At least one attorney crying out in the wilderness that is impeachment law has had enough of suggestions on Twitter and elsewhere that President Donald Trump‘s declaration of a national emergency to build the wall is an impeachable offense.
CNN legal analyst Ross Garber, who also happens to be one of the nation’s foremost impeachment experts, spent some time on Friday responding to outlandish speculation that Trump had committed a “high crime or misdemeanor” by doing an end-run around Congress (the legislative branch and keeper of the purse) to invoke his executive power and fulfill the campaign promise that could not be accomplished through a spending bill.
Garber says these characterizations of Trump’s actions on Friday are way off the mark. He offered five reasons why impeachment is not a legitimate response to Trump’s executive action.
First, impeachment is “limited” to crimes with such gravity as “treason or bribery,” which Garber notes are the “two examples of ‘high crimes and misdemeanors’ referred to in the Constitution.” Garber said that it shouldn’t be “seriously” suggested that Trump’s emergency declaration, even if “improper,” rises to the level of treason or bribery.
Second, Garber says, the Founding Fathers, i.e. the people who wrote Constitution, “explicitly considered and rejected ‘maladministration’ as a ground for impeachment.
“The concern was that this would effectively make the President subservient to Congress,” Garber said.
The focus on the word “maladministration” is notable because the conservative attorney and National Review columnist Andrew McCarthy has been roundly criticized today for arguing that former President Barack Obama‘s “maladministration” was impeachable.
McCarthy’s words on Obama’s “lawlessness“:
Abuse of the executive’s power over immigration enforcement now belongs in this category of maladministration that impeachment alone can counter.
Third, Garber pointed out, there are less extreme measures available.
“If the President has acted improperly there are other remedies. Congress can override his action,” he said. “The Courts can vitiate his declaration by ruling it unlawful. And, of course, the American people can vote the President out of office.”
Law&Crime noted elsewhere Friday that, indeed, the House of Representatives, which is controlled by Democrats, may seek a joint resolution and at least force Senate Republicans to formally back Trump’s wall.
Fourth, Garber highlighted that fact that impeachment is a long, arduous and damaging process that will “disrupt” the governance of the nation. Nor has impeachment ever removed an American president.
“Impeachment disrupts the functioning of government. It is a long, painful, expensive process that rends the relationship between the Executive and Legislative branches,” Garber continued. “It is also incredibly rare. No president has ever been removed from office through the impeachment process.”
Finally, Garber said that such calls for impeachment are incredibly unrealistic in the current political landscape. Remember, Senate Republicans hold the majority and they are the ones who would be tasked with putting the president on political trial.
“Removal based on the president’s emergency declaration is also a partisan pipe dream,” Garber concluded. “Conviction requires a 2/3 vote in the Senate where Republicans hold the majority.”
[Image via Nicholas Kamm/AFP/Getty Images]