Provocative opinion: Balloon-gate is an impeachable offense

The President of the United States recklessly and dangerously unleashed F22 Raptors on three amateur balloons in as many days with no explanation.  The Founders would’ve considered this an impeachable offense and a subordinate would likely face criminal charges under the Uniform Code of Military Justice.

The Biden Administration and the media have rapidly moved on from last month’s series of troubling encounters over US airspace, when the President ordered American planes to shoot down four objects in less than two weeks, a situation that had not occurred even once before in our history.  The first, of course, was the infamous Chinese Spy Balloon that traversed the entire country before being downed by an F22 Raptor firing a sidewinder missile off the coast of the Carolinas in what I and many others believe was a fully justified shooting.  The following three incidents occurred over the course of the next nine days and based on what we now know, appear far more troubling.  These were not spy balloons representing a foreign threat, either from China or otherwise, but merely amateur devices known as “pico” balloons and costing as little as $12.  “I tried contacting our military and the FBI—and just got the runaround—to try to enlighten them on what a lot of these things probably are. And they’re going to look not too intelligent to be shooting them down,” explained Ron Meadows, the founder of Scientific Balloon Solutions, a manufacturer of pico balloons for hobbyists, educators and scientists, in an early candidate for understatement of the year.  “I’m guessing probably they were pico balloons,” concluded Tom Medlin, a retired FedEx engineer and co-host of the Amateur Radio Roundtable show, who currently has three such balloons in flight in the Northern and Southern hemispheres.  If this is true and, to be sure, the administration itself has not specifically denied these reports, ordering American jet fighters to take out amateur devices with sidewinder missiles over United States airspace is almost certainly an impeachable offense. Impeachment, of course, is not a word that should be used lightly or a process that should be undergone without serious grounds, but it the remedy the Founders designed for Commander in Chief so completely reckless and incompetent that he lets loose the United States Air Force on the Northern Illinois Bottlecap Balloon Brigade.  In fact, this is one of things we have impeachment for.

Article II, Section 4 of the Constitution describes both the grounds for impeachment and the procedures.  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Constitutional scholars have debated for centuries precisely what should fall under that description.  Even at the time, there was a vagueness to it having been handed down from British law, dating back to 1386.  In 1974, the Senate Judiciary Committee produced a report on “The Historical Origins of Impeachment,” noting “‘High Crimes and Misdemeanors’ has traditionally been considered a ‘term of art,’ like such other constitutional phrases as ‘levying war’ and ‘due process.’”  These terms of art have generally been interpreted by the Supreme Court, and are taken to mean what the Founders would have believed their era.  Impeachment is, of course, a political process organized as a judicial one, meaning the Courts would not directly weigh in, but the Founders themselves could not have been more clear as to the underlying meaning in this case.  James Madison, considered the Father of the Constitution, felt that it was “indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate.”  He concluded, “In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.”  Before settling on “high crimes and misdemeanors” as the final language, “maladministration” was the term used for either corruption or extremely poor judgment.  Edmund Randolph believed it could be used for executives who “misbehave” and Charles Cotesworth Pinckney for “those who behave amiss or betray the public trust,” but perhaps no one was more blunt than Benjamin Franklin, who noted it could be used when a Chief Executive “rendered himself obnoxious,” and the country should have a process for the “regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”  During the ratification process, Alexander Hamilton wrote more soberly in Federalist Number 65, claiming impeachment is justified for “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

Of course, no President prior to the Trump era had ever been impeached without committing an actual crime according to the criminal code, so much so that the impeachment of Andrew Johnson featured Congress inventing a law for him to break.  Military law, however, provides criminal penalties under Article 114 of the Uniform Code of Military Justice.  These include general categories of “wrongful” and “reckless conduct.”  According to Crisp and Associates Military Law,  “A charge of reckless endangerment regarding Article 114 is used more as a deterrent of reckless or wanton conduct that may result in an elevated risk of death or bodily harm to others.  The conduct is considered wrongful when it lacks a legal justification or excuse.   Reckless conduct is any conduct that exhibits a disregard for reasonably foreseeable consequences as a result of the act or an omission.  Death or injury is not required to prove reckless endangerment.”  The details for “reckless endangerment,” “conduct that is wrongful, reckless or wanton and is likely to produce death or grievous bodily harm to another person,” plus “firearm discharge” and “endangering human life,” referring to any person who “willfully and wrongly, discharges a firearm, under circumstances such as to endanger human life.”  The President of the United States is not bound by these particular laws as the Commander in Chief outside the chain of command, but it is hard to see how any subordinate who pursued the course of action he approved would not be subject to them, and you will not be surprised to learn that military policies and procedures were referenced when it came to the potential removal of President Trump, more on that in a moment.

In the meantime, it is all too easy to make light of a President who fires an almost $500,000 missile at a $12 balloon, but the reality is far from funny and certainly conforms to the standards set out by the Founders for impeachment and likely the military code of justice.  First, President Biden’s actions are unprecedented.  Firing missiles is an act of war, plain and simple, subject to the highest possible scrutiny. The United States Air Force was founded in 1947 and the North American Aerospace Defense Command, which is responsible for tracking aircraft over our soil, followed 11 years later in 1958, but no President has ever authorized the take down of a manned or unmanned aircraft over the United States.  Second, these three acts of war were completely unwarranted, making them “wrongful” by definition.  The three balloons following the original spy balloon were not a threat to anyone or anything, and never have been.  There are hundreds floating in the skies right now, completely harmless, akin to a SWAT team opening fire on your child’s toy car.  Third, he ordered these unprecedented acts of war three times in the same number of days, unleashing the US military over US airspace for no reason not once and not even twice, suggesting a dangerous disregard for precedents established by other Presidents and willful disregard of the sobriety required to initiate acts of war.  Fourth, these actions were dangerous.  We know this because the Biden Administration claimed they did not shoot down the Chinese Spy Balloon when it was over Montana or the rest of the continental US specifically because falling debris could injure or kill someone, then they went and fired three missiles, which could just as easily have done the same, meaning there was an implicit likelihood of bodily harm or death by their own admission.  Fifth, it is hard to see how they were not both reckless and negligent.  Reckless for obvious reasons given there was no threat and one does not initiate acts of war without a substantial threat.  Negligent because it is the President’s responsibility to ensure acts of war are only authorized when a threat has been verified, and there is little evidence to suggest anything of the sort was undertaken here.  This is especially true when none have been shot down since, meaning dozens of these balloons are still over our airspace but we no longer consider them a threat because they never were.

Of course, I do not believe for a single moment that Articles of Impeachment will ultimately be filed for these offenses, and to some extent I am being intentionally provocative, but consider what the reaction from media and Democrats might have been if former President Donald Trump had undertaken the same action.  Once upon a time, claiming Trump’s recklessness would start World War III was something of a cottage industry in the media and political circles complete with calls for his removal from office on various grounds.  On October 11, 2017, The Hill published, “This is how Trump could start World War III” after a former supporter and Republican Senator, Bob Corker, questioned the President’s fitness for office.  “He concerns me.  He would have to concern anyone who cares about our nation.”  One of the reasons The Hill found cause for concern was “Trump’s finger on the nuclear button.”  “President Trump, like all presidents in the nuclear age, has sole authority to launch U.S. nuclear weapons, enough firepower to end life as we know it. Most Americans do not believe this, and assume that Congress would be able to intervene and stop Trump from initiating a unilateral nuclear attack. Not so. Trump could launch nuclear weapons on his own authority in about the time it takes to send a tweet.”  Though Senator Corker noted, “As long as there are people like (Tillerson and Mattis) around him who are able to talk him down when he gets spun up, you know, calm him down and continue to work with him before a decision gets made, I think we’ll be fine,” The Hill still concluded, “The hope of continuous adult supervision is a thin reed to hang the world on. President Trump is not listening to his wise men. He is acting on his own.”

This article did not recommend removing President Trump from office, but many others certainly did.  Earlier in 2017, The New Yorker reported that “Trump’s critics are actively exploring the path to impeachment or the invocation of the Twenty-fifth Amendment, which allows for the replacement of a President who is judged to be mentally unfit.”  They cited Bruce Blair, a “research scholar” at the Program on Science and Global Security at Princeton, who noted that if President Trump were in the Air Force, he would have to take the “Personnel Reliability Program, which includes thirty-seven questions about financial history, emotional volatility, and physical health. (Question No. 28: Do you often lose your temper?)”  “There’s no doubt in my mind that Trump would never pass muster,” explained Mr. Blair.  “Any of us that had our hands anywhere near nuclear weapons had to pass the system. If you were having any arguments, or were in financial trouble, that was a problem. For all we know, Trump is on the brink of that, but the President is exempt from everything.”  Of course, none of these things actually came to fruition under former President Trump, but we have a President in the White House right now with his finger on the same nuclear button that continually exhibits erratic behavior, worthy of the same concerns.  The only difference is:  This President has actually exercised such recklessly poor judgment that the US Air Force used F22 Raptors and sidewinder missiles to take down three amateur balloons for no reason in three separate, unjustified acts of war.  Perhaps even worse, his administration remains defiant about the incidents, refusing to answer even basic questions.  Actually, there’s a second difference:  Suddenly the media has no interest in fitness for office, despite when its opposite was recently on display and missiles were flying across the continental United States.  House Republicans should begin impeachment proceedings immediately citing exactly these concerns and potential criminal violations, and if nothing else, let the Administration defend their reckless, dangerous, and negligent actions in public, where the American people can ultimately decide.