On Impeachment

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Article II, Section 4

“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”

Article I, Section 2

“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

Article I, Section 3

During the administration of President George W. Bush, seeing signs and bumper stickers reading “Impeach Bush” was common. Following the Benghazi incident in which four Americans were killed by terrorists at a Libyan consulate, the revelation that President Obama may have ignored requests to send backup during the attack has led to an outcry for impeachment by critics of Obama. But under what circumstances may a sitting president be impeached?

According to the Constitution, the President may be impeached if he or she is convicted of treason, bribery, or other high crimes and misdemeanors.

Impeachment, in the U.S. and Great Britain, proceeding by a legislature for the removal from office of a public official charged with misconduct in office. Impeachment comprises both the act of formulating the accusation and the resulting trial of the charges; it is frequently but erroneously taken to mean only the removal from office of an accused public official. An impeachment trial may result in either an acquittal or in a verdict of guilty. In the latter case the impeached official is removed from office; if the charges warrant such action, the official is also remanded to the proper authorities for trial before a court.

Impeachment is brought in the House of Representatives and may be initiated by any member. The House Committee on the Judiciary which determines by majority vote whether grounds for impeachment are present. If grounds for impeachment are found to be present, the House Committee on the Judiciary makes a recommendation and presents the articles to the entire House. The House of Representatives then votes on each article. A simple majority is necessary to bring an impeachment trial to the Senate. The impeachment trial of a president is conducted in the Senate and presided over by the Chief Justice of the Supreme Court. A two third majority vote of Senators is necessary to convict a president on any article of impeachment.

Two presidents have been impeached, but neither was convicted. In 1867 President Andrew Johnson was impeached for violating the Tenure of Office Act, which stated that the president may not remove an official whose appointment required confirmation by the Senate without the approval of the Senate. The Senate refused to concur with Johnson’s replacement of Secretary of War Edward Stanton with Ulysses Grant. President Andrew Johnson was impeached on 11 articles relating to his removal of Stanton. Johnson was acquitted when the Senate fell one vote short to convict him. Years later, in the case of Myers v. United States (1926), the Supreme Court further exonerated Johnson by holding that the president has exclusive authority to remove executive branch officials because the Constitution was silent on requiring the advice and consent of the Senate in doing so. In 1998, President Bill Clinton was impeached on one charge of perjury and one charge of obstruction of justice in connection with grand jury testimony Clinton gave in connection with his relationship with former intern Monica Lewinsky in a lawsuit brought by Paula Jones against Clinton. The Senate fell seventeen votes short of the total needed to convict Clinton on the charges.

In order to fully understand the criteria for impeaching a president, the meaning of “high Crimes and Misdemeanors” must be determined. The Constitution clearly lists treason and bribery as impeachable offenses, but for what other actions may a president face impeachment? According to Constitutional scholar Professor Stephen B. Presser of Northwestern University School of Law, “high Crimes and Misdemeanors” was a “term of art used in English impeachments.” From this, Professor Presser concludes, “the grounds for impeachment can be not only the defined crimes of treason and bribery, but also other criminal or even noncriminal behavior amounting to a serious dereliction of duty.” If this is true, then it is a feature of the separation of powers that it is up to the House of Representatives to determine whether there is a prima facie case for a serious enough crime or “dereliction of duty” on part of a president, and it is up to the Senate to determine whether the president is in fact guilty of those charges. 

Jon Roland of the Constitution Society further explains that "high" crimes are "those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons."

The sobering fact of the matter is that a strong case could be made that each American president over the last thirty years should have been impeached.

President Ronald Reagan

In 1982, Congress passed the Boland Amendment aimed at limiting the aid given by the federal government to the Contras, a fascistic rebel Nicaraguan rebel group that was attempting to overthrow the left-wing Sandinista government. In 1984, Congress strengthened the Boland act to make it nearly impossible to give any aid to the Contras. In 1985, the Reagan administration sold more than 1,500 missiles to Iran, which was at the time at war with then American ally Iraq. At the time there was an embargo against selling arms to Iran. In exchange for the missiles, Iran paid money and also agreed to facilitate the release of seven American hostages being held by Iranian terrorists in Lebanon. The proceeds of the arms sale were funneled to the Contras in violation of the Boland Amendment.

After the Iran-Contra Affair came to light, President Reagan appointed a three man commission – the Tower Commission – the Tower Commission – to investigate. The Tower Commission and a separate Congressional investigation concluded that President Reagan had no knowledge of the full extent of the Iran-Contra Affair. Eleven individuals – Assistant Secretary of State Elliot Abrams, government contractor Carl R. Channell, CIA agent Thomas G. Clines, Chief of the CIA’s Central American Task Force Alan D. Fliers, Jr., Deputy Director for CIA Operations Clair E. George, Iranian-American businessman Albert Hakim, National Security Advisor to President Reagan from 1983 to 1985 Robert C. McFarlane, fundraiser Richard R. Miller, National Security Council staffer Oliver L. North, Deputy National Security Advisor and National Security Advisor for the Reagan administration John M. Poindexter, and Air Force officer Richard V. Secord.

While it is possible that President Reagan did not know the full extent of the Iran-Contra Affair, it is clear that he knew that he was violating the embargo against Iran and the Arms Control Export Act when he allowed weapons to be sold to Iran without Congressional approval. Violating the Arms Control Export Act is a criminal offense. Therefore, it is indisputable that President Reagan committed a “high Crime” and should have been impeached.

President George H. W. Bush

There were legitimate questions concerning whether President George H. W. Bush was involved with the Iran-Contra Affair when he was President Reagan’s Vice President. In December of 1992, shortly before leaving office, President Bush pardoned Elliott Abrams, Duane Clarridge, Alan Fiers, Clair George, Robert McFarlane, and Caspar Weinberger for their parts in the Iran-Contra Affair. Given the possibility that Bush had been involved in the scandal, this is a clear conflict of interest. He may have pardoning these men in order to hide his own criminal activities while he was Vice President. While President Bush pardoned these individuals on his way out of office, an impeachable offense is an impeachable offense no matter when it occurs. 

President Bill Clinton

President Clinton, as previously discussed, was impeached but acquitted on charges of perjury and obstruction of justice in connection with the Paula Jones case. The Senate was right to acquit Clinton. While perjury and obstruction of justice are crimes, they do not rise to the level of treason or bribery. Given that the crimes were committed in connection with lies about his marital fidelity in a private lawsuit that had nothing to do with his duties as Commander-in-Chief, no true “dereliction of duty” was involved.

However, this does not mean that President Clinton did not commit an impeachable offense during his time in office. On February 28, 1993, agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) attempted to execute a search warrant at the compound of the Branch Davidians in Waco, Texas. A fire fight broke out, leading to the deaths of four ATF agents and six members of the Branch Davidian cult. This led to a siege that lasted for fifty days. Ultimately, a fire started in the compound building, killing twenty-six men, women, and children.

The official government story was that members of the Branch Davidian cult started the fires that engulfed the compound building. However, footage reveals that fires began in the areas where FBI combat engineering vehicles (CEVs) broke holes into the building in order to shoot pyrotechnic M651 tear gas grenades inside. Despite the official story, there is a strong possibility that it was the FBI and not the Branch Davidians who caused the deadly fire. It has been revealed that on April 18, 1993, President Clinton explicitly endorsed the tear gas plan.

If it was the FBI and not the Branch Davidians who started the fire, and if President Clinton did give the order to shoot flammable tear gas grenades into the building, then such actions could very well constitute a “high Crime.” President Clinton should have been impeached for this action and not for lying about fellatio.

An even more clear cut case of an impeachable offense committed by President Clinton was his unconstitutional waging of war in the Balkans. President Clinton decided to bomb Yugoslavia without the approval of Congress. According to Article I, Section 8 of the Constitution, only Congress may declare war. This egregious violation of the Constitution was a clear impeachable offense. The failure of Congress to act set the stage for further impeachable offenses in the adminstrations of George W. Bush and Barack Obama.  

In an important sense, the hubris of Congress for impeaching Clinton over something as inane as lying about marital infidelity in a civil suit unrelated to his duties has made it unlikely that Congress will use its impeachment powers for legitimate reasons in the future.

President George W. Bush

While only two presidents have ever faced impeachment, there was perhaps no president who merited impeachment more than George W. Bush. Bush knowingly dragged the United States into war in Iraq on false pretenses. Bush made 259 false statements about Iraqi weapons of mass destruction and 28 false statements about links between Iraq and al Qaeda. Overall, the Bush administration knowingly made nearly 1,000 false statements about Iraq in order to justify military action and “regime change.” Blatantly lying the nation into a war that has cost over 4,000 American lives is clearly an impeachable offense.

Bush also brazenly violated the Fourth Amendment. The Fourth Amendment grants the right for people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Under the Foreign Intelligence Surveillance Act (FISA), warrants for national security wiretaps must be authorized by the secret FISA court. Following 9/11, President Bush initiated a program in violation of FISA that monitored Americans’ international telephone calls and e-mails without FISA warrants. When the nation is in a state of war – especially a war that was initiated on false pretenses – this is no reason to unconstitutionally suspend civil liberties. Knowingly violating the FISA law is grounds for impeachment.

President Barack Obama

President Obama violated the constitution by instituting his “military kinetic action” in Libya. According to the Constitution, only Congress possesses the power to declare war. This did not prevent President Obama from waging war – or rather the Orwellian “kinetic military action” – in Libya in March of 2011. This “kinetic military action” involved launching Tomahawk cruise missiles against the Libyan people. Obama’s actions in Libya violated the War Powers Resolution. According to the War Powers Resolution: “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” While Qaddafi was a state sponsor of terrorism and no friend to the United States, Libya did not declare war upon the United States. No attack upon the United States was undertaken by Libya. No such attack was imminent.

Under the War Powers Resolution, after sixty days, the President is required to terminate such military action “unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.” Nevertheless, while Obama sought the approval of NATO, the United Nations, and the Arab League before attacking Libya, he never bothered seeking the approval of Congress at any point. After the sixtieth day of hostilities, Obama claimed that Congressional approval was no longer necessary because American military action had conveniently become “intermittent and principally an effort to support the ongoing NATO-led and UN-authorized civilian support mission and no fly zone.” 

In addition, President Obama brazenly violated Article 2, Section 2 of the Constitution by appointing various "czars" without the advice and consent of the Senate. These "czars" wield power akin to cabinet secretaries yet have been appointed by President Obama without confirmation by the Senate. This is a serious violation of the separation of powers and the checks and balances of the Constituion and, as such, constitutes an offense much graver than the alleged offenses for which Johnson and Clinton were impeached.

The Future

Congress has neglected its duty by not using the power of impeachment where it has been clearly warranted in recent decades. If Congress is only going to use the power for political purposes where it is clearly unwarranted while not using it when the president has willfully and seriously violated the Constitution, then Congress has forfeited a power necessary to preserve the separation of powers and the checks and balances inherent in the Constitution. Therefore, it can be expected that future presidents will ignore the Constitution and continue to push the boundaries of their executive power until they become Caesars.