Unlikely Articles of Impeachment
Thomas Jefferson, drafter of the Declaration of Independence, was -- perhaps surprisingly -- no fan of the U.S. Constitution’s impeachment provision. Initially an enthusiast, he found it personally frustrating. Having identified a miscarriage of justice by federal judges, he asked Congress to impeach the miscreants. Instead, Congress dawdled and acquitted. In 1807, Jefferson wrote to his friend William Giles: "Impeachment is a farce which will not be tried again."
Jefferson was frustrated by the process, although not the principle. He was wrong when he predicted it would not be tried again, although right about its utility in reckoning with official misconduct. As a rule, it has been distracting, nearly unworkable, and a painful remedy to effectuate. Its greatest value may be as a deterrent to abuse, including by a president.
The provision’s history notwithstanding, one can imagine -- if only imagine -- what Articles of Impeachment against the current president might look like, if ever framed. They almost certainly never will be. As a remedy, impeachment requires gobs of time, offenses so egregious both parties are animated to action, and tolerance for national distraction.
Looking back on the last century, Articles could often have been framed -- but were not. The Teapot Dome Scandal of the 1920s, which involved two cabinet secretaries, might have touched Republican President Warren Harding. Misfeasance at some 60 military bases controlled by Franklin Delano Roosevelt -- a discovery made by then-Senator Harry Truman -- might have brought down the house. FDR also famously tampered with the U.S. Supreme Court, spent 20 million dollars retrieving his dog from the Aleutian Islands (when he forgot it on a family vacation), and kept notorious company with Missy LeHand and Lucy Rutherford, all of which history forgave.
Likewise, President Eisenhower’s young vice president, Richard Nixon, narrowly avoided impeachment when accused of accepting thousands of dollars in unlawful gifts. Nixon cleverly took a page from FDR, hiding behind one of his gifts, a dog. He said his children were attached to the dog. Dogs have a way of moving the American heart. He was forgiven. He would have to wait another decade for his own Articles. Bill Clinton faced the arduous process head on; one wonders what -- as a country -- we got for our money. Even those who objected to the Iraq War under President George W. Bush muttered the word. Still, impeachment has produced more heat than light. Nevertheless, what if presidential offenses raise systemic questions? What if the officeholder is neither contrite nor seemingly aware how far off the mark he is? What then? What might Articles look like against the current president? Here are some examples:
Whereas the President of the United States knowingly violated two statutory provisions of the National Defense Authorization Act, one of which identifies as a felony the unmitigated, material support of an identified terrorist organization, and the second of which expressly required 30-day notice to the United States Congress prior to transfer of prisoners from the Gitmo Prison facility
…Whereas the President … publicly divulged the name of a senior US intelligence officer serving in a foreign country, in violation of Intelligence Identities Protection Act of 1982, Public Law 97-200, United States Code Sections 421 to 426;
…repeatedly asserted false, material facts in association with prospective healthcare legislation subsequently signed into law;
…propagated false statements with the intent of deceiving the American People concerning cause of death for four American citizens, including one United States Ambassador;
…failed to preserve the lives of innumerable combat veterans by refusing to respond, over a five year period, to life-threatening conditions documented by multiple inspector general reports on multiple Veterans Administration hospitals
…knowingly asserted executive privilege over thousands of documents related to secret shipments of firearms to criminals in a foreign country resulting in the death of a U.S. law enforcement officer…
…knowingly utilized the powers of the federal Internal Revenue Service (IRS) to search, seize data, intimidate American citizens, pursue private information without warrant, in violation of the Fourth, Fifth and Fourteenth Amendments;
…knowingly collected private information on millions of American citizens for unknown purposes and without conforming these searches to the US Constitution’s “search and seizure” guarantees of the Fourth Amendment;
…knowingly sought to intimidate, chill and silence through abuse of law members of the press, both collectively and individually, suppressing “freedom of the press” to which all Americans are entitled under the First Amendment;
…repeatedly abused executive authority through the unprecedented issuance of ultra vires executive orders and waivers of law not authorized by the US Constitution or by Congress;
Therefore the President of the United States shall be subject to impeachment in the United States Senate, under Article 2, Section 4 of the U.S. Constitution, for such “high crimes and misdemeanors” as are described in the foregoing Articles and petition for removal.
Thomas Jefferson was prescient. These Articles will never be drafted. The workability of impeachment -- especially against a sitting president -- tends to discourage its use. Still, looking at them on paper is sobering. Even the fact that they could be framed, may encourage renewed accountability. Despite Jefferson’s frustration, our Third President believed in accountability for presidents and their appointees. If Jefferson thought impeachment a “farce,” what would he say about executive leadership today? Would he not be equally disappointed, reserving for them similar praise?
Robert Charles is a former U.S. Court of Appeals Clerk, former congressional counsel, and former Assistant Secretary of State in the George W. Bush Administration. He now leads a DC consulting firm.