No, The Disaster in Afghanistan is Not an Impeachable Offense

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.”

79 thoughts on “No, The Disaster in Afghanistan is Not an Impeachable Offense”

  1. The external threats facing America are themselves aimed at creating “great instability and dysfunction in our constitutional system”.

    Because of this, there is much less room for incompetence, poor judgment, lassitude, escapism or self-delusion in our Commander-in-Chief.

    JT, you’ve argued previously that Impeachment is a political indictment with legalistic overtones. A time could come where Impeachment is the only thing that stands between survival of our system and disintegration/foreign domination. That juncture might involve nothing more that the uncovering of secrets that indicate the President has been betraying the nation. It could be the betrayal is the result of being duped by a clever misinformation campaign, or a President just refusing to face ugly realities.

    The 4-year Presidential term is most at risk during an external threat which is not being effectively met with Presidential leadership.

    That said, I don’t speak of Impeachment as a vote-o-no-confidence during times of peace and foreign tranquility. I speak of it as a way to force a leadership change in real-time when the danger to the nation of running out the 4-year-term is judged an unacceptable risk to the national security. Call it a “National Security Impeachment”.

    1. so are you for impeaching the senile toad installed as potus , are you down with his sickness ?.

  2. “I served in Afghanistan as a US Marine, twice. Here’s the truth in two sentences”



    What we are seeing in Afghanistan right now shouldn’t shock you. It only seems that way because our institutions are steeped in systematic dishonesty. It doesn’t require a dissertation to explain what you’re seeing. Just two sentences.

    One: For 20 years, politicians, elites and D.C. military leaders lied to us about Afghanistan.

    Two: What happened last week was inevitable, and anyone saying differently is still lying to you.

    -Lucas Kunce

    1. Lied to us about what? That we have had 20 years of inactivity from the Taliban and Al-Quade? That we have maintained security in Afghanistan with very few casualties in recent years? Forget about developing Afghanistan for a minute. Maintaining a presence in Afghanistan has been good for our own security. Why is Afghanistan different from all the other 170 something countries we maintain 200,000 troops in, year after year. Some of those decades before we entered Afghanistan. Is it the troop loses that concern people so? We have hundreds of troops killed in foreign countries ever year in non-combat related incidents. Are those any less than the troops killed in Afghanistan?
      What happened was inevitable? That is an absolute crock of crap. There was no reason to press a deadline. We could have easily maintained control of the country, evacuated civilians, nationalist, and the damn dogs. Pulling troops first was a blunder a ten year old would not have made. We could have taken all the time we needed. Destroyed equipment and then, only then, pull the troops out. Leaders tried to tell the politicians this. It was ignored. What happened last week was a total failure on the part of the politicians. The people on the ground still did a great job, but they always do. The lack of planning borders on criminal. To say this was inevitable is a lie designed to try and cover for the failure of politicians. No, it did not have to happen the way it did.

  3. Turley claims: “The failure to properly plan and execute the withdrawal from Afghanistan has been an appalling failure by the Biden Administration.” Explain how the evacuation problems are entirely the failure of the Biden Administration, if you can.

    Turley, where are your facts? What would “proper planning and execution” look like, what information would go into these decisions and what do you know about the quality of the information Biden was provided? What is the disconnect between the facts Biden was given that formed the basis for his decision-making and what actually happened? Did he know or should he have known that the Afghan army would be demoralized after Trump entered into an agreement with the Taliban binding them without even including them in discussions? To what extent did Trump’s agreement to release 5,000 Taliban prisoners figure into the withdrawal plan, or Trump’s decision to draw down our military from 14,000 to 2,500 before evacuation play into what has unfolded? Or, as usual, are you merely echoing the Fox News talking points as you are paid to do? Things didn’t go well at first, so it’s all Biden’s fault because of his alleged “appalling failure”–but you don’t identify what the “failures” were and how or why Biden specifically failed to do something he should have done. As a law professor, you do know better than to put out such outrageous statements without any factual support.

    As to Greene, she embarrasses the State of Georgia every single day and every time she opens her mouth. After declaring that school shootings were hoaxes contrived to deprive Americans of their Second Amendment rights, she was filmed chasing a school shooting survivor down the street, yelling at him. She went to AOC’s office in the Capitol, and was yelling at the door, telling AOC to change her diaper and come out and argue with her, and then, opened the mail slot to yell into the office because the door was locked. She claimed that the California wild fires were not due to climate change, but from Jewish space lasers. She is not well mentally and makes the State of Georgia look like a bunch of unhinged Q-Anon conspiracy theorists.

    1. Turley claims? How about, NYTimes, USAToday, NPR, CNN, Allied Leaders, Retired Generals. Actually. it is the opion of pretty much everybody that this was a pathetic failure.
      “Explain how the evacuation problems are entirely the failure of the Biden Administration, if you can.” Who would you blame? He is the Commander in Chief. He had the power to make this look like anything he wanted and this is what he chose. Biden pulled 2000 troops out of Afghanistan prior to the evacuation of civilians. Then he sent 6000 troops back into Afghanistan. Biden had no obligation to meet any deadlines. He was under no obligation to uphold Trumps agreement. Biden undid pretty much everything Trump did in his first three days in office. Why would he feel compelled to maintain this agreement. Considering the fact that the Taliban had already reneged on the deal. The troops should have stayed. Leaders told him this. More troops could have secured the country sooner. This was a no brainer. Civilians, nationals, destroy equipment, pull the troops…in that order. Not pull the troops first. It was plain stupidity. Every one saw the disaster building. Well, everyone except Biden and his bunch. And how pathetic to try and blame Trump for this miserable failure.

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