Impeaching James K. Polk

by Cliopatria

To me, the debate over the constitutionality of President Bush’s pervasive eavesdropping—and his claim to absolute power to do it-- always evokes the question of impeachment. In particular, it brings up this question: If his action is unconstitutional, is it included in the phrase “high crimes and misdemeanors?”

At a very practical level, the answer is clearly no.

That is because a majority of Congress today would not define his actions that way. A majority of the house would not impeach him, and not even a simply majority of the senate would convict. Sincere agreement with Bush’s position, party loyalty, a lack of widespread public opposition, and the fear of limiting presidential action in time of war all lean against it. Only if evidence emerged suggesting widespread use of the program in self-serving ways would that change.

Thus the question of impeachment does not hinge on “is this action illegal or unconstitutional” (except for a few constitutional purists) so much as on an evaluation that begins with “is this action illegal or unconstitutional” but ends with “is this action self-serving and unpopular.” Only if all the answers are yes need the president fear impeachment.

In some ways I find that depressing, particularly when I’m in one of my purist moods. If one decides that the criminality of the act depends on its purpose and not its legality then the judgment of Bush, or any other president, is removed from the legal and constitutional realm and placed in the hand of politics. However, maybe it is better to think of impeachment, conviction, and removal of office that way. That is, outside of a few clear horrible crimes, impeachable offenses really should be defined by the intersection of law and politics and not by the former alone.

As an example, take James K. Polk. Please.

In 1846, James K. Polk used his constitutional power as commander in chief to provoke a war with Mexico. It was controversial, but faced with a request for a Declaration of War when hostilities had already begun, most congressmen and senators yielded.

In my survey class, I often make the point that Polk was the first president to understand that the ability of the president to put troops into the field gave him the de facto power to declare a full-scale war. However, the more I think of that, the more I think that my generalization—though not without merit--understates the importance of Polk’s understanding of politics and the temper of his time. As an example of that, and as a way to consider the definition of an impeachable offense today, here is a counter-factual scenario:
James K. Polk badly misjudged Congress when he sent troops to the Rio Grande, and instead of backing the troops, a majority opposed the war. Furthermore, in this scenario, some were so upset that they propose impeaching Polk for having provoked hostilities. Polk’s supporters countered that he did nothing outside the powers of his office. Right or wrong, they said, he had committed no impeachable offense.

Polk’s opponents probably would have invoked the power of Congress in declaring war in arguing for his impeachment. They might also have brought up the horrors of war and suggested that the blood of the dead in the initial battles were on Polk’s hands. Maybe they would have won the argument and impeached Polk. Of course, the 2/3 senate majority for conviction is a much higher burden. We will allow the counterfactual to stand moot on the question of conviction.

So what’s the point? My point is not that might trumps right in impeachment politics. At least that’s not the point that I want to make today. The point is that when a president goes to the ragged edge of the constitution, he had better make sure that he’s got the public with him. If he goes to that ragged edge without such support, then maybe he ought to be impeached for having committed the crime of creating national chaos for reasons the public will not support.

Finally, even if a president is successful, the animus built up by going to that edge can come back to haunt the country. Consider what did happen during the Mexican American War. The animus built up by Polk’s actions motivated support for the Wilmot Proviso, provoked a hardening of the positions in the debate over slavery in the territories, and at least arguably, began the march toward a new war.

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Oscar Chamberlain - 5/26/2006

For better or worse, David, Congress did vote to allow an invasion if the president so ordered. It has also appropriated funding for the effort, an act that requires no more of a majority than a declaration of war does.

The war is constitutional, but just because something is constitutional, that does not mean it was a good idea.

David Lion Salmanson - 5/26/2006

Like a declaration of war by Congress? Was I out of town? Missed the evening news? Can you give me the date so I can check what the vote was?

John H. Lederer - 5/26/2006

Oscar Chamberlain: "The point is the temptation of a power that is both absolute in scope and wielded in secret"

Those are legitimate and significant concerns, but neither seems applicable in this case

. The executive appears to have informed both the legislative, and at least at some level the judiciary. That indicates that the executive is not relying on secrecy to avoid the eventual consequences of its actions. Moreover, there has been no claim of an "absolute power".Indeed, the executive appears to have stopped short of a power it could claim with some legal support-- intercepting domestic calls when foreign intelligence is the purpose.

Wouldn't the better comparison be with Andrew Johnson? Much like FISA the Tenure of Office Act was a legislative asssertion into the gray area of the split between legislative and executive power.?

The articles of impeachment even have the President giving orders to a General (Emory) to disregard an Act of Congress as unconsitutional.

William Hopwood - 5/25/2006

Mr. Chamberlain:

You make some good points but where we seem to differ is in the interpretation of the Constitution and the extent of Executive prerogatives (you call it "power," I would prefer the word "responsibility) under wartime conditions vis-a-vis during peacetime. Again, I refer to Justice Franfurter in Korematsu (1944): He wrote: "..the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless."

As for your comment ("Outsiders looking over Bush's shoulders--or any president's shoulders-- provide a small measure of protection against the abuse of that power."), the problem with that theory is that the "outsiders" could include the enemy and I believe you will agree that it is not wise under wartime conditions to advertise one's intelligence sources and methods. As for the security of Congress, it is well-known that that body leaks like a sieve during peace and war.

Incidentally, I disagree with your observation that FDR conducted a secret naval war against Germany before Pearl Harbor. I happened to be one of many naval reservists called to active duty during that period a year before the Japanese attack, and it is my best recollection that what FDR was doing was well-known publicly, widely covered by the media, and subjected to considerable open criticism from the isolationists.

Oscar Chamberlain - 5/25/2006

The point is the temptation of a power that is both absolute in scope and wielded in secret. The temptation of power is something that our founders fully understood, and their original assumption was that the president would act in close consultation with Congress (and particularly with the Senate).

But the old vision of government by consensus has long since died. So we rely on what else is in the constitution, in particular the concept of checks and balances.

The provisions that give Congress the power to create ground rules for waging a war are in Article I, Section 8

10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years:

13. To provide and maintain a navy:

14. To make rules for the government and regulation of the land and naval forces:

Congress used this power to create a secret court to deal with these situations. Bush rejected it, I would argue illegally and unconstitutionally.

Even if his actions were constitutional, as you claim, such a grant of power would be unwise as it invites abuse. Outsiders looking over Bush's shoulders--or any president's shoulders-- provide a small measure of protection against the abuse of that power.

As for FDR, do you really see him as a model for other presidents to follow? He was a great president, but his highhandedness in foreign policy before Pearl Harbor--in particular his use of secrecy to cloak an undeclared naval war against Germany--has proven a questionable inspiration for future presidents.

William Hopwood - 5/25/2006

"He could have avoided most of his constitutional fights by accepting just a touch of over sight, a touch that would not slow him by a second but would provide at least a bit of assurance that the purposes and targets of his actions were legitimate. George Bush chose this fight."

From a practical standpoint, who would be qualified to "oversee" such executive decisions in time of wear or national emergency? Congress? Some federal judge? Why would their judgement necessarily be any better than ther president's, or any more legal? The "fight" over the NSA intercepts is nothing but political theater. Most Americans have the common sense to know that the government would be stupid not to collect whatever signal intelligence it can in the hostile circumstances we face.

As for the constitutionality of such exective decisions in time of war or national emergency, I'm reminded of the words of Justice Felix Franfurter in his concurring opinion upholding FDR's decision to evacuate enemy alien Japanese nationals and their American-born children from the West Coast under FDR's E.O. 9066 (a Supreme Court decision never reversed to this day): "To talk about a military order that expresses an allowable judgment of war as 'an unconsitutional order' is to suffuse a part of the Consitution with an atmosphere of unconstitutionality."
[Korematsu v. U.S.--1944]

Robert KC Johnson - 5/25/2006

Most, though not all, Whigs voted for the war declaration in 1846. But by 1847, party members were vitriolic in their criticism of Polk's war effort.

Oscar Chamberlain - 5/25/2006

First of all, I don't think you read this closely. (That's OK. Sometime I skim too fast and then comment myself). The point I make does not depend on whether Bush's--or Polk's--actions are theoretically constitutional. I was discussing how constitutionality is determined in extreme cases.

Second, the question is not whether "the Constitution prevents the gathering of foreign intelligence." Of course it allows it. But the constitution also limits the government's power to spy on its own citizens, particularly while in the United States. So the question is, what is a proper constitutional regime for this that balances security and the rights of American citizens.

Bush has multiple options available. It is striking that he always claims an absolute power, whether it is to intercept calls from abroad or it is to determine if an American citizen should be stripped of his rights by naming him an enemy combatant. He could have avoided most of his constitutional fights by accepting just a touch of over sight, a touch that would not slow him by a second but would provide at least a bit of assurance that the purposes and targets of his actions were legitimate.

George Bush chose this fight.

Hank Bower - 5/25/2006

It is my understanding that President Roosevelt ordered the wiretap of suspected foreign spies. Do you suggest that he should have been impeached?

Let's assume that the reality of wiretaps are as reported. NSA targeted phones of suspected terrorists in the Middle East. Is it your understanding that the US Constitution prevents the gathering of foreign intelligence in such cases?

Let's assume that in a certain number of cases the target telephone in the Middle East rings a number or receives a call from a number that is in the US. Are you suggesting that NSA should avert its eyes so as not to intercept such a communication? Are you suggesting that the Democratic Party should campaign this election cycle on a platform pledging to impeach President Bush for allowing such intercepts?

Let's be clear. Are you contending that a telephone call from Osama bin Laden to a new Mohammed Atta in the USA to undertake a new terrorist attack should not be intercepted?

It seems to me that a review of existing case law does not support your apparent assumption that such intercepts would require a search warrant. I would appreciate your citing any cases that would require warrants in a foreign intelligence operation.

Cheers.

Andrew D. Todd - 5/24/2006

As I've said before, we don't ask for our privacy. We take!

People are already starting to produce the necessary tools, as for example, this encrypting cellphone:

http://slashdot.org/article.pl?sid=06/05/23/0436221

John Richard Clark - 5/24/2006

Whig congressmen were restrained in their criticism of Mr. Polk's War because they remembered what happened to the Federalists after the War of 1812. No Federalist congressman voted for the declaration of war. The Hartford Convention was a public relations disaster for the party. The Treaty of Ghent and the Battle of New Orleans made the Federalists look like parochial sulkers, and the party imploded soon after.

The Hartford Convention also illustrated the typical antebellum remedy for political controversies: the threat of secession, not impeachment.

Robert KC Johnson - 5/24/2006

What a great example. And it's also a reminder of what Congress can do, under the Constitution to influence policy. Rather than threaten impeachment, opponents of the war used the power of the purse, whether through policy riders like the Wilmot Proviso or by voting against military apps. They used the power to shape public opinion--Ohio senator Thomas Corwin even delivered a speech on the floor of the Senate (in 1847) saying that upholding American ideals of liberty and democracy dictated hoping for a Mexican victory. And they used their political clout in shared powers, basically forcing Polk to submit a treaty he didn't want to the Senate.

In recent years, we've seen a trivialization of the impeachment provision, from both parties. It's a lot easier to cry for impeachment than do the hard work of legislating, which also carries with it political risks.

Kevin R. C. Gutzman - 5/24/2006

... of Sen. Robert Byrd's comment in the midst of the Clinton impeachment trial that while he believed that President Clinton had committed felonies, he was not going to vote to convict him because the people did not want him removed from office.

John Marshall Robinson - 5/24/2006

Good post. Thank you.