Yes, an impeachment inquiry concerns national security

In their post entitled “There Is No Constitutional Impediment to an Impeachment Inquiry that Concerns National Security”, Professors Lawrence Friedman and Victor Hansen castigate Professor John Yoo’s New York Times op-ed in which he warns that “we should beware that rushing into an impeachment may do long-term harm to the presidency and our national security.”  Friedman and Hansen disagree, and seem to think an impeachment proceeding presents no “concerns” with respect to national security.  Before you decide, consider the following.

In making his case, Yoo contends that the confidentiality of communication with foreign leaders is essential to the President’s ability to perform his duties as otherwise “our international relations will fall victim to government by committee.”  He adds:

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.

For reasons hard to fathom Friedman and Hansen evidently don’t believe the erosion of the President’s ability to be candid with foreign leaders or to communicate frankly with them altogether has national security implications as I think would certainly be the case. Whether that is sufficient reason not to impeach is a rather different issue, but to imply it isn’t even something that “concerns national security” invites an impeachment inquiry that isn’t as thoughtfully deliberative as it needs to be.

Friedman and Hansen also don’t really grapple with Yoo’s citation of the still-valid 1936 Supreme Court decision in Curtis Wright about the foreign relations power the Constitution creates for a serving U.S. presidents.  While the case does not mean that there are no other actors in foreign relations besides the Executive, it does stands for the proposition, as Yoo notes, that the president “is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

Instead, Friedman and Hansen simply rely upon the Steel Seizure case to suggest the primacy of Congress in foreign relations matters.  Besides the fact that Steel Seizure was about a domestic labor dispute where the Congress had specifically considered and rejected the strike-busting authority the President sought to exercise, Friedman and Hansen don’t even mention the 2015 case of Zivotofsky v. Kerry, which recognized  the President did indeed have important and exclusive foreign relations powers. That same case found unconstitutional Congress’ statutory effort to restrain them.

In any event, Yoo wasn’t really saying there was a Constitutional “impediment,” per se, to impeachment.  Rather, he indicated that the Founders contemplated impeachment as a last resort – something most Constitutional law scholars readily accept – and, in this instance, he suggests deferring to the electoral process is the wiser course.  Yoo insists:

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.

Friedman and Hansen don’t seem to share the Founders’ faith in the American people.  But the removal of the President by other than the ballot box so close to an election has, in my view, great potential add even more divisiveness in today’s already hyper-politicized and polarized environment.  Consider that as of October 18, fully 47% of likely U.S. voters still “approve of President Trump’s job performance.”  Even more significantly, a September 29th CBS Poll found that 59% thought Trump’s actions with respect to the Ukraine either were proper (28%) or not proper but nevertheless legal (31%).  An October 8th Washington Post poll found support for impeachment had risen recently, but was still less than a majority.

Nothing that concerns national security?

Regardless, what I find disturbing is these writers’ implication that there are no national security “concerns” extant in the current impeachment action.  As Lawfire^® readers may recall from this post “A question for America: should a CIA official ever be obliged to face the public?” a Central Intelligence Agency (CIA) official secretly collected information against an American citizen who had been highly critical of his agency – and did so without making any apparent effort to comply with the law intended to bar such domestic activity.

Doesn’t what we know now about the activities of the CIA official at least raise national security “concerns”?  I posed this query:

Aren’t we obliged to ask ourselves this very uncomfortable question: what’s to prevent another CIA officer (whose “official duties” give him unique access not just to people, but also to a myriad of sensitive databases and other materials) from conducting his own stealthy “investigative mission” into any number of elected officials (or other Americans who may be perceived as hostile to his agency), labeling any interaction of his target with a non-American as a “foreign intelligence matter,” and then packaging the collected information as a “whistleblower complaint” – and thus escape scrutiny and, perhaps, accountability for circumventing the existing legal prohibitions against investigating Americans?

I recognize how chic it is for academics to be reflexively hostile to all things Trump, but may I suggest that it’s vitally important, especially at this moment in our history, to be wary of the precedents being set?  I said this in the previous post:

In considering these issues many people might be blinded by their hostility to Trump and his often impossible-to-justify behavior, but it’s worth remembering that the conduct empowered in this case could someday be turned towards another elected American, and one who is vastly more to the liking of Trump’s many critics. 

Friedman and Hansen are correct that the Constitution doesn’t bar an impeachment inquiry, but decide for yourself if they are also right in their suggestion there is nothing that “concerns national security.”  Beyond Yoo’s concerns about eroding the authority under the Constitution for presidents to communicate with foreign leaders about national security and other matters, decide as well whether our democracy gives carte blanche to officials of the CIA, the world’s most powerful secret intelligence agency, or if it can be fairly said that its involvement in an impeachment proceeding should raise national security “concerns” that need to be examined.

Finally, decide for yourself if Yoo is right in suggesting that the wisest course is not to have Congress effectively reverse the decision of 63 million voters, but rather to trust the American people, “acting through the ballot box, to render judgment on President Trump.”

As we like to say on Lawfire^®, gather the facts, asses the law and the arguments, and decide for yourself!