Impeachment is All About the Limits of Executive Authority

The impeachment trial is about two things: (1) What are the limits of authority granted the President under the Constitution? And, (2) whether or if a President devoid of character and morals can be removed from office?

The second question is the unfortunate and easy question. It is w/o any doubt that Andrew Johnson was an atrocious human being and far from worthy of the office of President. Congress saw him as so unfit, unstable, and uncouth that he should be removed from office. That argument and impeachment failed and Johnson finished his term.

President Trump is an immoral and selfish man not worthy of the office of President. But he will not be removed from office because of it.

That brings us to a President’s scope of authority. This is a topic I know a little bit about. The title of my masters thesis: AN INCONVENIENT AGREEMENT: HOW JEFFERSON AND MARSHALL CAME TOGETHER ON EXECUTIVE AUTHORITY. I cannot in good conscience state that President Trump has a learned philosophy of executive authority. He simply believes that as President he can do whatever he wants, “I have Article II,” he’s proclaimed.

In my thesis, I wrote:

In 1790, Thomas Jefferson wrote: “The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.” Ten years later, standing on the floor of the House, Representative John Marshall said: “The President is the sole organ of the nation in its external relations,and its sole representative with foreign nations.”

Today, Jefferson would find what the GAO found, a violation of law by the President when congressionally appropriated funds were held and not immediately released to Ukraine. Marshall would take Trump’s side and argue that foreign affairs are the discretion of the President.

But, executive authority as it has been adjudicated over the last 35 years, but especially by Chief Justice John Roberts during his tenure, would, in my view, find Trump’s actions as exceeding the scope of presidential power.

In a 2008 case (Medellin v. Texas), Chief Justice Roberts wrote an opinion invalidating an order by President W. Bush. Since a treaty action required Senate or legislative action, the President could not act unilaterally outside the legislative boundaries ratified by the Senate. While the 2008 case and the parallel cases involving Jefferson’s purchase of the Louisiana Territory and the extradition of an American citizen by President Adams involve treaties … I believe the same legal construct applies.

President Trump acted unilaterally outside the laws he swore an oath to “faithfully execute”. Since the appropriated dollars for Ukraine came from Congress then to the Executive for release through the Departments of Defense and State, the President was bound by the shared powers of Congress and the Executive.

Thus, the question: Can the President be impeached AND removed for office for such a violation as I’ve articulated?

Well, high crimes and misdemeanors does not mean violation of law. But, that’s what we actually have in this case. Was the violation so egregious that it shocks our conscience, exceeds the bounds of the Constitution, and offends the spirit of our democracy? If the withholding of the funds was related to VP Biden entering the presidential campaign and contingent on a foreign actor interfering in our electoral process … then yes.

However, it seems that such intention by the President to introduce foreign interference in an American election isn’t shocking enough for the body politic to act appropriately.

There are some things that are right and some things that are wrong. As Rep. Adam Schiff said, “If right doesn’t matter, we’re lost.”