I have previously written about the endless calls for impeachment from Democratic members for everything from Trump criticizing NFL players to comments made about protesters to his reference to “shithole countries.” The Framers saw the great abuses caused not only by tyranny of nobility, but tyranny of the majority. They sought to insulate our government from the transient impulses of politics. The danger has been repeatedly shown by members who see virtually any act or comment by Donald Trump as a case for impeachment. It is a trend toward what I have called “the no-confidence impeachment” option and it is not only an abuse of our constitutional standard but a dangerous trend for this country. The latest grounds for impeachment was stated by former Breitbart spokesperson Kurt Bardella who was also spokesperson for Rep. Darrell Issa, Rep. Brian Bilbray and Senator Olympia Snowe. It appears that the failure to take additional actions or “accept” the fact of Russian interference is now grounds for impeachment and removal from office. His article appears in USA Today entitled President Trump’s Russia Denialism Is Grounds For Impeachment. (For full disclosure, I also write for USA Today).
Bardella writes in USA Today that, despite the agreement of his own intelligence officials, Trump has remained “skeptical.” He added:
“Trump’s refusal to accept the consensus of his own national security team seems to be the definition of “adhering to” our “Enemies, giving them Aid and Comfort.” His state of denial of emboldens America’s enemies to continue their attacks against our democratic process, and makes him a willing accomplice in their efforts to undermine our republic.”
The White House has repeatedly objected to the claim that Trump has called the Russian interference a “hoax” as opposed to the allegation of collusion with his campaign — most recently yesterday. There is no question that Trump has muddled the message and could be stronger in his condemnation. However, the notion that a president can be impeached for his policies judgments on what to say and do about a threat is a highly destabilizing notion. Trump supporters long criticized President Obama for not doing enough about Russia including the interference with our elections that began in 2014. Should he have been impeached?
Bardella asks “What is the point of having a free republic, if the president turns a blind eye to outside interference from a foreign power?” The answer is that the free republic allows us to choose our president, not dictate what choices he will make. That is the core element to a representative democracy as opposed to a pure democracy.
The concept of discretion runs deeply in our laws. Under the Federal Tort Claims Act (FTCA), officials have qualified immunity for discretionary acts. The discretionary function exception in 28 U.S.C. § 2680(a) allows public officials to make negligent decisions by commission or omission like Janet Reno’s disastrous decision to attack the Waco Compound in the Davidian tragedy.
Likewise, courts regularly refuse to intervene on policy decisions and would never entertain a challenge to force a president “to do more” on an issue of foreign relations.
To use impeachment as such a vehicle would render the constitution incomprehensible but it is a sign of the distemper that has taken over our discourse. I respect Bardella’s concerns for this country and his objections to Trump’s approach. Indeed, I may share some of those concerns but this is a question for the political not constitutional process.