Is Afghanistan impeachable?

There have been a host of calls on the right to impeach the occupant of the White House for bungling the Afghanistan exit.  (I'm using that polite term in place of a host of more proper, but ultimately inflammatory expressions for what actually happened.)  There have been a similar number of statements on the left about how wonderful it was that the Ice Cream Monster ended "America's Longest War."  Any difficulties were due to a brain freeze and will be rectified as soon as the Taliban set up a properly diverse government.

Sober legal minds have actually suggested that while other acts of his might be impeachable, this foreign policy act is purely within his cognizance (does he still have a cognitive to have cognizance?) and thus is not subject to congressional review.  His insistence on an unconstitutional eviction moratorium is just one clear example of violating the Constitution he swore to uphold.  But that's not a (General) Willy-Nilly dash for the airport.  Rocky Road Joe does hold the title of commander-in-chief, so it's up to him.

If we go back to the debates over the Constitution, we find that impeachment of a president was not a controversial issue.  It was widely thought to be a good check on a bad chief executive.  The Constitution needed a provision "for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate."  It wasn't good enough to wait for the next election, because, as James Madison noted, "[h]e might pervert his administration into a scheme of peculation [embezzlement] or oppression.  He might betray his trust to foreign powers."  This easily led to bribery or treason as grounds for impeachment.  But soon it was realized that this wasn't enough.  There were too many opportunities for evil in the president's office.  Smithsonian Magazine notes:

The Virginia delegates [Mason, Madison, & Randolph] borrowed their model for impeachment from the British Parliament. For 400 years, English lawmakers had used impeachment to exercise some control over the king's ministers. Often, Parliament invoked it to check abuses of power, including improprieties and attempts to subvert the state. The House of Commons' 1640 articles of impeachment against Thomas Wentworth, Earl of Strafford, alleged "that he ... hath traiterously endeavored to subvert the Fundamental Laws and Government of the Realms ... and in stead thereof, to introduce Arbitrary and Tyrannical Government against Law." (The House of Lords convicted Strafford, who was hanged in 1641.)

We should note that the key issues are not "misadministration," which was soundly rejected as a cause for impeachment.  After all, being incompetent is not a crime.  Electing Jimmy Carter was simply a mistake.  Rather, the concern was "improprieties and attempts to subvert the state."  Numerous writers have noted Biden's installation of executive officers who are manifestly hostile to the Constitution.  Near-extortion by the attorney general against the Arizona election audit comes to mind.  The now-rescinded nomination of David Chipman, a rabid anti–Second Amendment activist, to head the Bureau of Alcohol, Tobacco, Firearms, and Explosives is of a similar kind.

But all that must take a back seat to one key problem with the occupant of the White House.  Among his duties are a specific mandate in Article II, Section 3.  "He shall take care that the Laws be faithfully executed."  In short, Joe Biden does not have the authority to waive any law.  In fact, failure to see that the Department of Justice be certain that it properly enforces all laws without regard for status should constitute a breach of this "take care clause."  On that ground, Donald Trump could have been impeached for failing to bring criminal charges against Hillary Clinton, James Comey, and several others.  He's out of office, so our attention should be drawn to Hunter Biden's laptop and his blatant lie on Form 4473 declaring he had never used drugs.

Returning to Central Asia, the take care clause envelopes the abandonment of American citizens.  We can't bring a charge based on his C-in-C failures.  But we can look at Biden's failure to follow the law.  In this case, we look at the 2021 National Defense Authorization Act.  It declares (section 1215) that the president cannot reduce troop levels in Afghanistan below set levels.  He is allowed to waive that restriction by written notice to Congress that includes a detailed explanation of how the reduction serves national security interests.  So far, so good.  Biden sent a letter on June 8.  Supposedly, that was all Congress was entitled to.

But section 1215(b) can't be waived.  It requires a detailed report to Congress, which can be to committees that meet under security protocols, that details the risks to our counter-terrorism mission, our personnel, NATO partners, and so on.  The list is long and detailed, but the president chose to ignore that part of the law.  That is impeachable under the take care clause.  It also becomes impeachable because of how the withdrawal has been mismanaged.


Biden's August 16 speech on Afghanistan (YouTube screen grab).

The letter Biden sent includes worthless platitudes.  "We will withdraw responsibly, deliberately, and safely, in full coordination with our allies and partners.  Our NATO allies and operational partners, who have stood shoulder-to-shoulder with us for almost 20 years and who have also made great sacrifices, will now withdraw alongside our forces as we stand by our enduring principle of "in together, out together."

This promise was worthless, as our troops departed in the dark of night, with no notice to our allies.  That is also why, in an unprecedented move, the British Parliament held Joe Biden in contempt.

It may seem a bit arcane to use such a cause to impeach the occupant.  But this is real and substantial, unlike a simple phone call to a foreign president or a riot that was not incited by President Trump.  Joe Biden has betrayed our trust in multiple ways.  This could be the means to remove him, even if it isn't because of his other malfeasance.  We got Al Capone for tax evasion, not his other criminal endeavors.  But with Democrats in the House and Senate, I'm not holding my breath.

Ted Noel, M.D. posts on social media as DoctorTed and @VidZette.

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