Obama, Syria and Impeachment- Yes We Can

In a previous article here, I posited the question whether Obama could be impeached for an attack on Syria if Congress expressly refuses to grant authorization. From some comments, there would appear to be some misunderstandings. The fact is that- YES- Obama can be impeached for violating the will of Congress regarding Syria. It would be a practical impossibility since it is inconceivable there would be a widespread defection of Democrats and there are likely enough Republicans who agree with his stance on Syria in the House that an impeachment vote would fail. In the Senate, which tries the actual case, it would be extremely difficult to get 67 Senators to convict Obama. From a pure numbers standpoint, it would be a pointless exercise.

I believe the confusion enters the discussion under the erroneous assumption by some- perhaps an assumption based upon my argument- that a criminal statute must have been violated for Obama to be impeached. Provided there is a criminal statute involved, it would obviously make the case much stronger. But, in the words of one commenter, a crime per se is not necessary to impeach anyone. The confusion stems from the phrase “high crimes and misdemeanors.”

As Alexander Hamilton stated in Federalist #65, the concept of impeachment originates from British law. The concept of impeachment had been in existence since the 1300s. As it was applied then, officers of the King were “impeached” for a failure to perform their job duties, for what would today be considered a “crime,” or simply for carrying out a job duty not to the liking of Parliament, especially after the power of Parliament increased.

The phrase “high crimes and misdemeanors” leads one to believe that an actual crime must be committed for impeachment to occur. However, as the phrase was used and enforced when the Constitution was debated and ratified and as our Founders understood the term, the commission of an actual crime was not necessary. The first British impeachment occurred in 1386 and the charge was breaking a promise an officer of the King’s council had made to parliament- hardly a crime in the truest sense of that word. In 1621, the King’s counselor was impeached for failing to prosecute suits he had brought, while in another impeachment in 1640 the charge was “damage to the state” by trying to expand royal power.

In 1786, near the time of the Constitutional Convention, Warren Hastings was impeached as Governor of India for cruelty towards the native Indians, among other things, which was not in and of itself a “crime.” There are several references to this impeachment in the ratification debates. One of the goals of the Founders was to create a strong, but responsible Executive. Towards these ends, the option of impeachment was included to keep the Executive reponsible, but not subservient to Congress. During the debates, which centered little on impeachment since its inclusion was a foregone conclusion, the only question was the reasons for impeachment.

George Mason objected to the sole inclusion of only treason and bribery as justification reasoning it was too limited. He suggested the phrase “maladministration,” but James Madison argued that term was too vague. Instead, the British phrase “high crimes and misdemeanors” was agreed upon and they were all too aware of the meaning of that phrase. They could have written “or other crimes,” as they did in the Extradition Clause, but didn’t because the concept had no roots in criminal law. Instead, this phrase encompasses any offense that attempts to usurp or abuse constitutional authority, or for a serious breach of the public trust. In that same vein, many of our Founders warned against impeachment for errors in judgment by the Executive. Thus, the intent and understanding of the term- impeachment as a check on Executive authority- was not to be read narrowly, nor was it intended to make the Executive subservient to an unbridled Congress.

There are other differences between impeachment and the criminal law. As Hamilton explained, impeachment was a “political” question, not one of punishment. That is why once impeached and removed from office after trial in the Senate, the person is subject to criminal prosecution. That being said, since 1936 every official impeached had a criminal element to the charges. This started with Judge Halstead Ritter in 1936 (intent to embezzle), Harry Claiborne in 1986 (bribery), Bill Clinton in 1988 (perjury), Alcee Hastings in 1988 (perjury and bribery), Walter Nixon in 1989 (perjury), Samuel Kent in 2009 (perjury and possible sexual assault), and Thomas Porteus in 2010 (lying under oath on financial disclosures). But, prior to 1936, all impeachments were for either exceeding their powers, performing duties in a gross manner, or using the office for improper use- all offenses which were political in nature. Some were for intoxication while serving on the bench or jailing people critical of the person. And clearly, the impeachment of Andrew Johnson was political.

Furthermore, criminal law is not designed to preserve the country against possible abuses of presidential power. The historical evidence supports the notion that although the actions may involve a crime in the traditional sense, the offense must reflect grave misconduct that so injures or abuses our constitutional institutions and form of government. The purpose of impeachment is not punishment. Its purpose is to preserve constitutional government.

Would Obama’s decision to attack Syria after a congressional disapproval of authorization to do so rise to the level of an impeachable offense? To be so, it must be offensive to our constitutional form of government. Here, Congress has somewhat conceded some of their express power to “declare war” to the Executive branch via the War Powers Act. Leaving aside the practical considerations, in theory such an article of impeachment has serious merit. Concocting a silly story about a video to explain an attack on a US consulate in Benghazi? Although incredulous, it does not disturb our constitutional form of government. An ill-advised gun running scheme gone awry that results in the death of Border Patrol agents? Despicable, but, again, it does not disturb our constitutional form of government. Using an agency of the government to target and discriminate against political groups that oppose the president and his policies? This is borderline and is likely an impeachable offense since it is a serious breach of the public trust, especially in light of the fact that the agency used- the IRS- maintains private information on citizens. There are obviously other scandals which, quite frankly, do not rise to the level of impeachable offenses (the NSA, spying on journalists, drones, etc.).

As one commenter noted, the president can be impeached for spitting on the sidewalk, if Congress was so inclined. Given the record of the leadership of this Congress, it is doubtful they would seriously entertain impeachment proceeding against Obama. In effect, they would be further neutered by their inaction in this area and become willing accomplices in the ever-expanding imperial presidency. The scary part about this presidency is the fact he gets with away with these usurpations of power that sometimes have tragic consequences. For my money, 2017 cannot come soon enough.