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Memo unlikely to bring Bush to court

By SUSAN TAYLOR MARTIN
Published July 3, 2005

The now-famous Downing Street Memo says the Bush administration "fixed" facts and intelligence to justify attacking Iraq. To many of his critics, the memo is proof President Bush deceived the nation.

But would the memo stand up in court? Is it sufficient grounds for impeachment? Legal experts have some surprising answers.

"I don't think you'd get very far with the memo in a court of law," says Douglass Cassel Jr., director of the Center for International Human Rights at Northwestern University. "I think its importance is much more in the political than legal field."

In an impeachment proceeding, where Congress has far greater leeway in deciding what is "evidence," the memo would have whatever weight the House and Senate chose to give it, says Buckner Melton, an expert on impeachment at Mercer University.

Still, he adds, it's unlikely Bush would be brought to trial over his war policies. "The big reason is that in the realm of foreign affairs the president has always had a very free hand," Melton says.

The Downing Street Memo is actually the minutes of a meeting July 23, 2002 - eight months before the invasion - at which Britain's intelligence chief told Prime Minister Tony Blair that Bush was determined to go to war, and that "intelligence and facts were being fixed around the policy."

Disclosed during the recent British election campaign, the memo has gained growing attention in the United States, where antiwar activists demand a congressional inquiry.

In federal court, with strong rules of evidence, the memo likely would be barred as hearsay, Cassel says.

"It's basically a British official, based on discussions with some unidentified Americans, opining to the British prime minister what the Americans are really up to, and this means essentially what George Bush is really up to," Cassel says. "So it's not just hearsay but double hearsay."

From a legal standpoint, "the memo's principal value is to provide a lead for investigation, not to prove a fact in any criminal proceeding."

The Constitution says a president can be removed from office if convicted of "treason, bribery, or other high crimes and misdemeanors" - a broad, vague list that gives Congress huge discretion. The Constitution also doesn't specify any procedures or rules to follow in trying a president.

One example of congressional flexibility was the Senate's "amazing decision" in the Clinton impeachment to use only recorded testimony and not call any live witnesses, says Stephen Presser, an expert on U.S. legal history at Northwestern.

"The majority of senators knew they never were going to vote to convict, so they had to make it look like a trial even if no one took it seriously in the Senate," Presser says. "That infuriated House members who had brought the charges. It demonstrates the enormous discretion that both Senate and House members have to consider whatever they want."

Despite activists' claims to the contrary, another expert says impeachment probably couldn't be justified solely on the grounds that the original reasons for going to war, such as finding weapons of mass destruction, failed to materialize.

"The fact the war may not pan out, it's no different than if a policy doesn't work," says Michael Gerhardt, a law professor at William & Mary and author of a book on impeachment. "He has to stand accountable, but the fact there may be a failed or troubled policy is not enough to warrant impeachment."

The Constitution defines the president's powers in such general terms that he has considerable leeway in foreign affairs. In 1846, James K. Polk "pretty much baited Mexicans into firing the first shot" so he could justify a war that wrested vast areas from Mexico, Melton of Mercer says.

A more recent example of a president "sort of twisting things" was Lyndon Johnson's reaction to the 1964 North Vietnamese attacks on two U.S. destroyers in the Gulf of Tonkin. The vessels suffered little damage, and "there was a question of how much LBJ played up the attacks or even fabricated them," Melton notes.

But the die was cast: A few day later, Congress passed the Tonkin Gulf Resolution, which authorized what became a full-scale war in Southeast Asia.

With the current Congress controlled by Republicans, there seems little chance Bush will face impeachment over a British memo.

"It merely reinforces the opposition people might have had to the Iraq war and the president's policies there," Gerhardt says, "but I'm not sure why this would necessitate anything other than the political scrutiny it's receiving."

--Susan Taylor Martin can be reached at susan@sptimes.com

[Last modified July 3, 2005, 02:15:16]