Topic: Cato Publications

Joe Biden on Impeachment for Illegal Warmaking

I don’t know if the moderators of tonight’s Democratic primary debate are taking requests, but here’s my question for former vice-president—and current frontrunner—Joe Biden:

“Mr. Biden, the last time you were running for president, you promised that if George W. Bush ‘takes this nation to war in Iran, without congressional approval, I will make it my business to impeach him.’ Now, over a decade later, war with Iran is again on the horizon, and just this Monday, the president said he does not need congressional authorization to wage war. If he acts on that belief, will you call for Congress to impeach President Trump?” 

In December 2007, when then-Senator Biden made those remarks, the crowd in Davenport Iowa answered with hearty cheers.

At the time, there was a serious concern that President Bush would use prior congressional authorizations–like the 2002 Iraq War resolution or the post-9/11 Authorization for the Use of Military Force (2001 AUMF)–as cover for a new war with Iran. A month before Biden’s speech, then-Senator Barack Obama introduced a joint resolution designed to foreclose that option. “There is absolutely no reason to trust that this Administration will not use existing congressional authorization to justify military action against Iran,” Obama warned.

Here we are again: now, nearly 12 years later, there’s no reason to trust that this administration won’t use the 2001 AUMF as justification for war with Iran. Secretary of State Mike Pompeo has suggested as much, behind closed doors, to members of the House Armed Services Committee. 

Joe Biden knows something about the 2001 AUMF: he voted for it, three days after 9/11. And, like practically every other member who passed that resolution, he described it as a limited measure, aimed at those who were responsible for the attacks. As the New York Times reported after the vote: “Senator Joseph R. Biden Jr., chairman of the Foreign Relations Committee, said Congress was not ceding its constitutional authority to declare war or intending to write a measure like the Gulf of Tonkin resolution, which President Lyndon B. Johnson used in 1964 to justify escalation of the war in Vietnam.” 

The 2001 AUMF has now been in effect almost three times as long as the Gulf of Tonkin Resolution, and the current administration thinks it can draw on that authority to wage war over the “Gulf of Oman incident.”  

In the short term, Congress has limited means available to it for heading off war. Most of the measures currently being debated on the Hill would have to make it past a presidential veto. A sense-of-Congress resolution threatening impeachment for unauthorized warmaking would not. Biden’s no longer in a position to do more than advocate such a move, but it seems to fit with how he described his 2007 impeachment threat: “a prescriptive way to make clear to this man that there will be severe consequences, because [attacking Iran] would be the most dire action we could take at this moment.” Back then, Biden insisted that an unauthorized strike on Iran would be an impeachable offense. Does he still think so today? 

If he got the question, my guess is that Biden would answer, “yes.” Willingness to use the dreaded “I-word” might help shield the Democratic frontrunner from attacks on his left flank. Of course, given Biden’s service as vice president in an administration that ran roughshod over congressional war powers—that answer might also give rise to some awkward questions. But this is the business he’s chosen. 

 

Emergency Exit Strategy

His brand is crisis, so it can be hard to keep abreast of the various calamities President Trump stumbles into or deliberately courts. Now that tensions with Iran seem to have momentarily cooled, another recent episode of Trumpian brinksmanship, closer to home, deserves some attention before we lurch forward into new dangers. 

As you’ve surely heard, but may have already forgotten amid the fog of near-war, three weeks ago, President Trump threatened to declare yet another national emergency at the southern border. If Mexico didn’t sufficiently crack down on cross-border migration, Trump warned, he’d use “the authorities granted to me by the International Emergency Economic Powers Act” to hammer our third largest trading partner—and U.S. consumers—with a series of escalating tariffs on Mexican goods, rising to 25 percent across the board. 

Fortunately, on June 7, three days before the deadline he’d set, President Trump called off the trade war. But, Trump warned, he “can always go back” to raising tariffs if he’s not happy.

The notion that the president can, with the stroke of a pen, upend peaceful trade relations and implement a massive tax hike ought to sound the alarm about Trump’s expansive view of presidential emergency powers. Are they as vast as the president claims, and, if so, what can Congress do to rein them in? 

As I argued in Reason magazine recently, our latest Imperial President has aggressively exploited the powers he inherited, but hasn’t been much of an innovator in terms of devising genuinely new schemes for the expansion of executive power. Trump’s use of emergency authorities is the glaring exception to that pattern, the key area in which the “CEO president” has been menacingly entrepreneurial.

We saw this first in February, when President Trump declared a national emergency in order to “build the wall” on the U.S.-Mexico border. The statute Trump invoked, 10 USC § 2808, allows the president to divert funds to “military construction projects” supporting the use of U.S. armed forces in a military emergency. It had been used only twice before, by George H.W. Bush in the run-up to the Gulf War, and by his son in the aftermath of the 9/11 attacks—the sort of circumstances it was clearly designed to address. Though past presidents had used emergency powers liberally, before Trump, it apparently hadn’t occurred to anyone that you could use them to snatch funding for a pet project that Congress had repeatedly refused to support. 

The Right Call on Iran, But It Shouldn’t Be Trump’s Call

It says something about the way we go to war now that one almost feels like thanking President Trump for deciding, at the last minute, not to kill (at least) 150 people—and risk catastrophic conflict with Iran—in order to avenge one unmanned Northrop Grumman RQ-4 Global Hawk drone, downed by an Iranian missile. It wouldn’t be “proportionate,” he said, and he’s right—though that apparently didn’t bother National Security Adviser John Bolton, Secretary of State Mike Pompeo, and CIA Director Gina Haspel.

While you’d never call the man cautious, much less squeamish about foreign casualties, it’s not the first time Donald Trump has appeared that way compared to the putative “adults in the room” advising him. There are several such stories in Bob Woodward’s 2018 book Fear: Trump in the White House. In April 2017, for example, after Trump becomes enraged by video of Syrian children dying from a sarin gas attack, the Joint Chiefs present him with a range of airstrike options that includes a 200-missile attack aimed at taking out the bulk of the Syrian Air Force (and almost certainly killing large numbers of Russian advisers) Trump does the smarter thing and bombs an empty runway. The night of the strike, he calls a National Security Council meeting. Woodward writes that Trump was “unusually focused on the details…. What happens if a missile goes off course?” Trump’s so concerned about it, he demands that Mattis get him a secure line to the captains of both guided missile destroyers “are your guys the best at programming the missiles?” Have we got this right? 

True, Woodward recounts scenes that have you wishing someone would steal the nuclear launch codes off Trump’s desk, but more than once, the president appears more restrained and less bloodthirsty than the people advising him, like Sen. Lindsey Graham (R-SC), who urges Trump to hit North Korea, saying “If a million people are going to die, they’re going to die over there, not here.” “ That’s pretty cold,” was Trump’s response.

And while it’s nice that President Trump periodically steps back from the brink, it’s insane and appalling that we’ve staked so much on the instincts and whims of one eminently fallible human being. That is not the way it was supposed to work: “This system will not hurry us into war,” James Wilson told delegates to the Pennsylvania ratifying convention in 1787, “it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large.”

From the Cold War through the Forever War on Terror, we’ve watched the emergence of a radically different regime, in which going to war is easy, frequent, and rarely debated. Lately, there are encouraging signs of resistance to that dynamic on Capitol Hill: yesterday’s Senate votes to rescind military assistance to Saudi Arabia’s murderous war on Yemen, Wednesday’s House vote to repeal the 2001 Authorization for the Use of Military Force, that the administration seems to think empowers the president to go to war with Iran, nearly 18 years later. But much more needs to be done to restore democratic, constitutional checks on U.S. military power, before it’s too late.

Free Download: The Banned Malay Edition of ‘Islam without Extremes’

In September 2017, I gave a public lecture in Kuala Lumpur, the capital of Malaysia, championing freedom of consience. I said religion must be based on free choice and “it should not be policed.”

The next day, the Malaysian “religion police,” or Jawi, arrested and interrogated me for “teaching Islam without permission from the state.”

Thanks to some behind-the-scenes diplomacy, Jawi soon released me. But based on their report, the Malaysian Home Ministry banned my book, Islam without Extremes: A Muslim Case for Liberty, along with its Malay-language edition, Islam Tanpa Keekstreman: Berhujah Untuk Kebebasan.

The publisher of the book, the Islamic Renaissance Front, which had hosted me in Malaysia for that eventful lecture in 2017, took the case all the way to the nation’s High Court. However, in April 2019, the High Court upheld the ban, suggesting, “the contents of the book are likely to be prejudicial to public order and interest and likely to alarm public opinion.” 

With all due respect to the Malaysian authorities, I find this authoritarianism ridiculous. The most shocking idea in my book that can “alarm public opinion” is that Islam should not be coerced. Or, as the Qur’an says, “There should be no compulsion in religion…” (2:256) If there is something alarming in this whole scene, it is the very banning of such reasoned arguments on crucial matters about the practice of Islam in the modern world.

But neither I nor the Malaysian authorities should have a final word on any of this. It must be up to Malay Muslims who are interested in the topic and who have the right to make up their mind.

Therefore, with the generous permission of the Islamic Renaissance Front, I have decided to share the Malay edition of my book, Islam without Extremes, here on the Cato Institute website. All Malaysians - and of course everybody else - are welcome to download Islam Tanpa Keekstreman: Berhujah Untuk Kebebasan and read it for themselves:

CLICK HERE TO DOWNLOAD THE FREE PDF OF ‘ISLAM TANPA KEEKSTREMAN’

 

Criminal Obstruction vs. Impeachable Obstruction

Earlier this month, the effort to impeach President Trump looked like a #Resistance fantasy. The release of the Mueller Report seems to have shifted the debate dramatically. This week, Democratic presidential contenders Sen. Kamala Harris and Sen. Elizabeth Warren called on the House to impeach Trump for obstruction of justice.  

Is obstruction of justice an impeachable offense? Yes. It’s one of the few offenses where we have presidential precedent. Obstruction charges played a central role in two of the three serious presidential impeachment cases in American history, forming the basis for Article I of the charges against Richard Nixon, and Article II  against Bill Clinton. 

Should President Trump be impeached for obstruction of justice? I’m not going to answer that question here; like the cagey Mayor Pete, I’m “going to leave it to the House and Senate to figure that out.” Instead, I want to stress something that should be obvious, but tends to get lost amid the statutory exegesis in Mueller Vol. II: whether the president is guilty of criminal obstruction and whether he’s guilty of impeachable obstruction are different questions. 

Summing up Article I of the case against Nixon, the 1974 House Judiciary Committee report explained that

President Nixon’s actions…. were contrary to his trust as President and unmindful of the solemn duties of his high office. It was this serious violation of Richard M. Nixon’s constitutional obligations as president, and not the fact that violations of Federal criminal statutes occurred, that lies at the heart of Article I [emphasis added].

The Judiciary Committee report on the Clinton impeachment echoed that analysis a quarter-century later: “the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment.” 

The standards are different because impeachment and the criminal law serve distinct ends and have very different consequences. “The purpose of impeachment is not personal punishment,” the Judiciary Committee emphasized in its 1974 staff report on “Constitutional Grounds for Presidential Impeachment”; instead, impeachment’s function “is primarily to maintain constitutional government.” And where the criminal law deprives the convicted party of liberty, a successful impeachment mainly puts him out of a job

I’ve complained before about “the overcriminalization of impeachment,” the widespread tendency to confuse impeachment with a criminal process. Congress has contributed to that confusion by offloading much of its responsibility for policing executive misconduct to special prosecutors. Mueller wasn’t tasked with looking into “high Crimes and Misdemeanors”; his brief was to probe “federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation.” Naturally, then, the report speaks in the language of the criminal law.

But impeachment aims at fundamental breaches of the public trust, and therefore, as Alexander Hamilton put it, “can never be tied down by such strict rules” as operate in the criminal law. In an impeachment proceeding, the key question isn’t whether the president technically violated one or more of the federal obstruction statutes. It’s whether his transgressions are serious enough to justify removal from office. 

That sort of inquiry is, in many ways, less forgiving than the criminal law approach. Though the Constitution nowhere specifies a particular burden of proof for impeachment, “criminal prosecutions require that the government prove guilt beyond a reasonable doubt in a proceeding in which the defendant enjoys many significant procedural protections.” As Michael Rappaport has observed, “a criminal prosecution model underenforces against executive misconduct, because it ignores noncriminal misconduct that may justify dismissing an executive official,” such as “‘high Crimes and Misdemeanors,’ which need not constitute violations of criminal or civil law.”

A prosecutor needs to prove every element of a statutory offense: a generalized showing of contempt for the rule of law won’t suffice. It’s fair game in impeachment, however. “Unlike a criminal case,” the Nixon Inquiry Report explains, “the cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.”  

In other important respects, however, an impeachment inquiry can be more lenient toward the accused. “Not all presidential misconduct is sufficient to constitute grounds for impeachment,” the Nixon Inquiry Report emphasizes: “There is a further requirement—substantiality.” Impeachment should “be 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.” Even provable, criminal obstruction will not meet the standard of “high Crimes and Misdemeanors” in every case.

For instance, when viewed through the lens of the criminal law, the case against Bill Clinton was quite strong. Here’s Judge Richard Posner’s assessment, from his 1999 book on the Clinton impeachment, An Affair of State:

To summarize, it is clear beyond a reasonable doubt, on the basis of the public record as it exists today, that President Clinton obstructed justice, in violation of federal criminal law, by (1) perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to the questions put to him by the House Judiciary Committee; (2) tampering with witness Lewinsky by encouraging her to file a false affidavit in lieu of having to be deposed, … and (3) suborning perjury by suggesting to Lewinsky that she include in her affidavit a false explanation for the reason that she had been transferred from the White House to the Pentagon.

After the Senate trial, however, multiple senators explained their votes to acquit in terms of substantiality: that although obstruction could, under certain circumstances, merit removal, the offense in this case wasn’t grave enough to justify that penalty. There’s no “it was about sex” defense to a charge of criminal obstruction, but in an impeachment trial, what—if anything—the president was trying to cover up matters.

In Trump’s case, the Mueller Report outlines a (lackluster and inept) cover-up without an underlying crime. As the Report reminds us, “proof of such a crime is not an element of an obstruction offense”—for the purposes of a criminal conviction, it doesn’t matter whether there’s an underlying crime. But for the purposes of an impeachment, arguably, it should. 

On the other hand, what’s in the Mueller Report is only part of the picture. As a group of prominent conservative attorneys and academics put it in a public statement released Tuesday: 

The report’s details add to an existing body of information already in the public domain documenting the President’s violations of his oath, including but not limited to his denigration of the free press, verbal attacks on members of the judiciary, encouragement of law enforcement officers to violate the law, and incessant lying to the American people.  We believe the framers of the Constitution would have viewed the totality of this conduct as evidence of high crimes and misdemeanors. 

 An inquest based on the president’s “entire course of conduct in office” could be a lot less forgiving.  

 

School Inc. and Andrew Coulson

All this week, the Center for Educational Freedom has been posting clips from Andrew Coulson’s award-winning documentary School Inc., which takes viewers through time and around the globe to explain how freedom is the key to transforming education for the better. Of course, a few clips can’t convey the entire case. If you want to soak in the whole journey you can do so on the website of Free to Choose Media, which finished production of School Inc. when Andrew became ill, and is the home to all three episodes. If that doesn’t satisfy your desire to better understand how free markets can work in education, or if you want to learn more about Andrew and his ideas—including disagreements with them—read Educational Freedom: Remembering Andrew Coulson, Debating His Ideas. You can get Kindle or print-on-demand editions on Amazon, or download a PDF version right from Cato’s website.

I hope you had a happy and informative National School Choice Week!

This Is Our Emergency

Last Friday, President Trump threatened to declare a national emergency and build his border wall using “the military version of eminent domain.” By Tuesday, Trump seemed to have climbed down somewhat, declining to repeat the threat in his televised Oval Office address. But the week's end found the president declaring it would be “very surprising” if he didn’t pull the trigger.

So is the emergency-powers gambit a live option or—like the executive order revoking birthright citizenship Trump floated before the midterms—another pump-fake designed to thrill the base and rile the media? Either way, it’s a noxious, thuggish proposal. Using the army to do an end-run around Congress is not how constitutional government is supposed to work. Imagine believing that Latin American immigration so threatens our free institutions that only banana republic tactics can protect us. 

About the best one can say for the idea is that it has the accidental virtue of concentrating the mind wonderfully about the powers we’ve concentrated in the executive branch. 

Our Constitution cedes vanishingly few emergency powers to the president. He commands “the Militia of the several States, when called into the actual Service of the United States," and has the power, via Article II, section 3, to convene Congress on “extraordinary Occasions,” such as a national emergency. “That is about as far as his crisis authorities go,” notes the University of Virginia’s Saikrishna Prakash: “the convening authority would have been unnecessary if the chief executive could take all actions necessary to manage ‘extraordinary occasions.’” 

In Youngstown, the 1952 “steel seizure” case, the Supreme Court rebuffed the Truman administration's claim of a general presidential emergency power divorced from specific statutory or constitutional authority. Justice Jackson, in his influential concurrence, suggested that the Framers neglected to provide such authority for fear “that emergency powers would tend to kindle emergencies.” 

Surely, then, the president can’t just gin up a bogus crisis and use the military to get what he wants when Congress won’t give it to him—can he? It would be nice to be able to answer that question with a confident “no.” Unfortunately, in this case, at least two provisions of the U.S. Code passed during the 1980s, 33 USC § 2293  and 10 USC § 2808, give Trump a non-frivolous rationale for his claim that “I can do it if I want.” 

Overbroad delegations of emergency authority to the executive are a longstanding problem. During the Watergate-era congressional resurgence, a 1974 Senate special committee investigation (co-chaired by Frank Church of Church Committee fame) identified 470 provisions of federal law delegating emergency powers to the president and four proclamations of national emergency, dating as far back as 1933, then still in effect. That investigation led to the National Emergencies Act of 1976, which repealed existing emergency declarations, required the president to formally declare any claimed national emergency and specify the statutory authority invoked, and subjected new declarations to a one-year sunset unless renewed.  

Despite those efforts, the U.S. Code today remains honeycombed with overbroad delegations of emergency power to the executive branch. A Brennan Center report released last month identifies 136 statutory powers the president can invoke in a declared national emergency. Few of these provisions require anything more than the president’s signature on the emergency declaration to trigger his new powers—“stroke of the pen, law of the land—kinda cool,” in the Clinton-era phrase. 

Most of these emergency powers have never been invoked, many of them are innocuous, and some—like the provision that allows suspension of the Davis-Bacon Act in a natural disaster—are even sensible. But other long-dormant powers are extraordinarily dangerous.

Writing in the Atlantic, the Brennan Center’s Elizabeth Goitein highlights a WWII-era amendment to the Communications Act of 1934 empowering the president to close or take over “‘any facility or station for wire communication’ upon his proclamation ‘that there exists a state or threat of war involving the United States.’” She sketches a nightmare scenario in which Trump puts the country on a war footing with Iran; invokes § 706 of the Communications Act to assume control of U.S. internet traffic, deploys federal troops to put down the resulting unrest, and scares people away from the polling stations with a menacing Presidential Alert text message. Goitein grants that “this scenario might sound extreme,” and I admit I found it a bit overcooked. Even if the administration wanted to do something like this, I’m confident it would go bust, thanks to the sort of spectacular ineptitude that botched the initial rollout of the Travel Ban. 

However, she’s absolutely right to call on Congress to “shore up the guardrails of liberal democracy” with comprehensive reform of emergency powers. “Committees in the House could begin this process now,” she writes, “by undertaking a thorough review of existing emergency powers and declarations,” laying out a roadmap for repealing unnecessary delegations, and providing “stronger protections for abuse.” The sooner, the better: you never know when a competent authoritarian is going to come along. 

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