Carts Before Horses Impeachment inquiry first By Bruce Fein

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> Carts Before Horses Impeachment inquiry first, ask questions later.

http://www.slate.com/id/2173106/nav/tap2/
> By Bruce Fein
> Posted Friday, Aug. 31, 2007

> Detractors of an impeachment inquiry by the House judiciary committee into whether President George W. Bush has committed impeachable offenses contend that no questions should be asked until conclusive incriminating evidence is either volunteered up by the suspects themselves or appears before them by spontaneous combustion. In other words, they say, no inquiry should commence until proof of the president's guilt has been unearthed—proof which would, of course, make the inquiry superfluous! The Watergate investigation that dethroned President Richard M. Nixon would never have been launched under such an Alice in Wonderland standard of proof, because it began with nothing more than two obscure figures, E. Howard Hunt and Gordon Liddy, known to have both White House connections and associations with the Watergate burglars.
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> Article II, Section 4 of the Constitution stipulates: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article I, Section 2 endows the House of Representatives with "the sole Power of impeachment." And Article I, Section 3 entrusts the trial of impeachments to the Senate and requires a two-thirds vote for conviction.
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> The impeachment process thus envisions the House as operating like a sort of grand jury and the Senate like a trial jury. The House investigates to determine whether evidence can be marshaled to prove impeachable high crimes and misdemeanors. And if the answer to that question is affirmative, the House then decides whether to vote articles of impeachment. That judgment represents a collection of prudence, politics, and law akin to prosecutorial discretion. If articles are approved, a trial is held before the Senate with the chief justice of the United States presiding if the president is the accused.
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> The House does not require, nor should it await, proof beyond a reasonable doubt of misconduct. To wait for such proof subverts the whole purpose of an impeachment inquiry.
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> According to the Founding Fathers, impeachable offenses are crimes against the Constitution, which may or may not include violations of the federal criminal code. As Alexander Hamilton elaborated in Federalist 65, impeachment cannot be "tied down" by "strict rules, either in the delineation of the offense" by the House, or "in the construction of it" by the Senate. James Iredell sermonized to North Carolina's ratification convention that "giving false information to the Senate" was characteristic "of great injury to the community" that would warrant impeachment. False information distorts legislative judgments and makes a farce of congressional oversight to detect lawlessness or maladministration by the executive branch.

Fein, like a few other Republican patriots before him (e.g. Lawrence Walsh, Smedley Butler) has proven to be a pleasant surprise.

I love Republicans who put the Constitution above the party.

Even if he was behind impeaching Clinton, he's not backing away from applying the same standards to the much more significant crimes of this administration.