Trump’s real impeachable offense

Americans are about to witness a stomach-churning political carnival as members of Congress debate whether President Trump should be impeached and removed from office. There will be claims that he violated his oath of office in dealing with Ukraine, and much hand-wringing over his assault on democratic values. It is likely to be a deeply depressing spectacle.

Can Trump be deposed for being a bad president? Certainly not. Were his dealings with Ukraine so egregious as to justify his removal from office? Maybe. Should he be impeached? Yes — but not for any of the reasons his enemies cite. His truly pernicious crime is violating the Constitution by sending American troops to fight in foreign wars without the consent of Congress. That is the most powerful legal argument for his removal.

Trump’s offense is rank and smells to heaven. If legislators simply cited it, every honest one among them would have no choice but to support his removal. Congress, however, cannot denounce this profound crime because Congress is itself complicit. Nor is it willing to face the fact that almost all of our recent presidents are as guilty as Trump. Instead, Congress is focusing on Trump’s misdeeds in dealing with Ukraine, a country that few in Washington could find on a map. Yet those misdeeds, while appalling and possibly illegal, pale alongside the colossal Constitutional crime that makes American wars possible.

Arguably the most revolutionary decision made by the framers of our Constitution was giving Congress the power to declare war. Never in history had this power been taken out of the hands of a national executive. Records of the debate in Philadelphia 232 years ago show that delegates were fully aware of how radical their proposal was. When one of them suggested that it might be wiser to do as all nations had done until that time — allow the president to declare war — a Massachusetts delegate, Elbridge Gerry, slapped him down by saying that he “never expected to hear in a Republic a motion to empower the Executive alone to declare war.” Among the many delegates who supported him was Thomas Jefferson, who later, as president, sought permission to fight a war in North Africa because he was “unauthorized by the Constitution, without the sanction of Congress, to go out beyond the line of defense.”

Jefferson was not the last President to obey the command enshrined in Article I, Section 8 of our Constitution — what scholars call the “declare war clause.” In 1812, James Madison sought a Congressional declaration before ordering troops to war against Great Britain. James K. Polk went to war with Mexico only after Congress approved his request for permission to do so. Congress also approved American entry into the Spanish-American War, World War I, and World War II. Since then, the “declare war clause” has been quietly set aside. Congress never authorized military action in in Korea, Vietnam, Yugoslavia, Afghanistan, Libya, or Syria. Rather than repeal what has become an inconvenient piece of our Constitution, presidents have chosen simply to ignore it.

Members of Congress tolerate this assault on our founding law because it serves their political purposes. Many fear that if they ever vote against any war anywhere, they will be pilloried as unpatriotic. Voting to authorize a war, however, is also dangerous, because if it goes badly — as all of our recent wars have — those who favored it will share the blame. The easiest course is not to vote at all. Trump has violated the “declare war cause” by authorizing bombing or ground combat operations in an uncertain number of countries without Congressional approval. Members of Congress do not hold him to account for stripping them of their right to declare war because they have no interest in exercising that right. This reflects the ancient truism that in politics, avoiding troublesome duty is sometimes more expedient than standing on principle. In that calculation, the Constitution becomes collateral damage.

Another reason Congress so resolutely refuses to claim its role in the war-making process is that doing so would implicate previous presidents. If Trump’s bombing of Syria is illegal, so was Barack Obama’s. If his deployment of combat forces to Afghanistan violates the Constitution, so did deployments ordered by George W. Bush. Few in Washington, of either party, have much appetite for soiling the reputations of their old warhorses. It’s far easier to pretend they are all innocent than to suggest they are all guilty.

There is a stronger legal case against Trump for violating the “declare war clause” than for any of the charges his enemies are leveling against him. The political culture in Washington, however, makes it highly unlikely that he will be called to account for violating the Constitution. So: impeach and convict Trump by all means, but for his high crime rather than for lesser ones.

Stephen Kinzer is a senior fellow at the Watson Institute for International and Public Affairs at Brown University.