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Trump’s Betrayal of American Foreign Policy and Why the Founding Fathers Would Have Impeached Him

10 Thursday Oct 2019

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This semester, I have the pleasure of teaching a seminar titled, “The Impeachment and the American Constitutional Balance” at Georgetown Law School. From time to time, I may post the work of some the students in that seminar. Here is one such contribution. — F. Bowman

By Hamdi Soysal

            Based on the number of House Democrats in favor of an impeachment inquiry,[1] President Donald J. Trump will likely be the third president to be impeached in American history, barring unforeseen circumstances. What united the Democrats behind impeachment – more than the Mueller Report, illegal hush money payments to a pornstar, or his alleged violations of the Emoluments Clause – was the President’s request from Ukraine to investigate one of his potential rivals in the 2020 election.[2]

            There are many reasons why the Ukraine affair is unworthy of the Office of the President of the United States. One is its blatant compromise of the nation’s foreign policy and consequently, national security. The favor the President asked for in his now-infamous call with the Ukrainian President Zelensky was not closer cooperation against U.S. adversaries, more intelligence-sharing, or participation in a foreign policy that would make the U.S. safe. It was help with his reelection.[3]

            Although in a different context, the possible betrayal of American foreign policy for personal gain was in the minds of the Founding Fathers while defining impeachable offenses at the 1787 Constitutional Convention in Philadelphia. On the way to their confining those offenses to “Treason, Bribery, [and] High Crimes and Misdemeanors,”[4] James Madison said impeachment is required because the president “might betray his trust to foreign powers.”[5] Similarly, he argued at the Virginia ratifying convention that a president who made a treaty that “violated the interest of the nation” could be impeached.[6] At the same convention, Edmund Randolph said a president “may be impeached” if discovered “receiving emoluments from foreign powers.”[7] 

            The framers’ concerns with undue foreign influence were not limited to the impeachment context. One measure they enacted was the aforementioned Emoluments Clause,[8] over which the Second Circuit recently revived a lawsuit against Trump.[9] Moreover, in his farewell address, George Washington mentioned the “insidious wiles of foreign influence,” deeming it “one of the most baneful foes of republican government” and urging the nation “to steer clear of permanent alliances with any portion of the foreign world.”[10] Likewise, in a 1787 letter to Thomas Jefferson, John Adams wrote that he understood Jefferson’s apprehension of “foreign Interference, Intrigue, Influence.”[11] Concerned about corruption in the political system, Adams argued that America should not conduct elections often, because “as often as Elections happen, the danger of foreign Influence recurs.”[12] Similarly, Alexander Hamilton wrote in his Federalist Paper Number 68 about the dangerous desire of foreign powers to “gain an improper ascendant in our councils.”[13] 

            The Founders could not have been clearer: there should be no foreign interference in the American democracy, and no president should be urging such interference. As some legal scholars opined, using the Office of the President of the United States for personal political benefit fits both the standard understandings of bribery and the broader category of high crimes and misdemeanors.[14]

            However, the same Founders who repeatedly warned about the danger of foreign interference in elections and the corruptibility of the president by foreign influences also gave the president authority over most aspects of foreign affairs. The Founders gave Congress the power to declare war, raise armies and provide for other aspects of national defense,[15] but it is the president who appoints ambassadors, negotiates treaties, and deals with other heads of state.[16]

            This raises a conundrum: Does the discretion granted to the president in the realm of foreign affairs mean that he should not be as vulnerable to impeachment over a situation like the Ukraine affair? One answer to this could come from the constitutional law of separation of powers. Although not in response to an impeachment setting, in his famed concurrence in the seminal Youngstown Sheet & Tube Co. v. Sawyer case, Justice Robert Jackson laid out three categories of presidential authority vis-à-vis Congress.[17] The first category is “when the President acts pursuant to an express or implied authorization of Congress,” he explained.[18] Under this category, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”[19] The second category is “[w]hen the President acts in absence of either a congressional grant or denial of authority.”[20] In this case, Justice Jackson opined that “there is a zone of twilight in which he and Congress may have concurrent authority…”[21] Ultimately, when a president acts amid silence from Congress, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”[22] Lastly, a president could take measures incompatible with the express or implied will of Congress. Then, the president’s power “is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter,” Justice Jackson explained.[23]      

             The level of authority President Trump has with respect to the withholding of anti-tank missiles from Ukraine thus in part depends on Congress’s implied or expressed will – or the lack thereof – concerning the matter. When viewed through this lens, it becomes clear that the Ukraine affair falls under Justice Jackson’s third category, where a president could take measures incompatible with the will of Congress and his power “is at its lowest ebb.”[24] Before President Trump’s call with Zelensky, the military aid to Ukraine had already been appropriated with “broad bipartisan support” in Congress.[25] The issue was a “rare foreign policy issue that united members of both parties.”[26] Capitol Hill largely viewed support to Ukraine as a way to deter Russian aggression and secure the region.[27] Based on recent reports, it bothered many in Congress that “the money was being held up without a clear explanation or briefings about a changing policy prescription in the region.”[28]

            The bipartisan reaction in Capitol Hill to President Trump’s withholding of military aid to Ukraine for reasons unbeknownst to them is a good indication that the President acted against the will of Congress. Thus, no matter the discretion granted to the executive in foreign affairs, his authority at the time was at its minimum. In other words, even the ample authority the President has with respect to foreign policy would not be enough to save him from being impeached. If they were here to see the President’s blatant betrayal of the nation’s safety and security, the Founders would definitely agree. 

[1] Alicia Parlapiano et. al., Complete List: Who Supports an Impeachment Inquiry Against Trump (Oct. 3, 2019, 11:00 AM), https://www.nytimes.com/interactive/2019/us/politics/trump-impeachment-congress-list.html.

[2] Transcript of Phone Call Between Presidents Donald Trump and Volodymyr Zelensky, (July 25, 2019, 9:03 AM), https://www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf.

[3] Id.

[4] U.S. Const. art. II, § 4.

[5] 2 The Records of the Federal Convention of 1787, at 66 (Max Farrand ed., 1911).

[6] 3 Jonathan Elliot, The Debates in Several State Conventions of the Adoption of the Federal Constitution 346 [hereinafter 3 Elliot] (statement of James Madison).

[7] 3 Elliot, supra note 3, at 326.

[8] U.S. Const. art. I, § 9, cl. 8.

[9] Zoe Tillman,  A Court Revived Another Lawsuit Against Trump For Continuing To Profit From His Businesses (Sep. 13, 2019, 10:41 AM), https://www.buzzfeednews.com/article/zoetillman/donald-trump-hotel-lawsuit-back-emoluments.

[10] President George Washington, Farewell Address to the People of the United States (1796).

[11] Letter from John Adams, United States Minister to the United Kingdom and Netherlands, to Thomas Jefferson, United States Minister to France (Dec. 6, 1787).

[12] Id.

[13] The Federalist No. 68 (Alexander Hamilton).

[14] Leah Litman, Trump’s Ukraine call mentioning Biden is the strongest reason yet for impeachment (Sep. 24, 2019, 5:45 PM), https://www.nbcnews.com/think/opinion/trump-s-ukraine-call-mentioning-biden-strongest-reason-yet-impeachment-ncna1057921.

[15] U.S. Const. art. I, § 8.

[16] U.S. Const. art II, § 2.

[17] Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 635-38 (1952) (6-3 decision) (Jackson, J., concurring).

[18] The Steel Seizure Case, 343 U.S. at 635.

[19] Id. at 635.

[20] Id. at 637.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Lauren Fox, Stalled Ukraine military aid concerned members of Congress for months (Sep. 30, 2019, 10.30 AM), https://www.cnn.com/2019/09/30/politics/ukraine-military-aid-congress/index.html.

[26] Id.

[27] Id.

[28] Id.

The Case for Impeachment of Donald Trump, Part 3 (Foreign Policy)

15 Tuesday Jan 2019

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By Frank Bowman

Among the most persistent misconceptions about impeachment under the United States constitution is that indictable criminal conduct is a prerequisite for impeachment. The prevalence of this error is easy to understand inasmuch as the textual standard for impeachable conduct is “Treason, Bribery, or other other high Crimes and Misdemeanors” — a phrase that sounds like it refers to crime of the customary sort. However, as has been repeatedly discussed on this blog and as virtually all serious students of impeachment recognize, the phrase “high Crimes and Misdemeanors” was adopted by the Framers from British and early American impeachment practice and extended to a wide variety of non-criminal official ineptitude or misbehavior. There is powerful evidence that the Framers included conduct severely damaging to U.S. foreign policy interests in the category of impeachable behavior.

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.  My study of 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, 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.

During the 1788 ratification debates on the federal constitution, James Madison insisted that a president who made a treaty that “violated the interest of the nation” and convinced the Senate to ratify it could be impeached. 3 Jonathan Elliot, The Debates in Several State Conventions of the Adoption of the Federal Constitution 500 (1827).  If, in the considered opinion of the architect of the American constitution, a president can be impeached for inveigling the Senate into one bad treaty, we surely can impeach a president for heedlessly shattering a basket of good treaties and the entire intricate web of foreign relationships they support without so much as a by-your-leave.

Consider Mr. Trump’s rolling destruction of American foreign policy.  (And assume that his actions flow merely from caprice or bad judgment, and are not, bizarre though it seems to say such a thing, the result of his having been compromised by Russia.)

To summarize, in the seventy-odd years since the Second World War, generations of American presidents, legislators, soldiers, and diplomats have labored to create a world order of multilateral institutions and agreements with the United States at its center.  That order has averted nuclear annihilation, prevented conventional war between the major powers, secured a stable, democratic Europe and an increasingly prosperous and stable East Asia, managed the fall of Soviet communism, and overseen a fairly universal rise in human material welfare, all while maintaining the United States as the single indispensable world power.  All has not been wine and roses for everybody, of course.  Humanity is on the verge of destroying the world’s ecosystem through climate change, pollution, and habitat destruction.  And global overpopulation and income inequality pose continuing threats to individual well-being and regional peace.  However, the looming existential crises of the age can only be addressed (if they can be at all) through increased collaboration and cooperation across borders. Most importantly for present purposes, whatever else one may think about the post-World War II world order, it has been hugely advantageous for the United States, placing this country at the center of all important decisions about international trade, finance, technology, and security.

Since his election, Mr. Trump has moved steadily in the direction of unilaterally dismantling the United States’ foreign policy, trade, and security architecture by formally abandoning or denigrating every form of multilateral engagement from the Paris Climate Accords, to the Trans-Pacific Partnership, to the Iran Nuclear Accord,to the World Trade Organization,[ to a nuclear weapons treaty with Russia, to the United Nations, not to speak of our most fundamental military alliance, NATO.[ He has consistently quarreled with our oldest democratic allies, while cozying up to autocracies across the globe: Duterte’s Philippines, Crown Prince Mohammed bin Salman’s Saudi Arabia, Viktor Orban’s Hungary, Recep Erdogan’s Turkey, and, of course, Vladimir Putin’s Russia.  The result is that, if allowed to continue, Trump will, singlehandedly, transform America’s position among the nations, from being the leader (however imperfect) of the free world and indispensable fulcrum in every realm of hard and soft power to a diminished, cranky, ungenerous, avowedly self-absorbed friend of tyrants and oligarchs. 

It is of particular moment that Trump is taking the country down this path singlehandedly.  The policies he is pursuing are not the policies of the party under whose banner he ran.  They are not the policies recommended to him by the vast bulk of civilian and military leaders and experts in his administration.  Indeed, as recently demonstrated by the resignation of Secretary of Defense Mattis following Trump’s sudden decision to withdraw entirely from Syria and partially from Afghanistan, they are often undertaken against the explicit opposition of those persons.  They do not emerge from any process of study or consultation. They proceed from his personal whims (or, though I shudder to to contemplate it, perhaps from directions or suggestions provided by Vladimir Putin), abetted by a very small coterie of courtiers. In the case of the Syrian withdrawal, the decision apparently occurred literally in the middle of a phone conversation between Trump and Turkish President Erdogan.  Trump’s position on foreign policy is “l’état c’est moi.” That is not the design of the United States Constitution.

President Trump can do these things in part because Congress has, quite unwisely, acquiesced in the doubtful doctrine that, while two-thirds of the Senate must vote to ratify a treaty, a president may withdraw from it without consent of Congress or anyone else. As pernicious as this legislative timidity has been in principle, one could excuse it on the ground that Congress has assumed with some justice that presidents would be cautious, judicious, and consultative before taking so drastic a step.  While that confidence has not always been justified, it generally has. 

However, in Mr. Trump, the country has for the first time a president who combines a near-complete lack of understanding of history, finance, trade, military affairs, or diplomacy with supreme confidence that he, and no one else, knows exactly how to arrange matters in all these arenas.  In short, the electoral system has placed in the White House the ignorant demagogue that the Framers feared at a time when the system of institutional checks they installed to deal with such an eventuality has atrophied so far as to be nearly useless.  Catastrophe looms unless Congress recognizes the danger and reasserts the powers the Constitution gave it. 

Some of the foreign policy damage Trump is doing could be prevented or at least ameliorated if Congress woke up and employed the tools short of impeachment at its disposal.  That said, there is little question that the constitutional impeachment power includes a situation in which a president is inflicting irreparable harm on the nation’s position in the world and will not be dissuaded. 

Trump’s Foreign Policy Is Impeachable

12 Thursday Jul 2018

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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.