Foreign Policy Has Always Been at the

Heart of Impeachment
High Crimes From the Middle Ages to the Age of Trump
By Frank O. Bowman III November 25, 2019

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.”
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.