This 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.
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