September 25, 2017

Head To Head: Should Articles Of Impeachment Be Drawn Up On Obama ?


Today, we’re happy to bring you a brand new WoW feature…Head To Head!

Each week members of the Council and/or guest debaters will challenge each other in a no-holds-barred cage match discussing the issues making the headlines today.

This week’s matchup pits Greg from Rhymes With Right against Council Alumnus Soccer Dad, as they examine the question:Should articles of impeachment be drawn up over President Obama’s extension of presidential war powers?

The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.Barack Obama, December 20, 2007

GREG: The exercise of the impeachment power by the House of Representatives is not something to be undertaken lightly. And yet, the words of “constitutional scholar”, “statesman”, and Nobel Peace Prize winner Barack Hussein Obama carry special weight as we consider the decision to commit US forces to military action in Libya over the past weekend. They speak to a situation in which a president might exceed the authority delegated to him under the US Constitution in such a manner as to constitute a violation of his oath of office and, in the words of the constitution, “high Crimes and Misdemeanors” which amount to a n impeachable offense.

Let’s examine the reality of the current Libyan engagement. The United States has not been attacked by Libya, nor is there any discernible threat of attack against the United States during the four weeks since Obama made a nebulous “declaration of emergency” over the Libyan situation made via an executive order. Indeed, the grounds for the attack is to protect Libyan civilians from their own government, which while laudable does not constitute any sort of defense of American security. There has been no authorization of this use of force by either house of Congress, and Speaker John Boehner has made it clear that there has been no meaningful consultation of Congressional leadership or communication as to the intended level of commitment or its goals. Indeed, Obama has declared his authority for the use of force to be not the US Constitution, not a Congressional authorization to use the war-making power of the US military, but a United Nations resolution.

Frankly, this situation is virtually without precedent in American history in its disregard of the constitutional limits on the war-making power. In taking this course of action, Barack Obama is guilty of the very offenses of which he and his fellow Democrats accused George W. Bush since the early days of US involvement in Iraq. Some adversarial proceeding is needed to determine if the authority of the president is as small and circumscribed as laid out by Barack Obama in 2007, or whether the new Obama Doctrine (the UN, not Congress, authorizes US military action) is within the bounds of presidential war-making authority.

And herein lies the rub — the third branch of government is uniquely incompetent to judge this matter. When Bill Clinton committed US troops in Kosovo, the DC Circuit Court (Campbell v. Clinton)noted the incompetence of the judiciary to adjudicate such matters. Indeed, it is questionable whether any plaintiff would have standing to make such a challenge. This puts the matter straight into the realm of nonjusticiable political questions. How then can such questions be resolved in an adversarial setting? Only through the process of impeachment by the House of Representatives with a trial by the Senate. The decision to remove Barack Hussein Obama — or to not remove him — for violating his presidential oath by exceeding the constitutional limits of the war-making power will serve to delineate the extent of that power. The use of this process is therefore in order — and I believe that Rep. Dennis Kucinich (D-Ohio) has a ready-made template for the articles of impeachment for exceeding those limits (see Articles VII and VIII) on file in his office on Capitol Hill. For the good of the nation and protection of the Constitution, let the process begin.

SOCCER DAD: “When you strike at a King, you must kill him.” saying sometimes attributed to Ralph Waldo Emerson

Among the checks and balances provided for our government in the constitution is the removal from office of the President by means of impeachment. Impeachment – a process by which charges are drawn up by Congress and, if approved, submitted to the Senate for trial – is a powerful political tool. But because its nature is not strictly criminal, but political too. Thus conviction requires a two thirds majority of the Senate to remove a President from office. Clearly the founders felt that impeachment was necessary, but with a necessary constraint. A Congress choosing to impeach a President needed to convince a supermajority of the Senate of his guilt. Without this constraint, impeachment could become a political weapon.

In late 1998 an independent counsel found that President Clinton had perjured himself and referred his investigation to the House of Representatives. In December the House voted to refer the matter to the Senate for impeachment. Instead of being appalled at the President’s misbehavior, Democrats rallied around him, with Vice President Gore declaring that impeachment was “… a great disservice to a man I believe will be regarded in the history books as one of our greatest Presidents.” And though it was self serving for Dick Gephardt to claim, “Chairman Henry Hyde once called impeachment, the ultimate weapon, and said that, for it to succeed, ultimately it has to be bipartisan,” he was correct. Republicans needed to have a bipartisan agreement on the seriousness of President Clinton’s behavior and they didn’t.

The issue now is the same. If the Democrats rallied behind an obvious lawbreaker like Clinton are they likely to abandon President Obama? And no, Democrats won’t concede the obvious – that President Obama abused his authority in a way that President Bush didn’t. Democrats (and their media allies) have accepted the “Bush lied” doctrine. So yes some Democrats supported the war against Iraq, but it was because these poor souls were willfully misled.

In short, the Republicans have no chance of removing President Obama from office. To impeach him will serve to strengthen him and the Democrats at a time when they are reeling, just like the unsuccessful attempt to remove Clinton derailed the Republican revolution twelve years ago.

GREG:Is impeachment a process that is every bit as political as it is judicial? Let me be the first to concede that point. And yet, it is precisely because the impeachment process is political that it becomes the ideal process for dealing with a question that the courts themselves are loath to adjudicate — that of the extent of the war-making powers of the man or woman who holds the office of President of the United States. Because the answer to the question is placed squarely in the hands of one of our political branches (the Legislative Branch) regarding the limits of the power of the other (the Executive Branch), the fact that political as well as judicial considerations will enter into the picture is perfectly appropriate.

And ultimately this is a good thing.

The impeachment of William Jefferson Clinton, when all was said and done, was properly handled by both houses of Congress. The House of Representatives properly raised the question of Clinton’s perjury, while the Senate determined that his guilt of the offense (which even many of those voting not to remove him from office conceded), was insufficient grounds to remove him. This ultimately established the precedent that personal misconduct that does not implicate the constitutional balance of powers is not sufficient grounds to remove a sitting president — especially due to the fact that there remains the possibility of criminal charges for that misconduct. Indeed, one of Clinton’s final acts as president was to strike a deal with the independent counsel in order to stave off the possibility of his indictment and trial for that personal misconduct. While Richard Nixon resigned prior to impeachment, it seems clear that his acceptance of a pardon from Gerald Ford weeks later established the same working precedent.

I’d argue that the impeachment of Barack Obama would be more akin to the impeachment and trial of Andrew Johnson over the Tenure of Office Act. That battle, properly viewed, is one that helped establish the balance of power between the Executive and legislative branches with regard to the right of the President to select his senior Executive Branch officials free from constraints beyond those set by the Constitution itself. This was acknowledged some four decades later by the Supreme Court in another, unrelated case — one which, had the US Senate removed Johnson from office, would have doubtless been decided differently based upon the impeachment precedent. While Johnson was not removed by the US Senate, he was by no means strengthened during his remaining days in office. Indeed, he was explicitly snubbed by his successor, Ulysses S. Grant, and not even invited to his successor’s inauguration.

Would Democrats vote to remove Obama from office over his Libyan War? That is hard to say — but I think they might. We have already seen a number of Democrats condemn Obama over it. If they truly believe that he has exceeded his constitutional authority — a clear case of malfeasance in office — then it becomes possible that Senate Democrats will vote to remove even a president of their own party — who in this case will be replaced by a man who they viewed as a senior statesman among their number for over three decades, Joe Biden. What’s more, if they vote against his removal, they effectively establish a congressionally endorsed precedent that will establish that the President, as commander-in-chief, has war-making powers that are unfettered and which exclude the Congress from effective involvement in the decision to go to war. I do not believe that the Legislative Branch will vote to emasculate itself. Yet if Obama is not removed — and I am by no means saying that it is a foregone conclusion that he should be — said decision also has the effect of ratifying the military actions of every president since Kennedy. The partisan impact of seeking the proceedings — which party is strengthened or weakened by the invocation of this process — must be viewed as secondary to the greater question of the balance of powers within our national government.

SOCCER DAD:After I chose to challenge your thesis, I had some hesitations. From your writing it is clear that you have an understanding of constitutional issues that I cannot approach. I could never analyze a hypothetical impeachment of President Obama and conclude that it closely matches the issues of the impeachment of Andrew Johnson. I can’t challenge your conclusions, I don’t have the knowledge to do so.

However you argue that the issue at hand is the separation of powers. If I understand you correctly, President Obama has overstepped the bounds of his office in an unprecedented fashion and must be called to account. However, if going to war without authorization from Congress is an impeachable offense, there were grounds in the past, for impeaching … President Clinton, who, I just learned (or was reminded) did not get authorization from Congress before bombing Serbia. I suspect that President Clinton wasn’t impeached for that because Presidents often extend the reaches of their power as they deem expedient. President Obama’s decision to join in attacking Qaddafi, isn’t particularly exceptional.

What is clear is that President Obama is being extremely hypocritical. And while that is political behavior, impeachment is too strong a political weapon to be used in this case and is likely to be ineffective, if not counterproductive. Using op-ed pages and Sunday morning talk shows to emphasize the President’s hypocrisy is the appropriate response and more likely to convince the electorate of his dissimulation.

GREG: Now you do raise some very important considerations nonetheless. As I see it, those are as follows.

  1. Impeachment was not intended to be used in this manner.
  2. Impeachment is too strong a tool to use in this case.
  3. Impeachment has the potential to leave Obama and/or his party strengthened at a critical time.

To the first argument, I will simply respond that impeachment is the tool made available to call a president to account. As you have noted, it has not been used in this manner in the past — and your Clinton example is the most obvious similarity. I’d argue that Congress failed in its duty when it did not act in that case. The failure to act in the past, however, does not mean that Congress is exceeding its authority by using the power in this case. Indeed, it is an assertion of Congress’ proper role.

The second consideration is a critical one. Is using impeachment in this case the equivalent of using a howitzer to kill a housefly? I think not. Obama’s actions are a wholesale violation of the limits of the presidential war-making power, and as such may be seen as a “high Crime” meriting impeachment and removal. Use of the process asserts those limitations on presidential power — and failure to use them constitutes acquiescence to the proposition that a president has virtually unlimited war-making power without involvement of Congress.

The last matter, that of the transient political considerations, is quite dangerous in my eyes — and given Democrat calls for impeachment, overblown. But at the same time, Congress — in particular Congressional Republicans — must decide if the risk of continued Democrat control of the Executive Branch and/or possible Democrat gains in Congress and the long-term consequences (implementation of ObamaCare, for example) outweighs the precedent set by NOT impeaching Obama for his overreaching. I would argue it does not.

I think impeachment fits in this case. We have a president who has entered us into an extended “war of choice”, rather than a simply responding to an act of aggression against the US, without consulting with or receiving approval from Congress. We have divided power in Congress, so that whatever happens will require the active participation of majorities of both parties. Let’s take the opportunity to act to either reaffirm Congress’ role in war-making or declare that historical precedent has turned that role into the constitutional equivalent of a human appendix or a prehensile tail. Congress, by it’s action or inaction, must decide.

SOCCER DAD: Perhaps I’m oversimplifying but it appears that Greg views impeachment as a legal process with political implications whereas I view it as a political process with legal constraints. I believe this divergence colors our views of the situation.

Rather than saying that “impeachment was not intended to be used in this manner,” I would say, “impeachment is a political tool (or weapon) and necessarily requires strong political support to be used.” Requiring a supermajority for conviction shows the intent was to prevent impeachment from being used as a way of settling policy differences. If it’s clear there won’t be overwhelming support for conviction, it should serve as a warning that it is better not starting the process.

If there was a history of Congress and the Senate impeaching and removing Presidents from office for failing to consult Congress, I’d agree that this. It wasn’t just Clinton. President Reagan attacked Qaddafi in 1986 in response to the discotheque bombing without Congressional approval. (He did consult with Congressional leaders, but that isn’t what’s required.) As far as i can tell, neither did President Bush get Congressional approval before invading Panama to capture Gen. Noriega. If this is a “high crime” it is also common and not one that any Congress has sought to challenge in the past. So it’s not simply that impeachment would be “too strong;” its use here would be unprecedented.

As I noted in the previous paragraph, President Obama’s action is not unprecedented. But should political calculation come into play? Absolutely. If Congress could send articles of impeachment to the Senate but the Senate fails to convict (and it won’t convict) what exactly has been gained? A shot across  the President’s bow? The President won’t have been reined in and he will suffer nothing politically. Republicans though will be portrayed (unfairly, to be sure) as the heavies and will suffer politically. If there is any hope of defeating President Obama’s agenda it will require continued Republican electoral dominance. Impeachment would risk that. It’s not worth it.

Greg prefaced his opening remarks with a statement from then Sen. Barack Obama denying the President the right to declare war in certain circumstances. By deploying troops in a fashion that violates that standard, President Obama is acting hypocritically. That statement was political and cynical, but it has no legal force. No legal action should be taken against the President.

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