What is a high crime?

If the House voted to refer articles of impeachment to the House Judiciary Committee, what would be the question before the committee?  In a primary sense, the question is simply, is our government functioning properly with George W. Bush as president?  If the answer to that question is no, for any reason criminal or otherwise, that would be grounds for impeachment.  So the first step is to decide if there are enough suspicions that Bush is not taking care that the laws of our nation are followed to suggest further investigation.  The final step, should the process carry on through impeachment, trial and conviction, would be moving toward restoring our government through removing Bush from office.  The entire process, start to finish, is concerned with a single matter, the proper functioning of the government.  If George W. Bush is not taking care that our government function properly, that is a high crime.  In fact, that is the definition of a high crime.

Is treason a high crime?  Not necessarily.  A high crime is worse than treason, because if the President is not taking care of the law, treason could become rampant.  It is the duty of the legislature to ensure that the chief executive is taking care that the laws are faithfully executed.  They are not a criminal body, they are not a Greek chorus for morality; rather, they are a political branch charged with firing any executive who is not up to the job.

And the rules are more merciless than in many jobs.  This is not like dear sweet Joe in accounting who doesn't do a very good job, but he's a nice guy so we keep him on.  If we could find the money, we would keep Joe on the job even after the head injury that him left unreliable.  We have no such luxury when it comes to "the most powerful man" in the world. "We'll get you straight to a doctor, George, but first, and even more important, we have to be sure someone is running things who can take care that the laws be faithfully executed.  What's that you say?  You want to stay in the game?  You think you can do it?  Sorry, George, even though you have been struck with one of the most sympathy-inducing diseases known to man, WE CAN'T AFFORD TO LET YOU STAY ON THE JOB.  It's just too damn important."

Is incompetence grounds for impeachment?  Yes, it's one of the most convincing grounds.  By definition, incompetence means an inability to accomplish what is needed.  Incompetence will necessarily lead to failing to take care of the law; thus incompetence will necessarily lead to commission of a high crime.  Unless you can prove that the incompetence is only in areas which will have no impact on faithful execution of the law.  Hard to imagine how that would be possible.

A high crime is completely and fully different than any other crime.  It can only be committed by a person with privileged status, i.e., a person charged with overseeing the enactment of law.  A high crime is, pure and simple, a failure to carry out this duty.  It is not disobeying any certain law; it is failing to take care that the laws be executed.  There are no laws specifically applying to the president as he carries out his unique duties, so the only guidelines are the constitution and the oath of office.  By virtue of his privileged status the president can commit a high crime--he can fail to carry out the duties of his office.  No matter what the reason for that, it's a high crime.  Any officer of the president is likewise subject to being charged with high crimes.

Why is it important to the nation to have a constitutionally functioning executive branch?  Here's one example. The legislature passes laws designed to protect the United States from enemies, foreign and domestic.  The executive is charged with executing those laws.  It is vitally important to the security of the US that the laws against revealing the identity of covert government agents be actively and faithfully pursued.  With respect to impeachment, the question is not whether Bush was involved with revealing Valerie Plame's identity, it is whether Bush can be relied on to faithfully execute the law against such criminal revelation.  Impeachment is concerned solely with the functioning of the government, not criminal activity per se.

It is a high crime to fail to ensure that laws against politicization of the DOJ be faithfully executed.  Likewise if Bush failed to work actively to prevent violation of laws against torture and rendition.  It is enough if Bush failed to take care that the presidential records act be faithfully executed.  In short, if Bush is not taking care that the government function in a legal and constitutional manner, then he is guilty of a high crime and needs to be dismissed from office.  Any considerations of crimes other than high crimes are matters for the judicial branch.

We need to impeach to begin the process of restoring a functioning government which gives coherent meaning to the word "we." But right now we just need to decide if we suspect there may be some possibility that an investigation might uncover examples in which the executive branch failed to take care that the laws were faithfully executed. Sure, it's unlikely.  But on the off-chance that matters aren't on the up-and-up at 1600 Pennsylvania Avenue, we should open a little investigation.

One final matter: while high crimes are grounds for impeachment, any high crime in isolation may or may not be sufficient grounds.  A second test must be met:  substantiality.  The individual facts must be considered as a whole in the context of the office of president.

Because impeachment of a President is a grave step for the nation, it is predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.

I'm on pins and needles waiting to see whether the Judiciary Committee uncovers conduct seriously incompatible with the constitutional form and principles of our government.  I'll go out on a limb and say it seems possible.  I'm guessing we have a shot at demonstrating substantiality along with the many high crimes.  But we'll only know after the House Judiciary Committee opens an investigation.

If you want links, look at yesterday's less one-note version.