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Impeaching Trump could hurt the presidency and national security

John Yoo, law professor | September 25, 2019

House Speaker Nancy Pelosi authorized the opening of an impeachment inquiry over accusations that President Trump abused his foreign-relations powers to target political rivals. Realizing the gravity of the affair, the president had announced that the White House would release an unclassified and unredacted transcript of a phone call at the center of the whistle-blower complaint.

President Trump and Nancy Pelosi in the Oval OfficeMr. Trump already acknowledged that he had called Ukraine’s president, Volodymyr Zelensky, in July to investigate Joe Biden and his son, Hunter, for corruption. He also reportedly told his chief of staff, Mick Mulvaney, to withhold $400 million in military aid to Ukraine.

“If the president is essentially withholding military aid at the same time he is trying to browbeat a foreign leader into doing something illicit, providing dirt on his opponent during a presidential campaign,” Adam Schiff, chairman of the House Intelligence Committee, said on Sunday, then impeachment may be the “only remedy that is coequal to the evil.”

But we should beware that rushing into an impeachment may do long-term harm to the presidency and our national security.

The Constitution vests the president with the authority to conduct foreign policy and the responsibility to protect the nation’s security. A president, even one who is possibly engaging in wrongdoing, must have confidence in the confidentiality of his communications or he will be unable to perform his constitutional duties and our international relations will fall victim to government by committee.

The framers sought to reverse the failures brought by legislative control over foreign policy. In Article II of the Constitution, they vested “the executive power” in the president, which they understood to include the power over national security and foreign affairs.

“Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand,” Alexander Hamilton wrote in Federalist 74.

The framers concentrated these powers in the president so the nation could act effectively in a dangerous world. “That unity is conducive to energy will not be disputed,” Hamilton observed in Federalist 70. “Decision, activity, secrecy and dispatch will generally characterize the proceedings of one man.”

Congressional interference into presidential conversations with foreign leaders would violate Article II. According to Mr. Trump’s critics, the inspector general for the intelligence community can forward any whistle-blower complaint to Congress if it involves a matter of “urgent concern.”

But Congress cannot subject the president to the supervision, control or review of a subordinate officer. As the Supreme Court made clear in a 1926 case, all executive branch officials exist to assist the president in the performance of his constitutional duties. An intelligence officer cannot file a whistle-blower complaint against the president, because the president is not a member of the intelligence community; nor does a presidential phone call with a foreign leader qualify as an intelligence operation. The intelligence community works for the president, not the other way around.

Under the Constitution and long practice, the president alone conducts foreign relations. As Justice George Sutherland wrote for the majority in a 1936 Supreme Court opinion (quoting Chief Justice John Marshall), the president “is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

Beginning with George Washington’s 1796 refusal to provide the House with the Jay Treaty negotiating record, presidents have claimed the right not just to communicate with foreign leaders but also to keep national security information secret. Thomas Jefferson even expanded executive privilege to protect national security information against the courts in 1807, when he refused to testify in the treason trial of Aaron Burr (Chief Justice Marshall, presiding as trial judge, accepted Jefferson’s claim).

Here, good constitutional structure matches good policy. If Congress could regulate presidential discussions with foreign leaders, presidents and foreign leaders would speak less candidly or stop making the calls altogether. United States foreign policy — approved by the American people at each election — would be crippled.

Congress would seize the upper hand in foreign affairs, which has produced disasters such as the War of 1812 and restrictions on aid to the Allies before American entry into World War II. In the 1970s, congressional interference after Watergate handicapped the efforts of Gerald Ford and Jimmy Carter to respond to the Soviet military buildup, Communist expansion in Latin America and Africa, the fall of Vietnam and Iran’s revolution. Only with Ronald Reagan’s restoration of executive power could the United States carry out the strategy that ultimately won the Cold War.

Democrats may regret again wounding the presidency when Mr. Trump’s successors grapple with the rise of China as a global power, Russia’s revanchism, Iran’s quest for regional hegemony and North Korea’s nuclear proliferation.

But suppose the worst suspicions about Mr. Trump come true. Suppose he offered $400 million in aid to Mr. Zelensky for damaging information about Mr. Biden.

The framers believed that “high crimes and misdemeanors” included a president who used his foreign affairs powers for personal or political gain. A special congressional committee could review classified information in secret and bring United States and foreign officials to testify under oath. The House could meet any stonewalling by cutting intelligence, military and diplomatic funding. Congress’s traditional oversight powers will force the intelligence agencies and the White House to provide the facts behind the Trump-Zelensky call and any delay in Ukrainian aid. Mr. Trump will also have his opportunity to provide a transcript of the call and to make the case that his official acts remained uninfluenced by any ulterior political motives — the same argument that won the day in the travel ban case at the Supreme Court last year.

But the founders believed that impeachment should come only as a last resort. At the end of four years, the president may be turned out of his office, Gov. Edmund Randolph said in 1788 as Virginia weighed ratifying the Constitution. “If he misbehaves he may be impeached, and in this case he will never be re-elected.”

Democratic presidential candidates are calling for impeachment. But they should realize that they themselves remain the framers’ primary remedy for presidential abuses of power. The Constitution trusts the American people, acting through the ballot box, to render judgment on President Trump. Democrats should trust the framers’ faith in the American people, too.

Cross-posted from The New York Times

Comments to “Impeaching Trump could hurt the presidency and national security

  1. I am a Berkeley grad. I am so embarrassed that we have Yoo as a Professor there. What happened to UCB. Sad, sad, sad

  2. The “Impeachment Inquiry” should be public.

    All witnesses should be questioned publicly by Democrats and Republicans. I do not want the Democrat Party’s spin on events.

    See: Levin: “Nancy Pelosi and her politburo have gone rogue and are trying to run roughshod over President Trump”
    Oct. 13, 2019 – 12:36 – Mark Levin takes an in-depth look at the House Democrats’ impeachment inquiry on a special edition of ‘Life, Liberty & Liberty.’

    BTW, in the case of Joe Biden we know for certain there was a “quid pro quo”
    See: Joe Biden Brags about getting Ukrainian Prosecutor Fired–dj2-CY

    Also, writing in The Hill, John Solomon demonstrates that it is Democrats who first sought to intimidate Ukraine for their own political ends and who continue to do so.
    See: “Let’s get real: Democrats were first to enlist Ukraine in US elections”

    • So you’re angry bc Dems are following protocol set forth by GOP in 2015? Trey Gowdy is on record stating the benefits of behind closed door hearings.

      You guys are going to need a better defense than “Dems are being mean!” Good luck with that.

  3. Perhaps it would be useful to 1)- define the word ” Impeachment” 2) – define the impeachment process within the constitution 3)- define what the procedure is within the House of Representatives 4) – define what happens after that impeachment goes to the Senate 5)- Give prior impeachment of constitutional officials and what the result were in U.S. History.

  4. This article, in particular this line “A president, even one who is possibly engaging in wrongdoing, must have confidence in the confidentiality of his communications or he will be unable to perform his constitutional duties reminds me of the whole “Don’t charge police with crimes because then they’ll hesitate to do their jobs” logic ……

    Well, if you’re acting so poorly in your job role, maybe you DO need to hesitate and rethink it. Maybe you shouldn’t feel confident about it. And maybe you shouldn’t be doing it.

  5. If national security and the presidency are harmed, I say three hurrahs!

    The end-of-world state we have now, the dissipation of earth resources, and the pretentious standing on other people and cultures all lie at the feet of the wild successes of an imperial US presidency and out of control national security state.

  6. ““I won’t insult your intelligence by suggesting that you really believe what you just said.”
    ― William F. Buckley Jr.

    “In any event, if there were evidence of criminal wrongdoing by the president, the sensible course would be for Mr. Starr to name Mr. Clinton as an unindicted co-conspirator and then refer the case to the House for impeachment proceedings. One might even consider the independent counsel statute, in part, as a congressional delegation of authority to conduct a preliminary impeachment investigation.”
    –John Yoo, July 20,1998

    • Rich and the number one Hancho to digress . People can’t be comfy without a fall guy . He is doing everything right for America and the rest of the world. Leave him be .

  7. Of all Justice Scalia’s many dubious opinions, his dissent in Morrison is perhaps the silliest.
    And Yoo’s misreading of the Founders’ writing is very much in line with that nonsensical train of thought.
    That the president is the ‘organ’ and ‘representative’ of the nation in foreign affairs is to insist that he is not the brain or the originator of foreign policy, but the agent, or mouthpiece, of it. What hubris to imagine otherwise!

    Since the current congress seems to agree with internal DOJ policy against indicting a sitting president for his many crimes, that means that the responsibility for holding him accountable lies with the political process, and the process laid out by our founding documents is impeachment. Do conservatives really imagine that the Founders intended the president to be above the law? Congress has a fundamental constitutional responsibility to hold this man accountable for his flouting of the law for personal gain.

    Yoo has been pretty consistent in his view that the executive is indeed above the law in almost all areas, and that makes him anti-American. The time to use the ballot will be when we the people have the chance to hold those of our representatives in Congress responsible for their similar failures to rise above partisan loyalty and demonstrate loyalty to the American notion that we are a nation of laws and not of men. That’s what sets us apart from the places we separated from to form our own more perfect union.

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