Beware of Impeaching Trump. It Could Hurt the Presidency.
We must avoid doing long-term harm to the president’s ability to conduct foreign policy and protect our nation.
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.
Mr. 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 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.
John Yoo is a law professor at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution.
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