This Is a New Way of Doing Impeachment. The Framers Would Have Loved It.

Jurisprudence We’re expecting the first vote today. Photo illustration by Slate. Photos by Finn Gomez/Getty Images, Chip Somodevilla/Getty Images, and Unclassified footage of the first airstrike/US Government. Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. If Secretary of Defense Pete Hegseth does not resign in the next few days or weeks, he will almost surely be impeached by the House of Representatives. Hegseth’s impeachment will either happen immediately by a Republican-majority House in response to the eight articles of impeachment introduced by Rep. Thomas Massie on Monday, or in January when Democrats take control of the chamber. It is even conceivable that the Senate—particularly the new majority-Democrat Senate of next year—would muster the two-thirds majority constitutionally required to convict and remove him from office. That Hegseth is in such peril is a testament to his unique blend of arrogance, incompetence, and vulgar viciousness, as well as to America’s near-universal disapproval for Trump’s Iran War, of which Hegseth has been the prime executor and most visible champion. The secretary’s predicament is also the first practical consequence of the radically changed political environment brought about by Democrats’ midterm wipeout of Trumpian Republicans. In the general glee (open among Democrats, covert but still common among Republicans) evoked by Hegseth’s well-deserved travails, it is easy to miss the potentially enduring significance of the particular charges levied against him by Rep. Massie. The outgoing Kentucky congressman has sometimes been dismissed as a fringe figure due to his extreme hardline conservative stances on many subjects and his stiff-necked refusal to yield to party discipline in the Trump era. Moreover, the congressman’s crusade against Hegseth is easy to label as cheap payback against Trump for the president’s successful effort to drive Massie out of office with a primary challenge. But the articles of impeachment Massie has introduced against Hegseth are extraordinarily well-crafted and, if approved, have the potential to open a new era in the relations of Congress and the presidency. Massie has proposed eight articles: three charging Hegseth with violations of the constitution and the War Powers Act in prosecuting the Iran War without the required congressional approval; one for similar violations in conducting military operations in Yemen; one for similar violations in the kidnapping of President Nicolás Maduro of Venezuela; one for eviscerating mandatory Defense Department processes for mitigating harm to civilians in military operations thereby leading to the killing of more than one hundred school children in strikes on Iran; one for directing extra-judicial killings of the occupants of boats merely suspected of engaging in drug smuggling; and one for using military processes to retaliate against Sen. Mark Kelly, a retired Navy captain, for stating that members of the armed forces are obliged to refuse unlawful orders, a violation by Hegseth of both the First Amendment and the separation of powers. The first point to note about these articles is that they are a notable departure from either of the two prior cases in U.S. history in which a cabinet officer has been impeached. President Ulysses S. Grant’s Secretary of War, William Belknap, was impeached for taking bribes—an ordinary tawdry case of personal corruption. Joe Biden’s Secretary of Homeland Security, Alejandro Mayorkas, was impeached (though the case was promptly dismissed by the Senate) essentially for competently carrying out President Joe Biden’s immigration policy. However ill-advised that policy may have been, it was not unconstitutional or in violation of any statute (though Republicans tried to claim otherwise). As I and others argued at the time, the consensus among American students of impeachment (and indeed among legislators for generations past) has been that subordinate executive officers do not commit impeachable “high crimes and misdemeanors” merely for executing otherwise constitutional and statutorily legal policies with which a majority of Congress happens to disagree. In that sense, American impeachments have never been employed as the equivalent of the motions of no-confidence employed by parliamentary governments to remove government ministers. A critical difference between these cases and Massie’s charges against Hegseth is that the congressman is careful to articulate exactly how Hegseth’s actions violate the law—either particular provisions of the Constitution or identified statutes, regulations, or customary governmental procedures and norms. Note, however, that with the exception of the articles concerning the killing of Iranian children and the retaliation against Sen. Kelly, it is Trump himself who authorized or endorsed the misconduct—the Iran War, the Yemen attacks, the Maduro kidnapping, the boat murders—with Hegseth merely serving as his obedient subordinate. This presents either a political dilemma, or perhaps a political opportunity, for Republicans. Any vote to impeach or convict Hegseth on an article charging the secretary with, in effect, carrying out illegal orders, is simultaneously a declaration that President Trump has himself committed an impeachable offense. Many, perhaps virtually all, Republicans may shy from so public a rebuke of their vindictive leader. But on the other hand, a vote against Hegseth might be viewed as a relatively low-cost mode of distancing themselves from the Iran war and other deeply unpopular Trumpian military adventures. Should very many Republicans vote against Hegseth, they would be following the path forged by the English Parliament when it invented impeachment in the 1300s largely as a means of reining in royal overreach by striking down the royal servants who were implementing the monarch’s most disagreeable policies. Doing so would be a departure from American impeachment practice. On this side of the Atlantic we have not hitherto chosen to use impeachment this way, preferring instead to control erring presidents with legislative authorities like the power of the purse, or, failing that, by evicting them by election or attempting to impeach them directly. However, there would be nothing anti-constitutional about impeaching subordinate officers to control the president, so long as the subordinate was carrying out illegal or unconstitutional directives of the president that could fairly be characterized as “high crimes and misdemeanors.” Indeed, there is much to be said for congressional adoption of what might be seen as an intermediate remedy against presidential overreach that does not require the far more wrenching choice to condemn and expel the chief executive himself. The advantages of using impeachment in this way are particularly evident in the case of presidential abuse of war powers. Recall that the War Powers Act was adopted in the wake of the Vietnam War as a response to the fact that successive presidents—John F. Kennedy, Lyndon Johnson, and Richard Nixon—embroiled the country in a bloody foreign war and then pursued the conflict for years despite no explicit congressional sanction and rising public displeasure. The Act sought to balance the need for congressional approval of the grave choice to send Americans to war with the exigencies of the modern era in which genuine military challenges might arise and require response before congress could assemble to judge the matter. The Act’s provisions are complicated, but in essence they enjoin the president from involving the military in hostilities without either (a) a declaration of war or other expression of congressional approval, or (b) a national emergency. If the president does send American forces into combat without prior congressional approval, the Act requires that he notify Congress within 48 hours and that hostilities be terminated within 60 days (with a possible 30-day extension) unless Congress acts to approve their continuation. Moreover, the Act provides that Congress can force termination of American engagement at any time by concurrent resolution of both houses. Congressman Massie’s articles of impeachment allege that Hegseth (and Trump) carried out the Iran war, the operations in Yemen, and the military incursion into Venezuela to kidnap its president in repeated violation of the War Powers Act. None of the three actions were pre-authorized by Congress or constituted emergencies as defined by the Act. In the case of Iran, Trump never sought or obtained congressional authorization within the required time window. Critically, for the first time in history, Congress did pass a concurrent resolution disapproving of the Iran conflict. And yet Trump (and Hegseth) continued combat operations against Iran. Congress has been chronically reluctant to second-guess presidential choices to use the military, either by refusing to authorize continued hostilities after 60 days under the War Powers Act or by using their control of the purse to refuse funding for an ongoing conflict. Withdrawing funding has been thought particularly politically risky insofar as it can be characterized as refusing to support or protect troops actively engaged in an ongoing fight. But in the Iran case, Congress did summon the resolve to vote disapproval. Yet Trump (and Hegseth) have simply ignored a congressional resolution commanding them to stop. If members of Congress have the spine to employ it, Congressman Massie may have hit upon a way of enforcing the hitherto largely unenforceable War Powers Act and, more generally, restoring a larger measure of congressional control over presidential adventurism. By expelling Pete Hegseth from the Pentagon, they can create a substantial disincentive for continuation of the Iran adventure—faced with that example, would a successor simply carry on the war? And by making the personally repulsive Hegseth an example, they would set a salutary precedent for every succeeding presidential administration. Others among Massie’s charges against Hegseth present intriguing possibilities for novel, but potentially healthy, employment of impeachment to control executive branch misbehavior. The article based on the boat strikes plainly implicates Trump inasmuch as the president has publicly embraced these extra-judicial killings. Nonetheless, removing Hegseth without going straight at the president himself would establish that a cabinet officer who does not merely execute unpopular policy but follows illegal orders and commits impeachable “high crimes and misdemeanors” can and will be removed from office. The deterrent effect of such a decision on future senior government officials tasked with doing wrong would be immensely desirable. Among Massie’s two proposed articles are two that do not necessarily implicate Trump himself—the charge that Hegseth unconstitutionally retaliated against Sen. Kelly for protected speech and the charge that Hegseth ignored or altered regulations and policies designed to minimize civilian casualties and thus facilitated the killing of Iranian school children. Because these actions were within Hegseth’s purview as a cabinet officer but below the president’s decision level, both of these articles give Hegseth critics an excuse to vote to impeach him without implicitly condemning Trump himself. The school killings article offers one additional feature. It is, in effect, a charge that Hegseth grievously mismanaged his job. To be sure in ways that violated various internal Defense Department policies, regulations, and standards as well as international rules about minimizing civilian casualties. But it is, nonetheless, an allegation of a kind of near-criminal misjudgment. In general, in the United States, we have not sought impeachment on grounds of incompetence, mismanagement, or even grievous misjudgments. Indeed, it has often been argued that “high crimes and misdemeanors” does not include even gross incompetence. This contention is based primarily on the fact that, at the Constitutional Convention, George Mason proposed defining impeachable conduct as “treason, bribery, or maladministration,” but after objections substituted “or other high Crimes and Misdemeanors” for “maladministration.” However, as I and others have argued elsewhere, the phrase “high Crimes and Misdemeanors” was a borrowing from long parliamentary and colonial usage in which the phrase commonly covered gross incompetence or mismanagement. And while it is plain that the Founders did not want impeachment to lie against every federal government officer, whether the president or a subordinate, who was bad at his job, there would be no grave offense to the text or original meaning of the Constitution to extend impeachment to forms of incompetence that also offended legal strictures. As Hegseth’s arguably have. In sum, should Massie’s article charging Hegseth with responsibility for the deaths the Iranian school children pass, it would open the door to subsequent impeachments of cabinet officers on the same theory. Henceforward, impeachment would become at least somewhat more like what the instrument it once was in Britain—a means of asserting legislative control over the behavior of subordinate executive officers in extreme cases and of rebuking the supreme executive officer by removing his subordinates. And that might not be altogether a bad thing. Congress Constitution Donald Trump House of Representatives Impeachment Jurisprudence Military Senate