Hamilton, The Federalist Society, and Violation of Public Trust

The conservative legal scholar Norm Ornstein said yesterday regarding Bush's authorization of NSA spying without a warrant: "I think if we’re going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed."

Alexander Hamilton, The Federalist, no. 65:

"A well constituted court for the trial of impeachments, is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will inlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparitive strength of parties than by the real demonstrations of innocence or guilt."

Interesting construction there by Ornstein: "intellectually honest." It begs the question of exactly how members of the much-vaunted Federalist Society view the issue of impeaching Bush for authorizing illegal wiretaps, given their hero Alexander Hamilton's clear position above. Whatever Democrats think of the political strategy of drafting articles of impeachment, it's clear the founders had this kind of situation in mind when they made provision for impeachment.

Posted today at Think Progress:

Conservative Scholars Argue Bush’s Wiretapping Is An Impeachable Offense

Conservative scholars Bruce Fein and Norm Ornstein argued yesterday on The Diane Rehm show that, should Bush remain defiant in defending his constitutionally-abusive wire-tapping of Americans (as he has indicated he will), Congress should consider impeaching him.

QUESTION: Is spying on the American people as impeachable an offense as lying about having sex with an intern?
BRUCE FEIN, constitutional scholar and former deputy attorney general in the Reagan Administration: I think the answer requires at least in part considering what the occupant of the presidency says in the aftermath of wrongdoing or rectification. On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.
NORM ORNSTEIN, AEI scholar: I think if we’re going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed.
(Listen to The Diane Rehm show here. The segment above begins at 33:40)

UPDATE:
More from Knight-Ridder:
[Bush’s] explanation fueled more anger over the domestic spying, and some legal experts asserted that Bush broke the law on a scale that could warrant his impeachment.
“The president’s dead wrong. It’s not a close question. Federal law is clear,” said Jonathan Turley, a law professor at George Washington University and a specialist in surveillance law. “When the president admits that he violated federal law, that raises serious constitutional questions of high crimes and misdemeanors.”

Today from Roll Call:

Boxer Raises Impeachment

Democrat Asks ‘Full Airing’ of Spying Issue

On the seventh anniversary of the House’s decision to impeach then-President Bill Clinton, a pair of leading Congressional Democrats raised the specter of impeachment regarding President Bush’s authorization of domestic spying by the National Security Agency.