The disaster in Afghanistan has prompted multiple calls to impeach the President. What are the grounds and what does history say in similar situations? Before the Trump Era, no President had been impeached without being accused of a crime. In 1868, Congress actually passed a law to entrap Johnson. Should the old rules still apply? If not, what about the phone call with the Afghan President?
In the wake of the disaster in Afghanistan and our disgraceful rout at the hands of the Taliban, calls for President Joe Biden’s impeachment have begun. “It’s a grassroots pressure — we’re feeling it,” explained freshman Republican Representative Barry Moore from Alabama, a member of the very conservative House Freedom Caucus. “I think even some of the Democrats are feeling it.” Last week, the House Freedom Caucus itself met to discuss whether they should publicly call for impeachment en masse. A source told Politico that the group was split with some members resisting the urge, but everyone agreed “doing nothing is not an option at this point.” In the interim, conservatives in the House have opted to pursue a less dramatic course, holding a press conference to demand Biden’s resignation instead. “We call upon, most somberly, the resignation of this president, Joe Biden,” Representative Andy Biggs from Arizona said this past Tuesday.
There have been grumblings from Senate Republicans as well. Marsha Blackburn from Tennessee said last week, “Joe Biden, Kamala Harris, Antony Blinken, Lloyd Austin and General Milley should all resign or face impeachment and removal from office.” Likewise, Lindsey Graham of South Carolina said that he believes Biden has “been derelict in his duties as commander-in-chief.” For his part, Senate Minority Leader, Republican Mitch McConnell has said there will be no impeachment on his watch. “The president is not going to be removed from office,” he claimed during an event in Pikeville, Kentucky. “It’s a Democratic house, a narrowly Democratic Senate, that’s not going to happen,” telling voters that “behaviors get adjusted in this country is at the ballot box.”
Senator McConnell is right in the short term. To some extent this is entirely semantic: President Biden will not be impeached while Nancy Pelosi runs Congress, but that could certainly change next year. At the same time, given that former President Trump was impeached twice and former President Bill Clinton suffered a similar fate 20 years ago, it’s worth considering what an impeachment of President Biden might look like. We can start by asking whether or not President Biden committed a truly impeachable offense, looking to history as our guide.
Up until Trump, no President had ever been impeached without being accused of an actual crime. After the Civil War, the belief that a crime needed to be committed to pursue impeachment proceedings was so strong that Congress literally invented one for Andrew Johnson to commit prior to his impeachment in 1868. The much-maligned Johnson ascended to the presidency after the assassination of Abraham Lincoln, just 42 days since taking the oath as Vice President. Lincoln and Johnson were always odd-bedfellows to begin with. Johnson was a Democrat and Lincoln chose him primarily to pull support from his Union Democrat opponent, former General George McClellan. When Johnson took office, there was a brief burst of optimism, “By the Gods,” proclaimed Senator Ben Wade of Ohio, “there will be no trouble now in running this government,” but his relationship with Republicans in Congress quickly deteriorated as it became obvious he favored the south during reconstruction.
During his time in office, Johnson blocked Republicans at almost every turn, vetoed legislation popular with Republicans such as Freedman Bureau’s Bill in 1866, and pardoned Confederate leaders. In response, Republicans passed a likely unconstitutional bill, the Tenure of Office Act, over Johnson’s veto. The Tenure of Office Act purported to “provide for more efficient government of the rebel States,” but in reality restricted Johnson’s ability to manage his own cabinet. Any officer subject to the Advice and Consent of the Senate, including major positions like the Attorney General and the Secretary of War, could no longer be fired at the President’s discretion. Instead, the Senate would have a vote on whether or not the person could be dismissed.
The Tenure of Office Act was almost universally considered unconstitutional, but the courts take time to address these issues as they do today. Johnson, rightly so, saw the act as almost a dare for him to violate and be impeached, especially as he was clashing with Lincoln’s Secretary of War, Edward M. Stanton, who was also a key ally of the Republicans in Congress. At first, he tried to tread lightly, leading to a bizarre sequence of events where he suspended Stanton instead of firing him and appointed Ulysses S. Grant as interim Secretary of War. When Grant resigned the post, however, fearing for his own political future in the center of a Republican storm, Johnson ultimately made the move to fire Stanton. The Joint Committee on Reconstruction quickly drafted a resolution for impeachment and it passed the House by a huge margin, 126-47 on February 24, 1868. Of the total of 11 articles of impeachment filed, Article 1 detailed Johnson’s violation of the Tenure of Office Act; Articles 2, 3, and 8 claimed Johnson appointed another person as Secretary of War in violation of the Constitution; Articles 4 through 7 claimed Johnson conspired with Stanton’s Secretary of War replacement, Major General Lorenzo Thomas.
In short, the entire impeachment hinged on this intentionally unconstitutional act; Congress created a crime for Johnson to commit and then impeached him for it. Over a hundred years later, President Richard Nixon resigned after the House Judiciary Committee adopted Articles of Impeachment that also included real crimes. Article 1 charged that Nixon obstructed justice for making false or misleading statements to authorized officers of the law, hiding material from lawful investigations, tampering with witnesses, intentionally interfering with an investigation, paying off potential witnesses, misusing the CIA, and more. There were additional charges claiming he violated the rights of citizens and abused his power, but as with Johnson the central charge was a crime under criminal law. Likewise, twenty four years later, President Bill Clinton was impeached with the Article 1 charge of perjury for lying to a grand jury and delivering intentionally false statements, and Article 2 detailed witness tampering, both crimes. No other President had been impeached prior to President Trump, making it a strong historical precedent that a crime needed to be committed for impeachment proceedings to begin.
At this point, we can ask: Did President Joe Biden commit a crime in his handling of Afghanistan? Some conservatives like Lindsey Graham are accusing him of dereliction of duty for the fiasco, others even treason for arming the Taliban with US weapons, but it’s important to separate political hyperbole from an actual legal charge. Dereliction of duty requires a willful refusal to perform duties or an intentional action that results in incapacitation, and it’s difficult to see how poor planning and handling of a situation qualifies. Treason is also a serious crime that requires levying war against the United States, or adhering, aiding, or comforting our enemies, and a failure to secure weapons that weren’t even in US custody wouldn’t rise near the level. There is, of course, President Biden’s willful disregard for the truth and potential outright lies throughout, but lying to the American public isn’t a crime as he wasn’t under oath in a sworn legal proceedings. I’m certainly not a lawyer, but from all I can glean, Biden didn’t commit any actual crimes to serve as grounds for an impeachment.
At the same time, it’s important to consider that the long-standing precedent of requiring a crime was summarily disregarded in the Trump Era. Before Trump’s first impeachment for an alleged quid pro quo in Ukraine, all three impeachment proceedings had a criminal component, but, like so much else, things changed when Trump was involved. History was dismissed, and even legal scholars started inventing new standards, claiming that impeachment was a purely political process and innocence of any crime no longer mattered, despite that we had adhered to these standards for centuries. “Impeachment is an entirely different process from the criminal process, even though it shares some of the words that describe the process,” explains Robert Peck, constitutional attorney and president of the Center for Constitutional Litigation. Dr. Mark Graber, a law professor at the University of Maryland likewise noted, “There are some very strict rules for a criminal trial. There must be notice, right to an attorney, right to cross examine witnesses, right to call witnesses. These rules don’t exist for impeachment. The Senate determines their own rules.” Keith E. Whittington, a professor of politics at Princeton, goes one step further: “The House can impeach and the Senate can convict an officer for engaging in lawful conduct.” He continues, “The impeachment power is given to Congress to address myriad cases of noncriminal, political misconduct. The fact that an action is lawful is no defense to impeachment and conviction in the Senate.”
Of particular interest to the discussion right now is the first impeachment of President Trump, the centerpiece of which was a phone call with the President of Ukraine, Volodymyr Zelensky. On July 25, 2019, Trump spoke to his Ukrainian counterpart and said, “I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it.” He continued, “I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it.” Later in the call, he mentioned Joe Biden and his son, Hunter, “The other thing, there’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it… It sounds horrible to me.”
At the time, aid to Ukraine had been held up, allegedly as part of a quid pro quo scheme where it would only be released if Ukraine pursued an investigation of Hunter Biden. Trump denied the accusation, claiming the aid was on hold for other reasons, and the quid pro quo itself was never proved, but even then it would not have been illegal. The key charge against Trump in the actual Impeachment Articles was the far more generic abuse of power. Article 1 claimed, “Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage.”
Incredibly, a very similar phone call has surfaced between President Joe Biden and the former President of Afghanistan, Ashraf Ghani. This phone call occurred on July 23 and took approximately 14 minutes wherein Biden pressured his counterpart to lie about the war effort and promised aid if he would do so. According to a transcript of the call obtained by Reuters, Biden told President Ghani, “I need not tell you the perception around the world and in parts of Afghanistan, I believe, is that things are not going well in terms of the fight against the Taliban.” He then proceeded to ask his counterpart to lie if necessary, “And there is a need, whether it is true or not, there is a need to project a different picture.” Apparently, Biden was even willing to pay for these lies in an obvious quid pro quo. As Reuters described, “In the call, Biden offered aid if Ghani could publicly project he had a plan to control the spiraling situation in Afghanistan.” They quote Biden as saying, “We will continue to provide close air support, if we know what the plan is.”
Perhaps needless to say, this conversation has prompted very little coverage in the mainstream media and next to no analysis from the same scholars who claimed Trump could be impeached at the political whims of Congress. Press Secretary Jen Psaki has refused to answer questions about the call, but if Trump’s conversation with the President of Ukraine and the accompanying politically motivated quid pro quo was impeachable, why not this? Biden is clearly encouraging a foreign leader to lie for his own political benefit and he’s promising aid in exchange for doing so, aid that would presumably not be delivered if President Ghani failed to heed the request. In one key sense, it’s even worse than what Trump is accused of because there is no indication that Trump was asking President Zelensky to lie. As we found out after the election, Hunter Biden was under active investigation in the United States for shady overseas dealings, almost exactly as Trump said. You may disagree with Trump and still think it’s unseemly, but it’s pretty clear he believed Joe and Hunter Biden had abused their family connections and likely committed some crime. In Biden’s case, however, he’s actively asking President Ghani to lie to the world on his behalf. He shows no concern about it, saying Ghani should “project a different picture,” “whether it is true or not.”
In this brave new world of impeachment, what I’ve described as The Era of the Asterisk Impeachment, it’s difficult to see why this would not rise to the admittedly low standard, but, much as I would enjoy seeing Biden removed from office in disgrace and much as I feel our ignominious retreat from Afghanistan was primarily his fault, the so-called democratic norms Democrats are always promoting are far more important to the future of the country than continuing to push impeachment as another political weapon. Two out of the last five Presidents have been impeached, one has been so charged twice. Before Nixon, there was almost a hundred years between impeachments. I don’t see how we can afford to continue to go down this road and ultimately impeach every President anytime the opposing party holds the House of Representatives. I understand the conservative desire to fight fire with fire, but at some point you’re shooting yourself in the face and you’re better off saving your fire for the ballot box.