What should leaders tell the troops about impeachment?

A few weeks ago POLITICO’s Bryan Bender contacted me regarding a story he was writing about politicization in the military, and asked what the Secretary of Defense or the Chairmen of the Joint Chiefs of Staff ought to be telling the troops about the impeachment process.   It doesn’t seem that Bryan has yet written his article, but here’s the input I gave him:

“If Secretary Esper and General Milley can get out guidance about the rules limiting political activities sooner rather than later, that would be wise.  There are few things that the military ought to avoid more than any entanglement with an impeachment process which, unfortunately, will likely be fraught with hyper-partisanship.”   

“At this point the guidance could simply be much the same as that DoD typically highlights in any election year, just distributed earlier than 2020.  The rules about staying officially nonpartisan in fact and perception should be sufficient at this early stage to prevent DoD military and civilian personnel from being drawn into the impeachment morass without specifically mentioning it.” 

“Sensitivities are such these days that any mention, however benign, might still be interpreted by one side or the other as seeming to validate or invalidate the legitimacy of the impeachment effort.”

“If the time comes when DoD does need to provide impeachment-specific guidance, it ought to include an explanation as to how the process works.  For example, even if the House votes for articles of impeachment, the President remains the President unless and until the Senate trial results in a vote to remove him from office, at which time the Vice President becomes President.”  

“For the military it’s critical that there be no misapprehension, even a momentary one, about the chain of command – to include the identity of the commander-in- chief.”  

Operation Desert Fox

“I was deployed for Operation Desert Fox, a short bombing campaign against Saddam Hussein’s Iraq, during the Clinton impeachment in 1998.  After the House voted for the articles of impeachment, some officers in the command post asked “who’s the president now?”, not realizing that there had yet to be a trial in the Senate.   

“Despite the misunderstanding, it had no effect on the combat operations then ongoing, which is a testament to the professionalism of America’s armed forces.  Still, we don’t want to give any adversaries the idea that there might be some uncertainty – however brief – about the chain of command that they might be able to exploit, so educating the force about the process at the right time would be smart.” 

If the “right time” does arise, educating the force about the impeachment process won’t necessarily be easy as it does present much more complicated issues than those that usually arise during a typical election year.  Accordingly, leaders need to educate themselves – now – about the process in case it proves necessary to explain the matter to the troops.

Fortunately, the Congressional Research Service (CRS) recently (10 Oct 2019) issued an updated report about impeachment that is apolitical and factual (it’s found here).  The Senate website also has a good variety of materials and it’s found here.

Chief Justice Roberts

In my view a Senate “trial” may be hard for just about anyone, including the troops, to understand.  It does have some of the features of a regular criminal trial – and the Chief Justice of the Supreme Court presides – but it is what experts call a “quasi-criminal proceeding” with its own unique rules.  Among other things, proof-beyond-a-reasonable-doubt is not necessarily required (though the Senate might agree to use it).  A 1999 CRS report reveals some of the thinking behind the absence of a criminal law standard:

“In essence, their argument was that since criminal sanctions could not be imposed, a criminal standard of proof was not required. Additionally, they contended that the criminal standard was inappropriate in an impeachment because impeachment was by its nature a proceeding where the public interest (the interests of society) weighed more heavily than the interests of the individual defendant, which were adequately protected by the constitutional requirements of separate action by both Houses of Congress and a two-thirds vote of those present for conviction in the Senate.”

In addition, other protections that are de rigueur in a criminal proceeding may not apply to an impeachment trial.  Writing in the Los Angeles Times on Oct 25, Gene Healy of the Cato Institute argues that “It’s not obvious that the 5th Amendment’s Due Process Clause — ‘No person shall … be deprived of life, liberty, or property, without due process of law’ — applies also to impeachment,” and adds that the “Constitution simply does not give impeachment targets the rights of defendants in criminal trials.”

Moreover, although the Constitution limits impeachment to “”high crimes and misdemeanors,” it doesn’t actually require a finding of a violation of the criminal law.  (Incidentally, experts estimate that 70% of all Americans have committed a crime that theoretically could result in a prison sentence!)   NBC News explains the origins and meaning of “high crimes and misdemeanors”:

“The founders intentionally kept the term “high crimes and misdemeanors” vague, because impeachment is meant to be a political act, not a legal one. Unlike in criminal law, there are no clear rules for evaluating when a president has stepped over the constitutional line.

The founders rejected the term “maladministration” as grounds for impeachment. They didn’t want a president tossed out simply because Congress didn’t think he was doing a good job. Alexander Hamilton said impeachable offenses were those that involved abuse of public trust. The term is generally understood to mean abuse of office that results in harm to the public.”

Of course, this is just a sampling of some of the complexities about impeachment – and tough questions from the troops could arise at some point.  In a recent post (“Why an apolitical military is so important in an era of an “All-Volunteer” force“) I tried to explain that keeping the armed forces out of the current political turmoil is critical.

Thus, to reiterate, anything said to the troops needs to be confined to a dispassionate discussion of the process, not about the merits (or lack thereof) of the case itself.

The military is in the business of planning for all kinds of contingencies – just in case – so it simply makes sense to prepare for this one.  As I say, “educating the force about the process at the right time would be smart,” and the effort to be ready to do so ought to start now.

Still, as we like to say on Lawfire^®, checks the facts and the law, assess the arguments, and decide for yourself!