19 (Author at Cato Institute) https://www.cato.org/ en On “Imminence”: Absence of Evidence is Evidence of Absence https://www.cato.org/blog/imminence-absence-evidence-evidence-absence Gene Healy <p>“We caught him in the act and terminated him,” President Trump <a href="https://www.nbcnews.com/politics/donald-trump/trump-soleimani-strike-his-reign-terror-over-n1110226">said</a> in his first public comments about the January 3<sup>rd</sup> targeted killing of Iranian General Qassim Suleimani. The strike was ordered to avert “imminent and sinister attacks on American diplomats and military personnel.” Over the last two weeks, the Trump administration has offered a farrago of <a href="https://www.nytimes.com/2020/01/12/us/politics/trump-suleimani-explanations.html?smid=nytcore-ios-share">conflicting accounts</a>—and zero evidence for that claim. In this case — apologies to <a href="https://opinionator.blogs.nytimes.com/2014/03/28/the-certainty-of-donald-rumsfeld-part-4/">Don Rumsfeld</a>—absence of evidence is evidence that imminence was absent. And, unless you believe the Constitution gave the president practically unbridled discretion to embroil us in war, that means legal authority for the move was absent too.</p> <p>The Pentagon’s initial <a href="https://www.defense.gov/Newsroom/Releases/Release/Article/2049534/statement-by-the-department-of-defense/">announcement</a> made no claim of exigent circumstances: “this strike was aimed at deterring future Iranian attack plans.” Hours later, however, Secretary of State Mike Pompeo <a href="https://thehill.com/policy/defense/476621-pompeo-soleimani-killed-due-to-imminent-threats-to-american-lives">claimed</a> the president acted “in response to imminent threats to American lives” — “dozens if not hundreds” of them. Since then, when asked to elaborate, Pompeo has served up (1) a <a href="https://www.nbcnews.com/meet-the-press/meet-press-january-5-2020-n1110181">word‐​salad</a> about “situational awareness of risk and analysis”; (2) a backward‐​looking theory by which past attacks demonstrate <a href="https://twitter.com/atrupar/status/1214567253015965696?s=20">the imminence</a> of future ones; and (3) the defensive insistence that “it was real,” even if “we don’t know precisely when and we don’t know precisely where” — also, don’t give me that look: “those are completely <a href="https://www.politico.com/news/2020/01/10/pompeo-spars-with-reporters-over-imminent-soleimani-threat-097175">consistent thoughts</a>”! He may yet crack under questioning.</p> <figure role="group" class="align-right filter-caption"><div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="3570a66d-f681-4389-9a26-9783c21d45df" data-langcode="en" class="embedded-entity"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/2020-01/HurricaneMap.jpeg?itok=y5VRsnc0 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/HurricaneMap.jpeg?itok=Luv6hSCk 1.5x" width="700" height="510" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/2020-01/HurricaneMap.jpeg?itok=y5VRsnc0" alt="Don't be so cynical!" typeof="Image" class="component-image" /></p></div> <figcaption><div class="figure-caption text-sans-alternate">Would I lie to you about an “imminent threat”? </div> </figcaption></figure><p>“We did it because they were looking to blow up our embassy,” President Trump <a href="https://www.cnn.com/2020/01/09/politics/trump-soleimani-us-embassy/index.html">said</a> last Thursday; wait, make that embass<em>ies</em>, plural, <a href="https://www.foxnews.com/politics/trump-tells-laura-ingraham-four-embassies-were-targeted-in-imminent-threat-from-iran">four of them</a>, he told Fox’s Laura Ingraham on Friday. Given the administration’s well‐​known preference for keeping Congress in the dark, maybe it’s not surprising <a href="https://www.washingtonpost.com/national-security/trump-now-claims-four-embassies-were-under-threat-from-iran-raising-fresh-questions-about-intelligence-reports/2020/01/10/02f8d154-33e7-11ea-a053-dc6d944ba776_story.html">nobody mentioned</a> the alleged embassy threat in the post‐​hoc, closed‐​door Hill briefing last week. But surely it’s a little odd that Trump’s <a href="https://www.nytimes.com/2020/01/12/us/politics/esper-iran-trump-embassies.html">own secretary of defense</a> didn’t get the intel memo.</p> <p>There’s a simple explanation for the Trump Team’s shifting explanations: they’re lying. Leave aside the dubious notion that it’s possible to stop an imminent attack by killing a senior military commander (were the plans just in his head?) — apparently, the president conditionally authorized the Soleimani killing some <a href="https://www.nbcnews.com/politics/national-security/trump-authorized-soleimani-s-killing-7-months-ago-conditions-n1113271">seven months ago</a>. (According to NBC News, Pompeo and then‐​national security adviser John Bolton even urged Trump to greenlight the hit last June, in response to the Iranians plinking a US drone.) The news that the day of the strike, U.S. forces tried and failed to take out another <a href="https://www.washingtonpost.com/opinions/2020/01/10/new-iran-revelations-suggest-trumps-deceptions-were-deeper-than-we-thought/">top Quds Force commander</a> in Yemen further undermines the administration’s story that their aim was to avert an imminent threat.</p> <p>Don’t worry about it, the president said Monday: whether “the future [Iranian] attack” (we’re back to just one, now?) was imminent or not “<a href="https://twitter.com/realdonaldtrump/status/1216754098382524422">doesn’t really matter</a> because of [Soleimani’s] horrible past.” “Imminence is something of a red herring,” Attorney General Bill Barr echoed <a href="https://www.usatoday.com/story/news/politics/2020/01/14/trump-administration-justifications-soleimani-killing/4463875002/">later that day</a>: the strike was a “legitimate act of self‐​defense,” and, legally, not even “a close call.”</p> <p>It’s not surprising that the attorney general holds that view. Barr embraced a maximalist theory of presidential war powers long before he became Trump’s <a href="https://books.google.com/books/about/The_Mueller_Report.html?id=viyVDwAAQBAJ">Bobby Kennedy</a>. In the run‐​up to the 1991 Gulf War, Barr, then serving as deputy attorney general, advised President George H.W. Bush that he could <a href="https://www.lawfareblog.com/bill-barr-war-powers-insights-his-2001-oral-history-interview">launch a land war</a> involving some half a million U.S. troops without authorization from Congress.</p> <p>But, unless you’re willing to go <a href="https://www.cato.org/blog/declare-kinetic-military-action">full John Yoo</a> and endorse <a href="https://www.latimes.com/archives/la-xpm-2005-dec-20-oe-yoo20-story.html">“the president’s right to start wars,”</a> imminence matters because the constitutional claim has to be based on self‐​defense. Under Article II, the president retains some measure of defensive power, alternately <a href="http://press-pubs.uchicago.edu/founders/documents/a1_8_11s4.html">described</a> at the Convention as the power “to repel sudden attacks” or “to repel and not to commence war.” That power reasonably includes the use of force to avert an impending attack not yet begun. But as you move from shooting back, to addressing an immediate threat, to “deterring future Iranian attack plans” — or <a href="https://www.reuters.com/article/us-iraq-security-pompeo-soleimani/pompeo-says-soleimani-killing-part-of-new-strategy-to-deter-us-foes-idUSKBN1ZC2I3">“re‐​establishing deterrence,”</a> as Pompeo put it this week — the self‐​defense rationale disappears. If the Trump administration wants the general power to target Iranian military commanders as enemy combatants, it should make its case for war to Congress.</p> <p>On the Cato blog last Wednesday, <a href="https://www.cato.org/blog/trump-decider">I posed a hypothetical</a> to test how far the Trump administration’s “defensive” war powers theory might extend: “‘Supreme Leader’ Ayatollah Ali Khamenei sits atop the military chain of command and apparently <a href="https://www.nytimes.com/2020/01/04/us/politics/trump-suleimani.html">had to approve</a> the recent militia attacks. Does Article II empower Trump to order a hit on the Ayatollah?”</p> <p>Later that day, Sen. Mike Lee (R‑UT) came out of the congressional briefing with Trump national security officials as <a href="https://www.politico.com/news/2020/01/09/pence-mike-lee-iran-briefing-096652">angry</a> as anyone’s ever seen him. It turns out, one of Lee’s colleagues asked that very question — and the administration <a href="https://twitter.com/mtracey/status/1215299295232040960?s=21">refused to answer.</a></p> <p>Lee — the founder of the <a href="https://www.lee.senate.gov/public/index.cfm/article-one-project">“Article I Project,”</a> aimed at reclaiming Congress’s constitutional powers — was right to be livid. Assassinating a senior regime figure to “re‐​establish deterrence” isn’t repelling a sudden attack — it’s an <a href="https://scholarship.law.cornell.edu/clr/vol93/iss1/10/">effective declaration of war</a>. The power to make that call can’t be found <a href="http://press-pubs.uchicago.edu/founders/tocs/a1_8_11.html">in Article II</a>.</p> Fri, 17 Jan 2020 16:29:01 -0500 Gene Healy https://www.cato.org/blog/imminence-absence-evidence-evidence-absence Gene Healy discusses the new GAO report on WWL’s The Newell Normand Show https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-new-gao-report-wwls-newell-normand-show Fri, 17 Jan 2020 12:43:47 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-new-gao-report-wwls-newell-normand-show Gene Healy discusses impeachment moving to the Senate on WWL’s The Newell Normand Show https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-moving-senate-wwls-newell Wed, 15 Jan 2020 13:22:49 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-moving-senate-wwls-newell Executive Power Claims and the Soleimani Strike https://www.cato.org/multimedia/cato-daily-podcast/executive-power-claims-soleimani-strike Gene Healy, Caleb O. Brown <p>Under what legal authority did the President order the killing of Iranian general Qasem Soleimani? Apparently the public isn’t entitled to know. Gene Healy comments.</p> Mon, 13 Jan 2020 13:46:29 -0500 Gene Healy, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/executive-power-claims-soleimani-strike Gene Healy discusses the evolution of executive power on NPR’s All Things Considered https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-evolution-executive-power-nprs-all-things Sat, 11 Jan 2020 10:44:43 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-evolution-executive-power-nprs-all-things Gene Healy discusses whether or not President Trump had the authority to kill Qassim Soleimani on WTIC’s The Will Marotti Show https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-whether-or-not-president-trump-had-authority Thu, 09 Jan 2020 11:59:54 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-whether-or-not-president-trump-had-authority Trump the Decider https://www.cato.org/blog/trump-decider Gene Healy <p>The MQ‑9 Reaper attack that took out Iranian General Qassim Suleimani was a drone strike for peace, President Trump <a href="https://www.nbcnews.com/politics/donald-trump/trump-soleimani-strike-his-reign-terror-over-n1110226">explained</a> last week: we took action “to stop a war. We did not take action to start a war.” That’s a theory, and it’s going to be put to the test. “All is well!” the president tweeted last night as a salvo of <a href="https://www.nytimes.com/2020/01/07/world/middleeast/iran-fires-missiles-us.html">Iranian missiles</a> fell on U.S. positions in Iraq: “So far, so good!”</p> <p>Trump’s decision to target Suleimani — a figure <a href="https://www.nytimes.com/2020/01/04/world/middleeast/qassim-suleimani-deter-iran.html?smid=nytcore-ios-share">described as</a> the Iranian equivalent of “an American Vice President, chairman of the Joint Chiefs and CIA director rolled into one” — wasn’t the first time the U.S. government has aimed lethal force at a top government official. There’s the checkered — and occasionally absurd — history of the CIA’s Cold War <a href="https://www.nbcnews.com/storyline/fidel-castros-death/fidel-castro-cia-s-7-most-bizarre-assassination-attempts-n688951">assassination attempts</a>, including the Kennedys’ efforts to kill Fidel Castro. But we’ve also gone after legitimate targets in congressionally authorized wars: the downing of <a href="https://en.wikipedia.org/wiki/Operation_Vengeance">Admiral Yamamoto’s plane</a> in WWII and the attempted <a href="https://www.cnn.com/2003/WORLD/meast/03/20/sprj.irq.target.saddam/">decapitation strike</a> against Saddam Hussein at the start of the Iraq War.</p> <figure role="group" class="align-right filter-caption"><div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="bc6c4a86-2002-4f2a-b41a-27b0654864b2" data-langcode="en" class="embedded-entity"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/2020-01/TrumpGun.jpg?itok=oGXX0-Xu 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/TrumpGun.jpg?itok=D3JTondt 1.5x" width="700" height="394" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/2020-01/TrumpGun.jpg?itok=oGXX0-Xu" alt="Pow." typeof="Image" class="component-image" /></p></div> <figcaption><div class="figure-caption text-sans-alternate">Ready. Fire. Aim. </div> </figcaption></figure><p>The Suleimani killing was something new under the sun. It marked the first time an American president has publicly ordered the assassination of a top government official for a country we’re not legally at war with.</p> <p>This is where you’re <a href="https://nonzero.org/post/suleimani-assassination-moralism">supposed to acknowledge</a> that the Quds Force commandant was an evil guy who got what he deserved. Done. But that’s got nothing to do with whether the move was wise or constitutionally permissible.</p> <p>U.S. forces took out Suleimani “at the direction of the President,” per the Pentagon’s <a href="https://www.defense.gov/Newsroom/Releases/Release/Article/2049534/statement-by-the-department-of-defense/">announcement</a>. On what authority, exactly? For now, the official rationale is <a href="https://www.wsj.com/articles/democratic-senators-want-soleimani-document-declassified-11578331185">classified</a>. In terms of public justification, all we have is some <a href="https://www.nytimes.com/2020/01/04/us/politics/white-house-war-powers-resolution.html?smid=nytcore-ios-share">hand‐​waving</a> by Trump’s national security adviser about the president’s “constitutional authorities as commander in chief to defend our nation” and the 17‐​year old Authorization for the Use of Military Force in Iraq (2002 AUMF). Neither comes close to vesting the president with the power to set off a whole new war.</p> <p>The <a href="https://www.congress.gov/107/plaws/publ243/PLAW-107publ243.pdf">2002 AUMF</a> authorizes the president to use military force in order to “defend the national security of the United States against the continuing threat posed by Iraq” and enforce various UN resolutions “regarding Iraq.” Unless “45” is going to break out <a href="https://www.reuters.com/article/us-storm-dorian-trump/sharpie-gate-trump-shows-apparently-altered-hurricane-map-idUSKCN1VQ00H">the presidential sharpie</a> and change the “q”s to “n”s, that’s not going to cut it. Neither will the 2001 AUMF, as I’ve explained at length elsewhere (See: <a href="https://www.cato.org/blog/repeal-old-aumfs-salt-earth">“Repeal Old AUMFs and Salt the Earth”</a>).</p> <p>If and when the administration deigns to reveal its legal theory, the argument will probably be: (1) the AUMFs license our continuing presence in Iraq; and (2) the president has inherent power under Article II to defend our personnel from the sort of attacks Iranian proxies have carried out <a href="https://www.nytimes.com/interactive/2020/01/03/world/middleeast/iraq-embassy-baghdad-airport-attack.html">in recent weeks</a>. (<em>National Review</em>’s David French outlines that theory <a href="https://twitter.com/davidafrench/status/1212946810983063553">here</a>.)</p> <p>How far up the escalation ladder are these powers supposed to extend, however? “Supreme Leader” Ayatollah Ali Khamenei sits atop the military chain of command and apparently <a href="https://www.nytimes.com/2020/01/04/us/politics/trump-suleimani.html">had to approve</a> the recent militia attacks. Does Article II empower Trump to order a hit on the Ayatollah? That we wouldn’t miss <em>that</em> guy either seems rather beside the point.</p> <p>It’s true that Article II leaves the president with some defensive war powers, allowing him to “repel sudden attacks,” as <a href="https://oll.libertyfund.org/titles/1909#Elliot_1314-05_4199">Madison’s notes</a> from the Convention put it. But as we move up the ladder, at some point we’ve left the realm of self‐​defense and the response becomes in effect, a declaration of war. The Constitution vests that power <a href="http://press-pubs.uchicago.edu/founders/tocs/a1_8_11.html">in Congress</a>.</p> <p>War powers practice in the early republic suggests that the president’s power of <a href="https://www.nationalreview.com/2020/01/qasem-soleimani-strike-president-trump-has-constitution-precedent-on-his-side/">“self‐​defense”</a> was far narrower than Trump’s defenders imagine. During our first four presidential administrations, the U.S. was on the receiving end of multiple acts of war, including “invasions of territory (Creek [Indians]), illegal capture of neutral shipping not carrying enemy contraband (England and France), and the kidnapping of thousands of foreign sailors (England).” Yet, as the University of Virginia’s Sai Prakash <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1534738">explains</a>, “even though [those] nations had declared war on the United States in formal and informal ways, Presidents Washington, Adams, Jefferson, and Madison believed that the President could not wage war in response.” Without formal authorization from Congress, early presidents recognized that “they were limited to those steps falling short of a declaration of war, such as defensive measures.” As Washington <a href="https://founders.archives.gov/documents/Washington/05-13-02-0381">put it</a> in 1793,</p> <blockquote><p>“The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”</p> </blockquote> <p>In his June 1, 1812 message to Congress, President James Madison <a href="https://millercenter.org/the-presidency/presidential-speeches/june-1-1812-special-message-congress-foreign-policy-crisis-war">outlined</a> a long train of abuses committed by the British: they’d “wantonly spilt American blood within the sanctuary of our territorial jurisdiction” and ripped “thousands of American citizens… from their country and from everything dear to them,” forcing them into the service of the empire. “We behold, in fine, on the side of Great Britain, a state of war against the United States, and on the side of the United States a state of peace toward Great Britain,” Madison declared. But whether the United States could answer those abuses with war “is a solemn question which the Constitution wisely confides to the legislative department of the government.”</p> <p>Even James K. Polk understood that just drawing enemy fire wasn’t enough to get a war started. You could, <a href="https://www.archives.gov/education/lessons/lincoln-resolutions">as Polk did</a>, gin up a pretext for one by sending U.S. troops into disputed territory and getting some of them killed, but to “take the fight to the enemy,” you needed <a href="https://millercenter.org/the-presidency/presidential-speeches/may-11-1846-war-message-congress">authorization from Congress</a>.</p> <p>All this is likely <a href="https://twitter.com/EWErickson/status/1213273619608080384?s=20">“academic.”</a> The White House likely doesn’t consider itself bound by <a href="https://twitter.com/rgoodlaw/status/1212937284246556672?s=20">its own</a> Office of Legal Counsel opinions, much less the original meaning of the Constitution’s war powers provisions.</p> <p>But what recent events have made plain, as Jack Goldsmith <a href="https://twitter.com/jacklgoldsmith/status/1213083362539266053">sums up</a>, is that</p> <blockquote><p>“Our country has, quite self‐​consciously, given one person, the President, an enormous sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: one person decides.”</p> </blockquote> <p>I’d quibble with “self‐​consciously,” otherwise, as a descriptive matter, that’s right: that’s the system we’ve got. And it’s the inverse of the one the Framers designed: “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 <a href="http://press-pubs.uchicago.edu/founders/documents/v1ch7s17.html">not be in the power of a single man</a>… to involve us in such distress, for the important power of declaring war is vested in the legislature at large.”</p> <p>As of this morning, things looked brighter than they did for several harrowing hours last night. Iran’s response didn’t result in any American deaths, perhaps by design: “We do not seek escalation or war,” <a href="https://twitter.com/JZarif/status/1214736614217469953?s=20">tweeted</a> Foreign Minister Javad Zarif. Trump may be inclined to deescalate as well. Cooler heads may yet prevail.</p> <p>It is, however, insane and intolerable that peace depends on the restraint of the Islamic Republic <em>and</em> an American president given to rage‐​tweeting <a href="https://twitter.com/realDonaldTrump/status/1213593975732527112?s=20">war‐​crime threats</a>. No one fallible human being should be entrusted with the war powers now vested in the presidency. Now, more than ever, Congress needs to do everything in its power to reclaim its authority over war and peace.</p> Wed, 08 Jan 2020 14:03:33 -0500 Gene Healy https://www.cato.org/blog/trump-decider Gene Healy presents a lecture on impeachment politics at The Washington Center https://www.cato.org/multimedia/media-highlights-tv/gene-healy-presents-lecture-impeachment-politics-washington-center Wed, 08 Jan 2020 11:48:34 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-tv/gene-healy-presents-lecture-impeachment-politics-washington-center Gene Healy discusses impeachment on KKSF’s The Bob Zadek Show https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-kksfs-bob-zadek-show Tue, 24 Dec 2019 13:10:14 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-kksfs-bob-zadek-show Gene Healy discusses the drama surrounding impeachment on Reason TV https://www.cato.org/multimedia/media-highlights-tv/gene-healy-discusses-drama-surrounding-impeachment-reason-tv Fri, 20 Dec 2019 12:58:10 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-tv/gene-healy-discusses-drama-surrounding-impeachment-reason-tv Don’t Freak out About Impeachment https://www.cato.org/publications/commentary/dont-freak-out-about-impeachment Gene Healy <div class="lead text-default"> <p>Nobody likes losing his job, but if there’s any country on Earth that’s copacetic about firing people, it’s these United States of America. Almost alone among industrialized democracies, the U.S. hews to the old‐​school regime of employment at will, which means most of us can be frogmarched out of the building at any time — for good reason, bad reason, or no reason at all.</p> </div> , <div class="text-default"> <p>Further up the food chain, “for‐​cause” termination is the norm; but with contracts that allow removal for offenses as vague as “moral turpitude” or “failure to perform,” that doesn’t shield CEOs from getting turfed out unceremoniously when they misbehave or don’t live up to expectations.</p> <p>Does it bother us when an old lech like Les Moonves of CBS or some new economy manchild like Adam Neumann of WeWork gets the business end of creative destruction? Like hell it does: This is the country that pioneered the idea of firing people as&nbsp;<em>entertainment.&nbsp;</em>For 14 seasons of NBC’s reality TV game show&nbsp;<em>The Apprentice</em>, Americans tuned in eagerly to see which contestants would be shown the door with the signature line “You’re fired!” Then, in 2016, we went and elected the game‐​show host president of the United States.</p> <p>Since his inauguration, Donald Trump’s tenure has been a&nbsp;whirlwind of self‐​dealing, management pratfalls, and public meltdowns of the sort that might get a&nbsp;mere captain of industry summarily canned. Luckily for him, he’s failed upward into a&nbsp;post that comes with more job protection than the vast majority of American workers enjoy. Somehow we’ve decided that the&nbsp;<em>one job</em>&nbsp;in America where you have to commit a&nbsp;felony to get fired is the one where you also control nuclear weapons. Given the damage an unfit president can do, shouldn’t it be easier to get rid of one?</p> </div> , <h2 class="heading"> Barriers Nowhere in the Constitution </h2> , <div class="text-default"> <p>“Four CEOs Were Dethroned Just This Week,”&nbsp;<em>Forbes</em>&nbsp;reported one day before House Speaker Nancy Pelosi announced she was opening an impeachment inquiry into Trump’s conduct. In fact, 2018 saw a&nbsp;record 18 percent of large‐​company chiefs forced out, according to the article. “Mercurial, flamboyant and self‐​destructive CEOs” are increasingly being told to hit the bricks “when their questionable ethics pose a&nbsp;threat to the reputation, mission or growth of their companies.”</p> <p>A good thing, too: All the way up the corporate ladder, the ability to replace an underperforming or misbehaving employee is essential to keeping companies nimble and responsive. Free competition in America’s labor markets is, according to libertarian legal scholar Richard A. Epstein, “the surest road to social prosperity and business success.”</p> <p>Not when it comes to the chief executive officer of the federal government, however: That guy should be harder to fire than a&nbsp;New York City public school teacher, apparently. “Impeachment is the ultimate constitutional sanction” requiring “the most serious deliberations,” Epstein wrote as debate heated up in September. “For Democrats to pursue the risky impeachment option shows more about their frenzied collective state of mind than it does about Trump’s many foibles.”</p> <p>Epstein is hardly alone in that hypercautious view. Judging by how long it takes us to get there and how rarely we do it, Americans seem profoundly uncomfortable with the idea of firinga president. Before 2019, we’d made only three serious attempts at it in our 230‐​year constitutional history, impeaching just two of 44 U.S. presidents: Andrew Johnson and Bill Clinton. Only Richard Nixon, who quit before the full House could vote, was (effectively) removed from office via the impeachment process.</p> <p>Meanwhile, over the last century, the American presidency has grown vastly more powerful — and more dangerous — than America’s Founders could ever have imagined. On the home front, our presidents increasingly rule by executive order and administrative edict; abroad, the commander in chief’s war powers have become practically uncheckable: He can add new names to the Predator‐​drone kill list, and even launch thermonuclear “fire and fury,” virtually at will.</p> <p>You could blame the system, and you’d have half a&nbsp;point. Our Constitution’s Framers took a&nbsp;broad view of impeachable “high Crimes and Misdemeanors.” Per Alexander Hamilton in&nbsp;<em>Federalist&nbsp;</em><em>No. 65</em>, presidents could be defenestrated for the “abuse or violation of some public trust.” Alas, the founding fathers also stuck us with the nearly insurmountable two‐​thirds requirement for conviction in the Senate — an innovation that came late in the Convention and that was approved without debate.</p> <p>By accident as much as design, our system makes it painfully difficult to remove a&nbsp;president. And the political culture makes it harder still, by erecting barriers nowhere to be found in the Constitution. We’ve come to view the process as a&nbsp;source of constitutional crisis itself, rather than as a&nbsp;potential solution to one.</p> <p>Yet if history is any guide, we have little to fear from what’s shaping up to be our fourth serious effort at presidential impeachment. Whether it succeeds or not, the attempted firing of Donald Trump will cause the republic little harm and may even do it some good.</p> </div> , <h2 class="heading"> High Anxiety </h2> , <div class="text-default"> <p>Still, just try telling that to American political elites haunted by specters of wounded democracy and constitutional collapse. Should we dare invoke this dire remedy, they warn, we can be almost certain that&nbsp;<em>something horrible will happen</em>.</p> <p>“Impeachment is hell,” Ken Starr, the former independent counsel whose four‐​year investigation led to Bill Clinton’s 1998 rebuke by the House of Representatives, frequently declares. It’s “a terrible, terrible thorn in the side of the American democracy,” he recently added. (<em>Now</em>&nbsp;he tells us.)</p> <p>But it isn’t just the president’s copartisans wailing that dirge. Even those who’d dearly like to see Trump ejected often join in. “I’m heartbroken about it,” Pelosi professed at a&nbsp;September 28 press conference announcing the investigation. “There is no joy in this. We must be somber. We must be prayerful.” It’s doubtful Madame Speaker was entirely on the level here (<em>no</em>&nbsp;joy?); even so, she felt compelled to feign the fear and trembling Americans seem to expect when it comes to offboarding a&nbsp;president before his term is up.</p> <p>Impeachment is “a hammer blow to democracy,” frets former Obama svengali David Axelrod. It’s an “extreme constitutional remedy,” echoes&nbsp;<em>Late Show&nbsp;</em>host Stephen Colbert. “A Trump impeachment should terrify you,” warns&nbsp;<em>New York Times&nbsp;</em>columnist Frank Bruni — though you should feel the fear and do it anyway. No,&nbsp;<em>don’t</em>, quails&nbsp;<em>The</em>&nbsp;<em>Washington Post</em>’s Karen Tumulty — “not because he doesn’t deserve it” but because impeachment “would be a&nbsp;terrible thing for the country.” If, God forbid, we ever need to deploy this ultimate sanction, writes Harvard law professor Lawrence Tribe, “we can hope only that the nation survives with its spirit intact and the strength to rebuild all that’s broken.”</p> <p>Is impeachment really as grave as all&nbsp;<em>that</em>? Few if any of the Framers viewed the prospect of a&nbsp;presidential pink slip with the unbridled horror now common among America’s political and intellectual elites. “Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose as well as by the corruptibility of the man chosen,” Virginia’s George Mason argued at the Philadelphia Convention in 1787. “A good magistrate will not fear” impeachments, Massachusetts’ Elbridge Gerry&nbsp;insisted; “a bad one ought to be kept in fear of them.” North Carolina’s Hugh Williamson thought there was “more danger of&nbsp;too much of lenity than too much rigour towards the President.”</p> <p>In that, he’d prove more right than he could have known.</p> </div> , <h2 class="heading"> False Alarmism </h2> , <div class="text-default"> <p>Now, as in past impeachment debates, pundits and pols menace the public with the proverbial series of hobgoblins, most of them imaginary. Impeachment, we’re told, risks overturning the will of the people, distracting us from the vital business of government, and unleashing a&nbsp;host of evils — up to and including, if the president himself is to be believed, another civil war. Such fears are radically overblown.</p> <p>The silliest charge is the most common: the notion that the impeachment process is an affront to democracy, an all‐​caps “COUP intended to take away the Power of the People,” as Trump put it in an October tweet. Twenty years ago, with Bill Clinton in the crosshairs, it was Democrats hurling the&nbsp;<em>c</em>&nbsp;word: “This partisan coup d’état,” Rep. Jerry Nadler (D – N.Y.) insisted, “will go down in infamy in the history of this nation” — like Pearl Harbor, apparently.</p> <p>Only a&nbsp;partisan hack would say such things. Trump’s removal would “reverse” the 2016 election only if it installed Hillary Clinton rather than Mike Pence as his successor. What kind of a “coup” replaces one elected official with his hand‐​picked, duly elected, and loyal‐​to‐​a‐​fault running mate?</p> <p>We’re also told that impeachment is a&nbsp;dangerous distraction from…whatever else the federal government would otherwise be doing. “The president of the United States should be allowed to run the country, not have to focus on this kind of crap,” Trump reportedly insisted at a&nbsp;recent cabinet meeting. “This is not what the country wants to talk about,” huffs&nbsp;<em>New York Times&nbsp;</em>columnist David Brooks.</p> <p>But recent history suggests that whatever disruption impeachment causes will be minor and manageable. During the Clinton imbroglio, Judge Richard A. Posner observed in his 1999 book on the subject, “government ticked along in its usual way through thirteen months of so‐​called crisis.”</p> <p>It’s not as if the choice is between impeachment and federal business‐​as‐​usual. Anytime serious&nbsp;<em>i</em>-word talk is in the air, the president already faces a&nbsp;hostile Congress and multiple investigations. The question is whether some additional disruption is worth it to finally bring matters to a&nbsp;close.</p> <p>Besides, what are Congress and the president being distracted&nbsp;<em>from</em>? Reining in trillion‐​dollar deficits? Not much chance of that. Perhaps they would be handling what Brooks informed us in another column is the public’s core concern: “elite negligence in the face of national decline.”</p> </div> , <h2 class="heading"> Civil War II? </h2> , <div class="text-default"> <p>The Trump era has added a&nbsp;brand new hobgoblin to the usual parade of horribles: the allegedly looming threat of civil war.</p> <p>“Try to impeach him, just try it. You will have a&nbsp;spasm of ‑violence in this country, an insurrection like you’ve never seen,” raves erstwhile Trump consigliere Roger Stone. The president himself sent “#CivilWar2” trending in late September when he tweeted a&nbsp;warning from MAGAchurch Pastor Robert Jeffress that impeachment would “cause a&nbsp;Civil War like fracture in this Nation.”</p> <p>That dark prophecy is no longer confined to the fever swamps. Respectable opinion mongers from&nbsp;<em>The</em>&nbsp;<em>New Yorker&nbsp;</em>to&nbsp;<em>The</em>&nbsp;<em>Atlantic&nbsp;</em>now grimly contemplate the risk of mass Red‐​on‐​Blue violence.</p> <p>Fortunately, there’s little reason to take this catastrophizing seriously. Granted, in a&nbsp;country with more guns than people and a&nbsp;surfeit of angry loners, we can’t rule out the possibility of an impeachment‐​inspired Pizzagate attack, or worse. But political scientists who study&nbsp;<em>actual</em>&nbsp;civil wars confirm that they’re practically unknown in developed democracies. If the opening skirmishes are any indication, “Civil War 2” will be fought mainly on the internet, with angry memes as the major armaments and boomers defriending each other on Facebook as the primary casualties. As one wag summed it up on Twitter, “America is too fat for a&nbsp;civil war.”</p> <p>There’s no evidence that impeachment even leads to noticeable civil unrest. Were it otherwise, surely we’d have learned that the hard way in the 1970s. From the Weathermen’s “Days of Rage” in Chicago to the hippie‐​punching “Hard Hat Riot” in New York, the Nixon era saw a&nbsp;level of political violence we’d find appalling today. For one 18‐​month stretch in 1971 – 72, America suffered an average of almost five domestic terror bombings daily. Yet even with that bloody backdrop, the 37th president’s eviction proceeded peacefully. In the end, nobody thought Nixon was worth rioting over.</p> <p>Hamilton was spot‐​on when he predicted that any serious fight to remove the president would cause partisan resentments to fester. But sometimes impeachment can lance the boil. As the constitutional scholar Sandy Levinson pointed out in a&nbsp;March article for&nbsp;<em>Cato Unbound</em>, Nixon’s resignation even led to “a brief ‘Era of Good Feelings,’ at least until Gerald Ford pardoned” him. (Mike Pence might want to take note, should it come to that.)</p> </div> , <h2 class="heading"> ‘I’ve Been Flynted’ </h2> , <div class="text-default"> <p>“Our long national nightmare is over,” Ford famously pronounced in his maiden speech as president, not long after Nixon’s cringe‐​inducing double V‑for‐​Victory salute and departure via helicopter on August 9, 1974. Nixon’s struggle had been our struggle, Ford maintained, “the internal wounds of Watergate more painful and more poisonous than those of foreign wars” — a comparison that might have seemed grotesque to the war widows tuning in, given the 22,000 American casualties Nixon racked up in Vietnam well after he knew the war was lost.</p> <p>The revelers who gathered in D.C.‘s Lafayette Park had a&nbsp;healthier attitude: They hung a&nbsp;sign on the White House fence reading, “Ding dong, the witch is dead.”</p> <p>“I’ll tell you what I&nbsp;remember most about Watergate,” journalist Jeff Greenfield enthused 10&nbsp;years after the fact: “It was fun.”</p> <p><em>Fun?!</em>&nbsp;That sounds positively transgressive, but maybe Greenfield was on to something. We get so little for our tax dollars. Is the occasional bit of entertainment too much to ask? Throughout American history, presidential impeachments have been safe, legal — and all too rare. But what few we’ve had have provided their share of merry spectacle.</p> <p>The 1868 impeachment of Andrew Johnson centered on the rather boring charge that the president had violated the short‐​lived Tenure of Office Act by sacking his secretary of war, Edwin Stanton, without senatorial approval. But even that had elements of slapstick. Sec. Stanton refused to give up his post, camped out in his office, and barricaded the door. (It’s a&nbsp;wonder that move didn’t occur to diva‐​ish former FBI director James Comey after Trump fired him in May 2017.) With the cooperation of a&nbsp;local judge, Stanton got an arrest warrant issued for his designated replacement, who was hauled out of bed, still drunk from the night before, by a&nbsp;district marshal. The war secretary got less help from his wife when he sent to her for food and clothes. Instead she came by to berate him for making a&nbsp;fool of himself.</p> <p>The Johnson impeachment was D.C.‘s hot ticket of the season. A&nbsp;young Mark Twain filed dispatches from the proceedings: “The multitude of strangers were waiting for impeachment. They did not know what impeachment was, exactly, but they had a&nbsp;general idea that it would come in the form of an avalanche, or a&nbsp;thunder clap, or that maybe the roof would fall in.” Charles Dickens, in town on a&nbsp;U.S. speaking tour, wrote his editor that it was “lucky I&nbsp;made so much money at first,” since the House debate “instantly emptied our great gallery here last night, and paralyzed the Theaters in the midst of a&nbsp;rush of good business.”</p> <p>To give Ken Starr his due, the Clinton impeachment saga probably&nbsp;<em>was</em>&nbsp;hell for a&nbsp;few people. But save for Monica Lewinsky, most of them deserved it. For the rest of us, the scandal was a&nbsp;guilty pleasure.</p> <p>Even the collateral damage was amusing. Republican losses in the 1998 midterms — driven in part by the unpopularity of the impeachment effort — forced Newt Gingrich to resign as speaker of the House. His would‐​be successor, Rep. Bob Livingston (R – La.), had to quit as well upon learning that one of his own extramarital affairs was about to be exposed. “I’ve been Flynted,” he told his colleagues, referring to&nbsp;<em>Hustler</em>&nbsp;publisher Larry Flynt’s impeachment‐​inspired crusade to unearth sexual hypocrisy on Capitol Hill.</p> <p>And it was instructive, to say the least, to observe the lengths to which Clinton would go to keep his job. In his book, Judge Posner summed up the saga as “the ultimate Washington novel,” the major effect of which was “to make it difficult to take Presidents seriously as superior people.” That’s a&nbsp;lesson worth relearning time and again.</p> </div> , <h2 class="heading"> De‐​Imperializing the Presidency </h2> , <div class="text-default"> <p>Of course, you could argue Trump already has us covered as far as that lesson goes. On a&nbsp;daily basis, he’s doing an amazing job of demystifying the presidency, without the inconvenience of a&nbsp;House inquiry and a&nbsp;Senate trial.</p> <p>If so, then what good is the current impeachment effort supposed to do? That’s a&nbsp;question raised recently by executive‐​power critics on both the left and the right. “Recent partisan impeachment crusades haven’t challenged the gravest executive excesses,”&nbsp;<em>The</em>&nbsp;<em>American Conservative</em>’s Jim Antle pointed out. “Drone an American citizen, no worries. Drone on about Joe Biden in a&nbsp;telephone call, constitutional crisis.”</p> <p>“If Trump is going to be impeached,”&nbsp;<em>The</em>&nbsp;<em>Intercept</em>’s Murtaza Hussain wrote, “don’t fool yourself that what he’s allegedly done to Hunter Biden is the worst crime he committed while in office.”</p> <p>It’s a&nbsp;fair point: The third‐​rate shakedown attempt at the heart of Ukrainegate probably isn’t even the worst thing Trump did in the month of July. Even so, in politics, as in economics, incentives matter. Lower the cost of bad behavior and you’ll probably get more of it. Not launching an impeachment inquiry in this case would signal that, going forward, it’s perfectly acceptable for presidents to use the diplomatic and foreign policy powers of the office to, in John Dean’s memorable phrase, “screw [their] political enemies.” Moreover, to tolerate Trump’s blanket stonewalling of Congress would establish the precedent that it’s OK for presidents to ignore lawful subpoenas if he thinks the people investigating him are “biased.” Repudiating those notions is hardly a&nbsp;waste of the House’s time.</p> <p>Antle and Hussain are right to suggest that the more fundamental problem is the office, not the man. The presidency has grown far too powerful to entrust to any one fallible human. Will the current impeachment drive do anything about that?</p> <p>Impeachment’s core purpose is to serve as “a bridle in the hands of the legislative body upon the executive servants of the government,” as&nbsp;<em>Federalist</em>&nbsp;<em>No. 65</em>&nbsp;puts it. But history proves there’s no guarantee any particular impeachment will further that purpose. The Johnson showdown coincided with, but probably didn’t cause, a&nbsp;long period of congressional assertiveness. Bill Clinton’s personal “hell” had little effect on the balance of powers between the branches, other than forging a&nbsp;bipartisan consensus to get rid of independent counsels.</p> <p>It’s only the Nixon impeachment struggle that sparked a&nbsp;wide‐​ranging effort to de‐​imperialize the presidency. As Americans began to understand in the 1970s, the real “national nightmare” was what Nixon and his predecessors had been able to get away with for far too long. The 37th president’s abuses had highlighted the dangers of concentrated power, and the exercise of long‐​dormant muscles in the impeachment drive seemed to embolden Congress to push further to reclaim its rightful authority.</p> <p>The congressional reformers of the ’70s did more than force Nixon from office. They pushed for legislation that would make it harder for a&nbsp;future Nixon to abuse his office. The post‐​Watergate Congresses enacted a&nbsp;suite of significant, if imperfect, restrictions on executive power: passing the Presidential Records Act and strengthening the Freedom of Information Act to increase executive‐​branch transparency; passing the Foreign Intelligence Surveillance Act to limit the president’s ability to spy on Americans; passing the Privacy Act and Tax Reform Act of 1978 to restrict executive misuse of lawfully collected personal information. Additional reforms, such as the Impoundment Control Act, the War Powers Resolution of 1973, and the National Emergencies Act, addressed powers Nixon had abused outside the context of Watergate.</p> <p>The post‐​Watergate Congresses made a&nbsp;lot of mistakes, and the good they did was steadily undermined by less assertive lawmakers in the decades that followed. But they carried out the last serious effort to limit executive power. Impeachment wasn’t a “distraction” from that effort but the catalyst for it. Today, for only the fourth time in American history, an American president has been forced to contemplate early retirement via the impeachment process. Those of us who’d like to downsize the presidency itself have little to fear from that process and some reason to hope.</p> </div> Fri, 20 Dec 2019 12:45:30 -0500 Gene Healy https://www.cato.org/publications/commentary/dont-freak-out-about-impeachment From Impeachment to Senate Trial https://www.cato.org/multimedia/cato-daily-podcast/impeachment-senate-trial Gene Healy, Caleb O. Brown <p>The House has impeached President Trump, but there are still sticking points about the terms of a&nbsp;Senate trial. What new information might be produced in the trial? Gene Healy looks ahead at the likely outcomes.</p> Thu, 19 Dec 2019 13:45:45 -0500 Gene Healy, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/impeachment-senate-trial It’s Not True That Impeachment Paralyzes Government (Unfortunately) https://www.cato.org/blog/its-not-true-impeachment-paralyzes-government-unfortunately Gene Healy <p>It’s a “solemn” and “sad” affair, impeachment: there are so many reasons <a href="https://thehill.com/homenews/house/475111-pelosi-other-female-democrats-wear-black-to-mark-somber-trump-impeachment-vote">to wear black</a>. That’s what the pols and pundits tell us, anyway. Tonight’s House vote will unleash a host of plagues: stoking partisan furies, rattling the markets, and— worst of all from this town’s perspective — distracting Congress and the president from doing <a href="https://video.foxbusiness.com/v/6114583547001/#sp=show-clips">“the people’s business.”</a> We’re in for a period of “squandered months during which official Washington is pulled apart,” <em>U.S. News’s</em> Kenneth Walsh warned in late September: brace yourself for <a href="https://www.usnews.com/news/the-report/articles/2019-09-27/impeachment-inquiry-likely-to-bring-paralysis-in-washington">“The Coming Impeachment Paralysis”</a>! </p> <div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="4a6c1408-cb5d-4ade-8512-3eb36907e1cf" data-langcode="en" class="embedded-entity"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/2019-12/Logans%20Run%20Capitol.jpg?itok=F9Vf0SkQ 1x, /sites/cato.org/files/styles/pubs_2x/public/2019-12/Logans%20Run%20Capitol.jpg?itok=FJCZXjAI 1.5x" width="700" height="464" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/2019-12/Logans%20Run%20Capitol.jpg?itok=F9Vf0SkQ" alt="Paralysis?" typeof="Image" class="component-image" /></p></div> <p>Some of us don’t find that prospect particularly <em>terrifying</em>, but your mileage may vary. In any case, after last week’s legislative onslaught, can we finally put this <a href="https://www.goodreads.com/quotes/34764-the-whole-aim-of-practical-politics-is-to-keep-the">particular hobgoblin</a> out to pasture — or wherever it is that worn‐​out hobgoblins go? For better or worse, it’s just not true that <a href="https://www.foxbusiness.com/politics/pushing-impeachment-means-getting-nothing-done-varney">“nothing gets done”</a> during an impeachment.</p> <p>“Hidden by impeachment: ‘One of Trump’s best weeks yet,’” the <em>Washington Examiner’s</em> Paul Bedard <a href="https://www.washingtonexaminer.com/washington-secrets/hidden-by-impeachment-one-of-trumps-best-weeks-yet">crowed</a> on Friday. In the midst of the impeachment drive, the president just keeps putting points on the board, including “a new U.S.-Mexico-Canada trade deal,” confirmation of his 50<sup>th</sup> appellate judge, “government family leave,” and — cue <a href="https://www.youtube.com/watch?v=vWF1glZWQa8">“Also Sprach Zarathustra”</a>—Space Force! The <a href="https://www.nytimes.com/2019/12/11/us/politics/house-ndaa-space-force-leave.html"><em>New York Times</em> hailed</a> the $738 billion “defense” bill, which includes paid parental leave for over 2 million federal workers, as “part of a year‐​end burst of bipartisan legislating that has broken out this week, even as the Democratic‐​led House moves toward impeaching Mr. Trump.”</p> <p>That impeachment paralyzes the government isn’t true now, and it wasn’t true in past impeachment struggles either. The 93<sup>rd</sup> Congress passed, and Richard Nixon signed, <a href="https://en.wikipedia.org/wiki/93rd_United_States_Congress#Major_legislation">four major bills</a> in between the House’s formal approval of the inquiry in February 1974 and the president’s resignation six months later. One of those laws, the Impoundment Control Act, you may have heard about in recent weeks: President Trump <a href="https://www.politifact.com/truth-o-meter/article/2019/dec/05/did-trump-violate-impoundment-control-act/">may have broken it</a> when he held up military aid to Ukraine this summer. Of course, Watergate became all‐​consuming before the House voted for an impeachment inquiry. If you start the clock closer to when Nixon’s troubles really took off — say with the Saturday Night Massacre in late October ’73 — you can add <a href="https://en.wikipedia.org/wiki/93rd_United_States_Congress#Major_legislation">another half‐​dozen</a>, including the War Powers Resolution (passed over Nixon’s veto) and the Endangered Species Act.</p> <p>More recently, President Clinton signed <a href="https://en.wikipedia.org/wiki/105th_United_States_Congress">four major bills</a> during his impeachment “journey,” even while <a href="https://books.google.com/books?id=rW-yXlQ9TVYC&amp;lpg=PT39&amp;dq=clinton%20%22I%20have%20been%20on%20quite%20a%20journey%20these%20last%20few%20weeks%20to%20get%20to%20the%20end%20of%20this%2C%20to%20the%20rock%20bottom%20truth%20of%20where%20I%20am%20and%20where%20we%20all%20are.%22&amp;pg=PT39#v=onepage&amp;q=clinton%20%22I%20have%20been%20on%20quite%20a%20journey%20these%20last%20few%20weeks%20to%20get%20to%20the%20end%20of%20this,%20to%20the%20rock%20bottom%20truth%20of%20where%20I%20am%20and%20where%20we%20all%20are.%22&amp;f=false">soul‐​searching for</a> “the rock‐​bottom truth of where I am and where we all are,” after his fling with an intern. In October 1998, the “people’s business” included the <a href="https://en.wikipedia.org/wiki/Children%27s_Online_Privacy_Protection_Act">Children’s Online Privacy Protection Act</a>, the <a href="https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act">Digital Millennium Copyright Act</a>, and the <a href="https://en.wikipedia.org/wiki/Iraq_Liberation_Act">Iraq Liberation Act</a>. For my money, the people would’ve been better off without most of those, particularly the latter, which became a vital talking point for Iraq hawks in the run up to George W. Bush’s disastrous war. But if, like House Minority Leader Kevin McCarthy, you measure legislative <a href="https://www.republicanleader.gov/the-democrats-choose-impeachment-over-productivity/">“productivity”</a> in terms of big bills passed, that was a fairly productive session.</p> <p>It’s true, nothing much is likely to get done for a month or so after the holidays, while the Senate holds President Trump’s impeachment trial. “The legislative and executive business of the Senate shall be suspended” while it’s ongoing, per the <a href="https://www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113-pg223.pdf">Senate Rules</a>. But maybe we could use a break.</p> Wed, 18 Dec 2019 17:30:46 -0500 Gene Healy https://www.cato.org/blog/its-not-true-impeachment-paralyzes-government-unfortunately Parsing the Articles on #ImpeachmentEve https://www.cato.org/multimedia/cato-daily-podcast/parsing-articles-impeachmenteve Gene Healy, Caleb O. Brown <p>A day ahead of an impeachment vote in the U.S. House, why these particular articles of impeachment? Gene Healy comments.</p> Tue, 17 Dec 2019 10:09:57 -0500 Gene Healy, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/parsing-articles-impeachmenteve Gene Healy discusses impeachment on KURV’s The Drive Home https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-kurvs-drive-home Mon, 16 Dec 2019 11:49:32 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-kurvs-drive-home Gene Healy discusses merits of impeachment on WTAN’s Freedom Works with Paul Malloy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-merits-impeachment-wtans-freedom-works-paul Fri, 13 Dec 2019 10:56:52 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-merits-impeachment-wtans-freedom-works-paul Keeping Impeachment Simple https://www.cato.org/blog/keeping-impeachment-simple Gene Healy <p>Last night, the House Judiciary Committee began debate on the <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/e2098afd-a68c-47f1-bbc2-a82e8391ac0f/note/67c4bc1c-a3b2-4694-8e80-7de52d0d1365.pdf#page=1">two articles of impeachment</a> unveiled earlier this week by HJC chairman Rep. Jerrold Nadler (D‑NY). Despite <a href="https://www.washingtonpost.com/politics/democrats-quietly-debate-expanding-impeachment-articles-beyond-ukraine/2019/12/02/da84e00a-1537-11ea-bf81-ebe89f477d1e_story.html">recent talk</a> about cluttering the articles with Emoluments Clause and Mueller probe accusations, in the end the Democratic leadership decided none of those charges sparked joy. The articles set for markup today focus exclusively on the Ukraine affair and President Trump’s response to the impeachment inquiry it launched.</p> <p>The decision to Keep Impeachment Simple, Stupid was a&nbsp;smart call. The two articles confine the case against Trump to a&nbsp;digestible set of facts. Equally important, they avoid framing the president’s conduct in criminal‐​law, focusing instead on misuse of official power and violations of public trust.</p> <p>The first article, on “Abuse of Power,” accuses Trump of conditioning a&nbsp;state visit and delivery of military aid on the Ukrainians announcing an investigation of his 2020 rival Joe Biden. In so doing, Article I&nbsp;charges, Trump misused the powers of his office “for corrupt purposes in pursuit of personal political benefit.”</p> <p>I could have done without the far‐​fetched and irrelevant claim that Trump “compromised the national security of the United States” by holding up aid. But Article I&nbsp;does better at avoiding what I’ve called the <a href="https://www.cato.org/blog/overcriminalization-impeachment">“Overcriminalization of Impeachment.”</a> Trying to shoehorn Trump’s conduct into one or more federal statutes invites a&nbsp;hypertechnical debate over federal bribery, extortion, and campaign‐​finance statutes that’s quite beside the point. The president doesn’t have to violate the law to commit an impeachable abuse of power. Historically, according to<a href="https://lofgren.house.gov/uploadedfiles/constitutional_grounds_for_presidential_impeachment_-_house_judiciary_comm_staff_report_february_1974.pdf"> a&nbsp;comprehensive report</a> by the Nixon‐​era House Judiciary Committee, “allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions” have been far more common than allegations of federal crimes.</p> <p>In this case, there’s a&nbsp;fairly close parallel between Article I&nbsp;and one of <a href="https://watergate.info/impeachment/articles-of-impeachment">the articles of impeachment</a> that drove Richard Nixon from office (he quit before the full House could vote). The second article of impeachment against Nixon, passed by the House Judiciary Committee in July 1974, focused on abuse of power, and the first item it listed was the administration’s attempts to order up IRS audits on political opponents, including people who worked for or supported his opponent in the ’72 election, Sen. George McGovern. In that case, the notion that the president simply had a&nbsp;high‐​minded interest in rooting out corruption didn’t sell.</p> <p>The second article against Trump tracks the case against Nixon even more closely. Article II charges President Trump with “Obstruction of Congress” based on his “indiscriminate defiance” of lawfully issued congressional subpoenas in the impeachment inquiry. It draws heavily on the third article of impeachment the House Judiciary Committee passed in July 1974, adopting some of its language verbatim. Like Nixon, Trump “interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”</p> <p>Nixon Article III was the most controversial of the articles lodged against the 37<sup>th</sup> president, passing HJC by the <a href="https://watergate.info/impeachment/analysis-judiciary-committee-impeachment-votes">narrowest margin</a> of the three. But the Judiciary Committee’s <a href="https://www.amazon.com/Impeachment-Richard-President-United-States/dp/B00005W5J6">Report on the Nixon impeachment</a> made a&nbsp;strong case that Nixon’s defiance was unprecedented and dangerous: of dozens of federal officers who’d been the subject of impeachment investigations up till that time “not one of them challenged the power of the committee conducting the investigation to compel the evidence it deemed necessary.” And Nixon’s obstruction wasn’t nearly as flagrant as the policy of categorical stonewalling Trump announced.</p> <p>In this case, then, the articles rest on pretty firm constitutional ground. Of course, impeachment is <a href="https://www.jstor.org/stable/1073883?seq=1#metadata_info_tab_contents">“a mixed operation of law and politics,”</a> and constitutional analysis can only take you so far. In this case, even more than past partisan impeachments, “the decision will be regulated more by <a href="https://avalon.law.yale.edu/18th_century/fed65.asp">the comparative strength of parties</a>, than by the real demonstrations of innocence or guilt.”</p> Thu, 12 Dec 2019 09:50:02 -0500 Gene Healy https://www.cato.org/blog/keeping-impeachment-simple Jonathan Turley: Then and Now https://www.cato.org/blog/jonathan-turley-then-now Gene Healy <p>George Washington University law professor Jonathan Turley has come in for some <a href="https://thehill.com/opinion/judiciary/473171-turley-democrats-offering-passion-over-proof-in-trump-impeachment">rough treatment</a> in the press and the Twitterverse since his appearance earlier this week before the <a href="https://judiciary.house.gov/legislation/hearings/impeachment-inquiry-president-donald-j-trump-constitutional-grounds">House Judiciary Committee hearing</a> on “Constitutional Grounds for Presidential Impeachment,” where he served as the lone GOP witness and impeachment skeptic on a panel of four.</p> <p>Turley is a first‐​rate scholar from whom I’ve learned a great deal. I drew heavily on his impeachment scholarship in my 2018 study <a href="https://www.cato.org/publications/white-paper/indispensable-remedy-broad-scope-constitutions-impeachment-power">“Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power.”</a> While there’s a lot to criticize in his testimony, it’s unfair and unserious <a href="https://www.thenation.com/article/turley-impeachment-hypocrisy/">to dismiss him</a> as a partisan hack. Turley’s politics, it seems to me, have always been <a href="https://www.nytimes.com/2019/12/04/us/politics/jonathan-turley.html">heterodox</a> and <a href="https://www.wbur.org/onpoint/2013/12/23/polygamy-legal-defense-sister-wives">hard to squeeze</a> into a conventional left‐​right framework. If forced to guess, I’d say his growing skepticism toward impeachment has more to do with his 2010 experience as defense counsel in a judicial impeachment trial than any latent #MAGA tendencies.</p> <p>That said, I found <a href="https://docs.house.gov/meetings/JU/JU00/20191204/110281/HHRG-116-JU00-Wstate-TurleyP-20191204.pdf">Turley’s testimony this week</a> tendentious, inconsistent with his prior work, and, in important respects, wrong. As the hipsters used to say, I prefer his early stuff. </p> <div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="d2864749-7ca0-4f27-b070-c458cab63175" class="align-right embedded-entity" data-langcode="en"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/2019-12/Screenshot%202019-12-06%2013.04.18.png?itok=9foV7p9- 1x, /sites/cato.org/files/styles/pubs_2x/public/2019-12/Screenshot%202019-12-06%2013.04.18.png?itok=07mZEHLL 1.5x" width="466" height="609" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/2019-12/Screenshot%202019-12-06%2013.04.18.png?itok=9foV7p9-" alt="His first album was the best" typeof="Image" class="component-image" /></p></div> <p>Turley argues that the evidentiary record is far too thin — “facially insufficient” — to justify impeachment by the House at this stage. Among other things, “the House has not bothered to subpoena the key witnesses” who would have first hand knowledge of whether there was a quid pro quo in the Ukraine affair. (There’s <a href="https://www.nytimes.com/2019/12/04/us/politics/turley-impeachment.html">a fairly obvious reason</a> for that.) At times, he appeared to suggest that the House needs to secure enough evidence to try the case before the Senate can try the case.</p> <p>But as Rep. Justin Amash (ex‑R MI) <a href="https://twitter.com/justinamash/status/1202616265510141952?s=20">points out</a>: Turley “consistently conflates impeachment in the House and trial in the Senate. The House simply *charges* impeachable offenses, and there’s clearly probable cause for charges.” The House’s role, in this view, is analogous to that of a grand jury: determining whether there’s adequate reason to have a trial in the first place.</p> <p>That’s how Jonathan Turley used to see it as well. In his <a href="https://jonathanturley.org/2007/08/20/clinton-impeachment-testimony-house-judiciary-committee/">1998 testimony</a> during the Clinton impeachment hearings, Turley explained that</p> <blockquote><p>The [Constitutional Convention] debates reflect the view that the Senate would be the forum for the appearance of witnesses and a comprehensive treatment of the allegations of misconduct against a president. The Framers did not appear to anticipate the type of hearing with witnesses and subpoenas used during the Nixon inquiry by the House Judiciary Committee.</p> </blockquote> <p>Instead, Turley argued, “articles of impeachment are a type of presidential indictment under Article I…. the Framers specifically mandated that a trial be held in the Senate under specific conditions while leaving the House to impeach in any fashion that it chooses.”</p> <p>In that light, Turley’s insistence Wednesday that, before the House can impeach, “there needs to be clear and unequivocal proof of a quid pro quo,” is mystifying. Where’s he getting that? The Constitution <a href="https://books.google.com/books?id=V_tdDwAAQBAJ&amp;lpg=PP1&amp;dq=gerhardt%20impeachment&amp;pg=PA90#v=snippet&amp;q=%22is%20there%20a%20burden%20of%20proof%20required%20in%20impeachment%20proceedings%22&amp;f=false">doesn’t specify</a> any particular burden of proof for impeachment, much less “clear and unequivocal” — a standard higher than is required for criminal indictment.</p> <p>Equally puzzling is Turley’s newfound conviction that it borders on illegitimate to impeach a president unless you can prove he committed a federal crime. “We have never impeached a president solely or even largely on the basis of a non‐​criminal abuse of power allegation,” he warns, and we shouldn’t start now. Turley acknowledges that “it is possible to establish a case or impeachment based on a non‐​criminal allegation of abuse of power,” but even though we’ve impeached other federal officers solely for non‐​criminal abuses, for a <em>president</em>, there should be a higher bar.</p> <p>That’s not how Turley saw it in 1998. “There is no textual basis to claim that the Framers intended a lower standard to apply in the impeachment of federal judges than in the impeachment of presidents,” he testified, noting James Madison’s argument that the president’s position makes him more dangerous than other federal officers, and a removal mechanism even more vital.</p> <p>In this week’s testimony, Turley asserts that “Congress has always looked to the criminal code in the fashioning of articles of impeachment.” That’s simply not true.</p> <p>References to statutory crimes are absent from the impeachment cases in the early republic. Of the three federal impeachments in the decade and a half following ratification, only one, Sen. William Blount’s, involved conduct that was even arguably a crime. In 1804, Congress impeached and removed a federal judge for drunken ranting from the bench, and, the next year, came within four votes of removing a Supreme Court Justice for partisan rulings and intemperate harangues. And throughout our entire constitutional history, fewer than a third of the impeachments approved by the House “have specifically <a href="https://www.cato.org/blog/overcriminalization-impeachment">invoked a criminal statute</a> or used the term ‘crime.’”</p> <p>Turley argues that in past presidential impeachments, abuse of power allegations “have been raised in the context of violations of federal or criminal law.” But the 1974 House Judiciary Committee report <a href="https://books.google.com/books?id=Q_SbAAAAMAAJ&amp;dq=%22impeachment+of+richard+m+nixon%22+%22committee+on+the+judiciary%22&amp;focus=searchwithinvolume&amp;q=%22not+the+fact+that+violations+of+Federal+criminal+statutes+occurred%22">explained that</a>:</p> <blockquote><p>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 <em>not the fact that violations of Federal criminal statutes occurred</em>, that lies at the heart of Article I [emphasis added].</p> </blockquote> <p>Turley’s lengthy analysis of whether President Trump could be criminally convicted under federal bribery, extortion, and campaign finance statutes is thus quite beside the point. Technical statutory violations have never been the issue in impeachment, the constitutional purpose of which isn’t to punish bad behavior, but to protect the public from officers who violate the public trust.</p> <p>Perhaps the most important point to come out of Turley’s testimony is one I almost missed while clocking the discrepancies between Turley and Turley 2.0. Luckily, Joshua Geltzer highlights it <a href="https://www.theatlantic.com/ideas/archive/2019/12/impeachment-hearing-what-legal-experts-agreed-upon/603094/">in the <em>Atlantic</em></a>: in his <a href="https://www.bbc.com/news/world-us-canada-50663128?intlink_from_url=&amp;link_location=live-reporting-story">opening remarks</a> Wednesday, Turley “cut to the heart of the matter: ‘The use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.’” As Geltzer notes, the fact that Professor Turley thinks the case hasn’t yet been made is neither here nor there: when even the GOP’s expert legal witness concedes that the central charge, if proven, meets the constitutional standard, the constitutional debate is over. “It’s now simply a matter of reviewing the facts.” Back in the day, Jonathan Turley would have told us that’s a job for the Senate.</p> Fri, 06 Dec 2019 17:06:30 -0500 Gene Healy https://www.cato.org/blog/jonathan-turley-then-now A Week of Impeachment Hearings https://www.cato.org/multimedia/cato-daily-podcast/week-impeachment-hearings Gene Healy, Caleb O. Brown <p>What have we learned after presidential impeachment testimony of Donald Trump’s ambassador to the European Union? Do any of the claims rise to the level of maladministration or violation of public trust? How have the President’s Republican defenders performed? Gene Healy comments.</p> Fri, 22 Nov 2019 09:45:55 -0500 Gene Healy, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/week-impeachment-hearings Gene Healy discusses impeachment procedure on WWL’s The Newel Normand Show https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-procedure-wwls-newel-normand Wed, 13 Nov 2019 11:59:06 -0500 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-procedure-wwls-newel-normand Trump’s Ukraine Scandal: Is It Watergate 2.0? https://www.cato.org/publications/commentary/trumps-ukraine-scandal-it-watergate-20 Gene Healy <div class="lead text-default"> <p>Even though he quit before the full House could vote, Richard Nixon remains the only president in American history to be driven from office through the impeachment process. Little wonder, then, that we’ve been drowning <a href="https://urldefense.com/v3/__https:/www.washingtonpost.com/opinions/we-investigated-the-watergate-scandal-we-believe-trump-should-be-impeached/2019/10/10/5cf0c2ce-eb72-11e9-9306-47cb0324fd44_story.html__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjQP5vi2uA$" target="_blank">in Watergate analogies</a> ever since House Speaker Nancy Pelosi announced an impeachment investigation last month.</p> </div> , <div class="text-default"> <p>So, is the Ukraine imbroglio Watergate 2.0? Not exactly, but there’s enough similarity between the two scandals to give President Trump’s supporters agita. There are close parallels in Trump’s conduct to at least two of the <a href="https://urldefense.com/v3/__https:/watergate.info/impeachment/articles-of-impeachment__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjQOI9yYog$" target="_blank">three articles of impeachment</a> that forced Nixon’s resignation.</p> <p>Ukraine-gate’s central charge is that Trump engaged in a&nbsp;third‐​rate shakedown of a&nbsp;foreign government in order to get dirt on a&nbsp;leading political rival. The <a href="https://urldefense.com/v3/__https:/www.foxnews.com/politics/trumps-ukraine-call-transcript-read-the-document__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjTLOYZrxw$" target="_blank">readout</a> of Trump’s July 25 call with President Zelensky shows the <a href="https://urldefense.com/v3/__https:/www.nytimes.com/2019/10/18/us/politics/quid-pro-quo-mean.html__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjTK4I-UDQ$" target="_blank">“quid”</a> — a&nbsp;direct request to investigate Joe Biden. If a “pro quo” is necessary, the emerging evidence<a href="https://urldefense.com/v3/__https:/www.npr.org/2019/10/04/767080125/texts-show-top-u-s-diplomat-in-ukraine-concerned-over-possible-quid-pro-quo__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjRstbpxZA$" target="_blank"> </a><a href="https://www.nytimes.com/2019/10/23/us/politics/ukraine-aid-freeze-impeachment.html?te=1&amp;nl=impeachment-briefing&amp;emc=edit_ib_20191023?campaign_id=140&amp;instance_id=13330&amp;segment_id=18179&amp;user_id=b2c2d0e6a90d45dd3087c6000552b9ac&amp;regi_id=39991888" target="_blank">powerfully suggests</a> that Trump held up $391 million in security aid to Ukraine as leverage.</p> <p>A president might legitimately slow‐​walk foreign aid to induce security cooperation or a&nbsp;better trade deal. But in this case, the motivation smacks of “us[ing] the available federal machinery to<a href="https://urldefense.com/v3/__https:/upload.wikimedia.org/wikipedia/commons/9/94/Dean-enemies-1.jpg__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjRdT_FUgw$" target="_blank"> </a><a href="https://urldefense.com/v3/__https:/upload.wikimedia.org/wikipedia/commons/9/94/Dean-enemies-1.jpg__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjRdT_FUgw$" target="_blank">screw our political enemies</a>,” as Nixon aide John Dean put it in a&nbsp;1971 memo. Screwing Trump’s political enemies isn’t a&nbsp;legitimate policy priority of the United States government. Wielding the powers of the presidency for such purposes is — as the Nixon case shows — an impeachable offense.</p> <p>Trump’s call for Zelensky to “look into” Biden echoes one of the charges against Nixon that led to his second article of impeachment. Article 2, passed by the House Judiciary Committee in July 1974, focused on abuse of power, and the first offense it enumerates is Nixon’s attempt to turn the IRS against his political rivals. In September 1972, for example, Dean gave the IRS commissioner a&nbsp;list of several hundred people the administration wanted audited — all of them staffers with or contributors to Senator George McGovern’s presidential campaign.</p> <p><a href="https://urldefense.com/v3/__https:/madison.com/wsj/news/local/govt-and-politics/ron-johnson-nothing-wrong-with-donald-trump-asking-china-to/article_0b669f54-9ddc-586d-858e-3c01d7cf4b62.html__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjSgWZWY9g$" target="_blank">Nothing wrong</a> with <a href="https://urldefense.com/v3/__https:/www.politico.eu/article/mike-pompeo-donald-trump-ukraine-phone-call-athens-corruption/__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjSnpJ9ArA$" target="_blank">asking for an investigation</a>, Nixon diehards might have argued. After all, some of McGovern’s people probably <em>were</em> tax cheats, and you’ve got to start draining the swamp somewhere! <a href="https://urldefense.com/v3/__https:/www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/072874-1.htm__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjSOCIpYAQ$" target="_blank">Few at the time</a> seem to have found such rationalizations compelling.</p> <p>There are further echoes of Watergate in Trump’s recent decision to stonewall the House impeachment proceedings. Defying lawful congressional subpoenas <a href="https://urldefense.com/v3/__https:/timesmachine.nytimes.com/timesmachine/1974/07/31/79632300.pdf__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjRkQYza5g$" target="_blank">was the basis</a> for Nixon’s third article of impeachment. If, as some have speculated, this president actually <a href="https://urldefense.com/v3/__https:/www.nytimes.com/2019/09/24/opinion/impeach-trump.html__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjQp0VLm7w$" target="_blank"><em>wants</em></a> <a href="https://urldefense.com/v3/__https:/www.nytimes.com/2019/09/24/opinion/impeach-trump.html__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjQp0VLm7w$" target="_blank">to be impeached</a>, he’s found a&nbsp;good way to go about it.</p> <p>Even so, a&nbsp;key difference with Watergate is how comically inept the cover‐​up attempt is here. Forty‐​five years ago, it took work to ferret out the answers to “what did the president know, and when did he know it?” But Trump can’t seem to manage a <a href="https://urldefense.com/v3/__https:/en.wikipedia.org/wiki/Limited_hangout__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjRi1gLG9w$" target="_blank">“modified, limited hangout” </a>— repeatedly, he lets it all hang out: releasing the damning summary of what he terms a “perfect call,” or blurting to reporters that “China should start an investigation into the Bidens.” Imagine Nixon attaching the Enemies List to a&nbsp;press release or publicly declaring: “I <em>am </em>a&nbsp;crook. So what?”</p> <p>Claims that the current scandal is <a href="https://urldefense.com/v3/__https:/www.americanprogress.org/issues/democracy/news/2019/10/03/475465/worse-than-watergate-2/__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjQzTZuuYA$" target="_blank">“worse than Watergate”</a> are overblown. Trump’s ineptitude and <a href="https://www.nbcnews.com/politics/donald-trump/mueller-trump-failed-obstruct-because-his-aides-refused-carry-out-n996071" target="_blank">lack of control over his own administration</a> have limited the damage — so far. True, Nixon also found himself stymied by unwilling vassals, like the IRS commissioner, who <a href="https://urldefense.com/v3/__https:/www.usatoday.com/story/news/nation/2013/05/26/irs-chief-defied-nixon/2360951/__;!c3kmrbLBmhXtig!9jPIJmfGRK8hFyUnr-IVjztkhoM6zSfeLEXFijeqafcKhNzQwLUFw2FgOzbUvUyKbjQvgAsizg$" target="_blank">flatly refused</a> his demand for political audits. But Nixon was competent enough to bring at least some of his schemes to fruition.</p> <p>Still, “our guy is <a href="https://twitter.com/lawrencehurley/status/1187347318347046913?s=20" target="_blank">too incompetent</a> to pull off high crimes” isn’t what you’d call an <em>inspiring </em>impeachment defense. It’s also unlikely to work.</p> </div> Wed, 30 Oct 2019 16:50:18 -0400 Gene Healy https://www.cato.org/publications/commentary/trumps-ukraine-scandal-it-watergate-20 Trump’s ‘Due Process’ Dodge on Impeachment https://www.cato.org/publications/commentary/trumps-due-process-dodge-impeachment Gene Healy <div class="lead text-default"> <p>It’s a “lynching,” President Trump raged in&nbsp;<a href="https://twitter.com/realDonaldTrump/status/1186611272231636992?s=20" target="_blank">a&nbsp;predawn tweet</a>&nbsp;on Tuesday: “They can impeach the President without due process or fairness or any legal rights.” This president has never seemed like&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fthehill.com%2Fhomenews%2Fadministration%2F376097-trump-take-the-guns-first-go-through-due-process-second&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950189259&amp;sdata=6VVwNZWNdhTdo0NxNKEmVMxWNKPSv%2BDXoXa76nSwsgA%3D&amp;reserved=0" target="_blank">a&nbsp;stickler for “due process,</a>” but maybe a&nbsp;liberal is a&nbsp;conservative facing impeachment, to&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fbooks.google.com%2Fbooks%3Fid%3DrjLTsncFKCgC%26newbks%3D1%26newbks_redir%3D0%26lpg%3DPA340%26dq%3Dtom%2520wolfe%2520%2522a%2520liberal%2520is%2520a%2520conservative%2520who%2520has%2520been%2520arrested%2522%26pg%3DPA340%23v%3Donepage%26q%3Dtom%2520wolfe%2520%2522a%2520liberal%2520is%2520a%2520conservative%2520who%2520has%2520been%2520arrested%2522%26f%3Dfalse&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950199249&amp;sdata=FBw7qTZeOISZTgK%2F0vtv4p4d8ZfB2ulJp6UEGAH9RuQ%3D&amp;reserved=0" target="_blank">paraphrase Tom Wolfe</a>.</p> </div> , <div class="text-default"> <p>Improbably enough, “due process” has become a&nbsp;Trumpist battle cry, and the administration’s excuse for stonewalling the House impeachment inquiry. Trump is free to ignore congressional subpoenas, the White House counsel Pat Cipollone insists, because the House has denied him “basic constitutional rights.”</p> <p>Due process is an important principle, but in this case, it’s a&nbsp;phony excuse for Trump’s refusal to cooperate with the inquiry. The House inquiry doesn’t deny the president a&nbsp;single right the Constitution grants him.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Due process is an important principle, but in this case, it’s a&nbsp;phony excuse for Trump’s refusal to cooperate with the inquiry.</p> </div> </div> </aside> , <div class="text-default"> <p><a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.washingtonpost.com%2Fcontext%2Fletter-from-white-house-counsel-pat-cipollone-to-house-leaders%2F0e1845e5-5c19-4e7a-ab4b-9d591a5fda7b%2F&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950209242&amp;sdata=CakMaf2WLtKv7Bz2wGrXndlFysTVSLsHUvDG9oXyUVs%3D&amp;reserved=0" target="_blank">In a&nbsp;strident letter</a>&nbsp;to the House leadership, Cipollone argues that President Trump, as the target of the impeachment inquiry, should be entitled to be represented by counsel, cross‐​examine witnesses and present his own evidence.</p> <p>The president will get&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.law.cornell.edu%2Fbackground%2Fimpeach%2Fsenaterules.pdf&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950219238&amp;sdata=IljrFk7uCpq2QJa%2BLw6j5x3jv1gGkgjxulQm6747Ddo%3D&amp;reserved=0" target="_blank">these protections</a>&nbsp;should the impeachment process result in an actual Senate trial. But the House’s role in the current phase is like that of a&nbsp;grand jury: It is assessing whether there’s adequate reason to have a&nbsp;trial in the first place.</p> <p>In the criminal context, grand jury targets get&nbsp;<em>none</em>&nbsp;of the protections the Trump team demands. They have&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.everycrsreport.com%2Freports%2FR45456.html%23_Toc534903635&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950229233&amp;sdata=n11WZIqXQlNTB4sPO3V%2Fj95ok%2Bi2xqmIghY%2FT1D%2FLvw%3D&amp;reserved=0" target="_blank">no right</a>&nbsp;to present their side of the case, or even appear before the tribunal. That’s despite the fact that a&nbsp;criminal indictment can result in loss of liberty or even life. By contrast, in the impeachment context, we’re talking about putting someone out of a&nbsp;job.</p> <p>It’s not obvious that the 5th Amendment’s&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.law.cornell.edu%2Fconstitution%2Ffifth_amendment&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950239229&amp;sdata=M0vscfA9QFbmvcWyZCF5a1lp3Sxax5GFaBIFsSb5J7I%3D&amp;reserved=0" target="_blank">Due Process Clause</a> — “No person shall … be deprived of life, liberty, or property, without due process of law” — applies also to impeachment. Trump’s life and liberty would not be at risk; his argument would have to rest on his alleged property interest in the job. The Supreme Court has required “some kind of a&nbsp;hearing” for terminations of certain public employees, but it seems odd to suggest that Donald Trump has a&nbsp;property right to an office he holds in trust for the American people.</p> <p>At any rate, Michael Gerhardt, an expert on impeachment, has noted, that if the Due Process Clause applies, “it is not clear that&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fbooks.google.com%2Fbooks%3Fid%3DV_tdDwAAQBAJ%26newbks%3D1%26newbks_redir%3D0%26lpg%3DPP1%26dq%3Dgerhardt%2520impeachment%2520need%2520to%2520know%26pg%3DPA88%23v%3Dsnippet%26q%3D%2522it%2520requires%2520anything%2520more%2520than%2520what%2520the%2520House%2522%26f%3Dfalse&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950259213&amp;sdata=5xkPDx8PzE14OIp7V9rD6rZjAaVxbv%2FaMjZpJz4PXxY%3D&amp;reserved=0" target="_blank">it requires anything more</a>&nbsp;than what the House and the Senate have traditionally done in this area.”</p> <p>Congressional practice has never been as rigid and rule‐​bound as Trump and Cipollone might like. In 19th‐​century impeachments, including in&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.senate.gov%2Fartandhistory%2Fhistory%2Fcommon%2Fbriefing%2FImpeachment_Johnson.htm%232&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950269211&amp;sdata=INr5bLB1rcVKEKd00A47Y70QElP47gftiAq%2Flbwin14%3D&amp;reserved=0" target="_blank">President Andrew Johnson’s</a>, it was typical for the House to vote to impeach officials for “high crimes and misdemeanors” before formally adopting articles of impeachment that laid out the precise charges. There’s never been an agreed‐​on&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fbooks.google.com%2Fbooks%3Fid%3DV_tdDwAAQBAJ%26lpg%3DPP1%26dq%3Dgerhardt%2520impeachment%26pg%3DPA90%23v%3Dsnippet%26q%3D%2522is%2520there%2520a%2520burden%2520of%2520proof%2520required%2520in%2520impeachment%2520proceedings%2522%26f%3Dfalse&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950279213&amp;sdata=hbzeheqZN2f9c0%2FPDyWESCsqWj%2B7Ki4%2FA%2FV5BTQG5dA%3D&amp;reserved=0" target="_blank">burden of proof</a>&nbsp;for any part of the presidential impeachment process, including in the Senate impeachment trial.</p> <p>The Constitution simply does not give impeachment targets the rights of defendants in criminal trials. As Alexander Hamilton noted in the&nbsp;<em>Federalist</em>, impeachment proceedings, by their nature, “can never be tied down by&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Favalon.law.yale.edu%2F18th_century%2Ffed65.asp&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950299192&amp;sdata=x6cnGtcOTI%2B%2FLMzmM3GWMuTbQ7cSt6HVYTjzvMWmah0%3D&amp;reserved=0" target="_blank">such strict rules</a>&nbsp;… as in common cases serve to limit the discretion of courts in favor of personal security.”</p> <p>Still, the White House Counsel has half a&nbsp;point when he argues that the full House should formally vote to authorize an impeachment inquiry.&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpress-pubs.uchicago.edu%2Ffounders%2Ftocs%2Fa1_2_5.html&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950309189&amp;sdata=1I0qKldB8S%2FxObFxm16yoNn0VJzJ2bNrjY9iQ3OdFEk%3D&amp;reserved=0" target="_blank">Nothing in the Constitution</a>&nbsp;requires this move, but this was done at the start of impeachment proceedings for&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.everycrsreport.com%2Freports%2FR45769.html%23fn26&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950319188&amp;sdata=bja9yOkkIfcNYrVfln2lqpSQWC%2F6B8qHmCTxuufC%2BIM%3D&amp;reserved=0" target="_blank">Presidents Nixon and Clinton</a>. The House leadership has no good reason not to honor past practice and defuse the objection. Trump has signaled he&nbsp;<a href="https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.wsj.com%2Farticles%2Ftrump-opens-door-to-cooperate-with-house-impeachment-probe-11570665219%3Fmod%3Dhp_lead_pos1&amp;data=02%7C01%7Cterry.tang%40latimes.com%7C964c1de964d241a2737f08d759690829%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637076179950329175&amp;sdata=MQ8TN4J9bf6Xn93I7GxD8Crjvkb6UAFSMEqwv%2BZDv%2Bk%3D&amp;reserved=0" target="_blank">might cooperate</a>&nbsp;“if Republicans get a&nbsp;fair shake.”</p> <p>Is he bluffing? There’s only one way to find out.</p> </div> Fri, 25 Oct 2019 10:44:21 -0400 Gene Healy https://www.cato.org/publications/commentary/trumps-due-process-dodge-impeachment No, Trump Isn’t Too Stupid to Be Impeached https://www.cato.org/publications/commentary/no-trump-isnt-too-stupid-be-impeached Gene Healy <div class="lead text-default"> <p>After a&nbsp;month of&nbsp;<a href="https://www.washingtonpost.com/politics/2019/10/18/trumps-ad-hoc-defenses-ukraine-have-largely-fallen-apart/" target="_blank">shifting defenses</a>&nbsp;over impeachment — from “there was no quid pro quo” to “we do that all the time — get over it!” — it’s finally come to this: pleading incompetence. Don’t worry, the&nbsp;<em>Wall Street Journal</em>&nbsp;suggests in&nbsp;<a href="https://www.wsj.com/articles/schiffs-secret-bombshells-11571872974?redirect=amp&amp;ns=prod/accounts-wsj" target="_blank">its lead editorial</a>, the president is too much of a&nbsp;bungler to pull off any high crimes.</p> </div> , <div class="text-default"> <p>“It may turn out that while Mr. Trump wanted a&nbsp;quid‐​pro‐​quo policy ultimatum toward Ukraine, he was too inept to execute it,” the&nbsp;<em>WSJ&nbsp;</em>opines. That’s supposed to let the president off the hook; after all, “impeachment for incompetence would disqualify most of the government, and most Presidents at some point or another.”</p> <p>If this is the best they’ve got, it doesn’t look good for President Trump. Incompetence is no defense when it comes to high crimes and misdemeanors. The Nixon crew botched most of the schemes it undertook, from the Watergate caper to the attempt to audit the president’s political enemies. That didn’t save Richard Nixon from being driven from office via the impeachment process.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The president might be incompetent at high crimes, but that doesn’t mean he can’t be held accountable.</p> </div> </div> </aside> , <div class="text-default"> <p>True enough, President Trump’s pratfalling management style has so far limited his ability to commit abuses. For example, Special Counsel Robert Mueller’s report suggests that the president isn’t&nbsp;<a href="https://www.cnn.com/politics/live-news/robert-mueller-report-public/h_c61fa5c765573075c040af056dfad52f" target="_blank">any good at obstruction of justice</a>: his “efforts to influence the investigation were mostly unsuccessful…largely because the persons who surrounded the president declined to carry out orders or accede to his requests.” Even Corey Lewandowski had enough brains not to help him out by passing messages to his estranged attorney general, Jeff Sessions.</p> <p>It’s also true that Richard Nixon was a&nbsp;lot more on the ball than Donald Trump. You couldn’t just steal stuff off the 37th president’s desk and assume he’d forget about it. If Nixon told you to&nbsp;<a href="https://books.google.com/books?id=ajLBlZwwB0IC&amp;pg=PA339&amp;lpg=PA339&amp;dq=%25E2%2580%259CYou%25E2%2580%2599re+to+break+into+the+place,+rifle+the+files,+and+bring+them+in.%25E2%2580%259D&amp;source=bl&amp;ots=6nS4m5Ht79&amp;sig=Eq6h0ML3oivrvi3Ov-IvpszX7a8&amp;hl=en&amp;sa=X&amp;ei=Hm7aU9eLFO2-sQTNg4K4Bw&amp;ved=0CEYQ6AEwBA#v=onepage&amp;q=%25E2%2580%259CYou%25E2%2580%2599re%2520to%2520break%2520into%2520the%2520place%252C%2520rifle%2520the%2520files%252C%2520and%2520bring%2520them%2520in.%25E2%2580%259D&amp;f=false" target="_blank">break into into the Brookings Institution</a>&nbsp;and take their copy of the Pentagon Papers, you at least had to come up with a&nbsp;plan — in this case,&nbsp;<a href="https://www.sfgate.com/news/article/Nixon-personally-ordered-break-in-3112881.php" target="_blank">firebombing</a>&nbsp;the think‐​tank as a&nbsp;distraction from the burglary — even if you never carried it out.</p> <p>Moreover, Nixon had enough sense to know that the “smoking gun” tape — which revealed that the president scheming to get the CIA to quash the Watergate investigation — was damning, and to sit on it&nbsp;<a href="https://www.politico.com/story/2018/08/05/watergate-smoking-gun-tape-released-aug-5-1974-753086" target="_blank">until the very end</a>. Trump, on the other hand, was apparently convinced that the&nbsp;<a href="https://www.foxnews.com/politics/trumps-ukraine-call-transcript-read-the-document" target="_blank">July 25 call readout</a>, where he asks President Zelensky to “look into” the Bidens, would exonerate him.</p> <p>And let’s not get carried away praising the Nixon crew’s steely‐​eyed competence. These “were not very bright guys, and things got out of hand,” as Hal Holbrook’s “Deep Throat” put it in&nbsp;<em>All the President’s Men</em>. Nixon, too, surrounded himself with screw‐​ups and repeatedly found his plans frustrated by bureaucratic intransigence. The “Plumbers” were anything but a&nbsp;model of competent tradecraft. The Nixon team had to set up the unit in the first place because the official state security agencies — the “deep state,” if you like — were reluctant to carry out black bag jobs for presidents.</p> <p>Yet repeated inability to consummate high crimes didn’t save Nixon from being forced out under threat of impeachment. The&nbsp;<a href="https://watergate.info/impeachment/articles-of-impeachment" target="_blank">second article of impeachment</a>&nbsp;against him, passed by the House Judiciary Committee in July 1974, focuses on abuse of power, including his attempts to misuse the CIA and turn the IRS against his political rivals. But Nixon never managed to get the CIA to stop the Watergate investigation, and the administration’s effort to&nbsp;<a href="https://en.wikipedia.org/wiki/Nixon%27s_Enemies_List#/media/File:Dean-enemies-1.jpg" target="_blank">“screw our political enemies”</a>&nbsp;with IRS audits was a&nbsp;total failure. IRS commissioner Johnnie Walters&nbsp;<a href="https://www.usatoday.com/story/news/nation/2013/05/26/irs-chief-defied-nixon/2360951/" target="_blank">flatly refused</a>&nbsp;to carry out the scheme. Even so, attempting to corrupt the IRS was the first charge listed in Nixon’s second article of impeachment.</p> <p>Impeachment’s purpose, constitutional scholar Greg Weiner&nbsp;<a href="https://www.nytimes.com/2017/05/18/opinion/impeachment-trump-constitution.html" target="_blank">explains</a>, is “prophylactic,” not punitive: to protect the body politic from officials whose conduct presents an unacceptable risk. Nowhere&nbsp;<a href="http://press-pubs.uchicago.edu/founders/tocs/a1_2_5.html" target="_blank">is it written</a>&nbsp;that you have to wait until the abuse is actually completed and the damage has been done.</p> </div> Fri, 25 Oct 2019 08:44:56 -0400 Gene Healy https://www.cato.org/publications/commentary/no-trump-isnt-too-stupid-be-impeached Gene Healy discusses the impeachment process on the The National Constitution Center’s We the People Podcast https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-process-national-constitution Thu, 24 Oct 2019 10:06:41 -0400 Gene Healy https://www.cato.org/multimedia/media-highlights-radio/gene-healy-discusses-impeachment-process-national-constitution Gene Healy discusses President Trump’s Republican defense in the Senate on Sinclair Broadcast Group https://www.cato.org/multimedia/media-highlights-tv/gene-healy-discusses-president-trumps-republican-defense-senate Mon, 21 Oct 2019 10:36:20 -0400 Gene Healy https://www.cato.org/multimedia/media-highlights-tv/gene-healy-discusses-president-trumps-republican-defense-senate