Last night, Laura Ingraham asked Sen. Tom Cotton (R, Ark.) about the options in dealing with the influx of undocumented persons over the southern border. Sen. Cotton raised the possibility of impeachment. I have had this question raised with me on a number of occasions in the last year. I believe that President Joe Biden can be legitimately blamed for his handling of the crisis at the border but I do not believe that he could be legitimately impeached for those failures.

As a threshold matter, one should acknowledge that there have long been periods of crisis at the border. Other presidents have dealt with a border that has remained porous and fluid. However, I do believe that the Administration has lacked transparency and, frankly, honestly in dealing with the crisis. Biden’s own policies likely have contributed to this increase in illegal crossings.

When asked about the border on “The Ingraham Angle” on Tuesday Sen. Cotton said about impeachment:

No Laura, I don’t think it’s out of the realm of possibility because of all of the abuses of the Biden administration. I think what the Department of Homeland Security has done to undermine American sovereignty, to open up our borders to undercut wages and jobs for American workers is probably the most egregious…and they’re open about it. [DHS] Secretary Alejandro Mayorkas has said it in speeches…that being illegally present in the country is no longer even a priority for deportation. They admit these things publicly.

Clearly, nothing in a political sense is “out of the realm of possibility” in Congress. However, an impeachment on the border crisis would be, in my view, an abuse of the impeachment powers and a dangerous precedent for our constitutional system.

In fairness to Sen. Cotton, he only stated that there might be a basis for “investigation” on possible impeachment.  I would strongly discourage the use of impeachment as the basis for such an investigation. Congress has oversight responsibilities and powers that should be used to investigate the crisis and how the Administration has addressed it. While impeachment investigations are considered more robust, there are ample oversight powers to fully investigate the handling of the crisis.

Biden could clearly be impeached if he committed certain offenses in relation to the border. For example, if he committed the crime of perjury (like Clinton) or obstructed Congress, there would be a cognizable basis for impeachment. However, we have not seen evidence to support such an allegation.

The scope of the impeachment standard was a matter of passionate disagreement in both both the Clinton and Trump impeachments. I testified in both impeachments as a constitutional expert on the standard (here and here).

During the Constitutional Convention, George Mason wanted to include a broad scope for impeachable offenses, covering everything that could “subvert the Constitution.” He failed. The Framers rejected terms ranging from “corruption,” obtaining office by improper means, betraying one’s trust to a foreign power, “negligence,” “perfidy,” “peculation” and “oppression.” All these were rejected along with “maladministration” and kept off the Constitution’s list of impeachable offenses.

An impeachment over the border crisis would be based on a type of maladministration or negligence theory. The danger of such a broad, ill-defined standard is obvious. It would convert the impeachment clause into a type of vote of no confidence and allow the removal of a president whenever the opposing party gains enough votes in the two houses. That is why I previously disagreed with calls for impeachment over Afghanistan and other such debacles. It is also the reason the Framers rejected these broader standards.

Many presidents have been viewed as “failures” by critics but that it not what impeachment is designed to address.

Parliamentary systems, like Great Britain’s, allow for “no confidence” motions to remove prime ministers. Parliament can pass a resolution stating “That this House has no confidence in Her Majesty’s Government.” But that’s not our system, and it’s doubtful that the members of Congress calling for Trump’s impeachment would relish a parliamentary approach: When such a vote succeeds, the prime minister isn’t necessarily the only politician to go. If the existing members of parliament can’t form a new government in 14 days, the entire legislative body is dissolved pending a general election.

The Framers were certainly familiar with votes of no confidence, but despite their general aim to limit the authority of the presidency, they opted for a different course. They saw a danger in presidents being impeached due to shifts in political support and insulated presidents from removal by limiting the basis for impeachment and demanding a high vote threshold for removal. There would be no impulse-buy removals under the Constitution. Instead, the House of Representatives would have to impeach and the Senate convict (by two-thirds vote) based on “Treason, Bribery, or other high Crimes or Misdemeanors.”

When we make someone president, we give them tremendous power and tremendous discretion in wielding that power. Such discretionary judgments are protected for even low level federal officials. The Federal Tort Claims Act (FTCA) contains a major exception called the the discretionary function exception to protect officials from lawsuits for poor judgments. If a president uses poor judgment, you can refuse a second term or use the checks and balances of the system to counteract his mistakes.

Past presidents have made breathtaking mistakes from the Bay of Pigs to wars like Libya, Iraq and Afghanistan. However, those judgments have not been deemed high crimes and misdemeanors. Otherwise, you create the basis for the impeachment of virtually any president.

I believe that the Democrats did great harm to the impeachment process in the use of snap impeachments and poorly drafted articles against Trump. The Republicans should not follow the same casual approach to the constitutional standard or process.

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