No, President Biden Should Not Be Impeached For Lax Border Security

Last night, Laura Ingraham asked Sen. Tom Cotton (R, Ark.) about the options in dealing with the influx of undocumented persons over the southern border. Sen. Cotton raised the possibility of impeachment. I have had this question raised with me on a number of occasions in the last year. I believe that President Joe Biden can be legitimately blamed for his handling of the crisis at the border but I do not believe that he could be legitimately impeached for those failures.

As a threshold matter, one should acknowledge that there have long been periods of crisis at the border. Other presidents have dealt with a border that has remained porous and fluid. However, I do believe that the Administration has lacked transparency and, frankly, honesty in dealing with the crisis. Biden’s own policies likely have contributed to this increase in illegal crossings.

When asked about the border on “The Ingraham Angle” on Tuesday Sen. Cotton said about impeachment:

No Laura, I don’t think it’s out of the realm of possibility because of all of the abuses of the Biden administration. I think what the Department of Homeland Security has done to undermine American sovereignty, to open up our borders to undercut wages and jobs for American workers is probably the most egregious…and they’re open about it. [DHS] Secretary Alejandro Mayorkas has said it in speeches…that being illegally present in the country is no longer even a priority for deportation. They admit these things publicly.

Clearly, nothing in a political sense is “out of the realm of possibility” in Congress. However, an impeachment on the border crisis would be, in my view, an abuse of the impeachment powers and a dangerous precedent for our constitutional system.

In fairness to Sen. Cotton, he only stated that there might be a basis for “investigation” on possible impeachment.  I would strongly discourage the use of impeachment as the basis for such an investigation. Congress has oversight responsibilities and powers that should be used to investigate the crisis and how the Administration has addressed it. While impeachment investigations are considered more robust, there are ample oversight powers to fully investigate the handling of the crisis.

Biden could clearly be impeached if he committed certain offenses in relation to the border. For example, if he committed the crime of perjury (like Clinton) or obstructed Congress, there would be a cognizable basis for impeachment. However, we have not seen evidence to support such an allegation.

The scope of the impeachment standard was a matter of passionate disagreement in both both the Clinton and Trump impeachments. I testified in both impeachments as a constitutional expert on the standard (here and here).

During the Constitutional Convention, George Mason wanted to include a broad scope for impeachable offenses, covering everything that could “subvert the Constitution.” He failed. The Framers rejected terms ranging from “corruption,” obtaining office by improper means, betraying one’s trust to a foreign power, “negligence,” “perfidy,” “peculation” and “oppression.” All these were rejected along with “maladministration” and kept off the Constitution’s list of impeachable offenses.

An impeachment over the border crisis would be based on a type of maladministration or negligence theory. The danger of such a broad, ill-defined standard is obvious. It would convert the impeachment clause into a type of vote of no confidence and allow the removal of a president whenever the opposing party gains enough votes in the two houses. That is why I previously disagreed with calls for impeachment over Afghanistan and other such debacles. It is also the reason the Framers rejected these broader standards.

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.

I believe that the Democrats did great harm to the impeachment process in the use of snap impeachments and poorly drafted articles against Trump. The Republicans should not follow the same casual approach to the constitutional standard or process.

172 thoughts on “No, President Biden Should Not Be Impeached For Lax Border Security”

  1. OT

    The name of Inspector General Michael Horowitz is added to the list of co-conspirators, as it was revealed to Special Counsel John “Will-He-Dudley-Do-Right” Durham that IG Horowitz withheld the fact that he has possessed TWO telephones of FBI General Counsel, James Baker, for years.

    “Why didn’t you tell us you had the murder weapon? Well, you didn’t ask… and so it goes.”

    – The Conservative Treehouse

    “#Durham filing reveals his team learned for first time, this month, the Office of the Inspector General had TWO cellphones for former FBI General Counsel who is central witness in Sussmann case, “the Government has been working diligently to review their contents.””

    – Catherine Herridge

    The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious crime in American political history.

    The co-conspirators are:

    Kevin Clinesmith, Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann,

    James Comey, Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic,Sally Yates,

    James Baker, Bruce Ohr, Nellie Ohr, Priestap, Kortan, Campbell, Sir Richard Dearlove,

    Christopher Steele, Simpson, Joseph Mifsud, Alexander Downer, Stefan “The Walrus” Halper,

    Azra Turk, Kerry, Hillary, Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power,

    Lynch, Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,

    Joe Biden, James E. Boasberg, Emmet Sullivan, Gen. Milley, George Soros, John McCain,

    Marc Elias, Igor Danchenko, Fiona Hill, Charles H. Dolan, Jake Sullivan, Strobe Talbot,

    Cody Shear, Victoria Nuland, Ray “Red Hat” Epps, Tim “Baked Alaska” Gionet, Don Berlin,

    Michael Horowitz, et al.

  2. Professor, please stop with the law school mumbo jumbo. Joe Biden, among others, failed to faithfully execute the immigration laws of the US. That alone is reason for impeachment. People who engage in the breaking of the law should be punished and if done with others should be charged with conspiracy.

  3. Impeachment is anything a majority in Congress says it is.

    Causing the invasion of America through dereliction of duty and by criminal, illegal foreign forces, and diluting America out of existence is most certainly deleterious, treasonous, and a crime of high office.

    As a corollary, it is election fraud and vote tampering as immediately subsequent to illegal immigration comes unconstitutional, anti-American amnesty.

    This criminal conspiracy is designed to create “democrat” voters, steal elections and “fundamentally transform the United States of America”.

  4. Would any man tell his children to let all strangers in the front door?

    Would any man take the front door off of his house?

    Should the corrupt, anti-American communist (liberal, progressive, socialist, democrat, RINO) in the White House be impeached, convicted, and drawn and quartered for treason?

    These are simple questions that all actual Americans know the answer to, and need no counsel for.

  5. Say it ain’t so, Joe. Was the original Pee Pee tape subject Hunter Biden and not Donald Trump? Great article.

    Given the amount of genuinely compromising material tying Joe Biden and his son to shady dealings involving Ukraine and Russia, including a $3.5 million payment Hunter received from the widow of the former mayor of Moscow in 2014, it’s worth asking if the 46th president of the United States was the initial target of the Hillary Clinton-funded Russia dossier? In fact, allegations about the Bidens’ activities in Ukraine, sourced in part, it seems, to the Clinton campaign, made their way into The New York Times in 2015, encouraging Biden to dispel second thoughts about reentering the 2016 race.

    The Steele dossier has long since been revealed as nothing but utter nonsense, but with the Bidens as a target rather than Trump, it’s at least easier to make sense of its contents, especially the notorious “pee tape.” Trump is a well-known germaphobe; it was always hard to imagine him agreeing to being micturated upon by hookers on a hotel bed in Moscow. Nor would Republican primary voters likely care about ladies of the night soiling a bed that Barack Obama once slept in. But Democrats would think it sacrilegious. And by his own admission, Hunter Biden seems to have spent plenty of nights in hotel rooms with prostitutes. If it seems hard to imagine Donald Trump walking into a hotel in Moscow and asking for the Obama suite, a scenario in which Hunter Biden demanded such lodgings doesn’t take much imagination at all.

  6. Professor Turley Writes:

    “I believe that the Democrats did great harm to the impeachment process in the use of snap impeachments and poorly drafted articles against Trump”.


    Anyone checking the news lately knows that Vladimir Putin is threatening to invade Ukraine. That’s the ‘same’ Ukraine whose military aid Trump was threatening to cut-off if it’s government didn’t parrot Russian lies.

    Anyone who thinks Trump didn’t deserve impeachment for that is a Putin sympathizer. And, thanks to Trump, there ‘are’ many Putin sympathizers amongst Trump supporters.

    In fact, Tucker Carlson has been saying Ukraine is “just a little country in far-off Eastern Europe that doesn’t matter much”. For the record Ukraine is Europe’s second largest country in area (after Russia) and Ukraine’s population of 40 million ranks as one of Europe’s largest. So this idea that Ukraine ‘really doesn’t matter’ is strictly for idiots who listen to ‘only’ Tucker Carlson.

    1. I read that the OMB director disliked Trump and truth be told the money was set staid like Social Security. Perhaps this should be investigated.

    2. Your accusation against President Trump is purposely misleading. He did give the funds to the Ukraine in a timely manner. There was no threat or demand its government parrot anything. The fact that you ignore the myriad of proof there was never any collusion or quid pro quo among President Trump and Putin makes you typical, but not even a wee bit credible. If, you do want to know who committed a quid quo pro with the Ukraine after threatening to withhold US funds. Joe Biden, amused an audience with his tale of how he did just that, and everyone who heard if found it extremely amusing. Its on YouTube, should you want to see it. While, there watch his 10.24.2020 video bragging about the most extensive voter fraud organization in American history he was benefiting from like Obama did.

  7. What do you do when a chief executive promises to “faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States” and then permits an invasion of illegals across the Southern border? It’s like Priam granting permission to drag in the Trojan Horse knowing full well that there were lots of Greeks in there bearing “gifts.” As for Biden’s fate, I don’t think SCOTUS would let us beat Biden to death with his grandson’s body as Neoptolemus did the hapless King of Troy.

    1. This especially is a problem because we the citizens were not allowed in and out.

  8. The Democratic Party no longer exists. It’s become nothing more than an authoritarian fascist political movement.

    1. No More Left,

      You win today’s prize for the ‘Most Gratuitous Comment’. It’s nothing more than space filler (as though some activist is getting paid by the word to keep this forum Trump-friendly).

  9. Lin says:

    “Your constant reference to “carnival snake charmer” is also laughable, dating back eleven years to 2011? If the professor currently felt so negative about Trump, he could easily have declined to serve as witness to Trump’s defense before Congress-he certainly was not a compelled witness”

    Once a “carnival snake charmer” always a carnival snake charmer. Trump has done nothing to rehabilitate his moral character since. Turley repeatedly has called out his falsehoods and has condemned his name calling:

    “Trump often uses juvenile or insulting nicknames for those who oppose him, from “Sleepy Joe Biden” to “Crooked Hillary” to “Pencil Neck” Rep. Adam Schiff (D-Calif.).”

    Turley has called for Trump’s Congressional Censure for his conduct on 1/6! Trump has done nothing to elevate Turley’s low opinion of him. Quite the contrary.

    As for Turley testifying at the Impeachment hearings, he was NOT at all defending Trump’s deplorable conduct. He was there as a paid expert on the history of Impeachments. Indeed, he testified that Trump’s conduct would be impeachable IF his intent was proven by sufficient evidence.

    Look, I know it’s very disheartening for Trumpists to realize that Turley does not respect Trump. He took the measure of the man 11 years ago. You don’t call someone a “carnival snake charmer” lightly! That is an indictment of a person’s moral character that precludes any prospect of redemption!

    1. “Once a “carnival snake charmer” always a carnival snake charmer.”

      Once a libeler always a libeler.

      1. Trump has no cause of action against Turley. The statute of limitations has run. In addition, Turley’s statement is mere opinion, not a statement of fact. You would know that if you read Turley’s dissertations on defamation he regularly provides on this blog. You should pay more attention in class.

        1. “You should pay more attention in class.”

          You were the one sitting in the corner while everyone else was trying to learn.

          You are the libeler, not Turley.

          1. Email Turley to advise him to sue me for defamation. I’m sure he will refer you to one his articles about New York Times v. Sullivan. You really need to study the law.

            1. Why would Turley sue you for libel? Any time he wishes he could step on you like the cockroach you are.

                1. That’s S. Meyer posting anonymously. He frequently posts nasty insults, then has the temerity to claim “I am very civil and polite” while also hypocritically telling others to “Stop with the name calling.” Unfortunately, I don’t think that’s even the nastiest thing he’s said about you. Darren isn’t going to do anything. JT’s civility rule is only enforced in the most extreme cases.

                  1. I trust Darren will remove this despicable slur. If he doesn’t, that does not say much about his own civility. I was fortunate not to have been raised in such a low-class milieu.

                  2. Anonymous, stop trying to be Stupid. Jeff is not polite and neither are you. Stop complaining and blaming others. You can’t because you want to fight. You want to prove yourself a man. You are not doing a very good job at either.

  10. I could NOT disagree more. It goes beyond maladministration. He has intentionally weakened US border security during an era of international terrorism and a worldwide pandemic. In doing so, he has violated his constitutional oath of office to defend the United States. And he is even assisting in transporting illegal aliens into the interior, aka human smuggling. That is clearly impeachable.

    1. Craig, you are right. What will scare you badly is reading the breakdown of countries the illegal-crossers are coming from. It’s not just Mexico. People from Jordan, Syria, etc. make up over 28% of those coming across…all we need is one carrying a suitcase bomb and we have WW3. Thanks Joe. I hope you go first pal.

  11. No Biden should not be impeached. There is no legal grounds for it.
    Just like the “snap” impeachment of Trump had no legal grounds either.

    I would say let Biden stumble along, till 2024 and he gets voted out of office.
    There is the chance he will step down as only 28% of voters, to include Dems, think he should run in 2024, Even Dems want someone else, but not Harris, to run.
    But based off reporting of 8,500 US troops might be sent to the Ukraine, the Biden admin appears to be bent on getting us into a war in Eastern Europe.

    1. Upstate Farmer: If I were Biden and I read the things being said about me, I’d start a war too, just to get the focus on something besides my absolute disaster of a presidency. Wait and see. It has never been more plausible…

  12. No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them. Bastiat, The Law.

    So when Vice President Kamala Harris told reporters that America respects the territorial integrity and sovereignty of Ukraine, and we expect Russia to do the same, or when the deputy White House National Security Advisor says because it goes to a very fundamental principle of all nations, that our borders should be inviolate, that our sovereignty should be respected, and yet our own territorial integrity, our own sovereignty are violated by an estimated 2 million foreigners, our own citizens are forced to make that demoralizing choice. Morality has been in decline for decades, but respect for the law used to be more or less stable, that is as long as our government maintained the illusion they respected it. That illusion has been ripped away and on many fronts. We are beyond demoralized, we are being actively destabilized with one constitutional crisis after another. Speaking of cruel alternatives, keep Biden in office or impeach him, putting in Harris. What disaster would she choose for her VP? I don’t see how we can impeach our way to constitutional governance.

    1. OLLY: Let’s start and see where it goes. Can’t do worse, can we? Soon our only option will be pitchforks and torches and storming the “fence” around the White House.

      1. Bob, I understand your point. But this House is not going to impeach. At best, we will have both houses after the midterms. We are a year away from from that development beginning to bare fruit and lots more damage to inflict on this country.

  13. The Constitution gives the President limited powers. If you want the facts, take one of Patriot Academy’s courses (FREE). Biblical Citizenship in Modern America and Constitution Alive will educate on exactly what the Constitution gives in terms of power to the branches of government, as well as to the states.

    1. Your facts are deficient.
      Biden, Harris, and all have not utilized discretion. They have intentionally acted to obstruct the laws of Congress by intentionally refusing to enforce the immigration laws passed by Congress and have also engaged in de facto conspiratorial conduct with illegal cartels. Their actions have clearly been in consort with the cartels whether intentionally or grossly negligently and clearly thus rise to the level of the requisites for impeachment.

  14. Biden and all of his party should be impeached for falsely claiming to be Democrats while they are actually self confessed socialist which is banned by the oath of office. Any good US Citizen does not have to show any allegiance as they have nothing to do with the Constitution of the USA. Civilian or Military.

  15. @justiceholmes

    “Attack on our democracy”? I will take you more seriously if you were to condemn the actions of the “Brave, Masked, Wonderful, Warriors of Antifa ™ and their BLM allies in the summer of 2020. These “mostly peaceful” protests resulted in $2 billion in insurance payouts.

    Of course, you won’t, you’ll just call me a “racist”. But before you do that just remember I am Hispanic and per official leftist dogma, I cannot be such because I belong to a victim class.

    Tell you what, since our “democracy” doesn’t seem to be working out so well, let’s get a amicable, equitable divorce.


  16. Biden refuses to execute the laws and do his job. Based on Democrat standards, he should have already been impeached, convicted and then thrown into jail for the rest of his life.

    The question is moot until Congress decides to do its job and legislate. Right now, we are being ruled by an oligarchy.

  17. He should be removed because he has Alzheimer’s and dementia. Plus he’s incompetent. That should be enough.

  18. It’s always amazing to see conservatives when they want to impeach a Democrat for a policy choice with which they disagree but solidly refuse to impeach a sitting president who incited an attack on our democracy, among other things.

    For Republicans the goal now seems to be, as Newt, the party’s moral compass, has now pronounced that anyone who opposes Trump or the Republican embrace of authoritarianism and theocracy needs to be imprisoned. How dare they, those Democrats, investigate the attack on the Capital on January 6! This is the world Republicans seek. One Party, one god and no opposition allowed.

    1. I am very confused by what is and isn’t law when it comes to the border. It seems as though there really IS no law. Trump tries, and largely succeeds, in sealing the border — although the wall is the only sensible approach and he could not secure funding. Biden just opens the gates and says, “Come on in.”

      What exactly is the law and unless it includes open borders, how the hell is Biden not breaking it?

      1. Trump asked the Congress to legalize their position on letting people in or not. He offered three times bills to accomplish that. The far left refused each one. You want to know what is the law. Look it up with google it’s no secret. I cross that border a dozen times or more every year. What’s your claim to no fame?

    2. If Trump runs again for President, it’s a sure bet that “Lock her up” will be replaced with “Lock them up” cries at his rallies. Such is the unvarnished rage in Trump’s followers.

      Anyone want to bet against me?

      1. How can your choices ever be considered any thing else but unacceptable as they are socialist fascists start to finish. You have tried to put an unacceptable choice to any Constitutionalist Citizen. You lose automatically. Res Publica Of,By, and For does not include such non starters as socialist fascists trying to hide behind false names such as Democrat. We are a Constitutional Republic not a Democracy and have been that way since Day One. The founders embodies a very few principles of the Democratic Theory such as the right of the Citizens to vote for or against each and every proposal. They refused all uses of the words Democrat, Democracy or Democratic. If not then show us IN the constitution and do not quote some twisted version reframed and redefined.

          1. Of course not, it doesn’t follow socialist dogma and that makes it difficult for illiterates. Seig Me No Heils Comrade we Constitutionalists especially Constitutional Centrists do not accept your socialist fascist drivel and your socialist fascist leaders. We serve the Constitution and uphold our oath of office.

    3. There’s an attack on our democracy coming from across the southern border.

      1. Conspiracy with, and aiding and abetting, the cartels, whether intentional or grossly negligent, is a felony , which satisfies the requirement of a felony for impeachment.

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