Earl of Danby, Foreign policy, George Mason, High Crimes and Misdemeanors, Impeachment, impeachment for foreign policy, James Madison, Warren Hastings
By Frank Bowman
By any objective measure, Donald Trump’s conduct of American foreign policy, particularly over the past six months or so, has been a catastrophe. He has persistently — and quite consciously — alienated our most faithful traditional allies, disrupted critical trade arrangements, and undermined vital security relationships both in Europe and across the globe, while at the same time cozying up to vicious dictatorships and promoting authoritarian rulers even in recently democratic states. He is systematically destroying a world order created over seventy years by American statesmen of both parties, an order that has not only maintained peace among the great powers and seen steadily improved standards of living worldwide, but has already made America first among the nations of the earth.
But what, you may ask, can be done about it between now and the 2020 election? The answer, as always when dealing with this catastrophic man, is nothing … at least until Democrats win at least one house of Congress and at least some Republicans are sufficiently shamed by their craven abandonment of every foreign policy principle they ever claimed to stand for to join with Democrats in blocking Trump’s demolition of America’s position in the world.
If such a (concededly unlikely) epiphany were to occur among Trump’s Republican abettors — most likely as a result of a midterm electoral drubbing — then there is a remedy for Trump’s foreign policy carnage. Impeachment.
This suggestion will, of course, be dismissed by the Trumpian chorus as a wild liberal fever dream. Certainly, the political obstacles to successful impeachment on any ground are daunting. But as a constitutional matter, indeed as a matter of the original intention of the Framers, there is no serious question that a president is impeachable for activities in the foreign policy sphere that seriously undermine the national interest.
Impeachment is a British invention, employed by Parliament beginning in 1376 to resist the general tendency of the monarchy to absolutism and to counter particularly obnoxious royal policies by removing the ministers who implemented them.
During the Constitutional Convention of 1787, the delegates decided that presidents and other federal officers could be impeached, but they wrestled over what conduct should be impeachable. Various formulations were advanced. As the convention rounded into the home stretch, the phrase that had taken hold was “treason or bribery.”
George Mason objected because he thought “treason and bribery” far too narrow. Mason was a student of British impeachment and had authored the post-revolutionary impeachment provisions of the Virginia state constitution. He wanted a federal impeachment remedy analogous to British practice at least in the conduct it covered, even if not in the sorts of brutal personal punishments Parliament could impose.
“Treason,” Mason said, “will not reach many great and dangerous offences. Hastings is not guilty of treason.” He was referring to the impeachment trial of Warren Hastings, Governor General India, just about to start in England. Mason wanted American impeachments to reach beyond the two indictable crimes of treason and bribery to important breaches of public trust in both the domestic and foreign sphere, the kinds of offenses charged against Hastings.
Mason’s solution was to add the word “maladministration” after bribery. But James Madison rose to object, saying, “So vague a term will be equivalent to a tenure during pleasure of the Senate.”
Mason thought the matter over and came back with a compromise. Omit “maladministration” but add to treason and bribery “other high crimes and misdemeanors.” The new language passed 8 states to 3.
Mason’s choice of “high crimes and misdemeanors” was not whimsical. Rather, he lifted it from British practice where, beginning in the 1600s, Parliament increasingly (though not invariably) used this phrase to describe conduct it charged as impeachable. As a result, one of the perennial arguments in American impeachments is over whether the Framers intended “high crimes and misdemeanors” as a term of art limiting impeachable conduct to only those misdeeds impeached by Parliament prior to 1787.
My study of both British and American impeachments convinces me that “high crimes and misdemeanors” does not limit Congressional impeachment power to the necessarily idiosyncratic and antique list of misdeeds Parliament had addressed by 1787. Both Parliament and the Framers were acutely conscious that the sorts of dangerous public misconduct for which impeachment is a necessary remedy could not easily be described in advance.
However, the Framers’ choice of “high crimes and misdemeanors” does set the baseline minimum for the scope of American impeachments. In other words, even if one accepts both the originalist approach to American constitutional interpretation and that the founders meant to restrict American impeachment within the boundaries set by British practice, that means American officials are properly impeachable for at least the range of conduct covered by British practice.
A persistent theme in British impeachments was the charge that the impeached minister had pursued a policy at odds with the nation’s basic foreign policy interests. Impeachments on this ground were a constant beginning with the charges against William de la Pole in 1450 for his role in arranging the marriage of Henry VI to Margaret of Anjou. The Duke of Buckingham was impeached in 1626 in part for loaning English ships to the French to employ against the Protestant Huguenots at Rochelle. In 1678, the Earl of Danby was impeached for assisting King Charles in negotiations with France for British neutrality in the Franco-Dutch War. Lords Oxford, Bolingbroke, and Strafford were impeached in 1715 for their advocacy of the Treaty of Utrecht, which was widely despised as selling out Britain’s Dutch allies in favor of making accommodations with Britain’s traditional enemy France. And Warren Hastings’ 1787 impeachment, so central to George Mason’s thinking, centered on fundamental disagreements about the proper relationship of Great Britain to its Indian possessions and the states that abutted them.
Over and over again, Parliament employed impeachment to assert an authority independent of the royal executive to define the nation’s true foreign policy interests. That Congress has believed itself to have similar authority is demonstrated by the first impeachment in American history, that of Senator William Blount, charged in 1797 with conspiring to assist the British in acquiring Spanish territory in Florida. Blount was acquitted, but only because there were doubts that senators are “civil officers” subject to impeachment and because he had already resigned.
President Trump’s disparagement or outright abandonment of long-established defense and trade relationships with democratic states in Europe, the Americas, and Asia in favor of self-destructive mercantilism, “America First” isolationism, and a growing affinity for authoritarian regimes such as Russia, China, Hungary, Turkey, and the Philippines is far more destructive of American interests than Senator Blount’s failed Florida adventure or any of the policies for which Parliament routinely impeached royal ministers.
A Congress with any sense of America’s true interests, or indeed with any sense of responsibility for the continued peace and prosperity of the world in general, would be entirely within its constitutional authority to impeach Donald Trump.
Edward Soria said:
I will leave the matter of impeachment to Congress in regards to President Trump- however, Congress shortly will have sufficient evidence by the Justice Dept. when Mueller has completed his investigation of Collusion by President Trump and his election staff.
There you will find High Crimes, and Treason from which criminal procedings can be brought against President Trump and all those who colluded with a foreign power Russia and it’s foreign agents.
As for our Foreign Affairs with China, Russia, North Korea and other undemocratic nation states has been one of utter chaos. Also, NATO has kept the peace in Europe and around the world- America cannot forge unforseen foreign affairs that have been established since the Cold War against Russia and other belligerent’s in the M.E.
All it takes for evil men to rule and attack all those principles with which our founding fathers establish our constituition and the rule of law is for Congress to do nothing and allow continuation of our present foreign affairs and domestic.
Edward Magdaleno Soria