The Constitution is the law that the people of the United States have imposed on federal officials. That’s what makes it the highest law of the land. US officials expect American citizens to comply with federal laws that control the actions of the citizenry. By the same token, US officials, including the president, are expected to comply with the higher law that we the people have imposed on them.
The Constitution provides that federal officials “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
President Trump has committed the following two high crimes and misdemeanors that merit impeachment and removal from office:
1. Trump initiated a war of aggression against Iran without a declaration of war from Congress.
The Constitution delegates the power to wage war to the president but only after Congress has declared war. If there is no congressional declaration of war, the president is constitutionally prohibited from waging war.
One might respond that several presidents since World War II have violated this provision of the Constitution. That’s true but that fact does not provide a legal justification for any president who commits this violation. Waging war without the declaration of war required by the Constitution remains a violation even if other presidents have done the same thing.
Imagine, for example, an American citizen who is being prosecuted by the feds for possessing marijuana in a state that has legalized marijuana. Even if the defendant can show that the feds have not prosecuted people in that state for several years, that will not serve as a defense in his federal criminal prosecution.
Does the illegal waging of war constitute a “high crime or misdemeanor”? I don’t see how it cannot, especially given the massive death and destruction that comes with such a war. Trump’s war of aggression (a type of war declared a “crime against peace” by the Nuremberg War Crimes Tribunal) against Iran is a perfect example. Not only has it resulted in massive death, destruction, impoverishment, and suffering among Iranians, including those 150 little girls who died when their school was bombed, but also death and injuries among US troops, not to mention the enormous financial and monetary costs being inflicted on the American people.
The subject of war was of the utmost concern to the Framers and our American ancestors. They knew that of all the enemies to liberty, to quote James Madison, war is the biggest because it encompasses other enemies to liberty, including debts and taxes. They knew that rulers have a propensity to start wars. That’s why the governmental system they established separated the power to declare war from the power to wage war.
2. Under the rubric of enforcing the federal government’s decades-old “war on drugs,” Trump has ordered the killing of people in boats on the high seas near South America, thousands of miles away from American shores.
The Constitution established a federal government of limited powers. In other words, there are no “inherent” powers, such as those that characterize most foreign regimes. Nothing in the Constitution gives the president a general power to order the military execution of suspected drug-law violators. The Framers and our American ancestors did not want to live under that type of governmental system.
To make certain that federal officials, including the president, got the point, our American ancestors enacted the Fifth Amendment to the Constitution. It expressly prohibits federal officials from depriving any person of life without due process of law, which means formal notice of charges and a trial. The Sixth Amendment guarantees the right of trial by jury.
Yet, US military officials have intentionally killed people on the high seas, based on intelligence that the Trump administration says establishes their involvement in drug trafficking. But evidence of drug-war violations, whether secret or not, does not serve as a legal justification for summarily killing any drug-war suspect, American or foreigner. Under American law, US officials are required to take criminal suspects into custody, indict them, and prosecute them. They cannot simply kill them.
The reasoning is no different if federal officials label the victims as suspected “narco-terrorists.” Under US law, terrorism is a federal criminal offense. As with drug laws, US officials are required to take suspected terrorists into custody, indict them, and prosecute them. US officials are not legally permitted to summarily kill them.
The fact that it is the US military that is doing the killing does not alter the analysis. Military officials are federal officials. They too are constrained by the Constitution. Here, the US military is operating in a police capacity, no different, say, from the DEA. Thus, military personnel who participate in these killings should be criminally prosecuted for murder, just as DEA officials would be if they were doing the killing.
Trump deserves impeachment for knowingly, deliberately, and intentionally committing high crimes or misdemeanors — (1) the waging of war without a congressional declaration of war and (2) ordering the killing of people on the high seas without according them due process of law. Why should presidents be given a pass to ignore that higher law that we the people have imposed on them, especially since they and other federal officials don’t give us a pass on the need to comply with the laws that they impose on us?
Reprinted with permission from Future of Freedom Foundation.
