This is an article submission from a reader like you. We consider all submissions.

To the People of the United States,

The Founding Fathers were deeply concerned with the possibility of presidential overreach. This concern manifests itself in the inclusion of an Impeachment Clause in the US Constitution. The debate over where impeachment should take place was important enough to make it into the Federalist Papers. Specifically, Alexander Hamilton wrote in Federalist 65 and 66 a compelling case as to why the Senate should have the power to try impeachment cases. On this issue, they were crystal clear.

Where they were vague, however, is what actions constitute impeachable offenses. The Impeachment Clause merely states that Congress can impeach a President for “high crimes and misdemeanors” as defined by the House of Representatives. What those high crimes were, the Founders did not define.

As noted in previous articles by myself and by Justin Stapley, the Founders felt that impeachment was a vital congressional check on executive overreach for Congress to use on a semi-regular basis. Our Founders had faith that future generations would be able to define high crimes and misdemeanors for themselves. Alas, impeachment has become an almost mythical action, and we as Americans have allowed the definition of high crimes and misdemeanors to narrow into near-oblivion. Something must change. Hence, the name of this article.

Extending on what our Founders did during the debate over ratification, I intend to lay out a blueprint by which we can, and should, judge future presidents and their actions for impeachment.

The actions of presidents should be measured in two regards: whether the action is illegal or unconstitutional and whether the action is in contradiction to congressional wishes. Once these considerations have been measured, they must be weighed against their effect on the national interest. Only if the actions meet these benchmarks can they considered worthy of conviction and removal.

Point One: The Legality of the Act

The first point by which a presidential action should be judged is whether the action is illegal or unconstitutional. These two points are the most important judgments in determining if a president should be impeached and yet are too often the most ignored. If a President breaks the law of the land, he has, by any definition of the terms, breached the “high crimes” clause. Likewise, if he breaches his oath of office and unconstitutionally conducts himself, he has, in a similar fashion, committed an action that warrants impeachment.

Note that we are not examining the morality of the president’s acts. An action can certainly be immoral, and yet still perfectly legal and entirely constitutional. Similarly, a presidential action can be illegal, unconstitutional, and warranting of impeachment, and yet still be a moral action.

Point Two: The Wishes of Congress

The second point by which we must judge a president’s actions is whether they work in unison with Congress or against it. The Founders understood that the most powerful branch of government must be the elected legislature and therefore gave the most important powers to this branch, including the power of impeachment.

The President is, first and foremost, the chief law enforcement officer in the United States, and as such is tasked with enforcing whatever laws Congress has deemed necessary to institute. If he refuses to exercise such laws or creates law by certain actions not authorized by Congress, he should face the possibility of impeachment.

This is not to say that the President must always enforce congressional actions. Sometimes even Congress may pass a law that violates the Constitution. In such a case, the President is well within his authority to ignore such legislation. However, presidents must be wary of ignoring congressional acts and setting a precedent of abuse.

Point Three: The National Interest

After assessing the president’s actions of their legality and congressional acquiescence, we must assess their impact on the interests of the nation at large.

If his actions are unconstitutional or illegal and against congressional wishes, but fail to impact the national interest to a significant degree, then the decision to impeach falls upon Congress’s judgment (though it would be unwise for Congress to choose not to).

However, if the interests of the nation, political or moral, are compromised by the president’s actions, then impeachment must be a sure-fire recourse. Congress’s job, first and foremost, is to protect America’s standing domestically and globally by defending the Constitution. Any president who contradicts this job has made himself impeachable and conviction-worthy.

Historical and Contemporary Impeachments

With this rubric in mind, let us examine past impeachment drives, as well as the current inquiry, to determine if they are within these parameters.

The first impeachment drive, of course, was that of Andrew Johnson at the height of Reconstruction. Congress, under the control of the Radical Republicans, were furious Johnson was not more aggressive in changing the fundamental nature of the South. To limit his powers, and protect a Cabinet Secretary they were allied with, Congress passed the Tenure of Office Act. This legislation required the president to obtain Senate approval to fire an executive officer previously confirmed by the Senate.

Andrew Johnson, in blatant violation of this law, fired the Cabinet member in question while Congress was in recess. Upon return to D.C., Congress swiftly moved to impeach. Ultimately, the Senate voted to acquit him by one vote.

This impeachment surely fits the qualification of being against congressional wishes. On all other accounts, however, Johnson’s actions do not rise to the level of impeachment. The Tenure of Office Act was a blatant violation of the Constitution. Congress attempted to usurp executive power and grant themselves authority not given to them by the Founders. Therefore, we can ignore every other consideration.

The result: Andrew Johnson did not deserve to be impeached.

Jump ahead 100 years to the impeachment inquiry of Richard Nixon. The crime he was (credibly) accused of, obstruction of justice, is illegal by any measure. Because Congress ordered the investigation, his obstruction was in direct violation of the legislature’s wishes.

While this obstruction did not directly affect America’s standing overseas, the aftermath of Watergate would have global consequences. Congress’s refusal to honor our agreement with South Vietnam was a direct result of Nixon’s transgressions.

The result: Richard Nixon did deserve to be impeached and convicted.

Though Reagan was never in direct threat of impeachment, it is worth mentioning the Iran-Contra Scandal. In brief, the scandal was a money-for-arms deal orchestrated by high-level officials lead by Oliver North (of NRA fame). The Reagan administration sold US weapons to the Iranians in exchange for their assistance in freeing Lebanese-held hostages. It also involved the subsequent funneling of that money to the Contra rebels in Nicaragua.

Official US policy has always been that we do not deal with terrorists, so the selling of arms to Iran was by itself illegal. To add to the fire, Congress had explicitly banned the funding of the Contra rebels via the Boland Amendment. That checks both the illegality box and the congressional contradiction box.

The effect on the national interest is debatable. The Contras were a controversial topic in and of themselves. Still, it is safe to say that dealing with a terrorist nation that, not five years prior, had held Americans hostage certainly did the nation no favors.

The result: Congress should have impeached Reagan, if not for the fact that multiple investigations concluded that he knew little, if anything, about the proceedings.

This brings us to the most famous impeachment of recent history: that of Bill Clinton. The official charge for impeachment was perjury, but it is worth noting that the lie he told was about a personal matter that was unrelated to Ken Starr’s mandate. While cheating on your wife is certainly immoral, it is neither unconstitutional, illegal, nor in contradiction of congressional desires.

The result: Clinton did not deserve impeachment for the Lewinsky scandal.

However, there are other actions taken by the Clinton administration that do deserve an examination for impeachment. One in particular that deserves to be analyzed is the controversy surrounding the NATO bombing campaign in Yugoslavia.

To recap, Bill Clinton sent in US bombers to deal with allegations of ethnic cleansing in what was once Yugoslavia. However, he did not attain an explicit authorization of conflict from Congress and, instead, he cited the War Powers Act as sufficient authority to engage in the conflict.

On the constitutional issue, Clinton is clearly in the wrong. Only Congress can authorize military conflict, and it must be specific in its authorization, which the War Powers Act is not. However, congressional wishes concerning this issue were remarkably unclear. While Congress shot down two bills that would have authorized the military action, they also shot down a bill requiring Clinton to leave and authorized a spending bill that appropriated money to the troops engaged in Yugoslavia. Due to congressional indecisiveness, we cannot conclusively say whether his actions violated what Congress wanted or not.

The result: Clinton did not deserve impeachment for his actions in Yugoslavia.

The final inquiry worth discussing is, of course, the investigation into Donald Trump. If it is proven, and it seems likely to be, that Trump held up congressionally-appropriated aid to Ukraine in exchange for a political favor from the Ukrainian president, then he certainly has committed at the very least an unconstitutional act, if not an illegal one.

Setting aside the legality of leveraging taxpayer dollars for personal interests (abuse of power would be the most likely article of impeachment), Trump holding up congressionally appropriated money is an unconstitutional usurpation of the power to spend. It is in direct contradiction to Congress’s wishes by its very nature, and it had the potential to upend US policy in eastern Europe and compromise Ukraine’s defense against Russian encroachment.

The result: Donald Trump does deserve impeachment, and conviction, for this incident.

As I have stated in other articles, this is not the only impeachable offense that Trump has committed. Declaring a national emergency to fund a wall that Congress has already explicitly not funded is a clear violation of the separation of powers in the Constitution. Congress voted in both houses to repeal his declaration, so Trump’s insistence is a direct contradiction to the will of Congress. The national interest is not directly affected, but the precedent set by Trump’s actions is extremely dangerous.

The result; Donald Trump does deserve to be impeached, and convicted, for his national emergency declaration for the border wall.

Final Words

Impeachment is a matter of great importance and one that the Founders gave much thought to. It should not be relegated to the dustbin of history nor only used in exigent circumstances. The Founders intended it to be a tool for Congress to use consistently. Hopefully, this article provides a blueprint for Congress to do just that.

Scott Howard (channeling the spirit of Publius)

Do you have a response to this article? Would you like to offer your own take on this topic? Feel free to submit your own article or offer a comment below.

Share this: Twitter

Facebook

Reddit

