The House Judiciary Committee seriously blundered this week in voting two narrow articles of impeachment against President Donald Trump: abuse of power, and obstruction of the impeachment investigation. The charges should have been much broader to address far more serious constitutional usurpations and derelictions. Trump correctly characterized them as the lightest presidential impeachment accusations in more than two centuries.
Contrary to the prevailing orthodoxy, impeachment and removal of the president for “high crimes and misdemeanors” was conceived as a preemptive safeguard against an incumbent who, by words and by deeds, has evinced an intent to vandalize the Constitution in violation of the presidential oath of office.
On that score, President Donald Trump can be summoned against himself: “Then I have Article II, where I have the right to do whatever I want as president,” he said over the summer. It was a near-perfect echo of President Richard Nixon’s own counter-constitutional declaration to journalist David Frost after his resignation: “When the president does it, that means it is not illegal.” We fought the Revolutionary War, however, to overthrow the idea that the king can do no wrong. Indeed, the United States Constitution would have been shipwrecked if the absolute executive power voiced by Trump and Nixon had been espoused by its proponents.
The Constitution’s architects feared presidential disloyalty to its separation of powers and checks and balances. Accordingly, they prescribed the precise words of the presidential oath in Article II, section 1, clause 6: “I do solemnly swear (or affirm) that I will faithfully execute the Office of the president of the United States, and will to be best of my Ability, preserve, protect, and defend the Constitution of the United States.” That prescription traced back to the English Bill of Rights of 1689. Even King William and Queen Mary were required to swear to uphold laws passed by Parliament as a condition of coronation instead of suspending Parliament or suspending enforcement of selected laws as James II had done.
The urgency of preemptive impeachments of a president contemptuous of constitutional norms is vastly greater today than in 1789 when George Washington was inaugurated. Since then, the powers of the executive branch have grown from a tiny acorn into the mightiest oak the world has ever seen. The potential damage caused by executive misconduct has spiked accordingly. Among other things, the president can now launch nuclear weapons vastly more powerful than the nuclear bombs that incinerated Hiroshima and Nagasaki. Entrenched dictatorships can shred health and safety protections, dispatch political opponents to dungeons—or worse.
When Washington was president, his cabinet and federal workforce were tiny. There was no standing army, in contrast to President Trump’s global multitrillion-dollar military-industrial-counterterrorism complex. Washington’s federal budget was minuscule, not the staggering $4.7 trillion projected for 2019. And in 1789, there was no ubiquitous administrative state, begotten by irresponsible delegations of legislative power and oversight which the president wields to benefit political friends and punish political adversaries. There was also no national security agency to conduct dragnet surveillance against the entire population.
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If you’re skeptical of the prospect of preemptively impeaching Trump for claiming limitless presidential power, think of this analogy. Suppose a neighbor enters your living room. He proclaims he can pillage your house and murder its occupants with impunity, but that he will desist provisionally to see what happens. You would evict the neighbor immediately. By the same logic, it would be folly to risk calamity from a megalomaniac president who has made his grisly intentions known.
Yet President Trump has not simply claimed limitless power. He has also acted on his boast. He has continued or expanded unconstitutional presidential wars inherited from his predecessors; played prosecutor, judge, jury, and executioner by sending US forces and drones to kill any person on the planet deemed a national security threat based on secret, unsubstantiated information; spent money to build a wall with Mexico with funds not appropriated for that purpose in violation of the Antideficiency Act; stonewalled congressional oversight and defied congressional subpoenas; appointed cabinet officials and revoked treaties without the consent of the Senate; exploited the office of the presidency to enrich his family; and, deliberately failed to execute consumer, environmental, immigration, and other laws. (In accordance with these violations, we have proposed a 12-count article of impeachment against Trump for violating his oath of office, which is reproduced at www.nader.org.)
We acknowledge that several instances of President Trump’s constitutional misconduct were also perpetrated by his predecessors with impunity because of congressional dereliction. That, however, is an unpersuasive argument for the current Congress to stay its hand. No president has a right to rely on congressional nonfeasance of its impeachment powers. Moreover, no other president has taken such a massive wrecking ball to our entire constitutional edifice.
The threshold for preemptive presidential impeachments should correspond to the magnitude of the damage the president could inflict on the nation and the world by violating his oath of office. As that magnitude climbs—as it has manifold since 1789—the tolerable risk of an immature, megalomaniac president in the White House should be correspondingly smaller. In 2019, the president can inflict irreparable calamities that would have been unthinkable more than two centuries ago. The urgency and breadth of the impeachment articles voted against President Trump should correspond to those alarming risks.