There is a significant chance that one or more articles will be approved.
There is a significant chance that one or more articles will be approved.
E ight articles of impeachment against Secretary of Defense Pete Hegseth have been proposed in the House by Representative Thomas Massie, a libertarian Republican from Kentucky who lost his seat when the president pushed for his ouster in a primary earlier this year. (The Trump-endorsed candidate, Ed Gallrein, retained the seat for the GOP last week despite the wave that will give Democrats solid majorities in both congressional chambers come January.)
Though still narrowly controlled by Republicans for the next two lame duck months, the House will be forced to consider Massie’s proposal. Impeachment is a privileged motion under House rules; action of some kind must be taken on it within two days after it is filed. Impeachments can stretch beyond a single session of Congress, so if the House impeaches Hegseth, a Senate trial could be postponed until January, when Democrats will have a commanding majority in the upper chamber.
There is a significant chance that one or more of the articles will be approved. Indeed, in September, Speaker Mike Johnson (R., La.) adjourned the House early, in large part, to prevent Massie from forcing the Hegseth vote. And that was before last week’s midterm wipeout that has many Republicans enraged, including MAGA Republicans who blame the Iran war for the party’s demolition. Many of them see Hegseth, reportedly a strong war advocate, as the main culprit.
For what it’s worth, my position on impeaching cabinet secretaries and other high executive officers subordinate to the president is the same one I’ve always held — whether it was Republicans trying to oust Obama IRS commissioner John Koskinen and, later, Biden Homeland Security Secretary Alejandro Mayorkas, or Democrats stirring about potential impeachments of Republican Attorneys General Al Gonzales (Bush 41) and, later, Bill Barr (Trump 45). I cannot object in principle because impeachment is a constitutional authority of Congress to check executive misconduct. That said, to repeat the argument outlined in my 2014 book on impeachment, Faithless Execution, the Framers reposed all executive power in a single elected official, the president, so that there would be clear accountability for administration policy and wrongdoing. The president should not be able to fob off responsibility on his underlings. While there is nothing illegal about impeaching a subordinate, doing so is a dodge if what’s at issue is the subordinate’s obeisant implementation of the president’s policy.
Here, Hegseth’s alleged sins are not disqualifying misconduct independent of his official duties. They are his execution of Trump’s directives. And if Massie’s theory is that Hegseth was a lone actor on occasion (I don’t see that, and I don’t think that’s what Massie is claiming), then the president is still ultimately responsible, especially if he failed to relieve a wayward subordinate after such malfeasance became known.
Let’s turn to the eight articles.
The first three articles relate to the Iran war: (I) waging war without a congressional declaration of war or authorization of military force, and without an attack or an imminent threat of attack against the United States; (II) defiance of a concurrent resolution, passed by both the House and Senate, directing withdrawal of forces; and (III) continuing military operations after the 60-day War Powers Act window that purports to mandate the removal of forces absent congressional authorization of force.
Article IV accuses Hegseth of flouting law and policies aimed at minimizing civilian casualties, specifically citing the bombing of a school in Minab, Iran, that is believed to have killed approximately 156 people, mostly children.
Article V (which I regard as the most indefensible), cites Hegseth’s leading role in Trump’s unauthorized military campaign against boat operators suspected of transporting illegal narcotics in the Caribbean and the eastern Pacific, which Massie says have resulted in at least 221 deaths (some reporting puts the figure at 240). Beyond this general allegation, specifically highlighted is the denial of quarter and killing of shipwrecked survivors of initial attacks — which we covered extensively at NR as the so-called double-tap incident.
Article VI deals with Hegseth’s use of command authority to retaliate against and attempt to intimidate Senator Mark Kelly (D., Ariz.) for what the administration absurdly framed as Kelly’s promotion of sedition and insubordination — a video in which the senator and five other congressional Democrats reminded military personnel that they are not required to obey illegal orders.
Article VII alleges as an impeachable offense Hegseth’s role in the administration’s execution of Trump’s order to invade Venezuela, extract its then-dictator Nicolás Maduro (along with his wife, Cilia Flores), and transport them to the United States. (Massie doesn’t mention that they were facing narcotics charges here and are currently detained pretrial.)
Finally, Article VIII mirrors Article I, except instead of Iran, Hegseth is accused of attacking its ally, the Houthis in Yemen, without congressional authorization or any imminent threat of attack against the United States.
On the warfare allegations, the Constitution vests Congress with the power to declare war. For too long, in my view, Congress has not only tolerated but encouraged unauthorized executive military adventures; and the ballyhooed War Powers Act (enacted by overriding President Nixon’s veto in 1973) had the perverse effect of green-lighting unilateral presidential uses of force (for at least 60 days) rather than prohibiting them. Consequently, there would be upside in a meaningful congressional rebuke signaling that a unilateral executive use of military force, in the absence of an attack or threat of attack on the United States, will henceforth be regarded as an impeachable offense.
On the other hand, if the objective of impeachment is — as it should be — to build a credible case that has a chance of Senate conviction and removal of the officer under the daunting two-thirds’ supermajority requirement, I don’t see how Hegseth can be convicted. What’s at issue is Trump’s policy, not Hegseth’s (however much the latter supports it). And there were no impeachment articles against presidents or their defense secretaries when, for example, Clinton, Obama, and Trump (first term) engaged in unauthorized military attacks.
I also don’t see a chance of conviction and removal based on War Powers Act (WPA) violations. All presidents since its enactment, to a greater or lesser extent, have regarded the WPA as an unconstitutional congressional infringement on the executive’s commander in chief powers. Moreover, after the Supreme Court invalidated the legislative veto in 1983 (in INS v. Chadha), Congress changed the law to require a joint resolution — a legislative act passed by both chambers of Congress, which the president can veto — rather than a concurrent resolution, which is not submitted to the president and has, under Chadha, been assumed to be unconstitutional. (As I’ve explained, I believe the legislative veto at issue in Chadha is distinguishable from others that were in federal law, including the one in the WPA.) Since Congress has not enacted a joint resolution regarding the Iran war — and since, more importantly, Congress could have cut off funding for the relevant military operations but has never done so — it is inappropriate, in my view, to impeach a defense secretary over the administration’s different interpretation of what the WPA requires (even though I object to the administration’s gamesmanship regarding WPA compliance).
A final point on warfare: It would be a terrible mistake for Congress to impeach an executive official over the inadvertent killing of civilians, no matter how tragic. The United States does not, and did not, willfully mass-murder children. I have no problem with the contention that the Minab school attack may have been the result of gross incompetence or recklessness; if Hegseth is hands-on responsible for that, he should be fired. But civilian casualties in war are inevitable, which is why the laws of war seek to minimize, rather than forbid, them. And an impeachment on such grounds would put Congress on record in support of the defamatory allegation that our armed forces, the best trained in the world, are no better than Kremlin-directed war criminals. That would be a travesty, especially when we can safely assume Hegseth would never be convicted and removed over this allegation.
The Maduro extraction is also a poor vehicle for impeachment. As adumbrated above, Massie’s allegation omits key facts. Trump acted based on the Noriega precedent — President George H. W. Bush’s 1989 use of military force to extract Panamanian dictator Manuel Noriega, who was under federal grand jury indictments for drug and racketeering offenses. As I said to Rich Lowry on our podcast last week, many Democrats objected to Bush’s actions at the time, so it stands to reason that, like Massie, many Democrats will not see the Noriega precedent as justification for removing Maduro. But it is still a precedent. And while I believe the principal congressional objections are that the Trump administration (a) installed the dictator’s right hand, Delcy Rodríguez, rather than seeking democratic reform, and (b) has since seized Venezuela’s oil reserves, that implicates the president’s directives, not Hegseth’s.
Not to belabor arguments I’ve repeated at length, but I do not believe there is any viable justification for the extrajudicial killings by military force of operators of suspected drug boats. Drug trafficking is a crime, not an act of war. Our law addresses it through trial and imprisonment, not the use of military force. (And on that score, remarkably, President Trump has pardoned the former president of Honduras for abetting the shipment to the United States of over 400 tons of cocaine — far more than what the suspected drug boats may have been transporting.) The administration has not proved that the boats were ferrying narcotics, much less that the drugs were headed to the United States. The president’s designation of Venezuelan criminal gangs as foreign terrorist organizations, besides being legally dubious (drug dealing is not “terrorist activity” as defined in federal law), does not authorize the use of force (it instead makes material support to the organization a crime and helps the government cut off funding sources). While the unauthorized killings in the Caribbean and eastern Pacific have not drawn the level of public ire that the Iran war has, they are indefensible, and Hegseth has been their loudest, crudest champion.
Similarly, I do not believe there is any defending Hegseth on the charge that he has abused command authority and violated constitutional separation-of-powers principles in trying to discipline and censure Senator Kelly, a retired Navy captain (who remains subject to the Uniform Code of Military Justice). Hegseth’s actions, undoubtedly endorsed by the president, constituted unlawful command influence. More importantly, they abused executive power in an effort to muffle congressional criticism. The haughty Hegseth was playing a dangerous game here; if it has now come back to bite him, he has himself to blame.
Will the current House approve articles of impeachment?
Right now, I believe there are two vacancies in the House, so it’s down to 433 members. A simple majority is needed to approve impeachment articles, so that means 217 votes (if all members are present). Republicans hold a 218–214 edge over Democrats — but that, of course, includes Massie. There is an independent, Representative Kevin Kiley of California, who dropped his GOP affiliation earlier this year but still caucuses with Republicans; I have no idea what his position on Hegseth is. (Kiley ran in a different district this year and, although it’s California so they’re still counting votes, he appears to have lost to the Democrat, Richard Pan.) Suffice it to say, though, that if all 214 Democrats and Massie favor impeachment, it’s probable that they will be able to peel off the two Republicans they need to approve one or more articles. (And note that if there is an absentee issue in the lame duck session, it’s apt to be demoralized Republicans rather energized Democrats skipping votes, which increases the likelihood of impeachment.)
The impeachment gambit could be short-circuited if President Trump fires his defense secretary. Publicly, he has shown no such inclination, and Hegseth has vowed to fight — just as he did, successfully, when his confirmation seemed in doubt. My sense is that there is a high probability the House will vote in favor of one or more articles of impeachment. The odds are against conviction, even if a Senate trial were to be postponed until the next congressional session when Democrats will have a sizable majority. They’d still need at least a dozen Republicans to support removal.
As argued above, though, there are at least two articles — involving the suspected drug boats and abuse of command authority — for which a compelling defense is not evident. Impeachment is a political process, not a legal one, so the lack of a defense does not necessarily lead to conviction — and has not historically: In American history, no cabinet secretary has ever been removed through impeachment. But if Senate Democrats see the removal of Defense Secretary Hegseth as an implicit condemnation of the administration, on which they could build a case for impeaching President Trump, Hegseth could be in real trouble. I suspect Trump would fire Hegseth rather than let things get that far.