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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: Foreign policy

President Trump and International Consequences

12 Tuesday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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arms control, climate, diplomacy, donald trump, Foreign policy, Frank Bowman, G7, human rights, impeach, impeachable, Impeachment, international conferences, international law, International Law and Institution in the Trump Era, investment, Jack Goldsmith, NAFTA, NATO, president, russia, saudi arabia, Shannon Togawa, trade, war, WTO

Many of the positions President Trump has taken on important foreign policy issues and agreements have been unorthodox, even radical, and have caused public concern. Professor Bowman has argued they may even be impeachable. In fact, Trump’s foreign policy decisions have been so varied and strange, they can be difficult to account for.

Jack Goldsmith and Shannon Togawa Mercer have compiled an account of President Trump’s attack on international law in their forthcoming article International Law and Institutions in the Trump Era. They examine Trump’s decisions on trade, investment, climate, arms control, diplomacy, war, human rights, and his performance at international conferences, and write about their likely effect. Here is an excerpt:

President Trump has altered the United States stance toward international law and institutions in the first two years of his presidency in the following ways: He has verbally assaulted or threatened many of the major international institutions to which the United States belongs (most notably, the UN and several of its agencies, NATO, the WTO, NAFTA, and the G7); he has withdrawn from, or begun the process of withdrawing from, at least six international treaty regimes, including the Paris Agreement, the Iran Deal, and the INF Treaty; he has ceased negotiations for, or announced an intention not to conclude, at least two important trade agreements; he has begun a global trade war in possible violation of WTO rules; he twice attacked the Assad regime in probable violation of the Charter of the UN (UN Charter); and he sharply redirected United States human rights law policy along several dimensions and might have violated United States treaty commitments with his immigration policies.

For a comprehensive and academic review of Trump’s (possibly impeachable) foreign policy, check out the link above.

david-butow-donald-trump-china-oval-office.jpgTime

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Pulling out of Syria — Trump further Demonstrates his Incompetence

21 Friday Dec 2018

Posted by crosbysamuel in Uncategorized

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abuse of military power, Collusion, defense secretary, Foreign policy, Impeachment, iran, mattis, president, russia, syria, troops, trump, withdraw

President Trump announced yesterday that he planned to withdraw American troops from Syria, a decision that has been widely criticized by Democrats and Republicans alike, and which lead to Defense Secretary Jim Mattis’ resignation. Though Mattis’ decision to resign was based upon the whole of Trump’s foreign policy, the withdrawal from Syria is seen as the straw that broke the general’s back; Mattis repeatedly refused to publicly endorse the withdrawal after Trump’s requests. Trump’s decision is viewed as premature, because, though it is at its tail-end, the conflict with the Islamic State is on-going in Syria. It seems the only person in favor of the withdrawal is Russian President Vladimir Putin who said “Donald’s right, and I agree with him.” With the United States absent Russian and Iranian influence over Syria will increase.

I wrote a few weeks ago about how the abuse of military power could be considered an impeachable offense, based on precedent set by British impeachments (written about by Professor Bowman here, pt. VIII). The withdrawal from Syria could be considered another impeachable military blunder in two ways: 1) unfitness, based on the general lack of wisdom that the withdrawal represents; and 2) that the action may have been taken at the urging of a foreign power, specifically Russia. Though Trump has offered justifications for his action, such as not wanting to be the “policemen” of the Middle East, if it turns out that this action was taken for no other reason than to appease Putin, then it is may be an abuse of military power warranting impeachment.

21dc-mattis-promo-jumbo-v3.jpgPablo Martinez Monsivais/Associated Press

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Trump’s Foreign Policy Is Impeachable

12 Thursday Jul 2018

Posted by impeachableoffenses in Uncategorized

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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.

 

 

 

 

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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