Andrew McCarthy on the Hegseth Impeachment
A prominent conservative legal commentator explains why Hegseth should be convicted on at least some of the charges.
Yesterday, I wrote about why Secretary of Defense Pete Hegseth deserves to be impeached and convicted for his role in in starting an unconstitutional war and perpetrating over 200 cases of outright murder with the "drug boat" strikes. Today GOP Rep. Thomas Massie filed impeachment charges in the House of Representatives. Even if they don't pass in the narrowly Republican-controlled lame duck Congress, they will almost certainly do so in the incoming Democratic one. Meanwhile prominent conservative legal commentator, national security law expert and former federal prosecutor Andrew McCarthy has published an excellent overview of the charges in the National Review.
McCarthy is far to my right, and far more sympathetic to the War on Drugs (I myself believe it should be abolished). Thus, it's notable that he and I agree that Hegseth should be convicted for his role in the drug boat strikes, which McCarthy characterizes as "indefensible":
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…. 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.
As noted in my earlier post, this view is similar to that of John Yoo, well-known former Bush Administration official and leading conservative advocate of sweeping executive power over national security and foreign affairs.
McCarthy also argues Hegseth should be convicted on at least one other charge:
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.
This charge is less within my expertise than some of the others. But I agree with McCarthy here.
McCarthy also appears to recognize that the Iran War is illegal, but suggests that Hegseth does not deserve impeachment on this score, because he was just obeying Trump's orders and implementing his policy. He also notes (correctly) that previous presidents have gotten away with similar initiations of war without congressional authorization.
I disagree for reasons summarized in my previous post:
Obviously, the ultimate perpetrator of these illegal acts is not Hegseth, but Trump. The former was following the latter's illegal orders (though he likely also helped influence Trump to give those orders in the first place). But sanctioning officials for obeying illegal orders is still important. That's one of the lessons of the Nuremberg trials.
I would add that Hegseth wasn't just some low-level flunky merely obeying orders. He has had a major influence on policy, and was one of the key architects of both the Iran War and the boat strikes. OK, maybe he is a flunky; but not a low-level one. He bears far greater responsibility than, e.g., servicemembers at the bottom of the chain of command.
As also noted in my earlier post, it is indeed true that previous presidents, such as Barack Obama, have gotten away with starting illegal wars. Obama deserved to be impeached, as well. But that makes it all the more imperative to start enforcing this part of the Constitution more effectively. Moreover, the Iran War is much larger and has had far worse effects than any other illegal war of the last several decades. Obama's illegal wars were much smaller, by comparison.
I will not say much about McCarthy's analysis of the other charges, except briefly on that focused on the removal of Venezuelan dictator Nicolas Maduro. McCarthy laments that Trump left the brutal socialist regime in power (minus Maduro), but suggests that the intervention might have been legally justified by the precedent of the 1989 US military action that removed and captured Panamanian strongman Manuel Noriega. I differ for reasons I outlined here:
Defenders of the legality of Trump's actions cite the 1989 invasion of Panama, which was undertaken in large part for the purpose of apprehending Panamian dictator Manuel Noriega; like Maduro, Noriega was charged with smuggling illegal drugs into the US. But the 1989 Panama precedent does not actually justify Trump's actions. On December 15, 1989 (five days before the US invasion), Noriega foolishly announced that Panama and the US were in a "state of war," thereby creating conflict between the two countries that did not exist in the Venezuela case. In addition, Panamanian forces had killed or wounded two US military personnel in the Panama Canal area, and detained other American citizens. Unlike Noriega in 1989, the Venezuelan regime did not declare war on the US or otherwise initiate a military conflict. Thus, congressional authorization is needed to make any US military intervention constitutional.
That said, I think the Maduro intervention charge is much weaker than the Iran War and boat strike charges. The Maduro action was on a much smaller scale, and has not had anything like the same horrific effects. The abusive prosecution charge is also more compelling than that focused on Maduro. Congress would do well to focus attention on the strongest charges and convict Hegseth on them.