clock, 

and it is counting down what remains of the Constitution of this 

great land. If I might ask to be introduced into the record the disappearing Bill of Rights. This is the Bill of Rights that we, as the 

Members of the Judiciary Committee, know it as adopted in 1791. 

This is what it is fast becoming. And I quote, ‘‘the right of the people to be secure in their persons, houses, papers and effects shall 

be delegated to the United States.’’ If I might introduce that into 

the record. 

Mr. CONYERS. Without objection, so ordered into the record. 

[The information referred to follows:] 

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Mr. BARR. We have heard, even though this is not, as the Chairman correctly points out, an impeachment inquiry, this Committee 

has the awesome responsibility to decide whether or not at some 

point in time to conduct such a momentous inquiry. It is not a responsibility of myself, now as a private citizen. But if, in fact, the 

decision before this Committee and the American people is constitutional inquiry or constitutional silence, then by God I choose 

constitutional inquiry. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Mayor Rocky Anderson. 

Mr. ANDERSON. Thank you very much. 

Representative Pence and Professor Presser made a comment 

upon which all of the rest of their following comments was based; 

that is, that impeachment is to be limited only to those instances 

where the person being impeached exercised his or her own personal interest above that of the Nation. That is atrocious scholarship. It does not reflect what has happened in history. It does not 

reflect what the Founders had to say or the comments made during 

the ratification convention regarding impeachment. 

Ed Firmage, who is coauthor of To Chain the Dog of War, still 

the seminal book on the war powers, wrote an article in 1973, a 

Law Review article, about substantive law of impeachment. There 

he noted that clearly charges of constitutional violations—and here 

there certainly have been many discussed—and gross abuses of 

power for illegitimate purposes should be included as impeachable 

offenses regardless of the offender’s office. 

And then Professor Firmage goes on to cite this Committee, the 

Judiciary Committee, a statement in 1926 where the Judiciary 

Committee noted that the better sustained and modern view is that 

the provision for impeachment in the Constitution applies not only 

to high crimes and misdemeanors as those words were understood 

at common law, but also acts which are not defined as criminal and 

made subject to indictment, but also to those which affect the public welfare. Thus an official may be impeached for offenses of a political character and for gross betrayal of public interest; also for 

abuses of betrayal of trust, for inexcusable negligence of duty, for 

the tyrannical abuse of power, or, as one writer puts it, for a 

breach of official duties. That has been established beyond any 

doubt. 

And I would add just one thing in terms of the misrepresentations. I would say fraud committed by—we can’t name anybody by 

name here, so I would say by the Administration or a high-ranking 

official of the Administration, and that is when this Congress and 

the American people were told about the security risks to this 

country posed by Iraq and by the case for war, we were only told 

one part of the story. We were not told, for instance, besides some 

of the reports that were noted before, about the dissents by the intelligence agency within the State Department and by the Department of Energy, their statements in the October National Intelligence Estimate that said there is nothing to back this up about 

these aluminum tubes being used to help Iraq’s supposed nuclear 

initiative. And there certainly is nothing to this claim about Iraq 

trying to buy uranium from Niger. 

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It was right there in the National Intelligence Estimate, the 

President—excuse me, high-ranking members of the Administration, as they were telling we the American people and you, the 

Congress, just the opposite, failed to disclose those dissenting opinions from the State Department and the Department of Energy. 

That constitutes a fraud which helped lead this country to this disaster in Iraq. 

Mr. CONYERS. Professor Stephen Presser. 

Mr. PRESSER. I will try to be brief, Mr. Chairman. And I want 

to say I really am grateful that you are conducting these hearings. 

Socrates said the unexamined life isn’t worth living, and I think it 

will be inevitable, the Constitution requires it, that each branch of 

the government carefully guard its prerogatives and carefully make 

sure that the other branches aren’t exceeding theirs. That is the 

undertaking that you have made. I think that is laudable. 

At the same time, though, I think Professor Rabkin got some 

things that he said correct. The real question here is is the Administration proceeding in good faith, or is it, as some have suggested, 

proceeding on a fraudulent basis for God knows what nefarious motives? 

I don’t think that there is evidence of those kind of motives, and 

I think in particular the Minority report from this Committee with 

regard to the contempt proceedings against Mr. Bolten and Ms. 

Miers make pretty clear that this Administration has cooperated 

with this Committee to what, I think, is a fairly great extent. So 

really what you are looking for—and I stick by the definition of impeachable offenses that Mr. Pence gave earlier and that I have 

tried to develop. What you are looking for is an absence of good 

faith, and I am not sure you are going to find it. 

I think, as Mr. Smith said a little bit earlier, this Administration 

has done the best it could in a difficult set of circumstances, and 

I don’t think it gives rise to impeachable offense. 

Mr. CONYERS. Chairman Bruce Fein. 

Mr. FEIN. You have elevated me without even an election. 

Mr. CONYERS. But it is your organization. 

Mr. FEIN. I think the title of this hearing speaks volumes about 

our misconception of the United States, its executive power constitutional limitations. But as Barbara Jordan said, I remember, 

many years ago in the impeachment proceedings of Richard Nixon, 

the executive has no power that we don’t give it. ‘‘We, the people’’ 

is the beginning of the Constitution of the United States. It is not 

whether there are limits on the executive power, it is whether we 

have given the executive power to do what he is doing. That is a 

critical element of thinking properly about our Constitution. 

Now, as said by a previous speaker that all Presidents have 

flouted law during wartime, but I think, number one, it is incorrect 

as an historical matter, but, number two, this particular war is different than all others because it is permanent, it will never end. 

The definition of an end is when there will never be anyone who 

threatens an American with a terrorist incident in any way in the 

Milky Way. No one has even conceived of a benchmark that says 

the war is over. So this is permanent war, exactly what James 

Madison said was inconsistent with freedom. 

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And with regard to Presidents who spied, it is certainly true that 

they spied without warrants and had abuses. That is what led to 

the Foreign Intelligence Surveillance Act, precisely what Liz 

Holtzman explained. 

It is one thing for the President to act when there is no express 

congressional prohibition. It is quite another to say, we didn’t care 

what Congress says, the law is irrelevant to me, I can act on my 

own initiative. 

The last thing I would like to say is that with regard to the necessity of impeachment, it was Robert Jackson, our prosecutor at 

Nuremberg, who said, if you have a principle, a precedent, that 

goes unrebuked, and it is an abuse, it will lie around like a loaded 

weapon ready to be used by any future incumbent who establishes 

an urgent need. 

If this President’s actions and claims of monarchical power—actually supermonarchical, because if you examine our Declaration of 

Independence, the indictment against King George, III, this President has claimed far more power than King George, III. But if we 

do not rebuke these powers, they then become precedents that will 

lie around like loaded weapons, a sword of Damocles over us forever. 

Then there was—it also mentioned previously about Caligula, 

and while this President shouldn’t be at all associated with that 

particular emperor—you remember one of his infamies, that he 

placed the laws very high on the walls so that no one could see 

them, and then he could trap them into violations. But we have 

had testimony before this Congress, Senator Feingold’s office, that 

shows that this Administration promulgates Executive Orders, revokes them in secrecy, and then claims they are classified so we 

don’t know whether they are in existence or not. That really betters 

the instruction of Caligula. 

Last, I won’t go on further, I do have a book called Constitutional 

Peril being published next month, and if Liz can promote her book, 

I think I can follow. Thank you. 

Well, I didn’t have a copy of it to hold up. I am so sorry. 

Attorney Vincent Bugliosi? 

Mr. BUGLIOSI. Yes, sir. To summarize what I believe Mr. Presser 

said, he apparently feels that President Clinton, having consensual 

sexual relations outside of marriage and lying about it, is worse 

than the Bush administration taking this Nation to war on a terrible lie, a war that has caused incalculable death, horror and suffering. 

And I would ask Mr. Presser, what previously recognized form of 

logic would allow such a conclusion? 

I would like to give you words from Mr. Bush’s own mouth that 

I think are relevant to this proceeding. January 31st, 2003, less 

than 2 months before Bush ordered the invasion of Iraq, on the rationale that Hussein was an imminent threat to the security of this 

country so we had to strike first in self-defense, Bush and British 

Prime Minister Tony Blair met in the Oval Office with six of their 

top aides, including Blair’s chief foreign policy advisor, David Manning. After the meeting, Manning prepared a 5-page memo 

stamped, ‘‘Extremely Sensitive,’’ summarizing what was said at the 

meeting.’’ He wrote that George Bush—not Blair now—George 

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Bush was so worried about the failure of U.N. inspectors to find 

weapons of mass destruction in Iraq that he talked about three 

possible ways to, quote, ‘‘provoke a confrontation,’’ unquote, with 

Hussein, one of which was to, quote—this is quoting George 

Bush—quote, ‘‘fly U-2 reconnaissance aircraft over Iraq painted in 

United Nations colors, and if Hussein fired on them,’’ Bush said, 

‘‘he would be in violation’’ of U.N. resolutions, and this would justify our going to war. 

So Bush is telling the American people, telling the world that 

Hussein is an imminent threat to the security of this country, but 

behind closed doors, George Bush was talking about how to provoke Hussein into a war. 

Now, Chairman, may I draw an inference from this? If George 

Bush honestly believed that Hussein was an imminent threat to 

the security of this country, which is the main reason he gave the 

American people for going to war, the thought—the thought—of 

provoking Hussein into a war, by definition, would never, ever, 

ever have entered his mind. 

And I say this, that by taking this Nation to war on a lie, all of 

the killings of American soldiers in Iraq became unlawful killings 

and, therefore, murder. 

[Audience disruption.] 

Mr. CONYERS. Okay, now. 

There are Members urging me to take more action than merely 

reminding our audience. 

Professor Rabkin—— 

[Audience disruption.] 

Mr. CONYERS. All right, then. Sheehan, you are out. Yeah, goodbye. 

Professor Jeremy Rabkin? 

Mr. RABKIN. I wasn’t moved by having people repeat their emotional statements with more emotion, and I don’t think it will be 

useful for me to say, ‘‘Calm down,’’ with more emotion. It won’t get 

people to calm down. Besides that, I am not selling a book. So I 

will pass. 

Mr. CONYERS. Thank you. 

Mr. SCHWARZ. So you yield all the time to me. [Laughter.] 

Actually, I thought Professor Rabkin usefully called our attention 

to history, but I would draw somewhat different lessons from the 

history. 

Everything up to the time of the Cold War that was done by 

Presidents in time of crisis was known. And, in the case of Lincoln, 

what he did, he said to the Congress, you know, ‘‘You may disapprove of what I have done. If you do, please criticize me. But I 

would like you to ratify what I have done.’’ And they did ratify 

what he did. 

Then came along the Cold War, and we began to have excessive 

secrecy. And the great lesson that the Church Committee learned 

and that we are learning again today is, if you have secrecy and 

you have a lack of oversight, you are bound to have two things: 

one, abuse; but even more importantly, you are likely to have mistakes. Because the great lesson of James Madison in the 51st Federalist, where he said, men—we say now men and women—are not 

angels, the great lesson was, because we are not angels, the GovVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00186 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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ernment, in his words, must be obliged to control itself. That is 

what checks and balances mean; that is what oversight means. 

Now, the other thing that is unique about the current Administration is that, for the first time in American history, the Administration takes the position, first voiced by the Vice President when 

he was a Congressman 20 years ago and he dissented from the 

Iran-Contra report, the Administration takes the position that, like 

the British monarchs in the 17th century, the President has the 

right to break the law. If he believes that the law gets in the way 

of what he thinks are national security objectives, he can break the 

law, and he can do so secretly. 

Now, that is an enormously dangerous loaded gun, to pick up on 

that expression, that lies, unless it is squashed, that lies for future 

Presidents to take advantage of, future Presidents of either party. 

This is totally unique. Richard Nixon, only when he left office did 

he tell first the Church Committee in a rather obscure affidavit 

and then David Frost in that famous television interview that, in 

his words, ‘‘When the President does it, that means it’s not illegal.’’ 

But we are now in a position where the OLC’s position still is 

that the President can break the law if he thinks there is a need 

to do it, and can do so secretly. And that’s something that every 

American from either party should say is a dangerous doctrine that 

needs to be squashed, disagreed with, exposed and never accepted 

by anybody in this Government or by the American people. 

Mr. CONYERS. President of Veterans for Peace, Elliott Adams. 

Mr. ADAMS. I will follow the model of Rabkin here. But I would 

like to—since everybody else promoted their book, I would like to 

promote my book, but I haven’t written it yet. [Laughter.] 

Mr. CONYERS. I can hardly wait. 

I thank all of the witnesses. You have been extraordinarily cooperative. 

We will accept into the record any additional comments, documents or enlightening paperwork that you would like to have go 

into the record. 

Thank you all very, very much. 

And the Chair now turns to the Ranking Member, who has patiently been waiting for his turn. We recognize him for any questions to any of the panel. 

Mr. SMITH. Thank you, Mr. Chairman. 

The witnesses have not only been unusually cooperative, they 

have been unusually voluble. And I have to say, Mr. Chairman, I 

do believe you set the record today, with eliciting 22 minutes’ 

worth of answers under the 5-minute rule. And I hope I don’t break 

that record myself. 

Mr. Chairman, I am not altogether sure that the witnesses get 

your message about this not being an impeachment hearing. By my 

account, they have used the word ‘‘impeachment’’ at least 30 times, 

and I think euphemisms amount to at least three times that many. 

Nevertheless, a lot of important subjects have been brought up. 

The first thing I want to do is to thank Professor Presser and 

Professor Rabkin. If you could move to a mike, I am going to direct 

some questions toward you all in just a minute. I want to thank 

you all for making a big effort to be here today, which I know is 

at some personal inconvenience but is much appreciated as well. 

182 

Mr. Presser, very quickly, Mr. Bugliosi seemed to have attacked 

you personally a while ago, and I didn’t know if you wanted to respond or not. 

Mr. PRESSER. Well, I thank you for the opportunity. 

I suppose it is not the right thing to do to relitigate the Clinton 

impeachment hearings, but Mr. Bugliosi said, I think twice, that 

they were all about lying about sex. 

They weren’t. More than half of this House believed that they 

were about obstruction of justice and tampering with witnesses and 

doing other acts that seemed to suggest no regard to the President’s obligation to take care that the laws be faithfully executed. 

That is what I thought the Clinton impeachment was all about, not 

lying about sex. 

But that is over now, and we can move on. 

Mr. SMITH. Okay. 

Professor Presser, then, let me ask a couple of other questions. 

First of all, have you heard any credible allegation today that you 

think amounts to any kind of an impeachable offense? 

Mr. PRESSER. No. 

Mr. SMITH. A few minutes ago, you said that you thought the 

real problem was—or suggested that the real problem was just a 

difference of opinion, a difference of policy, and you thought that 

the same legitimate actions taken by this President had been taken 

by any other President. 

So I assume that you don’t think there is any evidence of misconduct in this Administration. 

Mr. PRESSER. That is my view. I think the comments about what 

other Presidents have done was probably from Professor Rabkin. 

But I think the answer to your question is still, I haven’t seen acts 

that would rise to the level of any impeachable offense. 

Mr. SMITH. Professor Rabkin, now that you are at a mike, you 

have regretted strongly the tone of the debate that surrounds this 

particular subject. If you look beneath the anger and the hatred 

and the bitterness, do you see any impeachable offenses? And sort 

of a secondary question: What accounts for that—that is, the tone? 

Mr. RABKIN. Let me start with the first question, is there something impeachable? If people believed that the President knowingly, deliberately got us into a war for reasons completely unrelated to national security and he did it, I don’t know, to enrich oil 

companies—I really have not been able to understand what people 

were alluding to, but they seem to be suggesting that the actual 

reasons for going into Iraq were so completely removed from national security that he wasn’t just engaged in constructing an argument someone might disagree with, but he was totally misrepresenting what were the real reasons. 

If that were true, of course that would be impeachable. You absolutely need to defend the country against a chief executive who 

would wantonly take the country into war for illicit purposes, sure. 

But nobody has tried to explain what that conspiracy theory is; it 

is just alluded to, as if aleady well understood. 

Now, to the second thing, which is why are people so bitter, 

which I think has something to do with why they even find it plausible that such a charge is worth investigating, which just, to me, 

just seems so demented, really—I mean, you have to believe not 

183 

only that the President is a Shakespearean villain, right, a sort of 

Iago, just pure evil. You have to believe not only that, but you have 

to believe that all through the White House there are people saying. ‘‘I think I will just cover it up, I think I just won’t let anyone 

know this,’’ and that seems, to me, just unbelievable. 

So I think if people are open to this view, they must be extremely 

bitter, I mean, the people making these charges. And why is that? 

I will just give you one thing that is worth reminding ourselves of, 

which is that the country has been closely divided for a long time, 

and that tends to build up, you know, a sense of frustration and 

sometimes rage. 

And here we are now, on the eve of what seems likely to be the 

third election in a row which is really, really close. I am not criticizing anyone for that; I’m just reminding people. In a situation 

like that, tempers flare, people get a little bit overwrought. And I 

think some of what we have heard here today was just overwrought. 

Mr. SMITH. Mr. Chairman, I have one last question that I would 

like to direct both to Professor Presser and to Professor Rabkin. 

And it is this: If we were to use the charges that we have heard 

today, the accusations that we have heard today as a standard for 

an impeachable offense, what other Presidents would also be guilty 

of impeachable offenses? 

Now, this would be a good question to ask in your classes, I realize, and allow at least an hour to respond, because it seems to me 

you have to start with the first President, George Washington, 

Thomas Jefferson, all wartime Presidents, including Abraham Lincoln and all the wartime Presidents of the last century and so 

forth. 

But I would like for you to take your time and tell me what 

Presidents you feel the accusations today would apply to, if they 

were credible accusations of impeachable offenses. And, Professor 

Presser, start with you, and we will end with Professor Rabkin. 

Mr. PRESSER. I am probably going to be a little briefer than you 

would like. I mean, certainly you’d have to add Franklin Roosevelt 

to the list because there are allegations that he wanted to get us 

into World War II. There may be other Presidents. 

But the point I think you made in your opening statement, and 

that is, the House of Representatives has to be very, very careful 

when it comes to attempts to criminalize political decisions. And I 

think that is the real thing that you have to watch out for. 

And I think war is a matter of high politics. And I think the Constitution gives both the House and the President considerable discretion in these areas. And I think you have to tread with great 

care when you think about them. 

Mr. SMITH. Okay. Thank you, Professor. 

Professor Rabkin? 

Mr. RABKIN. Let me just give three examples that are worth reminding ourselves about. 

In the Spanish-American War, President McKinley asked for a 

declaration of war on the grounds that the Spanish had blown up 

the Battleship Maine. And we discovered much later that, actually, 

they didn’t blow up the Battleship Maine. It was an accident; there 

was a faulty boiler. Did President McKinley know this? I don’t beVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00189 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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lieve so, but he didn’t pause too closely to have a close investigation 

of this. 

In the Second World War, President Roosevelt was really goading 

the Japanese. I mean, he imposed severe restrictions on their access to oil. He was really goading them to attack. And then he 

didn’t take precautions that the Chief of Naval Operations urged 

on him, to move the fleet away from Hawaii where it would be exposed to attack. I do not believe he meant to have the fleet sunk. 

But it is good to remind people—I see Congressman Nadler smiling—— 

Mr. NADLER. Shaking my head. 

Mr. RABKIN. Well, a lot of crazy people—you may know this—a 

lot of crazy people, not in Manhattan but elsewhere, said Roosevelt 

deliberately betrayed the country. Now, I think that was crazy, but 

there was a certain plausible basis for saying that if you were prepared to believe that a President of the United States could behave 

in such an outrageous way, which I am not. 

But I am just saying, if you take this standard of there is something on the surface that looks suspicious and it ended badly, and 

then say, ‘‘A-ha, let’s go,’’ there are a lot of Presidents who you 

could ask questions about. 

And let me just give a third example quickly—Truman in 1950. 

Truman said, this is not just a dispute between North Korea and 

South Korea; this is obviously communist aggression, this was obviously planned in the Kremlin. And that was entirely plausible. He 

probably did believe it. We know now from records that we found, 

actually, no, North Korea did this on its own, and Stalin had to 

catch up with it his Korean client. 

So we have had a number of Presidents in important situations 

say things which turned out to be false and a lot of people died. 

Sorry. 

Mr. SMITH. Would you put the Vietnam War-era President—— 

Mr. RABKIN. Yes, there is another example. A lot of representations by President Johnson turned out to be not quite the way he 

represented them—I am not accusing him of deliberately deceiving 

the country. But the Gulf of Tonkin resolution, there are substantial disputes now about what actually happened there, and it 

doesn’t seem to be exactly how LBJ represented it to Congress at 

the time. 

So, yes, I think that is a very helpful question. All of us should 

remind ourselves that Presidents have to act in situations where 

often there is a great deal of uncertainty. And to construe everything in the worst possible light and then say, ‘‘Someone has to be 

punished; let’s start with the President,’’ this makes it impossible 

for future Presidents to think calmly about what they need to do 

on the basis of limited information. 

Mr. SMITH. Okay. Thank you, Professor Rabkin. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Jerry Nadler? 

Mr. NADLER. Thank you, Mr. Chairman. 

Let me start with a couple of observations. 

First, I think what Professor Presser and Professor Rabkin said 

are totally wrong. Impeachment has nothing to do with personal 

benefit, nothing to do with motives or good faith. That is not the 

185 

issue of impeachment. The issue of impeachment is, did the President commit an abuse of power that would tend to destroy liberty 

or flout the structure and function of government, in particular by 

reducing or traducing a separation of powers, which is the basic 

protection of our liberty. And that is what we look to, and that is 

what the report of the House Judiciary Committee in 1974 said, 

and that is what we look to at any time. 

Secondly, let me just comment on Mr. Rabkin. If the President 

lied to Congress—and I think there is good evidence that he did— 

if the President lied to Congress in order to motivate Congress to 

go into war, he may have had a motive thinking that it was in the 

national security interest of the United States to go to war for 

some other reason which would not be persuasive to Congress, and 

therefore he lied to Congress, that would be impeachable. 

Mr. RABKIN. Maybe. 

Mr. NADLER. Because it is not up to him to decide what phony 

excuse would give Congress to do what he believed in good faith 

was the right thing to do. Because that is up to Congress to exercise its powers. 

Thirdly, we are in a very, very dangerous situation now in terms 

of our liberty. We have a President and an Administration that 

claims the power—I don’t believe the Supreme Court is going to let 

him get away with it, but that holds by one vote—to point their finger at any person in this room and say, ‘‘You are an enemy combatant because I say so. And because I say so, we are going to throw 

you in jail forever, with no hearing, no due process, no anything 

until the war on terror is over,’’ six or seven generations from now 

when some President declares it over. No executive in Englishspeaking countries since Magna Carta has claimed such a power. 

So far, they have been getting away with it. It is the foundation 

for future tyranny. 

And finally, the way they have tied us in knots, the Administration in effect says, we can—you know, they don’t put it in these 

terms, but they have asserted the power to kidnap someone off the 

streets, send them to another country to be tortured, or torture 

them themselves, or do any other illegal thing. And when you say, 

‘‘Well, that is a crime; prosecute it,’’ they don’t prosecute. And 

when you bring a lawsuit, they say, ‘‘Wait, you can’t bring a lawsuit. The case must be dismissed because it violates the state secrets doctrine.’’ So there is no way, no remedy to any misconduct 

by the executive branch of Government, because they won’t prosecute at law. They claim executive privilege; they won’t tell Congress about it. And anybody brings a lawsuit, they claim state secrets, so you can’t even get it into court. So there is no remedy to 

any abuse of power or any action whatsoever by the executive. We 

have to figure out a way around all this. 

Now, I have been quoted in the past as saying that I did not 

think impeachment was a practical remedy, though God knows it 

is deserving. 

My first question to Mr. Fein, because I heard in your testimony 

I believe you said that, in impeachment inquiry, executive privilege 

does not apply. I think it was—— 

Mr. FEIN. That is correct. And Liz Holtzman was right there. 

186 

Mr. NADLER. I think you said executive privilege does not apply. 

Now, my understanding—and correct me if I am wrong, please— 

is that Congress has taken that position, but the executive branch 

has never agreed to it. And if, in fact, the Administration has gone 

so far beyond any previous interpretation of executive privilege as 

to say to Karl Rove and other people, ‘‘Don’t show up, just ignore 

the subpoenas,’’ and to the U.S. attorney, ‘‘Never mind the mandatory language of the statute, don’t enforce the contempt citation,’’ 

how would we, were there to be an impeachment inquiry, effectuate 

executive privilege against the same sort of conduct? 

Mr. FEIN. Simple. You do what was done in the Nixon inquiry. 

You vote on Articles of Impeachment saying it is an impeachable 

offense to refuse to comply with a request for information from the 

House. 

Mr. NADLER. So, in other words, what you are saying is they 

could have the same far-reaching claim of executive privilege in an 

impeachment inquiry as they could in any other Committee hearing, but the remedy is to vote on impeachment. 

Mr. FEIN. And then they are out of office, yes, sir. 

Mr. NADLER. In other words, holding the impeachment inquiry 

doesn’t get around the executive privilege problem. But voting the 

impeachment and exactly removing them from office is the only 

thing that would? 

Mr. FEIN. That worked with Nixon. 

Mr. NADLER. And that would work with a lot of other problems. 

Let me ask you a different question. Let me ask, I think it 

should be either you or—well, Professor Schwarz, you expressed 

hesitation at the impracticality of impeachment. Now, the first 

President Bush pardoned senior members of his Cabinet who were 

involved in the Iran-Contra scandal. It foreclosed any possibility of 

pursuing those individuals for their activities, no matter how lawless it may have turned out to have been. It also foreclosed any option of coercing their testimony as to the possible culpability of the 

President in that. 

Now we are beginning to see suggestions that this President 

Bush had pardoned people involved in illegal torture, illegal wiretapping, outing a CIA agent, and anything else. 

Does Congress need to explore changes to the pardon clause of 

the Constitution to prevent it from being abused by a President 

who may wish to prevent scrutiny of illegal acts of his own Administration or of himself personally? 

Mr. SCHWARZ. You could not effect the pardon power, which is 

one of the very few things—— 

Mr. NADLER. I said, should we look at a constitutionality amendment? 

Mr. SCHWARZ. That is exclusively in the hands of the President 

unless you amended the Constitution. 

Mr. NADLER. Well, my question is, should we look at amending 

the Constitution in that respect? 

Mr. SCHWARZ. I think if you have a justification for it being 

abused, that is fair to look at. That is definitely fair to look at. 

Mr. FEIN. Congressman, I think there is a statutory procedure 

that would deter abuses of the pardon power. That is, if you—and 

I think this would be constitutional—if the President was to use 

187 

the pardon power to pardon people of his Administration for alleged crimes that involved abuses, it would have to be 6 months, 

8 months before his term ends, so he would clearly suffer a political 

penalty. 

Mr. NADLER. Why couldn’t it be the day before his term ends? 

Mr. FEIN. Well, the approach would be the statute would try to 

regulate, not prohibit use of the pardon power—— 

Mr. NADLER. Oh, you’re saying—— 

Mr. FEIN [continuing]. To say that you make him exercise the 

power sufficiently before his term ends, so he’s got to pay a political 

price, so he can’t go like Marc Rich, out the door, and pardon someone and then escape any political retribution. If you forced him to 

make that decision 6, 7, 8 months before he left, then he needs to 

confront the possibility—— 

Mr. NADLER. Well, let me ask Mr. Schwartz and Mr. Fein, would 

a bill, not a constitutional amendment, a bill to say that the President couldn’t pardon any member of his own Administration after 

6 months or whatever before the end of his Administration, would 

that be constitutional as a limitation of the pardon power? 

Mr. SCHWARZ. It would be a litigable matter, I would think. 

Mr. FEIN. Congressman, the authority comes from article 1, section 8, clause 18; it is the necessary and proper clause. And what 

it says is that Congress has authority to enact all laws necessary 

and proper for the execution of any power under the United States 

or any department or officer thereof. That is, it applies to the execution of executive power, like the pardon power, like any other 

power. This isn’t an attempt to nullify the President’s ability to 

pardon, but make certain that—— 

Mr. NADLER. By that theory, could Congress pass a bill saying 

that the President—a bill, not a constitutional amendment—saying 

that the President could not pardon anyone in his Administration 

for alleged crimes committed pursuant to Administration policy, for 

example? 

Mr. FEIN. Well, I think that goes too far. Of course, all Constitution law becomes matters of degree when you hit tough cases. But 

there you are eliminating the President’s discretion to exercise pardon at all for this particular category. And the pardon power is 

broad enough, in terms of its scope, to protect people against retaliation from somebody who the President thinks has been unjustly 

hounded. I doubt that would survive. But that is different than just 

a time limitation. 

Mr. NADLER. Could I have one more question, Mr. Chairman? 

Mr. CONYERS. Why, of course. 

Mr. NADLER. Thank you. 

I would like to ask former Congresswoman Holtzman: Obviously, 

we know the Framers of the Constitution established impeachment 

as one of the checks on the President under the judiciary. Nonetheless, no President has ever been impeached and removed from office. 

Part of this is because a successful impeachment requires the 

support of Members of the President’s party, which has proved virtually unattainable. In the case of the one President who would 

have been removed had he not resigned, President Nixon, it took 

188 

the smoking-gun tape to push Members of his party over the edge 

to the point where impeachment became a real possibility. 

As a Member of the Committee during the impeachment of President Nixon, how would you approach impeachment in the highly 

charged, partisan environment we have today so that impeachment 

could be a viable option? 

Ms. HOLTZMAN. Thank you, Congressman Nadler. I think that is 

an important question. I think the reason that the impeachment 

process worked during the Nixon impeachment was because it was 

bipartisan and because the American people had confidence that 

when both parties were involved that, even though they didn’t understand every fact, the House was proceeding in a proper way. 

It is not correct to say that without the smoking-gun tape, impeachment would not have happened. You have to remember that 

prior to the smoking-gun tape, three Articles of Impeachment were 

voted with substantial Republican or bipartisan support, including 

an article on obstruction of justice, including an article on abuse of 

power, and including an article on the President’s refusal to cooperate with the impeachment inquiry. 

When we started the impeachment process, it was not done by 

Congress. It was done because of the Saturday Night Massacre and 

the resulting outrage of the American people. That is what triggered the Congress to act. When we started, nobody knew what the 

head count was going to be on the House Judiciary Committee. It 

was partisan; you had Republicans who stood their side and Democrats who stood their side. But nobody had been in this kind of proceeding for 100 years, and so people were feeling their way. 

How did it work? How did we bring Republicans and Democrats 

together? Well, partly, it was—and I think the Chair will remember this—the fact that Congressman Rodino understood that the 

process had to be completely fair, so the Democrats picked for the 

Committee counsel for impeachment a Republican and the Republicans picked a Republican. So that was one way of saying, look, 

we are not going to do this on a partisan way. That was a way of 

bringing people along. 

There was no poll that was taken. There was no head count that 

was taken. We were in totally unchartered waters. And what we 

tried to do was to do it right. And, ultimately, the facts and the 

fairness of the process persuaded people on both sides of the aisle 

that this was the right thing to do. 

And it wasn’t just Republicans. You had Southern Democrats 

who had more, if you will, pro-Nixon constituents than some of the 

Republicans on the Committee, and they had to come along. How 

did you bring people along? By a fair process, by assuring—fairness 

to the President, too. The President’s counsel said, ‘‘Well, I want 

to have one witness.’’ We said, ‘‘Take five.’’ It was so that there 

were never issues that got in the way. That is what helped bring 

this process together. 

I am not saying that there is enough time to do a full-blown impeachment process. But impeachment inquiry itself, handled fairly, 

completely fairly, with the full participation of the minority, so that 

no one says this process is out to get somebody, but that it is a fair 

process and if Congress uses the constitutional powers that it has, 

I think that in an atmosphere where people are willing to work toVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00194 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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gether and you are being fair and the evidence is there and you 

have constitutional scholars supporting it, I think it can work. 

Now, maybe I am a cock-eyed optimist. Nobody would have 

thought the impeachment would have worked in 1973, that that 

process would have worked. Remember, what we were looking at 

was the Andrew Johnson impeachment. That was what was staring 

us in the face. And that didn’t work because it was partisan. And 

the Clinton impeachment didn’t work because it was partisan. But 

I think good people, working in good faith together, as we did, can 

overcome those partisan hurdles and have to for the good of the 

country. 

Mr. CONYERS. Steve King? 

Mr. KING. Thank you, Mr. Chairman. 

I appreciate the nonpartisan remarks from the gentlelady, 

former Congresswoman Holtzman, and with regard to the responsibilities of both sides. And I did watch intently the impeachment 

hearings in this Committee in 1998, and I could see that there was 

definitely a partisan divide. Now, there were some things that were 

irrational and illogical that took place, as referenced, I think, by 

Mr. Rabkin. 

And it occurs to me that this is the most polarized Committee 

on the Hill. It is the most political and the most polarized, ideologically, of all Committees on the Hill. And I am trying to imagine 

a scenario by which we could have a Democrat President who could 

be brought before this Committee with this majority who would be 

subjected to this kind of scrutiny, let alone move forward with a 

vote on impeachment. In fact, I am trying to imagine if Caligula 

himself, if he were a Democrat before this Committee, could be 

even undergoing some kind of scrutiny. 

And so I appreciate the level of discretion used by the gentleman 

from New York when he said, ‘‘if the President lied to Congress’’— 

a delicate statement. 

The reference has been made by Mr. Wexler and others of the 

16 words in the President’s State of the Union address, January 

28, 2003. These 16 words are this: ‘‘The British Government has 

learned that Saddam Hussein recently sought significant quantities 

of uranium from Africa.’’ That is the statement in question. Now, 

whether or not it turns out to be true, the question really is, did 

the President believe it at the time? Did the CIA believe it at the 

time? I have a mountain of documentation here that says the CIA 

did believe it at the time. 

But I would ask unanimous consent to introduce this now-unclassified document into the record that I referenced in my earlier remarks, Mr. Chairman. 

Mr. CONYERS. What is it about? 

Mr. KING. This is a debrief document that was formulated—a secret document of the CIA’s debriefing of Ambassador Joe Wilson. 

And it is 8 March, 2002, the date that he testified that he was debriefed. 

Mr. CONYERS. Without objection, so ordered. 

[The material referred to is available on page 7 of this hearing.] 

Mr. KING. Thank you, Mr. Chairman. 

And this document says within it, it says, the debriefing of 

former Ambassador Joe Wilson, upon his return of his 2-week trip 

190 

to Niger, sent there to draw a determination if he could illuminate 

on whether the Iraqis were seeking yellow cake uranium from 

Niger, and reading from this report, he met with former Nigerien 

Prime Minister Ibrahim Mayaki. Mayaki was the former Foreign 

Minister from 1996 until 1997. 

Mayaki did relate that in, June 1999, a businessman named 

Barka, a Nigerien-Algerian businessman, approached him and insisted that Mayaki met with an Iraqi delegation to discuss, quote, 

‘‘expanding commercial relations,’’ closed quote, between Niger and 

Iraq. The meeting took place. Mayaki let the matter drop due to 

the United Nations sanctions against Iraq and the fact that he opposed doing business with Iraq. Mayaki said that he interpreted 

the phrase ‘‘expanding commercial relations’’ to mean that Iraq 

wanted to discuss uranium yellow cake sales. 

There is more. It is in the record. I think that should be something that could cause all of you to put the brakes on and take a 

good look at the basis for the conclusion that you have so easily 

swept to. 

And going further, again, the statement from President Bush, 

‘‘The British Government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.’’ I am 

looking for a hole in that statement. ‘‘Significant’’ might be a word 

that one could look at and say, well, no, it wasn’t a significant effort to seek significant quantities. 

I hold in my hand Middle East Times, dated July 7, 2008. This 

document I would ask unanimous consent to introduce into the 

record. 

Mr. CONYERS. Without objection, so ordered. 

[The information referred to follows:] 

191 


D-1.eps
192 


D-2.eps
193 

Mr. KING. I thank you, Mr. Chairman. 

This document is headlined, ‘‘Iraqi Uranium Transferred to Canada.’’ And it says in part, ‘‘At Iraq’s request, the U.S. military recently transferred hundreds of metric tons of yellow cake uranium 

from Iraq to Canada in a secret weeks-long operation, a Pentagon 

spokesman said Monday.’’ Reading further, ‘‘The yellow cake was 

discovered by U.S. troops after the 2003 U.S. invasion of Iraq at 

the Tuwaitha Nuclear Research Facility south of Baghdad and was 

placed under the control of the International Atomic Energy Agency. Quantity: 550 metric tons.’’ That is a significant quantity, ladies 

and gentlemen, 550 metric tons. And it says, ‘‘With the transfer, 

no yellow cake was known to be left in Iraq.’’ 

So I think we have concluded now there is no sense in looking 

there any longer. We have done a pretty adequate job of loading 

550 tons of yellow cake out of Iraq. 

When I look at the statements that are made by leaders and 

depositions that have been taken, what do people believe? September of 2002, Al Gore: ‘‘We know that Saddam has stored secret 

supplies of biological and chemical weapons.’’ This similar statement was made—and these are by former Secretary of State Madeline Albright in February of 2003, she said ‘‘clearly has a lot of 

weapons of mass destruction’’; by the Chairman of the Select Committee on Intelligence in the Senate, Jay Rockefeller, October of 

2002; a similar statement by the Chairman of the Armed Services 

Committee, Senator Carl Levin, September 2002; Robert Byrd, October 2002. The list goes on. I turn the page, and I get to Senator 

Kennedy, September 2002; and Senator John Kerry, October 2002; 

Hillary Clinton, October 2002. 

But the thing that is really interesting is Chicago Tribune published, July 27, 2004—and here is a statement: ‘‘There is not much 

of a difference between my position and George Bush’s position at 

this stage,’’ Senator Barack Obama. 

I would ask unanimous consent to introduce this Tribune document into the record, Mr. Chairman. 

Mr. CONYERS. I am a little reluctant to consider this document, 

but I will introduce it into the record, of course. 

[The information referred to follows:] 

194 


E-1.eps
195 


E-2.eps
196 


E-3.eps
197 

Mr. KING. And out of deference to the Chairman’s, let me say, 

genteel nature, I would simply conclude and yield back the balance 

of my time. And I thank you. 

Mr. CONYERS. Bobby Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

It is interesting that the name of the hearing is ‘‘Executive 

Power and Its Constitutional Limitations’’ or, as Mr. Fein says, 

what power does the executive have? And virtually every Republican Member in the opening statements said if we are having a 

hearing discussing constitutional limitations on power, therefore it 

must be, by nature, an impeachment inquiry. 

I would like to ask the witnesses what things, kind of, short of 

impeachment we may be pursuing. Because if we want to enforce 

laws against misleading Congress and getting us into a war, enforcing the laws against torture or illegal wiretaps, or corruption 

in the Department of Justice, do we have to be talking about impeachment? 

We heard, in terms of impeachment, Mr. Rabkin suggests that 

the suggestion that we have gotten into a war by misleading information is ideology, demented, explosive charge. Some of these, we 

know as a matter of documented fact that what was said turned 

out not to be true. 

And I think the comments from Professor Presser have been 

commented on by Mr. Anderson and Mr. Fein. And the suggestion 

that covering up a sexual affair is impeachable because it had some 

personal motivation, whereas misleading us into war, corruption in 

the Department of Justice, torture and those kind of things were 

irrelevant, I think we have discussed that. 

So I guess my question is, is there a limitation on the ability of 

the executive to provide false information to Congress that we rely 

on that gets us into a war? And if we don’t pursue impeachment, 

what else could we do if we—how do we enforce the constitutional 

limitations on the use of torture? We have had this Administration 

essentially just redefine ‘‘torture’’ to permit what everybody else in 

the world believes is torture. 

And we have had allegations by Republican-appointed officials 

who have accused this Administration of firing U.S. attorneys because they refuse to indict Democrats in time to affect an upcoming 

election and suggesting that others may have kept their jobs because they, in fact, have pursued frivolous charges. Another said 

under oath that—or, at least, she did not deny taking partisan, political considerations into consideration in hiring Department of 

Justice personnel in violation of the law. 

In our investigation of these allegations, we have been faced with 

witnesses who’ve refuse to respond to subpoenas, refuse to testify 

without immunity; others refuse to cooperate claiming unprecedented privileges. 

So I guess my question is how we can enforce the limitations on 

executive power, in light of the situation we find ourselves in, without using the impeachment inquiry process. 

Mr. Fein? 

Mr. FEIN. When President Nixon was under investigation by the 

special prosecutor and there was a concurrent Senate Watergate 

hearing and a House impeachment hearing, there was very deep 

198 

examination—I was in the Department of Justice at the time, and 

then-Acting Attorney General was Bob Bork, later a Supreme 

Court nominee—as to whether you could criminally prosecute a 

President in lieu of impeachment. 

Well, he remained in office. And it had been highlighted, in part, 

because you may recall that Vice President Agnew was actually 

prosecuted for tax evasion, and then he resigned afterwards. He 

probably would have been impeached if he didn’t resign. But the 

conclusion was that you cannot criminally prosecute a President 

who is incumbent because there is just one figure who can make 

executive decisions. You can’t have an acephalous branch, so to 

speak, unlike the possibility of prosecuting a Member of Congress 

or a Supreme Court Justice, where the institution would continue 

to function. 

But the corollary of that conclusion is that, short of impeachment, there isn’t anything you can do about a President. And that, 

in some sense, underscores the political nature of the decision. It 

is one that can’t be shirked, because there isn’t any other way to 

get at an abuse of power. 

I would just like to make one observation about the idea of misleading Congress as an impeachable offense. And this is a 

quotation from James Iredell. Now, he was appointed by George 

Washington to be on the first Supreme Court of the United States. 

He was there, if you will, at the creation, to borrow from Dean Acheson. And he was speaking to the North Carolina Ratification Convention. 

And this is what he said: ‘‘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, whether he believes it or not. 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 in which they would 

not have consented had the true state of things been disclosed to 

them, in this case, yes, isn’t that clearly an impeachable offense?’’ 

So the Founding Fathers understood exactly the situation that 

has been alleged in this case—not necessarily that President Bush 

lied; it is clear he didn’t give the full slate of information to the 

Congress that was available regarding weapons of mass destruction, collusion between Saddam and al-Qaeda or otherwise. And 

this is, as the Supreme Court has said, a virtual definitive interpretation of an impeachable offense because it was made by someone who was there at the time, participated in the convention and 

ratification. It is not something that is concocted after the fact. 

Mr. SCOTT. Mr. Barr and Ms. Holtzman? 

Mr. BARR. Thank you. 

If I could, with the indulgence of the Chair, respond just briefly, 

there are, of course, a number of things the Congress can do legislatively. We have touched on a number of them today, with regard 

to state secrets, signing statements, executive privilege and so 

forth. 

But I think, in answer to the gentleman’s question, at an absolute minimum, Congress cannot make matters worse, which it did 

199 

in passing recently the amendments to the Foreign Intelligence 

Surveillance Act, which not only vastly expanded the power of the 

executive branch to surveil American citizens in their own country 

without cause or without court order, but gave both retroactive and 

prospective immunity to companies that demonstrably, even from 

what little we know thus far given the parameters and secrecy 

practiced by this Administration, clearly violated the law as well. 

And Congress, not this Committee certainly but a majority of 

Members of both houses, basically have set the constitutional clock 

back considerably by caving in to the Administration on that just 

one particular instance where the executive branch has not abided 

by the law and not abided by the very clear intent and wishes of 

the Congress. 

Ms. HOLTZMAN. Congressman, you asked a very important question, and I completely agree with Mr. Fein. In a way, Congress can 

pass all the statutes that it wants, and a President who doesn’t feel 

bound by the law can ignore them. That is the problem. 

Prosecution—I agree that the precedent that was set with regard 

to President Nixon is that a sitting President cannot be prosecuted. 

The Anti-Torture Act, because it carries a death penalty, has no 

statute of limitations at all in cases where death occurs in the 

course of torturous interrogations. That statute applies to any U.S. 

national. I take that to include people at the highest rungs of the 

U.S. Government. So anyone who engaged in torture where death 

resulted could be prosecuted for the rest of his or her life under 

that statute. 

The War Crimes Act similarly could apply, but Congress changed 

the terms of it and made it retroactively inoperable, in the Military 

Commissions Act. If Congress wanted to rejuvenate that act and 

make it applicable, it could remove the inoperability of it, restore 

it to its full effect. And what would happen is that people who engaged in cruel and inhuman conduct—and there is no question that 

waterboarding, for example, would fall under that—would be prosecutable, and in the cases where death resulted, there would be no 

statute of limitations, so that threat of prosecution would hang 

over them for the rest of their lives. That statute also applies to 

any U.S. national. And I take it that applies to people at the highest as well as lowest rungs of our Government. 

That statute was a matter of grave concern to this Administration. If you read the memorandum that was prepared by Alberto 

Gonzalez to the President, it reflects that was one of the reasons 

that the suggestion was made that we opt out of the Geneva Convention. 

But aside from prosecution that may be down the road, truth 

commission—I am sure there are other remedies that can be applied—the real remedy for a President who believes that he is 

above the law and continues to act on that belief systematically is 

impeachment. And there is no running away from that. That is the 

problem. 

And so the question is, what do we do about it? What does the 

Congress do about it? And I think the American people want to see 

Congress act. 

Mr. BUGLIOSI. Mr. Chairman, I would like to elaborate on what 

Mr. Fein said. I make it very clear in my book that President Bush 

200 

has temporary immunity from criminal prosecution. But the law is 

very clear that, once he leaves office, he can be prosecuted for any 

crimes he committed while he was in office. The U.S. Constitution 

provides that. It goes all the way back to ‘‘The Federalist Papers,’’ 

1787, Alexander Hamilton. Once he leaves office, he can be prosecuted for any crime he committed while he was in office. 

When President Nixon resigned in 1974, there was quite a demand, as you probably know, from many people to prosecute him 

for Watergate-related crimes. I think the crimes were obstruction 

of justice, wiretapping, subornation or perjury. And this necessitated, in President Ford’s mind, pardoning him. Now, if he had 

immunity, there would be no need for Ford to intervene and pardon 

President Nixon. 

So Bush does not have immunity from prosecution for murder 

once he leaves office. And the criminal investigation of whether he 

committed murder can commence at this time right now. And when 

he leaves office, I guess it is what, January 20, 2009, they can hit 

the ground running. 

But I want to make that very clear. I have never suggested that 

he could be prosecuted for murder while he is in office. 

Mr. CONYERS. Trent Franks? 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, I have already expressed my dismay at the focus 

of this hearing. But let me just start by saying that it seems to me 

that the big so-called issue here is that somehow the President of 

the United States either deliberately falsified information as to the 

danger that potential terrorists had for us in Iraq or that he deliberately falsified their intent. So what I am going to do, rather than 

give you a lot of my own words, I am going to read some other people’s words. 

Former Vice President Al Gore said, quote, ‘‘Iraq’s search for 

weapons of mass destruction has proven impossible to deter, and 

we should assume that it will continue for as long as Saddam Hussein is in power.’’ 

Secretary of State Madeline Albright said, ‘‘Iraq has a very serious problem and clearly has a lot of weapons of mass destruction.’’ 

Senate Intelligence Committee Chairman Jay Rockefeller said, 

‘‘There is unmistakable evidence that Saddam Hussein is working 

aggressively to develop nuclear weapons and will likely have nuclear weapons capability within the next 5 years.’’ 

Senator Hillary Clinton said, ‘‘In the 4 years since the inspectors 

left, intelligence reports show that Saddam Hussein has worked to 

rebuild his chemical and biological weapons stock, his missile delivery capability and his nuclear program. I voted for the Iraqi resolution,’’ she said, ‘‘because I considered this prospect of a nucleararmed Saddam Hussein who can threaten not only his neighbors 

but the stability of the region and the world a very, very serious 

threat to the United States.’’ 

John Kerry said, ‘‘I will be voting to give the President of the 

United States the authority to use force to disarm Saddam Hussein 

because I believe that a deadly arsenal of weapons of mass destruction in his hands are a very grave and real threat to our security.’’ 

201 

Now, those were the people talking at the time, Mr. Chairman. 

Let me also, if I could, just go ahead and give us a few quotes from 

the terrorists. 

Al Qaeda’s al-Zawahiri said, ‘‘The jihad movement is growing 

and rising. It reached its peak with the two blessed raids on New 

York and Washington. And it is now waging a great heroic battle 

in Iraq, Afghanistan, Palestine and even the crusaders’ own home.’’ 

Al-Manar said on BBC, ‘‘Let the entire world hear me: Our hostility to the great state, America, is absolute. Regardless of how the 

world has changed after September 11, death to America will remain our reverberating and powerful slogan’’—death to America. 

Osama bin Laden’s chief deputy, al-Zawahiri, said right after 9/ 

11 took place, in his book, quote—the book is ‘‘Knights Under the 

Prophet’s Banner—’’Al Qaeda’s most important strategic short-term 

goal is to seize control of a state or part of a state somewhere in 

the Muslim world. Confronting the enemies of Islam and launching 

jihad against them require a Muslim authority established on Muslim land. Without achieving this, our actions will means nothing.’’ 

Osama bin Laden himself said, ‘‘The most important and serious 

issue today for the world is this third world war. It is raging in the 

land of the two rivers, Iraq. The world’s millstone and pillar is in 

Baghdad, the capital of the Caliphate.’’ 

Mr. Chairman, if the majority is correct here today, that winning 

the struggle against terrorism has nothing to do with Iraq, then I 

wish to God they would tell the terrorists, because they don’t seem 

to understand. 

And the bottom line here is that we have focused so much on 

these fairy tales that we are missing our primary goal here, which 

is to protect the American people and their constitutional rights. 

And I would suggest, Mr. Chairman, if terrorists do have their 

way at some point, I hope the majority has some better explanation 

than what I have heard today for focusing in this direction rather 

than what our primary responsibility is, which is protecting the 

American people and their constitutional rights. 

And with that, I would suggest that the greatest failure of the 

Administration—and I don’t suggest it was their fault, but, I mean, 

if there was a failure of the Administration, it was allowing 9/11 

to occur. There is the failure. And this President tried to respond 

by doing everything he could to protect the American people. 

And I want to ask Mr. Rabkin, I want to ask you, before I get 

a little overwrought here, where do you think that Presidents fail 

us more, where are they more impeachable, in failing to protect our 

country or in what the President has done here in doing everything 

he could, within the bounds of the Constitution, to protect us from 

terrorists? 

Mr. RABKIN. I wouldn’t claim to be an expert on what is or isn’t 

impeachable. You should ask Professor Presser. 

But I remember this, that when President Truman was deliberating whether to use the atomic bomb, he was told by his Secretary of State—what was his name from South Carolina who was 

on the Supreme Court afterwards? 

Mr. FEIN. Jimmy Byrnes. 

Mr. RABKIN. James Byrnes, who was subsequently Justice of the 

Supreme Court, so presumably had some authority to interpret the 

202 

Constitution. And he said, ‘‘If the American people find out that 

you had this weapon and you failed to use it, they will demand 

your impeachment immediately.’’ 

And I don’t know, maybe that was not right, but I think we 

should all remind ourselves that the President does feel, and rightly feels, an intense responsibility to see that the country is safe. 

And for a President who just had, whatever it was, 3,000 people 

killed in September of 2001, he had to have felt that very intensely. 

And we should just try to factor that into our understanding. 

I don’t know whether really we would impeach somebody for 

military failure. But we would certainly say, ‘‘You’re incompetent 

and shouldn’t be President,’’ and we would curse his name. 

Somebody said earlier that Bush was the worst President. I 

think clearly the worst President was James Buchanan, who allowed the country to fall apart on his watch. 

Mr. FRANKS. Mr. Chairman, part of the question, of course, was 

rhetorical. I was simply suggesting that somehow we are going 

after this President for trying to protect us and we are missing the 

whole issue here. And if terrorists do hit us again, I think that we 

are all going to be pretty ashamed of what we have done here 

today. 

Mr. SCHWARZ. You know, could I just say something, Mr. Chairman? 

Let’s accept both the question and the answer. But the problem 

is that the tactics that have been used in the name of defending 

the country have actually made us less safe by trashing, by undercutting our values. Using torture is not something which Americans should—— 

Mr. GOHMERT. Mr. Chairman, I’d ask that we proceed with regular order instead of allowing the witnesses to dictate the procedure. If we are going to have witnesses get final arguments after 

each Member of Congress has their time, then we should be able 

to respond in rebuttal. 

Mr. CONYERS. Does Mr. Franks have any objection to Mr. 

Schwarz making his statement? 

Mr. FRANKS. Mr. Chairman, I don’t have any real objection. But 

the idea that—it doesn’t really go to my question in any way. And 

the bottom line is here I am astonished at our lack of priority on 

the real issue here. 

Mr. CONYERS. Well, it sounds like you have objections. [Laughter.] 

Mr. FRANKS. Mr. Chairman, if it is all right, I will go ahead and 

yield back. 

Mr. CONYERS. All right. 

Mel Watt? 

Mr. WATT. Thank you, Mr. Chairman. 

And I guess the only thing I can say in response to Mr. Franks’ 

comments is what I have often said after having voted against various iterations of the PATRIOT Act. If the President and Attorney 

General Ashcroft—later Attorney General somebody else, later Attorney General somebody else—is protecting me against terrorism, 

who is protecting me against them? [Applause.] 

203 

So that’s kind of where I come down on that. If you trash the 

Constitution in the name of protecting me, I’m not sure I want to 

be there. 

Mr. CONYERS. Well, maybe the gentleman should yield to Mr. 

Schwarz then. 

Mr. WATT. No, no, I’m not—I wasn’t trying to pursue that because it wasn’t even where I was going. I just happened to be the 

next in line after Mr. Franks, and it seemed to be to be an appropriate response. 

I want to do two things. Number one, I wanted to welcome our 

former colleague Representative Barr back. In his absence, on several occasions in this Committee, I have longed for the day that he 

would be back here. We had our differences when he was here, and 

sometimes he strayed from some of these principles. But I can tell 

you, there has not been anybody on that side of the aisle who has 

stepped into that void to defend the Constitution since he left. And 

I want to thank him for that. 

I want to thank the Chair for having this hearing today. It is not 

an impeachment hearing. But it is the most important hearing, I 

think—in fact, I was on a 2:05 flight, moved back to 3:30, moved 

back to 5:25, so that I could continue to participate. And this is the 

most important issue that we could be exploring at this time. 

I am on record, much to the dismay and disenchantment of a lot 

of my constituents, of saying that I am not going to lead a charge 

for impeachment. I will read you what my standard letter says. It 

says, ‘‘As a member of the House Judiciary Committee, I would certainly be an active participant if such a resolution is considered 

and I would consider their input.’’ 

And then I go on to say, ‘‘I share your frustration about the Vice 

President or the President’s decisions on many policy matters. 

However, I served on the House Judiciary Committee during the 

impeachment proceedings against President Clinton and received 

valuable lessons about how high the impeachment standard is and 

about how an impeachment can distract from other important work 

of the American people.’’ 

‘‘Our Founding Fathers intentionally set an extremely high constitutional standard for impeachment to assure that impeachment 

could not be routinely used for political or policy disagreements or 

as a substitute for political participation. Additionally, as a practical political matter, it is clear to me that we would not have sufficient votes in the House or Senate at present to do a successful impeachment.’’ 

Now there are practical considerations. 

All of those things have really been talked about by this panel 

in one way or another. 

But I will tell you, I remember sitting in this Committee; the 

Chair has been here three times on impeachments. And in the distractions of all the cameras rolling and everything, I sat beside my 

good buddy, Representative Bobby Scott from Virginia, and we 

would, in the quiet of those moments when the cameras were projected everywhere, debate whether we would be making the same 

decision if this were a Republican President or a Democratic President. 

204 

And it is clear to me that the allegations here are substantially 

more substantive than the sexual allegations that were being made 

against President Clinton. 

And obviously, Mr. Presser has a different standard now than he 

possibly had earlier. But I don’t think that ought to be the standard. I really don’t, because I thought the Republicans were wrong 

when they did it then. 

I don’t say we would be wrong if we did it now. But I am firmly 

convinced that it would so distract us. I am convinced that we 

couldn’t have a fair, bipartisan evaluation of this issue in this environment. I am convinced that we couldn’t get to the end of it between now and the end of the year. I am convinced that it might 

even distract from the most important thing that my good friend 

Bob Barr said, which is, you know, each subsequent President 

starts from the standard that the prior President has set. I aspire 

to a different set of standards, and I hope the next President of the 

United States doesn’t live up to that prediction that my good friend 

Bob Barr has made. 

I hope we can raise the standard back to some element of reasonableness. And perhaps maybe we can go back in a different time 

and place and do what Mr. Schwarz has suggested or indict or 

prosecute the President. But I don’t think, as a practical matter 

and maybe my obligation is different than practical politics under 

the Constitution, and if somebody brings the resolution, I am going 

to be right here every step of the way. But I would have to say I 

am not going to be—I am going to say the same thing that I say— 

I am not going to be leading the parade right now. 

And I guess once somebody is out of office, you can’t impeach 

him. But we need—we definitely need to raise the standard. And 

that is the aspiration I have when I say I don’t want this to be a 

substitute for political participation. I want the American people to 

impeach this President in November of 2008 and this whole Administration and all of its concepts that have been associated with 

it, including the notion that the President can protect me from terrorists by doing whatever in the hell he wants to do. 

Mr. KING. Mr. Chairman? 

A parliamentary inquiry? 

Mr. CONYERS. Yes, the gentleman will state his inquiry. 

Mr. KING. I would just ask the Chairman if you have a predicted 

time on when you might be seeking to conclude this hearing so 

those that are planning to travel today, like Mr. Watt, might be 

able to make their plans. 

Mr. CONYERS. Well, as soon as we finish having all the Members 

make their inquiry and not a minute later. 

Mr. WATT. I would yield it back, Mr. Chairman. 

Mr. KING. I thank the Chairman for that definitive response, and 

I will help you proceed accordingly. 

Mr. CONYERS. Mike Pence. 

Judge Louie Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And I appreciated some of the testimony here today. I am often 

a little surprised how free some people feel when they come before 

a Committee in Congress to testify when we have heard people say 

misleading Congress is an impeachable offense. But, you know, 

205 

making brash statements without adequate support ought to be a 

pretty serious matter when you are testifying here in front of the 

Committee and in front of the world. 

Now my friend Mr. Jones, we disagree strongly on some things, 

but I like his idea that if there is going to be a signing statement 

it ought to at least be made public in 3 days. I would say simultaneously. So I will talk to my friend Mr. Jones about pushing that 

issue. 

We have had a number of concerns. I was very concerned about 

the National Security Letter abuse, when we found out that had 

happened. There is no evidence whatsoever that the President 

knew that was going on. The FBI Director said he took full responsibility, and there were no consequences there. But I was also one 

who fought for—one of the Republicans who fought very strongly 

for sunsets on the PATRIOT Act, because I believe we needed that 

kind of safeguard on those kind of powers. 

But we come back to some of these brash allegations. You know, 

President Clinton was in office for 8 years. George Bush was in office for about 8 months, and we know, looking in retrospect, that 

the World Trade Center was bombed in 1993. That was an act of 

terrorism. It was an act of war, just like the act of war when our 

embassy was attacked in 1979, was actually an act of war, and we 

didn’t see it for what it was. 

Now, the attack on the World Trade Center, unsuccessfully— 

even though people were hurt, people were killed—the plans soon 

began to try again. Now, I have a hard time blaming President 

Clinton for not suspecting that there were radical Muslim elements 

out there who wanted to destroy the United States, because every 

time—I believe every time President Clinton committed troops, it 

was, well at least most every time, it was to help Muslims against 

Christians. How was he to know that there was a radical element 

out there all the time that he was helping Muslims in their effort 

against Christians, that he had Muslims that were planning on attacking him? That was so grossly unfair. 

So I know people keep saying over and over, he lied about—the 

President lied about weapons of mass destruction. The President 

lied about weapons of mass destruction. The Secretary of State lied 

about weapons of mass destruction. And we have heard the quotes. 

If he really lied about weapons of mass destruction, I say it is time 

to forgive President Clinton and Madeleine Albright and move on. 

Let’s forgive them for the lies and move on. It is not constructive 

at this time to keep blaming President Clinton for lying about 

them. And if George Bush was so naive that he would accept those 

representations that were passed on to him by the Clinton administration, then, okay, he gets blamed for being too naive in accepting 

all those representations. 

But if you bring this timeline back to what really happened, you 

come back to Joseph Wilson. And in February of 2002, his wife 

said, oh, I never suggested him. She is under oath saying that. And 

when we finally got the e-mail, it turns out she says in her e-mail, 

my husband is willing to help if it makes sense, but no problem if 

not. End of story. 

Well, it wasn’t end of story because she goes on, my husband has 

good relationships with both the P.M. and the former minister of 

206 

mines, not to mention lots of French contacts. And then she goes 

on down, however, my husband may be in a position to assist. Of 

course she suggested that. And that was untrue to say otherwise. 

And then he went to Niger. And what people don’t realize, October of 2002, he wrote an op-ed in which he said he was urging that 

we not go in and attack Saddam, that we just try to get him to accept inspections. And he said, one of the strongest arguments for 

military-supported inspection plan is that it doesn’t threaten Saddam with extinction, a threat that could push him to fight back 

with the very weapons we are seeking to destroy. 

There was no mention that he didn’t have weapons of mass destruction. It was not until many months later, after the United 

States had gone into Iraq, and we found that his good friends and 

contacts in France had been making great deals of money by cheating on the Oil-for-Food scandal. So we took France out of the headlines when he came forward and said, well, Bush lied, I told them 

there were no weapons of mass destruction. That was not supported by the evidence, wasn’t supported by the CIA notes. It 

wasn’t supported by his op-ed. And yet he turns on the President 

and gets a lot of celebrity out of it. 

But I think it is time to move forward. And in response to the 

issue of, is there a more important issue than this, we heard in this 

room this week the Attorney General of the United States say, because the Supreme Court has put us in the position virtually to release, or the threat of releasing terrorists on American soil because 

of the ridiculous decision in the Boumediene case, we have got to 

do something to fix that. Even though, as both Justice Roberts and 

Scalia pointed out, they pulled a bait and switch. We did what the 

Supreme Court asked us to do, and then they said it was unconstitutional. That is something that would be important to very quickly 

deal with. 

And I see I am out of time, so I yield back at this point. 

Mr. CONYERS. Zoe Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

This has been a very helpful hearing. Just some of the comments 

that have been made I wanted to deal with. 

I voted against the FISA bill, but I do want to stick up for some 

portions of it. I very much objected to the retroactive immunity provisions of that act. But it does increase the opportunity for oversight by the Congress. And if we utilize that new authority, that 

is going to be a very significant element in making sure that, in 

the future, activities that do not comport with the Constitution are 

curbed. And that has been rarely discussed in the public debate 

over this, which is why I am raising it now, because I think it is 

a very important thing, in addition to the expansion of fourth 

amendment protections for Americans when they are outside of the 

United States. 

You know, I remember I was watching Congresswoman 

Holtzman and watching Congressman Conyers as a young staffer 

back in the Nixon impeachment. And certainly the articles were 

adopted as Congressman Holtzman described. But I remember that 

the senior Members of the Committee on the Republican side were 

really not on board until Chuck Wiggins, I will always remember 

the look on his face when he found out that the President, PresiVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00212 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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dent Nixon, had not been telling him the truth. And when the 

truth came out, he was an honorable guy and an honest conservative, and the look on his face when he found out that his faith in 

his President had been betrayed will always be with me. It was a 

bipartisan group that came together in the Congress. We will never 

know whether the full House would have approved the articles of 

impeachment or not, but certainly you can see here today that we 

are not in the same spot in this Congress that that Congress was 

in. 

And so there has been a discussion of whether, as a practical 

matter, impeachment is a remedy available to this Congress. In addition to where we are as a Committee and a Congress, there is 

the element of time. It is almost August. And I recall really the 

substantial months-long efforts to acquire evidence and review it. 

And so my real question is, assuming just for the sake of argument that we are not in an impeachment mode, we have a very 

strong need to set things right. I have a bill to extend the statute 

of limitations for any President for the number of years that they 

have served in office just automatically as a matter of just good jurisprudence. But whether that will pass I do not know. I think it 

should. 

But how do we set this right? I mean, ‘‘I told you so’’ really isn’t 

very helpful. It is very unsatisfying. When we provided for, essentially, suspension of habeas corpus, I pointed out in the House debate that we don’t have the authority to do that except in cases of 

rebellion and invasion, which is exactly what the Court found later. 

I remember telling the White House that they lacked the authority 

to establish the military courts. It is only Congress in article III, 

section 1, that may from time to time establish inferior courts. But 

being right doesn’t do me any good. 

I am intrigued by, Mr. Schwarz, by your suggestion that we have 

commissions, that we have maybe a truth-and-reconciliation effort 

that would really dig in to find out, we know some of the offenses, 

but to find out the things we don’t know and set a course to readjust. It is not just the legislative branch that has been pushed and 

trampled, but it has also been the judicial branch—and it is a very 

conservative court—to rein in the executive so that, once again, we 

have a functioning three-branches-of-government system. How 

would we enforce the findings against the executive in a threebranch truth-and-reconciliation commission? 

Mr. SCHWARZ. If there is such an inquiry that I believe the next 

Congress and the next President should promptly put in motion, 

then it will have a responsible inquiry, which does take a lot of 

time. I mean, from the Church Committee, it took us 15, 18 

months. 

Ms. LOFGREN. If I may, I think there is some benefit in having 

the commission not be the Congress, but having it be some experts 

and acknowledged people so it is not a partisan issue. It could 

never be claimed to be partisan. 

Mr. SCHWARZ. That is what I recommend, actually, that it be 

something like the 9/11 Commission, where the President and the 

Congress appointed people from American society who understand 

the Constitution, who appreciate the importance of both protecting 

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ing. I think it would work well. It is not easy to do. But the 9/11 

Commission did a good job. And that would free the Congress to 

work on the many things that also have to be addressed, like secrecy and state secrets. 

Ms. LOFGREN. Right. Legislative efforts. 

Mr. SCHWARZ. Legislative matters. 

Ms. LOFGREN. Let me just ask Congressman Barr, and it is good 

to see you here again, let’s say that through hard campaigning and 

maybe a little luck, you become our next President. What would 

your effort be to restore the checks and balances? What would you 

recommend as a course of action? 

Mr. BARR. Well, it is hard to know where to start. We have 

touched on every single area that the policies in the Barr administration would be quite different from those under the current Administration. The doctrine of state secrets would not be employed 

to hide embarrassing or improper acts by an Administration. It 

would not be used to thwart the legitimate complaints seeking redress by American citizens for wrongs committed against them by 

the government. 

Signing statements, you know, I certainly would accept the challenge laid down by your colleague, my former colleague, Walter 

Jones. Signing statements would not be employed to undercut the 

will of the Congress and to move forward the notion that the executive branch is above the law. 

Executive privilege would not be used as a shield behind which 

to hide embarrassing or political information legitimately sought by 

the Congress. The commander in chief power would be returned to 

its proper place, and that is not the power to make or run—make 

war or run the Armed Forces, but simply to carry out the administrative duty of serving as the chief and top officer in the military. 

The FISA law would be adhered to. And I would seek legislation 

to undo what I consider the unwarranted and constitutionally damaging expansion of foreign intelligence surveillance gathering on 

American citizens in their own country reflected in the legislation 

that was just passed by the Congress. 

And then we would look at my next week in office. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I think my time has expired. 

Mr. CONYERS. Dan Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

And I thank the gentlelady from California, making reference to 

the late Chuck Wiggins, who truly was a wonderful Member of this 

Committee and later served on the Ninth Circuit. 

Although when you refer to him as an honest conservative, in my 

family that is considered a redundancy. 

Ms. LOFGREN. I see. 

Mr. LUNGREN. I appreciate that. 

Ms. LOFGREN. I always respected Congressman Wiggins. 

Mr. LUNGREN. With former prosecutors, such as former Congresswoman Holtzman and Vincent Bugliosi, here, I appreciate the 

contributions you made to the criminal justice system in the past. 

The only thing I would observe is that I know both of you being 

very valuable members of the prosecution bar in the past understand the importance of not overcharging cases. And one of the conVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00214 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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cerns I have here is this is tantamount, in my judgment, to overcharging in a case. And we run the risk of criminalizing political 

disputes. And I am not sure that is in the best interests of this 

country. 

And let me just reflect on a couple things. During World War 

One, as I recall reading history, Woodrow Wilson had cartoonists 

imprisoned because they published cartoons critical of our troops 

during that time. He thought that was offensive and harmful to 

troop morale. 

I was privileged to serve on a national commission that reviewed 

the treatment of Japanese nationals and Japanese Americans during World War II. And the executive order issued by President 

Franklin Delano Roosevelt caused hundreds of thousands of Japanese Americans, Japanese nationals to be put into camps, removed 

from their homes. Not so coincidentally, many of them lost their 

property. 

I remember after the election in 1960, when Richard Nixon returned to California, he was immediately subjected to IRS audits. 

Some suggested that that was political in nature. We know the stories of the wiretapping of the great civil rights leader Martin Luther King, and that LBJ seemingly revelled in listening to those 

things. And does anybody suggest that we should have impeached 

those Presidents for those actions, as erroneous and improper as 

they may have been? And how does that sit with the allegations 

I have heard here that this Administration has trampled on the 

Constitution worse than any others? 

That is not to absolve Administrations of improper conduct, but 

it is the question of whether impeachment is the proper tool that 

we ought to use. 

And I wonder, Mr. Rabkin, Mr. Presser, if you might first start 

off by reflecting on that. That is, I believe the impeachment is a 

strong and important tool of the legislative branch, but I think it 

ought to be used judiciously. Otherwise, its importance is undercut, 

but more importantly it becomes a distortion of the tension between the branches of government that are justifiably placed there 

by the Constitution. Yes, sir. 

Mr. PRESSER. It is difficult to add much to what you said. I think 

you laid out the problem very nicely. Impeachment is a tool. 

[Audience disruption.] 

Mr. LUNGREN. Mr. Chairman, you know, that is about the fifth 

time we have had a reaction. We have people in the audience who 

have signs that, under our rules, are inappropriate to be here. And 

I wish that the Chairman would have the Rules of the House respected and enforced. 

Mr. CONYERS. Well, I will instruct the staff and the officers to 

ask anyone with such signs to either remove them or leave the 

hearing room from this point on. 

[Audience disruption.] 

Mr. CONYERS. Will everybody that wants to leave leave? Everybody that wants to leave is excused. 

[Audience disruption.] 

Mr. CONYERS. Let’s leave. 

[Audience disruption.] 

Ms. JACKSON LEE. Don’t do that. 

210 

[Audience disruption.] 

Mr. KING. Mr. Chairman, if we can’t maintain order, you do have 

the authority to recess this hearing. And I would suggest that if 

it can’t be maintained, you do that. 

Mr. LUNGREN. Could Mr. Presser now answer, Mr. Chairman? 

Mr. PRESSER. Sure. Impeachment is a remedy that is available 

to the House when it believes that a President is corrupt and can’t 

or won’t do his job. 

It strikes me that the question before you here is, do you have 

a President who acted in good faith to carry out the responsibilities 

of his office or do you have somebody who, as was suggested before, 

simply wasn’t interested in doing that? I think your choice is pretty 

clear here, as you have indicated. 

Mr. LUNGREN. Mr. Rabkin? 

Mr. RABKIN. Let me say something a little different. 

I agree with what you said, but I think if people really are determined on accountability, they should remember that the President 

doesn’t do anything alone. If you think there have been abuses over 

signing statements, you think there have been abuses over not referring things to the FISA court, you can impeach the Attorney 

General. You can impeach the White House Counsel, I think. You 

could certainly impeach a lot of other officials whose offices are created by statute. 

I am not saying that is a great idea. But it is just not true that 

there is no recourse other than impeaching the President. The impeachment clause applies to executive officers—actually, to ‘‘officers 

of the United States.’’ So it is not true that the House is powerless. 

And I think the reason why we are talking about impeaching the 

President is that a lot of people find it extremely titillating to talk 

about impeaching the President. But there are recourses short of 

that. And if you wanted to focus responsibility, you could do it. 

Let’s see if there is a majority of the House interested in doing it. 

Mr. LUNGREN. Thank you, Mr. Chairman. 

Mr. CONYERS. Sheila Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

I want to associate myself with the words of my colleague from 

California. This is an enormously important hearing. It is creating 

a legislative and congressional record for what I have maintained. 

And I am so glad that Bruce Fein mentioned the previous holder 

of this seat, who really captured not only the sentiment of the Constitution but really the hearts and minds of Americans when she 

reminded them, the Honorable Barbara Jordan, that this is an institution of We the People. 

And I would like to characterize my questions in the context of 

preserving the institution that I think our Founding Fathers, in 

their wisdom and intellect, and the scholars that helped write the 

legislation, when I say that self-imposed scholars, the Constitution, 

were very concerned about. 

And I think Mr. Fein, your eloquent recounting of the elimination of His Excellency and your Honor really do point to what 

America is all about, and that is the protection of the rights of simple people. And I don’t say that in any negative terminology. 

211 

So I think it is important to note, if I might, Mr. Chairman, I 

would like to ask unanimous consent to put into the record a draft 

of H.R. 264, please. 

Mr. CONYERS. What is the title of that? 

Ms. JACKSON LEE. That is the title is, Congressional Lawmaking 

Authority Protection Act of 2007 and 2008, regarding signing statements. 

Mr. CONYERS. Without objection, so ordered. 

[See Appendix, page 462.] 

Ms. JACKSON LEE. Thank you. 

In the discussion of signing statements, I want to make sure we 

now have a vehicle to move forward, legislation that I have offered 

regarding signing statements. And I know others have been suggested as well. 

But I would like to put it in the context, if I can pose my questions around my premise of protecting the Constitution, that there 

may be a number of vehicles that we might use. First, I want to 

say to the Chairman, a series of abuse-of-power hearings, and I 

know how challenging it is for us to issue subpoenas, but to impress upon the Congress the importance of subpoenaing Karl Rove, 

as we have done, and to utilize, as we want to do, and to utilize 

the subpoena power, because it is in the context of protecting the 

American people. 

And I think there have been crucial fractures, Mr. Presser, that 

really look to the question of whether the American people have 

been protected. And whether or not we define it as high crimes and 

misdemeanors, which frankly I do believe we have a very firm 

basis of suggesting high crimes and misdemeanors, because the inquiry made—the impeachment inquiry made in this body, the Judiciary Committee, is what it is, is a prosecutorial approach. It is the 

indictment. It is the question of determining whether we move forward. And then the trial is held in the Senate. So, in essence, we 

are giving the, in essence, defendant or defendants the opportunity 

to be heard. Why in the world would we be afraid of allowing the 

prosecutorial approach to go forward? 

I think timing is an issue. But if I might, so to clarify that we 

should not be intimidated by the process or time, that what we are 

doing is not personalizing this. I have no angst against a personal 

individual, as we have tried to use the name of President Clinton, 

and Franklin Delano Roosevelt, and President Johnson. This is not 

a personal question. This is a question of protecting the institution 

and the Constitution. 

Now let me go back and pay tribute to those who have lost their 

lives on the front lines of Iraq and Afghanistan, and to pay tribute 

to the veterans who are here. But in the memory of those who lost 

their lives in Iraq, this is the question that I want to raise: One 

of the oaths of office says to take care that the laws be faithfully 

executed. And our colleague, Congressman Kucinich, has included 

those very, very precise words in one of his articles. And so if I 

might, one of the premises of this whole issue of the Iraq war was 

the representation of the government, the Administration, the commander in chief, the presentation made before the United Nations, 

what I believe is ignoring 2002, where we gave the President the 

right to use force if all other things didn’t work. 

212 

Mr. Fein, can you help me with juxtaposing the representations 

that were made, the players in the representation, and article I, 

section 8, about Congress declaring war? But just focus there as to 

whether or not our duty to, if you will, protect the institution on 

behalf of the people of the United States, is there some merit there 

as we might look at those facts? 

Mr. FEIN. Yes. James Madison said that a people who mean to 

govern themselves must arm themselves with the power that 

knowledge and information gives and that a popular government 

without popular information is a farce. 

And obviously, the Congress of the United States is making its 

deliberative choice to authorize war or not based on information in 

the hands of the executive branch. And as I explained earlier, 

James Iredell, who was a Founding Father, subsequent member of 

the U.S. Supreme Court, made it very clear that it would be an impeachable high crime and misdemeanor to withhold information 

from Congress that, if they had known about, would have caused 

them to decide differently on a matter of war and peace. This was 

unambiguous. He wasn’t a Democrat. He wasn’t a Republican, he 

was just a Founding Father interpreting a document that he had 

helped fashion. 

Now based upon the Administration’s own former occupants of 

office, including George Tenet and others who have served in the 

CIA that have not been denied by this Administration, there was 

withheld from this Congress strong information that Congress had 

a right to evaluate on its own, not just based upon President Bush, 

that undercut the idea that there were weapons of mass destruction in Iraq that the President held out as a justification for Congress to authorize war and that al-Qaeda was in cahoots with Saddam Hussein. And these are—this is information that comes out 

from Bush administration officials. Now, it may be true that has 

been quoted by Congressman King that Madeleine Albright or Albert Gore made statements that Iraq has this kind of—these kinds 

of weapons or collusion. But what was their information based on? 

I have no doubt that President Bush didn’t say, come and survey 

all of our documents. They got the same briefing, I am sure, that 

everybody else got. That was the same one-sided, distorted information. And to say this characterization isn’t out of—this is out of 

Bush administration officials themselves. And it seems quite clear 

that the declaring war function is corrupted if the President has 

complete control over the information flow and gives you part of 

the story but not all of it, because the power to declare war means 

you get to make your own independent evaluation of what to believe or not, just not what the President wants you to hear. 

Ms. JACKSON LEE. And any of that could bear on—just if we were 

in an inquiry, could bear on treason to the extent of how you undermine the infrastructure of government and could also lay the 

precedent for say, for example, an attack on Iran. So we are forward thinking when we do this kind of inquiry, are we not? 

Mr. FEIN. Of course. Suppose there is conflicting information 

about whether Iran in fact has a nuclear weapon. And there is just 

one snippet and says, oh, all the information I am giving you suggests that there is a nuclear weapon and they are about ready to 

launch an attack against Jerusalem. There is volumes of informaVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00218 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
213 

tion otherwise, but that is all suppressed. So you only hear part of 

the story. That clearly in my judgment is an impeachable offense 

under the standard of the Founding Fathers, not under the standard of anybody who came afterwards with partisan axes to grind. 

James Iredell didn’t have any grudge against a Republican or Democrat. He was seeking to defend the Constitution. 

Ms. JACKSON LEE. Maybe Mr. Bugliosi, who has commented on 

this, would add to the framework of what you are—— 

Mr. BUGLIOSI. Yes. I want to respond—— 

Ms. JACKSON LEE. Thank you, Mr. Fein. 

Mr. BUGLIOSI [continuing]. On this whole issue of weapons of 

mass destruction that Congressman Franks and Gohmert talked 

about. In this book of mine here, ‘‘The Prosecution of George W. 

Bush for Murder,’’ believe it or not I do not say—— 

Mr. FRANKS. Hold it higher. 

Mr. BUGLIOSI. You want me to hold it higher? 

Mr. FRANKS. Hold it way up. 

Mr. BUGLIOSI. You are being funny now, aren’t you? You are 

being funny. Okay. 

Ms. JACKSON LEE. Mr. Bugliosi, you may continue. 

Mr. BUGLIOSI. Yes. Believe it or not, I do not say in this book 

where I am asking that George Bush be prosecuted for murder that 

he lied about weapons of mass destruction. 

Actually, he did lie about weapons of mass destruction, but that 

is not why I am saying he should be prosecuted for murder. The 

evidence that he lied about weapons of mass destruction, by the 

way, which is not the basis for this book, are right in front of me. 

I have it right here. Here is the evidence. This document here is 

the National Intelligence Estimate. I didn’t name it before. I talked 

about a classified report. This is it right here. October 1st, 2002, 

classified NIE report. It is called Iraq’s Continuing Programs of 

Weapons of Mass Destruction. In this document right here, the CIA 

and 15 other U.S. intelligence agencies use words like this, ‘‘we assess that’’ or ‘‘we judge that’’ Hussein has weapons of mass destruction. This document here is the white paper that was given to you 

folks here in Congress and the American people. And the words 

‘‘we assess that’’ or ‘‘we judge that’’ were removed, meaning that 

you folks here heard a fact, and in fact, it was only an opinion. 

Number two, on nuclear weapons, this document right here, the 

classified report has several important dissents. This document 

right here, the white paper that you folks were given and the 

American people, all of those dissents were deleted. That is where 

the line about—— 

Ms. JACKSON LEE. And were those dissents presented at the 

U.N.? 

Mr. BUGLIOSI. Pardon? 

Ms. JACKSON LEE. Were those dissents at the presented at the 

U.N.? 

Mr. BUGLIOSI. I am sorry? 

Ms. JACKSON LEE. Those dissents, were they presented at the 

U.N.? The presentation made at the U.N., were those dissents presented there? No. 

Mr. BUGLIOSI. No. 

214 

But the dissents that are in the classified document right here 

do not appear, do not appear in this white paper that you folks 

were given. There is the lies about weapons of mass destruction. 

But here is the point I want to make. And I really feel, and this 

sounds presumptuous of me, I guess Mr. Franks already knows 

enough that he doesn’t want to hear. But here is the evidence that 

I want to present to this Committee that weapons of mass destruction, that is not the issue here. The issue is not whether Hussein 

had weapons of mass destruction. If that were the issue, Pakistan, 

China, Russia, Britain, France, North Korea—— 

Mr. KING. Mr. Chairman, the gentleman’s time has long ago expired. 

Mr. BUGLIOSI. Wait a while. I am talking about something I 

think is pretty important, okay? 

Mr. KING. Mr. Chairman, the gentleman is talking about classified information in this meeting. 

[Audience disruption.] 

Mr. BUGLIOSI. Wait—— 

Mr. KING. And the gentleman’s time has expired. And I insist 

that you impose the rules on this. 

Mr. NADLER. Mr. Chairman? Mr. Chairman? Mr. Chairman? 

Mr. CONYERS. Let’s have order. 

The gentlelady asked a question, and after it is responded to, her 

time will have been expired. 

Ms. JACKSON LEE. I thank the gentleman for his indulgence. 

Mr. BUGLIOSI. This document right here has been declassified. 

This one here was an unclassified version. So you are wrong. 

But here is the point I want to make, here is the point I want 

to make: Britain, France, Russia, China, Pakistan, they have weapons of mass destruction. Are we going to war with them? No. Why? 

I will tell you why. Because the only issue, not two issues or three 

issues, the only issue is whether a Nation that has weapons of 

mass destruction is an imminent threat to the security of this country. That is the only issue. And 16 U.S. intelligence agencies in this 

previously classified document, including the CIA, all said unanimously that Hussein was not an imminent threat to the security 

of this country. And they knew all about these weapons of mass destruction. They thought they did. Actually, Hussein did not have 

weapons of mass destruction. Let’s overlook that fact. They 

thought—these 16 U.S. agencies thought that Hussein had weapons of mass destruction, and they still said he was not an imminent threat to the security of this country. It is a terrible non sequitur to say that just because you have weapons of mass destruction, you are an imminent threat to the security of this country. 

The proposition that Hussein was an imminent threat to the security of this country is outrageous on its face. Why? I will tell you 

why. Hussein wanted to live. 

Mr. KING. Mr. Chairman, I am getting really close to an aneurysm here. Do you think you could help him wind this thing up? 

Mr. BUGLIOSI. Hussein wanted to live. And when you want to 

live, you do not attack the United States of America or help anyone 

else do so. And all 16 U.S. intelligence agencies agreed with what 

I just told you. 

215 

Mr. KING. The man is repeating himself, and long ago, the 

gentlelady’s time has expired. 

Mr. CONYERS. The gentlelady’s time has expired. 

Ms. JACKSON LEE. I thank the Chairman. 

Mr. BUGLIOSI. I have more to say, but I won’t. 

Mr. CONYERS. Mr. Pence. 

Mr. PENCE. Thank you, Mr. Chairman. 

Thank you to our panel of witnesses. 

I want to address my questions, if I can, to Professor Presser. I 

am not entirely sure that you weren’t just referred to as a self-imposed scholar, although I would be happy to be corrected on that. 

I do know that earlier reference was made by another witness at 

this panel who characterized your work for this Committee for this 

hearing as quote, atrocious scholarship. How long have you been a 

professor of legal history and constitutional law at Northwestern 

University School of Law? 

Mr. PRESSER. Thirty-one years. 

Mr. PENCE. I didn’t hear that. I don’t know if your microphone—— 

Mr. PRESSER. Thirty-one years. 

Mr. PENCE. Thirty-one years. Are you the same Stephen B. 

Presser who has co-authored one of the seminal casebooks on constitutional law in the United States of America? 

Mr. PENCE. Yes. 

Mr. PRESSER. What is the title of that book? It is a while I am 

out of law school. 

Mr. PRESSER. It is called ‘‘Law and Jurisprudence in American 

History.’’ 

Mr. PENCE. And you co-authored that with? 

Mr. PRESSER. A fellow named Jamil Zainaldin, who I think was 

then in the History Department at Northwestern. 

Mr. PENCE. Now, I am a Hoosier, but I think Northwestern is a 

pretty good school. It seems to be a pretty credible place. 

You ever published any other works on constitutional law and 

history other than the widely utilized seminal casebook that you 

co-authored on constitutional law and history? 

Mr. PRESSER. Yes, several other books and articles. 

Mr. PENCE. I might take the opportunity to welcome you back to 

the Committee. It was 10 years ago you testified before the Judiciary Committee in another hearing on the subject that has found its 

way into the subject matter of this hearing. Again, as I said in my 

opening statement, I accept the Chairman’s assurances that this 

hearing was not called on the subject of impeachment, but it is the 

elephant in the room. We found our way there. 

I am fascinated by your analysis. Because we just heard from the 

immediate prior witness and witnesses, it just seems to me that 

the objections that have been raised are, in the main, differences 

on policy. The decisions to go to war, which of course the Congress 

and the House and the Senate gave the President the authority to 

go to war in Afghanistan and Iraq, voted in overwhelming majorities to do that, people can differ with that policy, but it seems to 

me in some of your analysis in what has been characterized, regrettably, as atrocious scholarship, you point out the Founders of this 

country, the Framers of the Constitution were very, very careful 

216 

about this business of not allowing impeachment to be a basis to 

challenge policy differences with an Administration. 

There is one part of that I would like you to elaborate on. I think 

it is fascinating. I think one of our witnesses just cited James 

Madison glowingly. He should always be cited glowingly, in my 

judgment. 

James Madison and George Mason had this argument that you 

cite in your report to this Committee. I am absolutely fascinated 

by it. It turns out, and tell me if I get this wrong, George Mason, 

who seems to me kind of to be the forgotten Founder, he is a brilliant man, understood liberty and constitutional rights maybe like 

no one other than James Madison, but the two of them had an argument about this very provision, this business of whether or not 

the term malAdministration would be included, I believe in the text 

of the Constitution, would be included as a basis for impeachment. 

Now, I don’t quarrel with any of my colleagues on this Committee on policy differences with this Administration. As I said earlier, anyone tuning into C-SPAN 20 or something earlier this week 

would have seen me in a rather pointed conversation with this Administration’s Attorney General on the subject of the first amendment freedom of the press. So I cherish policy differences of opinion. 

But it seems that there is a—you point, Mr. Presser, to the 

Founders rejecting this term of maladministration as a basis for 

impeachment, because you quote here that Madison, one of the authors of the Federalist and the man commonly described as Father 

of the Constitution, objected on the grounds that maladministration was too elusive. He said, quote, so vague a term will be equivalent to a tenure during the pleasure of the Senate. 

In effect, my understanding of that, but I would really like you 

to elaborate on it, is it seems like that—and he won that argument 

with George Mason, and the term maladministration was not included in the Constitution—it seems that specifically they were rejecting—they made the decision to reject differences in the administration of and the pursuit of policies in the government. Fair characterization? 

Mr. PRESSER. I think that is entirely accurate. 

Mr. PENCE. Okay. I got a passing grade on that. 

The other one is this other business is—and I said a little bit 

earlier, I have great respect for Congressman Kucinich. I have actually great affection for him. He is a man that is as passionate 

on the left as I am on the right. I don’t begrudge him utilizing 

whatever tools are available to him as a legislator to raise and to 

press the issues that he cares about. 

It seems to me, though, you make a point in your report that this 

business of high crimes and misdemeanors goes to the question of 

whether or not the person serving as President of the United 

States put their own interests, their personal interests, ahead of 

public service. 

Now, when you testified here 10 years ago, you indicated that— 

you testified about the allegations made against President Clinton; 

you said if they were true, it showed that over many months Mr. 

Clinton engaged in deception, lying under oath, concealing evidence, tampering with witnesses, and in general obstructing justice 

217 

by seeking to prevent the proper functioning of the courts, the 

grand jury, and the investigation of the Office of Independent 

Counsel. I believe, I am inferring here, I believe you testified that 

if those things were proven to be true, those would be instances 

where a President put his personal interests above public service. 

Do you see in evidence of any of these policy differences with the 

current Administration the same types of—same type of conduct 

that would be high crimes and misdemeanors? 

Mr. PRESSER. No, sir. 

Mr. PENCE. That is the briefest law school professor I have ever 

met in my life. 

I want to thank you for being here. And I so appreciate what I 

want to affirm, and anyone can, I suspect, look at the public record 

of this hearing and see to be outstanding scholarship in your report 

to this Committee. And I am grateful for your work. 

And I yield back the balance of my time. 

Mr. CONYERS. Robert Wexler. 

Mr. WEXLER. Thank you, Mr. Chairman. 

I just want to again thank you, Chairman Conyers, for holding 

this important hearing. 

I would like to just begin by taking up where my good friend and 

someone I respect enormously, Mr. Pence, just spoke about. 

And essentially, Mr. Pence I believe referred to policy differences 

as being distinguished from constitutional issues or legal issues. 

And I would beg, respectfully, to differ with Mr. Pence, particularly 

as to three issues: Ignoring congressional subpoenas, spying on 

American citizens, and whether or not torture is ordered, illegally 

or in some other fashion, to me are not policy issues; they go to the 

issue of abuse of executive power. 

For instance, with respect to ignoring congressional subpoenas, I 

think it is at this point not debatable that President Bush has ordered his executive branch officials, such as Karl Rove, Harriet 

Miers, Josh Bolton, and other Administration officials not to testify 

to Congress. I believe that is an indisputable fact. And what has 

occurred is a set of circumstances where this Administration has 

made itself immune from congressional oversight to a degree that 

no other Administration in American history has done. 

Respectfully, in my estimation, that is not a policy issue. That is 

a constitutional action, and it is a legitimate inquiry to determine 

whether or not that abuse of executive privilege amounts to the 

constitutional standard of or required for impeachment. 

I would like to ask—I was going to ask Mr. Barr, but Mr. Barr 

has gone, I know. That is why I said I was going to ask Mr. Barr. 

I would like to ask the other members of the panel, Mr. Barr, in 

the last impeachment, during the impeachment of President Clinton, repeated what was also said earlier today in terms of President Nixon and his comment, quote, President Nixon was, when 

the President does it, that means it is not illegal. And Mr. Barr, 

to his credit during the Clinton impeachment, his quote was, Nixon’s statement, quote, was dead wrong then, and it is dead wrong 

today—wrong that is, unless one subscribes to the principle that 

the President is not only above the law, but that he is the law, end 

quote. 

218 

The issue of refusing to appear before Congress, just that one 

count of impeachment, what is—in my mind, is that a—or I am 

asking, is that a constitutional issue or a policy issue? And what 

justification can there possibly be, to the degree that the President 

has employed this tactic, to justify its use in the context that this 

President has done so? 

Please, Mr. Anderson. 

Mr. ANDERSON. It is clearly a constitutional issue. It is not just 

a matter of policy. And it goes right to the core of our constitutional 

system. It is up to Congress as to whether its power is going to slip 

through its fingers. And now is the time to assert Congress’s 

power. It is not waiting for the good will of another President, hoping that they will restrain themselves. It is up to Congress. 

And you know, it is unbelievable in this body how people have 

cavalierly downplayed the abuses of power that go far beyond what 

was talked about during the Nixon impeachment, which by the 

way, they didn’t end—in the articles of impeachment, they weren’t 

talking about criminal offenses, per se. They were talking about 

abuses and breaches of trust and subversion of constitutional government. 

Here it is absolutely unprecedented. It is not a matter of whether 

you like it or not; it is not a matter of policy. It has been a matter 

of egregious violations of domestic statutory law, laws passed by 

this Congress, treaties that have been ratified by the Senate, and 

the Constitution. We are talking about violations of those laws that 

prohibit torture, the indefinite detention of American citizens with 

no due process, no lawyers, no trials, no charges against them. Absolutely unprecedented. Kidnapping, disappearing and torturing 

people around the world. And then the FISA violations, which, 

again, they want to be downplaying those, saying, well, other people have caused the warrantless wiretapping of this sort. Never has 

a President, in engaging in warrantless wiretapping, before violated the terms of FISA, which provide that every instance is a felony. These blatant violations of law—— 

Mr. WEXLER. I think Mr. Fein would like to answer. 

And I would just like to add, if you include in what Attorney 

General Mukasey has come before this Committee and said 

blanketly, we refuse to honor the congressional subpoenas that you 

issued. 

Mr. FEIN. That by itself in my judgment is a clear impeachable 

offense. The Founding Fathers understood the most important 

function of Congress is the informing function. That self-government can’t work unless the people know what their rulers are 

doing and why. And that can’t happen if they don’t appear before 

Congress, the President doesn’t voluntarily disclose things. And 

simply by refusing even to appear, it is the equivalent of contempt 

of court, like refusing to obey a court order, which I think everyone 

would concede would be an impeachable offense. I think that is one 

of the things that that question points out, Congressman, is I don’t 

think you would need a very long period of time to decide whether 

what the President has done is an impeachable offense. It is open; 

it is notorious. You just vote. You just need to know what Constitution means. The facts are, on their face, contemptuous of this legislative body. 

219 

Mr. WEXLER. Thank you. 

Ms. Holtzman? 

Mr. HOLTZMAN. Congressman Wexler, I think, if you take the 

constitutional standard for impeachment, which is a high crime 

and misdemeanor, Mr. Mason said that it meant subverting great 

and dangerous offenses that subvert the Constitution. Subverting 

the Constitution here is when the President, for no reason, not 

even a colorable claim, refuses to give Congress the information it 

needs to do its job and obstructs the work of Congress. That can 

be an impeachable offense. 

If you translate it into the context of an impeachment inquiry, 

in other words, if you were to commence an impeachment inquiry 

and then you were to ask the President to provide the information 

again, the obstruction of an impeachment inquiry, the failure to cooperate with an impeachment inquiry, the failure to provide the information is itself an impeachable offense, as we established in the 

Nixon proceedings and in the Nixon precedent. 

So these are very serious abuses. And because what the inquiry, 

if you go back, what were you asking about? You were asking about 

whether the Justice Department undermined the rule of law by engaging either in improper prosecutions or by firing people because 

they refused to engage in improper prosecutions. 

Mr. WEXLER. Thank you, Mr. Chairman. My time has long expired. Thank you very much. 

Mr. CONYERS. Steve Cohen. 

Mr. COHEN. Thank you, Mr. Chairman. 

Congressman Holtzman, you suggested that you think there is a 

prima facie case for impeachment of the President. Is that correct? 

Ms. HOLTZMAN. Well, I am not allowed to say those last two 

words. 

Mr. COHEN. Prima facie case—— 

Ms. HOLTZMAN. I get to say 14 of the 16 words. But the last two 

I can’t say. 

Mr. COHEN. They are like George Carlin’s words or something. 

Ms. HOLTZMAN. What do we say, high government—high Administration officials, yes. 

Mr. COHEN. Would that include somebody who was considered to 

be not a member of the executive but a barnacle attached to the 

legislative branch? 

Ms. HOLTZMAN. Such as? 

Mr. COHEN. Such as the man who would succeed to the office of 

President if he got out of the—— 

Ms. HOLTZMAN. I think you could do a twofer. 

Mr. COHEN. They could be a twofer? 

Ms. HOLTZMAN. Uh-huh. 

Mr. COHEN. But if that person was assigned to the legislative 

branch, could you impeach him? Is a person who is assigned to the 

legislative branch, attached, as Mr. Addington has said the Vice 

President is, would he then not be subject to impeachment? 

Ms. HOLTZMAN. No, I don’t know what Mr. Addington says about 

that, but there is no question the Vice President could be impeached. 

Mr. COHEN. But he would have to be a member of the executive 

branch to be impeached, would he not? 

220 

Ms. HOLTZMAN. I think there is some—maybe Mr. Fein knows 

this—but I think there is also some precedent for holding that 

members of the congressional branch can be impeached as well. 

Mr. FEIN. The very first impeachment was against a senator, 

Senator William Blount of the Senate. The standard has clearly 

been established that Members of Congress can be impeached. 

Mr. COHEN. Thank you. 

I was trying to see if there was some method to their madness. 

We had General Mukasey before us this week, and he said the Vice 

President is obviously and definitely a member of the executive 

branch. In the previous week, Mr. Addington said, no, he is not— 

or he could be, and he went back to Katzenbach in 1961, some 

opinion, and suggested he was attached to the legislative branch, 

so he was neither. He wasn’t really an executive. And of course, the 

National Archives wanted him to classify papers; they are not part 

of the executive. So I guess there is not a method to their madness. 

There is just madness. 

Ms. HOLTZMAN. Right. 

Mr. FEIN. Well, it is very clear the Vice President has claimed 

he stands in the shoes of the President when he claims immunity 

from suit; that he argued in the suit brought by Valerie Plame and 

Mr. Wilson following the disclosure, that he was entitled, like the 

President, to absolute immunity. So he claimed he was an executive officer there. And obviously, when he refused to respond to the 

request, I think it was by Mr. Berman’s—or I think it was Mr. Berman’s—— 

Mr. COHEN. Maybe Waxman. 

Mr. FEIN. Waxman, excuse me, Mr. Waxman’s request for documentation of the statements he had made to the special prosecutor 

in the Valerie Plame investigation, it was executive privilege of the 

President that he claimed. Now maybe that destroys their idea of 

a unitary executive, because now that sounds like a duumvirate 

under the Roman Empire. But I doubt whether they were thinking 

of that analogy. 

Mr. COHEN. Mr. Fein, when you did research I know on General 

Gonzales, did you feel like there was a prima facie case for some 

type of impeachment proceeding at that time? 

Mr. FEIN. Well, I think there needed to be more investigation of 

the facts as to whether or not, during his testimony, he had misled 

Congress as to what he knew about the reasons for the firing of 

U.S. Attorneys, communications he had had with the White House 

or otherwise. But certainly, if that could be established, obstruction 

of a congressional investigation surely would rise to the standard 

of a high crime and misdemeanor. 

Mr. COHEN. Do you think it serves a good social purpose to go 

into impeachment, or do you think, as Congressman Watt feels, 

that we should concentrate on the omissions on health care and 

education and other issues and environment that we have had over 

the last 6 years? 

Mr. FEIN. Well, my experience certainly—it depends upon what 

the allegations of impeachable offenses are. There can be bad impeachments and good ones. The one that preceded Nixon was a bad 

one against President Andrew Johnson. But my sense, having participated in, from a different angle than Ms. Holtzman, on the 

221 

Nixon impeachment, that it was an enormously unifying exercise. 

I never felt prouder as an American than when I saw Mr. Nixon 

leave the White House. Because he said, if I do it, it is legal. And 

that wasn’t our constitutional system. And it was President Ford 

who said our national nightmare was over after we got rid of President Nixon through an impeachment proceeding. 

Now, certainly, if the impeachment would be interrupted because 

of time, then you would have to question whether that would be 

satisfactory, because it wouldn’t be fair to have only half of an investigation, and people’s names being maligned because there 

wasn’t an opportunity to hear everything. 

But my view of the institutional wrongdoing against the Constitution here isn’t something that you need archeological expeditions to discover. These are open and notorious. The President has 

openly stated on the record. He has gone on public radio and television saying, I flouted the FISA law. He stated, I had a terrorist 

surveillance program, and I didn’t care what the law said. And he 

has had his own Attorney General say, if I am gathering foreign 

intelligence, I don’t have to obey anything Congress has done. That 

simply is a decision here, is a that an impeachable offense if the 

President says, I don’t need to obey the laws that Congress has enacted? It is another version of the President Nixon; if the President 

does it, it is not illegal. 

And, therefore, you don’t need a prolonged investigation of facts, 

he has already conceded what he has done. 

The same kind of thing has come up with his claim that he has 

power to detain any U.S. citizen as an enemy combatant and put 

them in detention indefinitely without any customary accusation or 

charge. And that is not hypothetical. There is someone right now, 

his case in the Fourth Circuit Court of Appeals, his name is Mr. 

al-Masri, he was plucked 5 years ago from his home. He was initially charged with a crime, and he is now being held as an enemy 

combatant. 

Those kinds of things are just a judgment. Does that satisfy our 

understanding of what executive power is? That can go very quickly, and I think that would be a very healthy debate. 

Mr. COHEN. Thank you. 

Mr. CONYERS. Hank Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Professor Presser, I mean, you testified at the impeachment 

hearing of President Clinton before this Committee; is that true? 

Mr. PRESSER. Yes. 

Mr. JOHNSON. And you testified that if the President—if President Clinton lied—if he lied, and if he concealed evidence, then if 

those things were true, then that would make the President’s actions self-serving, and so therefore it becomes an impeachable offense. Is that the gist of your testimony? 

Mr. PRESSER. I think it is fair to say that was the gist of it. What 

I was trying to suggest was when you examine in impeachment 

proceedings the President, what you are looking for is whether you 

have got an official who is corrupt and can’t carry out for one reason or another his constitutional tasks. 

Mr. JOHNSON. I want to pose this question to you. If a President 

lied and concealed information, and did so for purposes of taking 

222 

the country to war, do you believe that that would be an impeachable offense? 

Mr. PRESSER. I think you would have to examine the circumstances. It strikes me that—— 

Mr. JOHNSON. Without—without—I mean, wouldn’t an impeachment inquiry examine the circumstances? I mean, you would support that notion; would you not? 

Mr. PRESSER. Sure. Mr. Rabkin made his point a little bit earlier. 

Mr. JOHNSON. And when one has probable cause to believe that 

that has occurred, it is certainly wise and prudent to proceed with 

action to determine whether or not the allegations can be proved 

by a higher level of evidence; is that correct? 

Mr. PRESSER. Yeah. I think what it turns on is your suggestion 

whether you have got probable cause or not. 

Mr. JOHNSON. Okay. Well, now, we have heard all kinds of testimony and information today, some of which is very well known, in 

the public domain. Are you here to tell the American people and 

the people on this Committee that you don’t think that that information rises to the level of a legitimate inquiry, Professor? 

Mr. PRESSER. I will stick by what I said earlier and what is in 

the written testimony. I don’t see the facts that way. 

Mr. JOHNSON. You don’t—well, it’s not so much of how you—how 

you look at the facts. 

Mr. PRESSER. No. It is your call to make. 

Mr. JOHNSON. Prosecutor Mr. Bugliosi could look at the facts one 

way and Defense Attorney Fein look at them a different way, but 

I think they would both agree—excuse me, did I say defense lawyer? In other words, a defense lawyer and a prosecutor may look 

at the facts a different way, but the question would be whether or 

not we should even be looking at the facts. And you take the position, it seems to me, that we shouldn’t be looking at the facts 

today. Is that what you mean to portray to me and the American 

people? 

Mr. PRESSER. No. I like very much the way that you characterized it earlier. It is a question of whether you have probable cause 

or not. I don’t see it; maybe others do. 

Mr. JOHNSON. Okay. Well, you would not fault us for wanting to 

go forward. You don’t think that it would be fanciful for someone 

to believe that perhaps there might be probable cause, and we 

should proceed with some inquiry. 

Mr. PRESSER. I think you take an oath to uphold the Constitution, you have to do what you think is the right thing to do. 

Mr. JOHNSON. Now, do you think that it would be irresponsible 

if this Congress, in light of the information that has come to pass 

over the past 4, 5 years, that we would neglect our responsibility 

to look into this? 

Mr. PRESSER. I think I have said I don’t see the facts the same 

way that you do. 

Mr. JOHNSON. Well, I mean, yes, I admit that, and I respect that. 

But do you think it would be irresponsible for us to not look further 

into this, given what we—given the allegations, the seriousness of 

the allegations that have been raised and the factual data that supports those allegations? 

223 

Mr. PRESSER. No, I don’t think it would be irresponsible of you 

not to move forward. 

Mr. JOHNSON. Well, now, Prosecutor, Ms. Holtzman and also Mr. 

Bugliosi, how would you respond to my questions? 

Ms. HOLTZMAN. Well, I think it would be shirking your constitutional duty to fail to hold this Administration accountable constitutionally for these serious abuses of power. And then I think, agreeing with Mr. Fein, that an abbreviated, and short, and very careful 

examination and inquiry could be made, and the President and the 

Vice President and the members of the Administration could be 

called to respond. And then you could determine based on the responses how you wanted to proceed. And I think that that would 

be the responsible thing to do. 

I want to add one thing that wasn’t really brought out before. 

When people said, well, how did it work in the Nixon process, how 

did Republicans and Democrats come together? Well, the process 

itself educated Members of Congress about the Constitution, educated Members of Congress about the facts, and probably most important educated the American public about the Constitution and 

its requirements and the evidence, and that is what made impeachment work. The process made it work. 

Mr. JOHNSON. Mr. Rabkin—— 

Mr. CONYERS. The time of the gentleman has expired. 

Brad Sherman. 

Mr. JOHNSON. Thank you, Mr. Chair. 

Mr. SHERMAN. Thank you, Mr. Chairman. 

Congress has become basically an advisory body to the President, 

and the fault lies many places, including here in Congress, because 

we have done to ourselves that which Jesse Jackson has said to 

have wanted to do to someone else. We have put our party above 

article I of the Constitution, and any statute which would protect 

congressional power is not only certain to be vetoed, but that veto 

is certainly to be sustained by whichever party is represented in 

the White House. 

Now, one example of where we are and how not only the Congress, but the public and the press. I mean, we have a big Presidential election. Nobody makes a big deal out of whether the President will actually follow laws, whether the President will respond 

to Congress. 

And I have got one example, and that is the Iran Sanctions Act, 

an act that many of those supporting impeachment disagree with, 

which raises the question do people support impeachment for failing to carry out a law that they themselves disagree with? 

Now, the Iran Sanctions Act requires the President to identify 

those foreign oil companies that are making investments in Iran. 

The Administration has told me privately and testified publicly 

that they think that this is bad foreign policy to upset the governments of Europe. And so the question is—I will address it to Mr. 

Fein—is nonfeasance an impeachable offense? 

Mr. FEIN. The take care clause of the Constitution that provides 

that the President shall take care that the laws be faithfully executed was a response to the Stuart monarchs who had refused to 

execute laws passed by the British Parliament. They were oftentimes recusancy laws against the Catholics and Stuart monarchs. 

224 

Certainly James was a Catholic and even refused to execute the 

laws. And so in the English Bill of Rights of 1688, following the 

glorious revolution, there was a specific assertion prohibiting any 

king, any executive officer from refusing to execute the laws faithfully—— 

Mr. SHERMAN. I hate to—you seem to be giving us a long answer 

that adds up to yes? 

Mr. FEIN. Yes. And, by the way, that impeachment article that 

was voted against Nixon by this Committee made that same recitation. 

Mr. SHERMAN. Thank you. 

Now, every President would like a line-item veto. They would 

like something even better; they would like to just cross out any 

section of an enactment that we sent to them, those provisions 

would be inapplicable, and the parts of the bill they like would be 

applicable, because every President likes some part of each piece 

of legislation we pass and dislikes others. And one—the way they 

accomplish this is they sign a bill containing, say, four or five provisions, and then they say the provisions they don’t like are unconstitutional, and they are not going to enforce them. 

One way we could protect ourselves from this is to add to every 

statute a provision that says, no provision of this statute shall go 

into effect until the President signs a statement that says he believes that every provision of the bill is constitutional, and he will 

do everything possible to carry out every provision of the law. 

Mr. Schwarz, would that be an effective way to be sure that either the President vetoes the bills he thinks are partially unconstitutional, or that he waives any assertion that he shouldn’t enforce 

this or that provision? 

Mr. SCHWARZ. It might give the President—might give the President more power in a way. 

Mr. SHERMAN. If he could refuse to sign such a statement, and 

then we could pass the law again without the statement, and he 

would have to veto it, we would return—retain the right to deal 

with those bills that the President would want to veto. 

Mr. SCHWARZ. It is an interesting device that might get at the 

abuse of the signing statements, and I think it is worthy of really 

some more further work on it. But it is a good get at the subject. 

Mr. SHERMAN. I will be trying to add that provision to many bills 

next year. I have only a second. 

Ms. Holtzman, you are a former prosecutor. Is it appropriate for 

a prosecutor to seek an indictment if he or she is virtually certain 

they cannot obtain a conviction? 

Ms. HOLTZMAN. Well, probably—well, it depends on the system. 

It depends on the evidence. Why wouldn’t you get a conviction? Is 

it because you don’t have a good staff, you haven’t done your homework? 

Mr. SHERMAN. Maybe you couldn’t get a conviction because—— 

Ms. HOLTZMAN. If the evidence warrants it, it is a very tough 

call, very tough call. 

Mr. SHERMAN. So if the evidence convinces you that the person 

is guilty but for this or that extraneous factor, say, the person is 

a big-time celebrity, and you know absolutely, positively you can’t 

get a conviction, it still might be appropriate to indict or not? 

225 

Ms. HOLTZMAN. Well, I have never had to face that, so I am not 

going to give you a—— 

Mr. SHERMAN. You were never a prosecutor in Los Angeles. 

I yield back. 

Mr. CONYERS. Attorney Tammy Baldwin. 

Ms. BALDWIN. Thank you, Mr. Chairman. 

I hope I will get a chance to propound just two questions. Mr. 

Fein, about a year ago, I had the good fortune of seeing an appearance of yours and a constituent of mine John Nichols on the Bill 

Moyers Journal show. Since we are plugging books, my constituent 

John Nichols is the author of The Genius of Impeachment: The 

Founders’ Cure For Royalism. And it was during that show Mr. 

Nichols used a metaphor that I have found quite—it stuck with me, 

and I know it stuck with many others. I am just going to quote it 

for you. 

He said, let us say that when George Washington chopped down 

the cherry tree, he used the wood to make a little box, and in that 

box the President put his powers. We have taken things out and 

we have put things in over the years. On January 20, 2009, if this 

Administration is not appropriately held to account, they will hand 

off a toolbox with more powers than any President has ever had, 

more powers than the Founders could ever have imagined, and 

that box will be handed to the next President. Whoever gets it, one 

of the things we know about power is that people don’t give away 

tools. They don’t give them up. The only way we take tools out of 

that box is if we sanction this Administration now and say the next 

President cannot govern as these men have. 

Mr. Fein, as you may recall, you responded to Mr. Nichols with 

the observation that Congress has, to the contrary, seemingly given 

up its powers voluntarily. Could you briefly elaborate on that answer? 

Mr. FEIN. Well, the reason why—the way in which Congress has 

surrendered the power is simply by being unresponsive to the 

President’s usurpations, like claiming executive privilege to say he 

doesn’t have to respond to oversight requests; really expanding the 

President’s authority with the FISA amendments; passing the Military Commissions Act, which is perhaps the most sweeping delegation of authority ever given to any President at any time, any 

place; and acquiescing in signing statements. If there is no rebuke 

to these claims of power, that is a surrender. 

And perhaps one of the most dangerous ones, I think, is—I think 

this body tacitly has accepted the idea the President can initiate 

the war on his own. He can extend the war against terrorism into 

Iran if he thinks that is critical, and that is something the Founding Fathers would have been shocked about. They said no one man 

should ever take us into war. 

Ms. BALDWIN. Thank you. And that leads directly into my second 

question. 

Certainly, based on what I have observed in the last 71⁄2 years 

of this Administration, I can honestly say that I have serious concerns about what I may yet see in the remaining 6 months of this 

Administration. I have no reason to believe that the conduct that 

we have been focusing on today has stopped. I am finding some 

very disturbing and eerie similarities in my mind between the beVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00231 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
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havior and rhetoric of this Administration during the lead-up to the 

war in Iraq and the behavior and rhetoric of this Administration 

regarding Iran. 

As one example, the Administration seems to be disregarding 

National Intelligence Estimates again. I would like to ask the two 

witnesses who I heard reference Iran in their testimony what impact an impeachment inquiry or other congressional action might 

have on the conduct of this Administration from this day forward, 

and so I direct that question to Mr. Anderson and Mr. Bugliosi. 

Mr. ANDERSON. I don’t think if this Administration is bent on attacking Iran that anything short of criminal sanctions is going to 

stop them. I think there needs to be criminal legislation passed 

with severe sanctions for anyone who causes an attack against Iran 

inconsistent with our Constitution or the United Nations Charter 

without the explicit consent of Congress. 

Mr. BUGLIOSI. Your question is whether an impeachment proceeding would deter this President from invading Iran? 

Ms. BALDWIN. The question is whether an impeachment inquiry 

or other congressional action—what impact do you think that will 

have on this Administration’s conduct moving forward? 

Mr. BUGLIOSI. Well, I think you have learned from me today, if 

anything, that I only deal with evidence and the facts, and you are 

asking me for just speculation. I have no answer to your question. 

Ms. BALDWIN. Fair enough. 

Mr. BUGLIOSI. Thank you. 

Mr. CONYERS. Adam Schiff is a former assistant United States 

attorney and a valued Member of the Committee. 

Mr. SCHIFF. Thank you, Mr. Chairman. Thank you for holding 

this hearing. 

Over the last 8 years, I have been deeply disturbed by much of 

the conduct of the Administration and its overreach of constitutional lines. Some of what has disturbed me and some of this overreach has taken place in the dark in the categories of surveillance 

and interrogation. And some of this conduct has taken place very 

much in the open, as when the Administration ignores the plain 

language of a statute that when the Congress finds someone in contempt of the Congress, that matter shall be brought before the 

grand jury; not may or might, but shall. And some of the Administration’s conduct that disturbs me has been both in the open and 

in the dark, as in the intelligence leading up to the war in Iraq. 

I would like to use this opportunity to make an open call to this 

Congress to form a Church Committee to conduct an investigation 

into any of the encroachments upon the Constitution, any of the 

encroachments upon the legislative branch by the Administration. 

It should be a bipartisan Committee, as the Church Committee 

was. It should go back, I think, even before this Administration 

and look at perhaps some of the roots of what has lead to the 

abuses in this Administration. I think that that inquiry should 

start now and should continue during the next session of Congress. 

What I would like to ask today are some of the steps that we 

might take immediately in addition to initiating a Church inquiry. 

I think, for example, it would be enormously important to require 

that when the executive takes the position that an act of Congress 

has overstepped Congress’s constitutional bounds and intruded on 

227 

the prerogatives of the executive, that it notify Congress of its intention not to comply. There is no guarantee even with signed 

statement that Congress will find out in a timely way or ever that 

the Administration had decided to act upon its statement in a signing statement. I think Congress should be notified whenever the 

Administration takes an action or refrains from taking an action 

that is compelled by law under its own claim of constitutional authority. 

I would also like to get your opinion on something else which I 

think is deeply problematic, and that is the Office of Legal Counsel, 

and in particular the Office of Legal Counsel as related to the issue 

of torture. We seem to have a situation where the Administration 

chose a lawyer to head the Office of Legal Counsel who was either 

a very bad lawyer, or who was a competent lawyer, but saw his job 

in an improper manner; saw his job as that of being an advocate 

of the Administration and everything it wanted to do. 

We have had good and credible witnesses come before the Committee to say that because of an opinion of that counsel, anyone 

who acted upon it, even if the conduct that was taken in reliance 

upon it crossed the line into torture, that no one could be held accountable, not the people who acted upon it, not the people who 

wrote the opinions, not the people who chose the lawyer to write 

the opinion. 

And I would like to get your thoughts about how it is possible 

to determine accountability. Is there legal accountability? If there 

isn’t, how do we instill legal accountability? Should we impose a requirement that on issues like this, that not long after the fact, 

these opinions be disclosed to Congress, but that contemporaneously they be disclosed either to the Judiciary Committee or the 

Intelligence Committee or both. Would such a requirement interfere with the attorney-client nature of the opinions that come out 

of the OLC? 

And if you could direct some of your comments, I would like to 

start with you, Mr. Schwarz. I appreciate a great deal the work 

and recommendations the Brennan Center has made. And is that 

a possible way to provide some accountability? 

Mr. SCHWARZ. First, the reliance on opinions is surely not a defense unless the reliance is reasonable, and I don’t believe reliance 

on those opinions could have been reasonable. 

The second thought that occurred to me in listening to your remarks, which I thought were right on target, is there is already a 

law that says the President must notify the Congress if he decides 

that a portion of the law that is passed is not constitutional and 

that he is not going to enforce it. And one of President Bush’s signing statements is, I am not going to comply with the law, that I 

should tell you that I am not complying with the law. That somehow has the world totally upside down. 

The opinions, all the opinions, of the Office of Legal Counsel 

should be released. We are not a country where we can have 

laws—and their opinions have some force of law. We are not a 

country where we can have laws that are secret. They should all 

be released, and Attorney General Mukasey was asked to do that 

by former Attorney General Katzenbach and I—— 

228 

Mr. SCHIFF. Mr. Schwarz, if I could just interject very quickly for 

a very specific follow-up for my time, which is, I think, already up, 

runs out even more. Does the Congress have jurisdiction to bring 

suit on a claim that the Administration has not disclosed to Congress as it was required to do when it made a determination that 

it would not comply with a law based on its belief of its constitutional prerogative? 

Mr. SCHWARZ. I mean, that is sort of the issue that is raised in 

the suit you are now pressing in the district court in Washington 

about the refusal of Harriet Miers to appear and the refusal of Mr. 

Bolten to produce the documents. I think your counsel has put in 

an extremely powerful brief about the power of Congress to enforce 

those, but it hasn’t been decided by the courts yet. 

If I could just add one other thing, on the subject of documents 

and things that could be done at the last minute, particularly if the 

Vice President’s counsel is taking the position that the Vice President is not part of the executive branch, which, as Mr. Fein pointed 

out, is a strange position in light of what they have previously argued, but you ought to go look at the Presidential Records Act and 

what is going to happen and make sure there aren’t loopholes in 

that act that might facilitate people in the Administration carrying 

away documents which ought to be part of the public domain. 

Mr. FEIN. Could I just—because I was in Office of Legal Counsel 

for several years, this was during the Nixon impeachment, in fact, 

my first task was to examine after 100 years what was an impeachable offense. Nothing that ever produced was classified; they 

were all published. And the importance of openness is that shoddy 

scholarship is so embarrassing, they changed their mind. 

One of the things that happened, for instance, when the Department for the first time tried to provide a public explanation for 

flouting FISA by conducting this terrorist surveillance program, 

the so-called White Paper, after it was disclosed and shredded by 

many, after a year they went back and said, now we are going to 

get a FISA warrant in 2007. That was because it was so obvious 

that they had no legal argument. 

Sunshine is the best disinfectant, and that is why you would 

have a right to have access to every one of those opinions. Some 

of them might be classified, but you would have access of the legislative body because you are overseeing it. 

And I want to underscore what I think is a great forgetfulness 

of this branch. You have authority to oversee the exercise of every 

power, legislative, executive and judicial. Oversight means checking; not asserting it by itself, but checking. That is what publicity 

and checking is about, sunshine. 

Mr. SCHIFF. Thank you, Mr. Chairman. 

Mr. CONYERS. Yes. The problem has been that we have got so 

much oversight after 12 years, that it is piled up and running out 

of 2141. 

The Chair recognizes an invaluable Member of the Committee 

from Florida, Debbie Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. And you 

really took the words right out of my mouth. I want to commend 

the Chairman for the leadership he has shown on the 45 public 

hearings that we have had during this Congress on topics ranging 

229 

from improper surveillance to torture, and unlawful detention and 

signing statements. And to the degree that our colleagues and good 

friends on the other side of the aisle are lamenting those 45 hearings, it is simply because there was a 6-year backlog. In the first 

6 years of this Administration, there was virtually no oversight 

done by the Congress because the former leadership of this Congress ceded our oversight role and took a very hands-off approach 

and let the Administration run amok and do whatever they wanted. So Lord knows that we certainly had a lot of make-up and 

catch-up work to do. 

And what I want to do is focus on the Administration’s abuse of 

Presidential signing statements. I have to tell you that when I 

joined the Congress and joined this Committee, I was surprised to 

learn that Presidential signing statements even existed. I know 

since the early 19th century American Presidents have occasionally 

signed a large bill while declaring they would not enforce a specific 

provision that they believed unconstitutional. 

I mean, I would argue, and I am surprised over the years and 

would be interested in the scholarship at the table of thought on 

that as to why there has never been any suit brought on those, because I don’t really think there is anything in the Constitution that 

allows the President to interpret law or refuse to enact or follow 

a portion of the law. I know on rare occasions historians says Presidents have also issued signing statements interpreting the law and 

explaining any concerns about it, which also really seems baffling 

to me. 

But this President has issued almost 1,100 provisions of law and 

signing statements, and I just think that that stretches the abuse 

of power beyond imagination. And as someone who has spent 16 

years in a legislative body, I jealously guard our congressional responsibilities and the system of checks and balances, and I really 

think signing statements are an assault on the legislative branch, 

basically the same as a line-item veto as what came out during the 

hearing that you had on that subject, Mr. Chairman, and that the 

Supreme Court ruled was unconstitutional, a line-item veto, in our 

system of government. 

So with that overview, I did want to ask Congressman Barr this 

question, but I know he had to go. But I was also going to ask Mr. 

Schwarz the same question: Can you comment—and I am really 

glad our colleague Congressman Jones brought up the subject on 

the first panel, but do you have an opinion about whether President Bush’s use of signing statements is precedented in history or 

even a comment on the more egregious examples of signing statements? 

Mr. SCHWARZ. Well, it is clearly unprecedented in its volume, 

and it is clearly unprecedented in its audacity, like saying when 

Congress asks that it be told if the President believes something 

is unconstitutional, he says, I am not even going to tell you that. 

That just turns the Constitution upside down. 

The President’s power is meant to be to veto laws. He can veto 

them for any reason, policy reason, legal reason. And then the if 

the Congress passes the law, the President ought to enforce it. If 

he wants to send someone to court and have a challenge made, 

230 

maybe, but not secretly decide to not fulfill his obligation to take 

care that the laws are faithfully executed. 

Ms. WASSERMAN SCHULTZ. I know you in your publication, the 

Brennan Center for Justice’s publication 12 Steps to Restore 

Checks and Balances, you address this subject. Can you also address what you think the remedies are that are available to Congress? 

Mr. SCHWARZ. Well, you do have ultimately the impeachment 

remedy. I expressed some skepticism about whether, given how 

much time has passed, how little time there is to go now, and 

whether this is the right time to do that. But you have the impeachment remedy, and Congress—— 

Ms. WASSERMAN SCHULTZ. The impeachment remedy, I am talking as a specific response to the abuse of signing statements? 

Mr. SCHWARZ. You could, sure. 

Ms. WASSERMAN SCHULTZ. But short of that, what other remedies are available? Because, I mean, I am not just—I mean, I 

think this President has engaged in horrific abuses of power, but 

we also have the future Presidents to deal with. And I know that 

Senator Specter sponsored legislation in the 109th Congress that 

would prohibit the practice of signing statements, and I know the 

Chairman is supportive of that entire concept. So beyond impeaching this President, I am taking a longer-term view. 

Mr. SCHWARZ. I mean, you know, could they be absolutely prohibited—for the President not to be able to say, I think there is a 

problem probably would be a problem to say that you can’t say 

there is a problem. 

Ms. WASSERMAN SCHULTZ. Okay. 

Mr. SCHWARZ. But they are being abused. You have—Mr. Sherman, I think it was, had a quite interesting technique—— 

Ms. WASSERMAN SCHULTZ. I mean, is there—let me give you an 

example. When I was in the Florida Legislature, there were instances in which the legislature went to the State supreme court 

to basically fight or challenge the abuse of—our perceived abuse of 

power on specific examples where the Governor—where we believed the Governor overreached. Is there a provision in which— 

short of passing a law to say that they are prohibited or narrowing 

their use; is there a provision in the Constitution or anything that 

would allow us as the legislative branch to do that? 

Mr. SCHWARZ. Well, I am not sure. I think the power of the political system should be used, too. I mean, these are now clearly controversial signing statements. They have clearly been abused in a 

way that is harmful to America. And I think it is quite appropriate 

for, in the political campaign, pressure to be put on the candidates 

for President to say we are not going to—— 

Ms. WASSERMAN SCHULTZ. Yeah, but I want more than that. I 

want—I want some real legal—and, Mr. Fein, I actually want to 

hear your comments on that, too. 

Mr. FEIN. Yes. I think what you can do through the appropriations powers—— 

Ms. WASSERMAN SCHULTZ. This President has no shame, so, I 

mean, political pressure doesn’t work—— 

Mr. SCHWARZ. No, no, no. I am talking about pressure on the 

people who are running for President. 

231 

Ms. WASSERMAN SCHULTZ. No, I know. 

Mr. FEIN. What can be done is through the power of the purse. 

You simply say that there is no money that the President can utilize to execute any law where he has issued a signing statement 

saying that he is going to pick and choose what he chooses to enforce. So he then has to choose all or nothing. So he says, all right. 

So then, unlike the situation now, he can take what he likes and 

then White-Out what he doesn’t, so there you tell him, you have 

no money to enforce any law. 

Ms. WASSERMAN SCHULTZ. So look at that. That is 

when I am glad that I am an appropriator. That is wonderful. 

I am glad to hear that I personally can get involved in that. 

Mr. Chairman, I thank you and yield back the balance of my 

time. 

Mr. CONYERS. The Chair recognizes Keith Ellison, former State 

legislator and a trial attorney for over 13 years. 

Mr. ELLISON. Mr. Fein, could you do a signing statement—based 

on the President—precedent of this White House, could you do a 

signing statement that says—for a law that said there is no money 

to carry out a law in which you have done a signing statement? 

Mr. FEIN. That certainly would be a new high watermark of audacity, but that doesn’t mean it might not be reached. 

Mr. ELLISON. Right. 

Mr. FEIN. He could try to veto it and say he won’t execute that. 

The problem, however, is it is a crime to spend money that hasn’t 

been properly authorized and appropriated by the Congress of the 

United States, so if he tried to do that, he would really be risking—— 

Mr. ELLISON. Risking what. 

Mr. FEIN. Impeachment. I think for whatever reason, there 

seems to be still a consensus that the power of the purse is inviolate, and the President can’t spend money that this House has not 

appropriated. 

Mr. ELLISON. So based on the signing statements we have seen, 

it wouldn’t shock anybody to see one in the case you have described. 

Congressman Kucinich, what is the factual basis for your claim 

that the President made knowing, untrue state—for the White 

House made untrue statements to the Congress which led us into 

war? 

Mr. KUCINICH. Mr. Chairman, Members of Congress and Mr. 

Ellison, I took Senate Joint Resolution 45, which came from the 

White House; I took H.J. Res. 114, which we passed, which was essentially the same. I examined it line by line, and in doing so was 

able to come to an easy conclusion that the representations that 

were made in both of these resolutions, substantive representations, were, in fact, not backed up by fact. 

Mr. ELLISON. Could you sort of—— 

Mr. KUCINICH. Were not backed up by fact. Excuse me? 

Mr. ELLISON. I was going to ask the Congressman to summarize 

the representation for people—— 

Mr. KUCINICH. Well, for example, in both—and when I speak to 

this, I speak to both S.J. Res. 45 and House Joint Resolution 114, 

and this is what we acted upon. We were told that Iraq was conVerDate Aug 31 2005 13:34 Feb 19, 2009 Jkt 000000 PO 00000 Frm 00237 Fmt 6633 Sfmt 6601 H:\WORK\FULL\072508\43710.000 HJUD1 PsN: 43710
232 

tinuing to threaten the national security interest of the United 

States. That is a direct quote from this—these resolutions. It not 

only turned out not to be true, but there was intelligence that existed at the time that suggested that the White House knew then 

that it wasn’t true. That we were told in this resolution that Iraq 

was continuing to possess and develop a significant chemical and 

biological weapons capability. We have learned since then that was 

not true, and there is evidence to suggest that the White House understood at that time that it was not true and nevertheless represented to the Congress that it was. 

And so we were told that Iraq was actively seeking a nuclear 

weapons capability, that Iraq had a willingness to attack the 

United States, that Iraq had demonstrated capability and willingness to use weapons of mass destruction, that Iraq could launch a 

surprise attack against the United States or its Armed Forces, that 

there was an extreme magnitude of harm that would result in the 

United States—that would result to the United States and its citizens from such an attack, that there was justification for the use 

of force by the United States to defend itself, that Iraq had—that 

there was an attempt to connect Iraq with 9/11 and with al-Qaeda’s 

role in 9/11, and over and over saying Iraq had weapons of mass 

destruction. 

This came from the resolutions which Congress was presented 

and which, based on information and belief, Members of Congress 

acted upon and gave the President the authorization to use force. 

So what I have done is to very narrowly present a case so it is narrowly tailored to exactly what it is we were told. 

I don’t even—Mr. Chairman, I don’t even get into the discussion 

of what the Senate Intelligence Committee got into in terms of the 

statements that were made about biological, chemical and nuclear 

weapons. I would say you don’t even have to go that far. 

And so what I would humbly recommend that the Committee do 

is to—is to start with the postwar analysis that has incontrovertible proof that all of these assertions that were made in here were 

not fact-based. Then you look at the prewar intelligence, and you 

can see that the intelligence that was said to have been acted upon 

was selective, and there is questions raised about the role of the 

Office of Special Plans in helping to produce it, even though it contradicted time-honored intelligence that was available from established Federal agencies in both the CIA and the State Department. 

Then you look at which intelligence was right, but not used or 

acted upon; which intelligence was wrong and acted upon, and then 

go into who was it who helped shape the wrong intelligence and 

caused it to be acted upon. And that then, I think, will lead to a 

chain of events that inalterably, inevitably must lead to people in 

very high positions in this government. 

Mr. ELLISON. Professor Presser, based on the presentation that 

Congressman Kucinich just made, wouldn’t you agree that there is 

at least a basis for an inquiry that could lead to impeachment, just 

based on those facts if proved. 

Mr. PRESSER. If proved, I would think so, but we have heard 

some suggestions that that view of the facts is incorrect. 

233 

Mr. ELLISON. Right. But wouldn’t you agree that it would be the 

Senate’s obligation to weigh the facts, not—is that right; wouldn’t 

you agree with that? 

Mr. PRESSER. I think you mean the House in this case. 

Mr. ELLISON. Well, I would say ultimately the Senate would be 

the one to decide whether or not a case had been proved or not, 

but it would be the House to see whether the—these facts could 

rise to the level to form an accusation. 

Mr. PRESSER. Yeah. You have to decide whether they are accurate or not. 

Mr. ELLISON. Right. But if proved, if Congressman Kucinich’s offerings were proved, wouldn’t you agree that would form the basis 

of an inquiry that could lead to impeachment. 

Mr. PRESSER. I think they could form the basis of inquiry, sure. 

Mr. ELLISON. And, Mr. Rabkin, wouldn’t you also agree that if 

proved—now, of course, you don’t—you may not agree with the 

facts as Mr. Kucinich offered them, but wouldn’t you agree that if 

proved, that would form the basis of an inquiry for impeachment. 

Mr. RABKIN. I am not sure what exactly we are talking about 

now. What I understood Congressman Kucinich to be saying, was 

that he thinks what the Administration presented to Congress has 

not been borne out by what we have learned since. Now, that does 

not seem to me impeachable. If what he was saying is the Administration knowingly and deliberately deceived Congress, that would 

be in a different category. If that is what we are talking about, that 

they knowingly and deliberately deceived Congress, yes, that could 

be the basis of an inquiry. 

Mr. ELLISON. Okay. Now, Congressman Kucinich, am I—— 

Mr. KUCINICH. If I may. 

Mr. ELLISON. Could you clarify for—— 

Mr. KUCINICH. If I may, it is the proper role of the Judiciary 

Committee, given that we—that Congress received a resolution 

that made representations that all turned out to be categorically— 

that most of which turned out to be categorically false. It would 

then seem to me that it would be appropriate to make an inquiry 

so you can get the truth. Then if the truth backs up that the Administration made misrepresentations, then it would be up to the 

Committee to decide whether to forward that in a form of a report 

to the full House and whether the House then as individual Members would act upon it. 

Mr. ELLISON. But, Congressman—— 

Mr. KUCINICH. The only reason I am here, and the only reason 

that I have been pushing for a moment like this, where in a 6-hour 

hearing now where Members of the Judiciary Committee could 

have things laid out in front of them, is to get to the truth. Let us 

find out what the truth is. Was Congress presented with a case for 

war that was not based on the truth? And if that happened, then 

we have to—there has to be consequences. 

Mr. CONYERS. The gentleman’s time has expired. 

The Chair by unanimous consent would recognize the gentleman 

from California. 

Mr. LUNGREN. Thank you, Mr. Chairman. I appreciate it, and I 

realize the indulgence as a result of you allowing Congressman 

Kucinich to come back and testify once again on a separate panel. 

234 

I would just like to point out a couple things, because you have 

asked questions of some of the people here who have been prosecutors, and a number of us have been. I remember prosecuting a very 

difficult case on perjury coming out of one of the most racially 

charged issues, cases in California, the O.J. Simpson case, and I 

was required to prosecute perjury that came out of that. And one 

thing that guided me in that was there is an essential difference 

between a misstatement and an intentional misstatement. While 

we were able to show perjury in a particular case, we had to prove 

in the first instance that it was a misstatement, that it was material and intentional, in this case under oath. 

There were plenty of allegations during the time I was attorney 

general of crimes committed by individuals, and the one thing I 

learned, that allegations or assertions of criminal misconduct or 

misconduct are easily made. And the distance between an assertion 

and proof and conviction, or in this case impeachment, is a long 

road. And I would just hope that we would understand there is a 

huge difference between a misstatement of facts and an intentional 

misstatement of facts, and that 20/20 hindsight is not the basis 

upon which you bring a charge of either perjury or impeachment. 

Mr. NADLER. Will the gentleman yield? 

Mr. LUNGREN. Well, I will be happy to yield, but, you know, I 

have sat here for a half hour or 45 minutes without a single opportunity for this side to say anything. 

Mr. NADLER. I just want to ask you a question. 

Mr. LUNGREN. Yeah, sure. 

Mr. NADLER. In connection with what you were just saying, it 

has been brought out here today that assertions or reports were 

made to Congress saying that the intelligence says this, that and 

the other thing, when, in fact, intelligence said, we think this, that 

and the other thing, but we are not sure, and we have dissents, 

and all the dissents and the caveats were not there. Is that not, 

in your opinion, prima facie deliberate misrepresentation? 

Mr. LUNGREN. No, no, that it is not. And once again, Mr. Chairman, I have not raised objections here to the conduct of this hearing, but when, in fact, there are allowed to be responses by the audience, it tends to be an attempt to either change or intimidate witnesses here. And that is why people should understand why this 

is important. It is not that people are attempting to try and muzzle 

first amendment rights; it is when we invite people here to testify, 

they should testify to the best of their ability without any sense 

that behind their back, that behind their back there is going to be 

a response in one direction or another. And I am saddened to see 

that continue here. 

Mr. CONYERS. Will the gentleman yield? 

Mr. LUNGREN. Yes, I would yield. 

Mr. CONYERS. I want to make it clear that we have been exceedingly tolerant of responses from our invited guests, but staff is 

going to—when we adjourn immediately after Mr. Lungren finishes, if there are any disruptions, those people identified will not 

be invited to these hearings again. So I ask everyone to please join 

us in an orderly dismissal of these hearings. 

Mr. LUNGREN. I thank the Chairman for that. 

235 

The only point I would make in response to my friend from New 

York is that we have it on the record that the CI Director, at that 

time Mr. Tenet, who I believe was a carryover CIA Director, if I 

am not mistaken, used the word ‘‘slam dunk’’ with respect to the 

crucial part of this evidence, number one. 

Number two, and I know some people may be tired of hearing 

this, but I have been rereading Eisenhower’s memoirs of World 

War II called Crusade in Europe. He makes the point on several 

occasions that intelligence is never perfect, that intelligence is often 

wrong, and that you go on the best intelligence that you have. Perhaps the best example he gives of that is when we went into North 

Africa for the purpose of trying to secure that area prior to the 

time we moved up the Mediterranean into Europe, and he was assured by our best intelligence at that time that our troops would 

be welcomed with open arms by the French citizens and others that 

were under French control. In fact, when the American forces and 

British forces got there, they were bitterly opposed and went 

through days of attack. And Eisenhower makes the point specifically in his memoirs that that was the best intelligence they had. 

It was dead wrong, and it probably resulted in the death of people 

that were under his command, but he didn’t do it intentionally. He 

did it based on the best intelligence he had. And he goes on to say, 

it is difficult for people who are not there to be able to convey or 

understand the fog that exists with respect to intelligence. 

That is the only point I am trying to make. We make presentation here as if intelligence is something so clear. The reason it 

is called a National Intelligence Estimate is because it is an estimate. 

Mr. NADLER. Would the gentleman—— 

Mr. LUNGREN. And the President tries to make the best judgment with that information. And for him to reach a conclusion that 

he believes the evidence and presents that is not a case of lying, 

it is a case of the President making his best judgment at that time. 

The last thing I would say is this: We should be reminded that 

in these cases—and when we talk about—and FISA has been 

brought up here a number of different times and different investigative techniques. The Administration did bring in leadership on 

a bipartisan basis to give them this information and to ask for 

their advice. And we in this Congress have the right perhaps to 

pass legislation to expand the number of people who are brought 

into those consultations. We have made the judgment in the past 

that ought to be limited to the Democrat and Republican on the Intelligence Committees and of our leadership in the House Chambers. Maybe that is something we should consider. Maybe we 

should pass legislation saying we want a wider circle of Members 

of Congress on a bipartisan basis. 

But I am just—the way that has been portrayed as all evil 

versus all goodness and a President that is absolutely champing at 

the bit to somehow violate the Constitution I just think is—— 

Mr. NADLER. Would the gentleman yield? 

Mr. LUNGREN. I would be happy to yield. 

Mr. NADLER. Thank you. 

First of all, I just must comment that when we invaded North 

Africa, there was considerable uncertainty as to what Admiral 

236 

Darlan would do, and there were a lot of negotiations with him behind the scenes. 

But be that as it may, the issue is not whether the President was 

correct in his estimate or whether the intelligence was correct. The 

intelligence is always a fog, you are quite correct in that. The issue 

is that whereas the intelligence that the President was given had 

all sorts of caveats and said, we think this, but some people think 

that, this division thinks that, that division thinks that, we are not 

sure, we think that this is correct, the President is absolutely entitled to take the minority or the majority view, you know, and say, 

I think that, this, fine. 

But I think it is a prima facie—the problem here is that when 

he reported to Congress on the—and the misrepresentations, he did 

not say there is a division in the intelligence; the majority thinks 

this, the ‘‘Department of Whatchamacallit’’ thinks that. He made 

categorical statements. He said, we know this, we know that, 

when, in fact, it was quite clear we didn’t know this, we thought 

this. 

Mr. LUNGREN. Well, I will reclaim my time and just say the 

President was basing it not only on the National Intelligence Estimate, but also the conclusions of the Intelligence Communities 

around the world. Tony Blair has stated that he believed it. The 

French Government believed it. The Israelis, who have about as 

good an intelligence service as in the world relative to ours—I 

think ours is the best—also believed it. 

I don’t think you can find an impeachable offense based on the 

fact the President took these estimates and, in the context of the 

other Intelligence Communities of the world agreeing with it 

unanimously, then made the presentation to Congress. 

Now, we can agree or disagree. You can say this is maladministration, a mistake by the President, but it is not the basis for impeachment. And I know we have gone on very long—— 

Mr. SCOTT. Will the gentleman yield? 

Mr. LUNGREN. I will be happy to yield. 

Mr. SCOTT. Just very briefly. If you draw those conclusions, then 

I think you are right, but some, based on the facts that were available, think that if we review it, we may or may not find that—a 

different conclusion, that we were, in fact, misled, if we can get all 

the information. But we haven’t gotten all the information. 

Mr. LUNGREN. Well, I appreciate it, although it is incontrovertible with respect to the conclusions of the other intelligence agencies, and I think—well, I—— 

Mr. CONYERS. Gentlemen. 

Mr. LUNGREN. I thank the Chairman for his indulgence. 

Mr. CONYERS. The time of everybody has expired. And I want to 

thank the Members that were able to stay through 5 hours of hearings, but what about the witnesses who stayed through 5 hours of 

hearings? We thank you very much. 

I think Mel Watt was right. These are the most important hearings that we have held in the Judiciary Committee during the 

110th Congress. This transcript will be examined. We leave it open 

for 5 days so that if there are any corrections that witnesses want 

to make, or any additional submissions that they would like, or any 

237 

questions that Members of the Judiciary would like to present to 

our witnesses, the record will be open for that period of time. 

This hearing is adjourned. Thank you so much. 

[Whereupon, at 4:15 p.m., the Committee was adjourned.] 

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1258Res-159.eps
432 


1258Res-160.eps
433 


1258Res-161.eps
434 


1258Res-162.eps
435 


1258Res-163.eps
436 


1258Res-164.eps
437 


1258Res-165.eps
438 


1258Res-166.eps
439 


1258Res-167.eps
440 


1345Res-1.eps
441 


1345Res-2.eps
442 


1345Res-3.eps
443 


1345Res-4.eps
444 


1345Res-5.eps
445 


1345Res-6.eps
446 


1345Res-7.eps
447 


1345Res-8.eps
448 


1345Res-9.eps
449 


1345Res-10.eps
450 


1345Res-11.eps
451 


1345Res-12.eps
452 


1345Res-13.eps
453 


1345Res-14.eps
454 


1345Res-15.eps
455 


1345Res-16.eps
456 


1345Res-17.eps
457 


1345Res-18.eps
458 


1345Res-19.eps
459 


1345Res-20.eps
460 


1345Res-21.eps
461 


1345Res-22.eps
462 


HR264-1.eps
463 


HR264-2.eps
464 


HR264-3.eps
465 


HR264-4.eps
466 

Æ 


HR264-5.eps