Gunning for Rumsfeld

MICHAEL GERHARDT, a professor of law at the University of North Carolina Law School, is the author of "The Federal Impeachment Process: A Constitutional and Historical Analysis."

VERY FEW Cabinet secretaries have done what Donald Rumsfeld has done. He is both the youngest and oldest person to serve as secretary of Defense (having served previously in the job more than 30 years ago under President Ford), and, at least this time around, he has become one of the most despised Cabinet secretaries ever.

In fact, the number of people who have come to hate Rumsfeld has grown so much in the Senate and elsewhere that it’s become necessary to take a step back to contemplate by what means the Constitution might allow them to vent their hatred.

The first and most obvious means is through the impeachment process. As a Cabinet secretary, Rumsfeld may be impeached and removed from office under Article 2 of the Constitution for “treason, bribery, or other high crimes or misdemeanors.” Rumsfeld’s critics charge him with a long list of what they say are impeachable offenses, including incompetence and ordering the torture of prisoners at Abu Ghraib and other military detention centers.

Because historical practices and the weight of legal opinion suggest that impeachable misconduct generally requires not just a bad act but a malicious intent as well, it’s not clear that incompetence qualifies as an impeachable offense. Although it’s true that one federal judge was removed from office in 1803 for mental incompetence, Congress has never again impeached, much less removed, anyone for incompetence.

Before Rumsfeld could be impeached and removed from office in connection with Abu Ghraib or, say, because of the authorized use of torture by Americans or the use of domestic wiretapping, the same rule would apply: He would have to be shown not just to have abused his power but to have done so maliciously. Demonstrating malice would require showing that he knew what the law required and that he deliberately disregarded it. That’s a high bar.


In any case, political circumstances make impeaching, much less removing, Rumsfeld from office nearly impossible at the moment. With the House controlled by the Republicans, it is extremely unlikely -- even with anger against Rumsfeld rising -- that the chamber would even entertain an impeachment inquiry against the Defense secretary. Without an impeachment by the House, the Senate would not be able to conduct an impeachment trial.

The second way Congress could express disapproval of Rumsfeld is through censure, like the no-confidence vote Senate Democrats are seeking. This would have no force of law but would merely express their lack of confidence in Rumsfeld as Defense secretary. Both the House and the Senate pass resolutions expressing their opinions all the time. I doubt that Rumsfeld, or President Bush, would object on constitutional grounds if the House or Senate were to pass a resolution praising either or both of them. Similarly, a resolution condemning either is constitutionally unobjectionable.

A third option is to persuade the president to fire Rumsfeld. We have had unpopular Cabinet secretaries in the past. Sometimes presidents are persuaded to get rid of them, as when President Reagan removed Interior Secretary James Watt; sometimes they are not, as when a congressional delegation asked President Lincoln to get rid of Secretary of State William Seward.

The best opportunity to remove Rumsfeld may be after the midterm elections, which Democrats hope to make a referendum on Iraq and Rumsfeld. If their strategy works, the secretary may decide to fall on his sword like a good soldier -- or he may be pushed. If the strategy fails -- or if Bush’s loyalty to Rumsfeld trumps whatever the voters may tell him -- we can look forward to a celebration in November 2007 marking Rumsfeld’s distinction as the longest-serving secretary of Defense in history.