Foreign Affairs Has Always Been at the Heart of Impeachment

High Crimes From the Middle Ages to the Age of Trump

Presidential impeachment in the United States has always seemed to be a domestic matter. President Bill Clinton was impeached for lying about sexual misconduct. President Richard Nixon resigned to avoid certain impeachment in the wake of the Watergate scandal. And in 1868, the House of Representatives leveled 11 articles of impeachment against President Andrew Johnson for defying a Republican-led Congress and its positions on Reconstruction.
The current inquiry into President Donald Trump is different. Sometime in December, it is likely that a U.S. president will for the first time be impeached for misusing his foreign policy authority in the service of personal political interests. The evidence laid out in House Intelligence Committee hearings establishes that Trump conditioned the release of congressionally authorized military aid to Ukraine on an announcement by the Ukrainian government that it would conduct investigations of Trump’s political opponent, former Vice President Joe Biden, and of the baseless allegation that Ukraine, not Russia, interfered in the 2016 U.S. presidential election.
 
But it should not be surprising that dealings abroad could precipitate impeachment. Foreign affairs have often been at the heart of impeachment, from the origins of the practice in medieval England through its adoption by the United States. The history of impeachment over the centuries shows an abiding awareness of how vulnerable the practice of foreign policy is to the misconduct of its makers. The fact that the Senate will probably not remove Trump from office is not a measure of the ineffectiveness of impeachment as a tool but, instead, a reflection of the particular and peculiar transformations in the political culture of the United States that insulate the president from the consequences of his misconduct.
 
IMPEACHMENT THE ENGLISH WAY
 
When the framers of the U.S. Constitution included a provision that presidents and other “civil officers” may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors,” they were drawing on British parliamentary practice that was, in 1787, already centuries old.
 
The English Parliament invented impeachment in 1376 as a tool through which the elite interests represented in that body—the hereditary aristocracy, the established church, the landed gentry, and in due course professional lawyers and the moneyed class—could check the power of the crown. The nature of European kingship, with its entangled family alliances and unending cross-border quarrels over territorial and dynastic claims, regularly placed foreign relations at the center of national politics. England’s involvement in the wars of religion following the Reformation, proximity to the continent, and, eventually, management of an overseas empire also made foreign affairs important to the ruling class. Accordingly, missteps in foreign relations were often the subject of Parliament’s impeachments of royal ministers, judges, and others.
 
The impeachment of key royal officials followed debacles abroad on several occasions. In 1450, the Duke of Suffolk, a principal minister of King Henry VI, was impeached for the supposed betrayal of English interests to the French, including his role in arranging Henry’s marriage to the French princess Margaret of Anjou. The English had recently lost swaths of territory in France, and Suffolk’s rivals claimed that the Duke had conspired with the French during the marriage negotiations. The king tried to save Suffolk from imprisonment and possible execution (the punishments for impeachment then were harsher than the U.S. Constitution permits) by sending him into exile. Unfortunately for the duke, he was abducted by pirates in the English Channel and beheaded.
 
In 1625, the Duke of Buckingham, a close confidant of King Charles I, launched a disastrous and costly naval campaign against the Spanish port of Cadiz. Parliament tried to impeach Buckingham the next year. One article in Buckingham’s 1626 impeachment arose from a loan of English ships to the Catholic French king for use against Protestant Huguenots at La Rochelle; English parliamentarians were furious that Buckingham had effectively sanctioned the suppression of Protestants on the continent. Rather than see Buckingham impeached, Charles protected his aide by dissolving Parliament.
 
In 1667, after an expensive and unnecessary war with the Dutch, the Earl of Clarendon was impeached in part for seeking money from France to evade parliamentary controls on royal finance. In what was effectively a repudiation of pro-Catholic foreign policy, Parliament impeached Lords Oxford, Bolingbroke, and Strafford in 1715 for advocating the Treaty of Utrecht.
 
Perhaps most interestingly, in light of current events, in 1678, the Earl of Danby was impeached for soliciting—on behalf of the English King Charles II—a bribe from Louis XIV of France in return for English neutrality in the Franco-Dutch War. The king suspended Parliament to protect Danby, but years later the earl was impeached again, this time for accepting a bribe from the British East India Company.
 
The last significant British impeachment, that of Warren Hastings, governor general of Bengal, began in London just as the delegates to the constitutional convention arrived in Philadelphia in 1787. The trial, which lasted seven years and attracted a large following on both sides of the Atlantic, centered on fundamental disagreements about the proper relationship of Great Britain to its Indian possessions and the states that abutted them. The conservative politician Edmund Burke led the prosecution and argued that although Hastings’ actions did not necessarily constitute clear violations of existing laws, they were still crimes “against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”
 
The Hastings affair illustrates the key point about British foreign policy impeachments: the procedure was not limited to questions of criminality or violations of the law. Rather, Parliament claimed the final authority to determine the nation’s fundamental interests in foreign affairs and to impeach officials, even those supported by the crown, who subverted those interests.
 
AN AMERICAN INHERITANCE
 
By the time of the American founding in 1787, “high Crimes and Misdemeanors,” first used by Parliament in 1386, had become a term of art—familiar both in Britain and its American colonies—embracing the various behaviors that Parliament traditionally found impeachable. Virginia delegate George Mason proposed inserting “high Crimes and Misdemeanors” into the Constitution right after lamenting that “treason and bribery” wouldn’t capture the kinds of offenses committed by Warren Hastings. By writing the phrase into the U.S. Constitution, the framers, quite consciously, adopted along with it the body of British precedent including impeachments for the betrayal of the nation’s international interests.
 
Other founders were explicit in relating misconduct in foreign affairs to impeachment. James Madison argued for its inclusion in the Constitution because the president “might betray his trust to foreign powers,” and contended at the Virginia ratifying convention that, under the new Constitution, a president could be impeached for advocating a treaty that “violated the interest of the nation.” James Iredell, one of the first Supreme Court justices, said at the North Carolina ratifying convention that a president should be impeachable for “giving false information to the Senate” about a treaty pending ratification.
 
These remarks about treaties may seem quaint today, but the founding generation understood foreign relations primarily in terms of formal treaty relationships between nation-states. They gave the power of treaty ratification to the Senate because they believed that doing so would place the legislature at the heart of foreign policy decisions. Thus, declarations that a president could be impeached for impropriety in relation to the treaty process were expressions of the same fundamental view held by Parliament: the legislature is the final guardian of the nation’s interests and impeachment should serve as a check on presidential misbehavior in the international realm.
 
The foreign emoluments clause of Article I, Section 9, is a further expression of the fear that other countries could seduce the president from his proper allegiance. Edmund Randolph insisted at the Virginia ratifying convention that a president “may be impeached” for “receiving emoluments from foreign powers.” 
 




A protester holds up a sign reading "impeach" outside the US Capitol building during the "People's Rally for Impeachment" on Capitol Hill in Washington, DC on September 26, 2019. (Getty)

 THE IMPERIAL TRUMP
 
Despite the undeniable constitutional authority for impeaching a president for misconduct in foreign relations, carrying a Trump impeachment to his actual removal on that ground will be uniquely difficult. Those who would unseat a president must not only prove his conduct to be of a constitutionally impeachable type but persuade the public—to whose views legislators are exquisitely sensitive—that such conduct was sufficiently egregious to warrant expelling a lawfully elected chief executive. And as the power of the presidency in foreign affairs has metastasized far beyond the role envisioned by the framers, the public has lost sight of the framers’ intent.
 
The framers thought that by bestowing on Congress the powers of the purse, ratification of treaties, confirmation of cabinet-level officials and high-ranking military officers, regulation of “Commerce with foreign Nations,” raising the army, maintaining a navy, and so forth, they were keeping even adventurous presidents within congressional control. But in recent decades, dramatic increases in the executive establishment, in U.S. military power, and in the U.S. role in the world, combined with Congress abstaining from exercising its own constitutional authority, have transformed the president into a largely unconstrained actor in foreign relations.
 
But as anomalous as the framers would have thought the modern presidency, the modern U.S. public has never known any other reality. The imperial presidency developed during the New Deal and World War II. Virtually no one whose political consciousness predates those events remains alive. Unilateral action by a president in the foreign sphere—even the bullying of weaker states—seems quite normal. This makes it hard to differentiate legitimate presidential behavior, such as conditioning aid on genuine anticorruption efforts, from illegitimate abuses of power, such as withholding aid as leverage to gain personal political advantage.
 
The American public has also become more isolationist in recent years, skeptical of defense commitments to other countries and increasingly ignorant of the rationales for them. The generations that fought World War II and supported the long Cold War struggle against the Soviet Union generally believed a peaceful, democratic Europe to be worth protecting and the Kremlin’s expansionism to be a serious problem requiring a U.S. response. A few decades ago, the problem with Trump’s behavior toward Ukraine would likely have been self-evident to bipartisan majorities. Today, it remains self-evident to the U.S. foreign policy establishment of both parties. But to many ordinary Americans, these experts speak a nearly extinct language as they warn of horrors that have passed out of living memory.
 
The rise of Trump has exacerbated this trend. Trump came to power in part by endorsing a simplistic, transactional view of the United States’ role in the world and his own role as president: “America first.” U.S. foreign policy should embrace only narrow self-interest. Alliances are suspect. Foreigners will yield to the demands of the strong leader of the strongest nation. Neither the institutional Republican Party nor its supporting media ecosystem has proved willing or able to reject this authoritarian parody of statesmanship.
 
As a result, the long slide toward presidential unilateralism in foreign policy has melded with isolationist disillusion and the bitter partisan spirit of the day. It has produced in a large chunk of the electorate the apparent acceptance of an overt and historically unprecedented presidential abuse of American power. Unless something unforeseeable occurs, the Senate will vote to acquit. By refusing to wield the tool bequeathed by fourteenth-century English parliamentarians and eighteenth-century American founders, Congress will normalize Trump’s offenses and abandon the United States’ moral claim to world leadership in the twenty-first century.
 
This article was originally published on ForeignAffairs.com.
 
 


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