During the Trump Administration, we regularly discussed Democratic members and writers calling for the impeachment of Trump for everything from criticizing NFL kneelers to obnoxious tweets. Not to be outdone, many Republicans have been demanding the impeachment of Joe Biden for an array of missteps or controversies. Most recently, Rep. Majorie Taylor Greene called for the impeachment of Biden for the disastrous withdrawal from Afghanistan. (This is the second such motion for Greene). It is the same misuse of impeachment as a type of “no confidence vote.” The failure to properly plan and execute the withdrawal from Afghanistan has been an appalling failure by the Biden Administration. However, negligence is not an impeachable offense. Indeed, the lowering of the standard to cover such negligence would create great instability and dysfunction in our constitutional system.
Before addressing the constitutional question, it is important to note that Rep. Greene also referred to President Biden as a “piece of s**t.” Regardless of how one feels about Biden, it should be deeply offensive to all Americans to have an elected official use such language toward our President. During the Trump Administration, I made the same objection to vulgar attacks on him and his cabinet and staff. In our age of rage, there is a sense of impunity or license for adults to act in ways that we have long barred in our children from name calling to profane attacks. Even law professors have succumbed to this low-grade form of debate. Figures like Harvard Professor Laurence Tribe now regularly engage in profane and personal attacks when they disagree on political or legal issues. We can have passionate debates without resorting to such juvenile and offensive attacks.
Greene announced that “I have my team right now working on articles of impeachment. Because I’m so disgusted with Joe Biden. You know I’ve already filed one set of articles of impeachment. But his failure as a president is unspeakable.”
Many presidents have been viewed as “failures” by critics but that it not what impeachment is designed to address.
Parliamentary systems, like Great Britain’s, allow for “no confidence” motions to remove prime ministers. Parliament can pass a resolution stating “That this House has no confidence in Her Majesty’s Government.” But that’s not our system, and it’s doubtful that the members of Congress calling for Trump’s impeachment would relish a parliamentary approach: When such a vote succeeds, the prime minister isn’t necessarily the only politician to go. If the existing members of parliament can’t form a new government in 14 days, the entire legislative body is dissolved pending a general election.
The Framers were certainly familiar with votes of no confidence, but despite their general aim to limit the authority of the presidency, they opted for a different course. They saw a danger in presidents being impeached due to shifts in political support and insulated presidents from removal by limiting the basis for impeachment and demanding a high vote threshold for removal. There would be no impulse-buy removals under the Constitution. Instead, the House of Representatives would have to impeach and the Senate convict (by two-thirds vote) based on “Treason, Bribery, or other high Crimes or Misdemeanors.”
When we make someone president, we give them tremendous power and tremendous discretion in wielding that power. Such discretionary judgments are protected for even low level federal officials. The Federal Tort Claims Act (FTCA) contains a major exception called the the discretionary function exception to protect officials from lawsuits for poor judgments. If a president uses poor judgment, you can refuse a second term or use the checks and balances of the system to counteract his mistakes.
Past presidents have made breathtaking mistakes from the Bay of Pigs to wars like Libya, Iraq and Afghanistan. However, those judgments have not been deemed high crimes and misdemeanors. Otherwise, you create the basis for the impeachment of virtually any president.
Like many, I cannot imagine how the United States could mess up this withdrawal in such a spectacular and gut-wrenching manner. We had long ago announced our withdrawal and had many months to carry out an orderly withdrawal. While the Biden Administration insisted that no one foresaw the collapse of the government in such a short time, that is simply untrue. Even if it were not true, good policymakers do not rely on such assumptions when you are dealing with the lives of tens of thousands of citizens and allies.
Controversies like the Afghan withdrawal only become matters like impeachment when impeachable acts are committed to carry out the policies or to conceal aspects of the resulting scandal. It is often not the scandal but the response to the scandal that gets powerful people in trouble in Washington. While not required to be actual crimes, Congress has often looked to the criminal code to weigh such transgressions. We have no evidence that such offense have occurred here.
What I said in 2017 in the face of Democratic calls for impeachment is still true today:
“History has already answered this call for impulse-buy impeachments. 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. Otherwise, impeachment becomes little more than grabbing any opportunistic excuse for impeachment like so many “straws” in the political wind.”