ON THE 40TH ANNIVERSARY OF NIXON’S RESIGNATION: 5 MYTHS ABOUT IMPEACHMENT

220px-Richard_NixonPresident_Barack_ObamaThis month, Washington seems caught in some strange time loop. The President allegedly fighting off an attempt to remove him while Members of Congress are denouncing his “Imperial Presidency” and contempt for constitutional law. It must be enough to give Bob Woodword and Carl Bernstein vertigo.
As one of the legal experts who testified during the Clinton Impeachment and lead defense counsel in the last judicial impeachment trial in the Senate, I have been struck by the replication of a number of misconceptions surrounding impeachment. That led to Sunday’s column on certain myths regarding impeachment. According to a CNN/ORC poll last week, some 33 percent of Americans think the president should be impeached. Over a majority now disapprove of his conduct in office according to other polls. However, that is not enough for impeachment. As many of you know, I am highly troubled about the actions taken by President Obama in violation of the Separation of Powers. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach. Some like the violations of the power of the purse in the shifting of hundreds of millions of dollars raise extremely serious challenges to our system. However, I do not believe that these violations have yet reached the point of impeachable offenses. Ideally, a federal court will review some of these violations and show that the system can work in the maintenance of the lines of separation though the Administration is clearly going to fight hard to block any review of the merits by any federal court. That is where such matters should, in my view, be heard and resolved. In the meantime, the President’s threat to continue to act unilaterally is playing a dangerous game of chicken in our system and, if he goes too far in an act defying clear congressional or judicial authority, he could cross over from interpretive disagreements into impeachable offenses. Yet, the current array of conflicts have divided lower judges on the merits. Such interpretive disagreements are not the thing that impeachments are made off. Having said that, one should not take the lack of impeachable offenses to take away from what some of us view as very serious violations by this President — a usurpation of authority that all citizens should denounce in the interests of our constitutional system.

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Some 40 years after Richard Nixon resigned to avoid his likely impeachment by the House of Representatives, Washington is again talking impeachment. Members of Congress are denouncing the president’s contempt for constitutional law, while the president is raising money to fight the effort to remove him. But this time, the money pouring in would be just as well spent on defense against Bigfoot. Much of the debate has been more mythological than constitutional.

1. An impeachable offense is anything Congress says it is.

People pushing for President Obama’s impeachment have cited rationales ranging from the border crisis to Benghazi to Obamacare to the dismantling of “our constitutional republic, our national security, our electoral system, our economic strength, our rights and liberties.” In other words, anything goes. This echoes the characterization by Gerald Ford, who as House minority leader in 1970 made the ill-considered statement that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” (This interpretation was, not surprisingly, part of a frivolous effort to impeach Supreme Court Justice William O. Douglas, whom Ford denounced for espousing “liberal opinions,” for defending the “filthy” Swedish film “I Am Curious (Yellow)” and for writing a magazine article that “praises the lusty, lurid, and risque along with the social protest of left-wing folk singers.”)

But Congress’s exclusive power to impeach does not license it to abuse that power, any more than the Supreme Court’s final say on laws gives it license to deliver arbitrary rulings. The framers carefully defined the grounds for impeachment as “treason, bribery, or other high crimes and misdemeanors” — language with British legal precedent. They clearly did not want removal of the president subject to congressional whim. Indeed, they rejected the addition of “maladministration” after James Madison cautioned that “so vague a term will be equivalent to a tenure during pleasure of the Senate.”

It is the standard that justifies the power, not the inverse, as Ford saw it. The fact that only two presidents have been impeached, and none have been removed, suggests that most members of Congress take the impeachment standard seriously.

2. An impeachable offense must involve a violation of criminal law.

While there’s a high bar for what constitutes grounds for impeachment, an offense does not have to be indictable. Serious misconduct or a violation of public trust is enough. Madison saw impeachment as “defending the community against the incapacity, negligence or perfidy of the chief magistrate.” And the founders emphasized that impeachments were about what happened in the political arena: involving “political crimes and misdemeanors” and resulting in “political punishments.”

So consider the $454 million Obama shifted out of the Affordable Care Act’s Prevention and Public Health Fund. He wouldn’t have to pocket that money to warrant impeachment. But he’d have to do more than he did: redirect it to another purpose without congressional approval and offer a faulty interpretation of the act. If the president were to openly defy clear federal authority and order unlawful acts, he would move from the realm of using arguable discretion to that of being a danger to the system as a whole.

3. History establishes a clear precedent for impeachable conduct.

Regrettably, this is also untrue. Bill Clinton was impeached primarily for criminal conduct: lying under oath and misleading a federal grand jury about his affair with Monica Lewinsky. Nixon would have been impeached for a wide array of criminal acts, as well as abuses of power.

President Andrew Johnson’s impeachment in 1868 may be the most relevant to the current controversy. Like Obama, Johnson was accused of unconstitutional executive appointments, misuse of federal funds and violating federal law. Most significantly, he replaced Secretary of War Edwin M. Stanton in open defiance of the Tenure of Office Act — a law passed over his veto and later found unconstitutional by the Supreme Court. The feeble merits of his impeachment were captured best in the 10th article, charging Johnson with delivering three speeches that disrespected Congress.

4. Impeaching a president is like recalling a governor.

Many people discuss impeachment as a way to express dissatisfaction or as a mechanism allowing for a change in leadership. “Impeachment is no more or less than the recall of an elected official who isn’t up to the job,” conservative columnists Floyd and Mary Beth Brown wrote. “Obama deserves recall much more than Gov. Gray Davis, and he was replaced by Gov. Arnold Schwarzenegger in a special recall election Oct. 7, 2003, in California.”

In Britain and other parliamentary systems, the legislature can end the term of a head of government early with a no-confidence vote, showing that he or she has lost the support of the country. But the United States rejected that approach in favor of greater stability and the predictability of a four-year presidential term.

It doesn’t matter that polls show more than 50 percent of Americans disapprove of the job Obama is doing. Unpopularity is not an impeachable offense. And impeachment was not designed as relief for voter remorse.

5. Obama is in danger of impeachment.

House Republicans on Wednesday voted to sue Obama for exceeding his constitutional authority when implementing the Affordable Care Act. The idea that the lawsuit is a prelude to impeachment, however, is primarily coming from the White House and its allies as they try to rally the Democratic base ahead of the midterms. House Speaker John Boehner has done everything short of hiring blimps to say that there will be no impeachment.

Obama is as likely to be impeached as he is to be installed as the next pontiff. And I say that as someone who has testified in Congress that this president has violated federal laws, unconstitutionally appointed various executive-branch officers and improperly transferred money. Nevertheless, many of these disputes have divided judges on the merits. Presidents are allowed to challenge Congress in such conflicts without being subject to impeachment. Where they cross the line is when they ignore final judicial rulings in acts of contempt of both courts and Congress. Obama has not done that.

There are, however, serious questions raised by the president’s pledge to go it alone in areas ranging from health care to immigration. And there is a real crisis in how our system is changing with the rise of the uber-presidency. That’s the threat that deserves attention and debate. We can leave this Bigfoot sighting in the constitutional wilderness.

Jonathan Turley, the Shapiro professor of public interest law at George Washington University, has testified in Congress about impeachment and served as lead defense counsel for Judge Thomas Porteous in his Senate impeachment trial.

Washington Post (Sunday) August 3, 2014

60 thoughts on “ON THE 40TH ANNIVERSARY OF NIXON’S RESIGNATION: 5 MYTHS ABOUT IMPEACHMENT

  1. The call for impeachment has been used a lot both when Bush was president and under Obama. It seems people have a hard time distinguishing between not liking the president and what is an impeachable offense

  2. […] In fairness to McCrum, one could foresee such an effort that was based on trumped up charges or no charges at all. If a governor were to announce that an official from an opposing party would have to resign or face defunding of the office, it would present a far more serious issue. From McCrum’s perspective, the difference between that circumstance and the current controversy is dangerously subjective. Perry gave an official a ultimatum: resign or face defunding. Once again, however, that sounds like an impeachment rather than an indictment question. The Constitution gives the Governor the right to strike out an appropriations item and the right of the legislature to overcome that veto. What if a governor objected to an office being used to investigate and prosecute particularly areas of business or society? So long as governors are not engaging in obstruction of justice or seeking to influence a particular case, there is clearly authority to seek defunding of state programs or offices through the budget process. This was not an executive order but an executive veto that is part of the legislative and appropriations process. (Even with what I consider to be executive orders that violate the U.S. Constitution, I still do not believe that they have risen to the point to warrant impeachment) […]

  3. “”Squeeky Fromm, Girl Reporter

    @john

    That two citizen parent stuff is invented quack law. If you are relying on Minor Happersett (1875) then you have misread the decision.””

    *******************************************************************************************
    As I said earlier, the subject was “precedent” related to impeachment and precedent is abundantly clear, but you deliberately ignore it, in that ALL PREVIOUS PRESIDENTS had two citizen-parents. Did you miss the PRECEDENT therein?

    I’m sorry you don’t like the facts as you attempt to reconfigure them to fit your agenda. I’m very interested to hear of your declaration of quackery.

    If you research at all, you’ll see that the Law of Nations was the legal text of the era as Franklin said it was “pounced on” and it was constantly in use during the drafting of the Constitution.

    Try some of these facts of which there are infinitely more:

    “Given the profound differences between the citizenship rules associated with the English common law and those connected with American national citizenship, it is evident that the Founders did not use English common law to define what an Article II “natural born Citizen” is but rather used the law of nations for that purpose which became incorporated into and became federal common law. George Mason, the “Father of the Bill of Rights” and one of the “Founding Fathers” of the United States, proclaimed: “The common law of England is not the common law of these states.” ( Debate in Virginia Ratifying Convention, 19 June 1788). To the extent that the English common law was relied upon in the colonies and States, that law was at the time that the Constitution was adopted “to a greater or less extent, recognized as the law of the States by which the Constitution was adopted.” The English common law would, however, be applied to determine questions of citizenship only if the written law was silent, i.e., there was no statute or federal or state court decision on the subject. Ludlam, Excutrix, & c., v. Ludlam, 26 N.Y. 356 (1863). But the Founders did not rely upon the English common law to define the new national United States citizenship that they created for the new Constitutional Republic. Rather, the Founders replaced the English common law with the law of nations which became the new U.S. federal common law and the law of the federal government.

    Upon independence from Great Britain, the United States “were bound to receive the law of nations, in its modern state of purity and refinement. Ware v. Hylton, 3 Dall. 199. 199, 281 (1796). In The Nereide, Justice Marshall stated that the “Court is bound by the law of nations, which is part of the law of the land.” 13 U.S. 388, 423 (1815). “The courts have always considered the law of nations to be part of the law of the United States.” M. J. Glennon, Constitutional Diplomacy (Princeton, NJ: Princeton University Press 1990), at 245. There are numerous other authorities that state that the law of nations became the national law of the United States. Even William Blackstone recognized the importance of the law of nations which he considered “universal law” and the life blood of a nation wanting to be part of the “civilized world.” 4 W. Blackstone, Commentaries on the Laws of England 67 (1769). Hence, the law of nations, when not codified into any Act of Congress, became the common law of the United States.

    The Framers did not define an Article II “natural born Citizen” because they did not see a reason to. It was a term that was well defined by the law of nations and well-know by civilized nations. Given that citizenship affects “the behavior of nation states with each other” (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), all civilized nations knew what the definition of citizenship was.”

    P.S. George Mason also declared the opportunity of the drafting of the Constitution an opportunity, not to be lost, to change the legal structure and make improvements as he declared that English law was not American law.

    YOU CAN LEAD A HORSE TO WATER BUT YOU CAN’T MAKE HIM DRINK.

  4. JT, Allowing CIA to spy on senate is not an impeachable offense but lying about Sex in personal life is?

  5. Travel L.,

    I hear you and understand why you say that the USA is turning into a NAZI like Weimar Republic….. I read that there are over 17k different LE Agency’s in the US. That does not cover covert opts. Scary if you really think about it….

  6. Dredd, I would have to disagree on Pat Buchanan’s racism. From what I have read, he identifies real problems unique to race and culture, and they need to be discussed before they can be improved. I don’t count mandates as improving anything.
    OK Limey… I wouldn’t go quite that far… yet. We don’t have our act together enough to be systemically evil. But, being an unqualified bonehead like Mussolini isn’t that much better. You got to love a foreign policy that sends in covert operations to pick a war with a poor country that still has over 5,000 nuclear weapons.
    Hey, there’s a guy down the road with a nice Mossberg 12gauge pump action. I think I’ll go down to his house and kick him in the nerds, take his twinkies and gasoline, then triumphantly come home. Plus, I am sure it will go exactly as planned (maybe I shouldn’t put this here, I might get a job offer from the State Department).

  7. America is now the Nazi Germany of 100 years ago, but, instead of one raving psychotic as in WWII, we have a calculating psychotic, cleverly elected every four years. Of course these guys obey bigger and more hidden calculating psychotics as part of the Illuminati, and many countries adhere to the same pecking order. The answer is simple: Support America, its people and the people of Earth, not the evil Illuminati. DO NOT SUPPORT THE TROOPS! (they blindly follow the bidding of the Illuminati AGAINST the people) DO NOT SUPPORT THE DEMOCRATS & DO NOT SUPPORT THE REPUBLICANS. Got it?!

  8. “”Squeeky Fromm, Girl Reporter

    @john

    That two citizen parent stuff is invented quack law. If you are relying on Minor Happersett (1875) then you have misread the decision.

    Squeeky Fromm
    Girl Reporter””

    I referred to the PRECEDENT set by every previous President, save one who defrauded, of having two citizen-parents.

    For your edification, the Framers “pounced on” the Law of Nations which requires “parents” as they rejected English law ( and increased the semantic requirement from “citizen” to “natural born citizen,” the highest requirement for the highest office, immediately prior to ratification, to preclude foreign allegiances, precisely which is the case currently with the President being the son of a foreign citizen. George Mason said that the common law of England was not the common law of these United States and that the Constitution was as opportunity to forge new legal ground as the Law of Nations was heavily relied on.

    I’m sorry but the requirement is two citizen-parents and all previous Presidents followed that rule. Precedent.

  9. http://talkingpointsmemo.com/livewire/walter-jones-impeach-obama

    Rep. Walter Jones (R-NC) said in a radio interview Monday that the House needs to stop wasting time and money on suing the President and get straight to impeachment.

    In the interview with the “Talk of the Town” radio show on Greenville, N.C. radio station WTIB, which was flagged by BuzzFeed, Jones blasted the vote his colleagues took last week to sue Obama, saying he was “one of the five” Republicans to vote against it. He said it would cost taxpayers too much money.

    “My problem with what my party is trying to do to sue is it will cost the taxpayers between two and three million dollars,” Jones said. “Use the Constitution, that’s what it is there for.”

    Jones said impeachment was designed to get a President’s attention when he or she surpassed their executive authority.

    “Thank Alexander Hamilton. He felt that the Congress needed to use this process to get the attention of a President. And if the President had lost the public trust then move forward in that area,” he said.

    Jones said something similar last week in an interview with The Hill.

    “Why not impeach instead of wasting $1 million to $2 million of the taxpayers’ money?” Jones said at the time. “If you’re serious about this, use what the founders of the Constitution gave us.” “

  10. Gigi: Conflate much or just constantly? I’m surprised you didn’t try and blame climate change, male pattern baldness, and the heartbreak of psoriasis on Obama.

    Let’s just start with the loss of jobs, responsibility for which due to the tax breaks corporations receive for offshoring American jobs. That was a Republican policy.

    The loss of decent paying jobs led to decreased earning power for American workers; the Bubble Economy was created by Republican policy makers who stuffed the marketplace with easy credit; turned all that bad paper into a commodity; and then pulled the pin and put the tax payers on the hook for the entire mess.

    And then there’s the rewards that CEO’s receive for laying off workers. Blaming this on Obama is only slightly better than blaming the people, which is what Gubernatorial candidate Tom Foley of Connecticut did recently.

    http://www.dailykos.com/story/2014/07/31/1317833/-Connecticut-gubernatorial-candidate-to-factory-workers-It-s-your-fault-this-factory-is-closing?detail=email#

  11. Slightly off topic but – I enjoyed listening to Professor Turley on today’s Diane Rehm show about Executive Orders. The guests mentioned the gerrymandering that divides districts into red or blue regardless of geography or community as a real problem that keeps us from getting our political system functioning better. I’d love to see the Professor address this issue of gerrymandering. I apologize if I missed it as I’m new to this site.

  12. Bill,

    Right you are and if you’ll look at some if the reports scheduled to be released while Nixon was VP they will blow your ideal of what he was doing behind the scene…. To think that lbj was the lesser if the evils he feared, he soon learned…

  13. @gigi , I wonder if Mr Turley thinks Clinton and Nixon deserved Impeachment?

  14. Over the last 6 years, we have watched our country dwindle in power and jobs. We have witnessed “President Strangelove” deceive, lie, con, and put on false fronts with the American people. We have witnessed unkept promises and increases in poverty. We have witnessed bias and destruction of records in the IRS and citizen spying in the NSA. We have seen a torrent of illegal immigrants flood our borders, yet no closing of borders or reform. We have seen little done in the way of sanctions and or diplomacy with central America, Russia, and others. We have witnessed his inability to make sound decisions. We have watched as Iraq falls quickly to the enemy with little being done to stop it.
    We have seen him destroy our chances of being energy independent as he closes mines, sells off some to foreign interest and keeps oil drilling to a minimum in our own country. We have become the laughing stock of our allies and have lost our credibility. We have seen him rush through his Democratic congress the ACA, without scrutiny or concern. We have seen money shifted from one program to another without congressional debate and approval. We have seen him give away the candy store to troubled companies, because he favored certain unions. We have seen him disregard the Constitution and “do it his way.” And it continues on and on.
    These offenses have put America in a perilous position on the world stage, and yet some say he hasn’t committed any impeachable offenses. Well then, lets “Recall” this president.

  15. bill Mcw: I don’t believe the CIA had anything to do with JFK’s murder and Nixon was in no way, shape, or form a “liberal”, unless it came to drinking. He did, however, feel he had a duty to do what was right for the country. Perhaps it was a modicum of responsibility or his sense of history and how he would be perceived, but that doesn’t make him liberal.

  16. Despite breaking the laws, despite extrajudicial killings , despite obstructing the justice , JT does not think that it’s time to impeach . Incredible!

  17. 2007:

    “The secret authorization of brutal interrogations is an outrageous betrayal of our core values, and a grave danger to our security. We must do whatever it takes to track down and capture or kill terrorists, but torture is not a part of the answer – it is a fundamental part of the problem with this administration’s approach. Torture is how you create enemies, not how you defeat them. Torture is how you get bad information, not good intelligence. Torture is how you set back America’s standing in the world, not how you strengthen it. It’s time to tell the world that America rejects torture without exception or equivocation. It’s time to stop telling the American people one thing in public while doing something else in the shadows. No more secret authorization of methods like simulated drowning. When I am president America will once again be the country that stands up to these deplorable tactics. When I am president we won’t work in secret to avoid honoring our laws and Constitution, we will be straight with the American people and true to our values,” said Obama.

    With much exception and equivocation, the Obama Administration sets out to work in secret to avoid honoring our laws that require prosecution… something he clearly stated he wouldn’t do.

    When does it become obstruction of Justice?

  18. “on 1, August 5, 2014 at 1:17 am” in moderation/time out
    Someone please let John Kiriakou go free…

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