37 - War Powers and Impeachment Update
Hearing the Song Panama in in the late Nineteen Eighty S. Wouldn't be all that weird. It had such memorable lyrics like hot shoe vernon down the avenue. Got An on ramp coming through my bedroom and Panama was the last hit single. The Band van Halen recorded with their lead singer. David Lee Roth before he left the band in nineteen eighty. It would be weird if you were the dictator of Latin American country country. And you were hiding out. In the Vatican embassy in Panama City and the American military would not stop playing see on December Twentieth Nineteen eighty-nine the United States invaded Panama. President Bush sent out American troops there mainly to capture. General Manuel Noriega the self-proclaimed named maximum leader of the country. The United States had a complicated relationship with the military dictator of Panama. Sometimes Noriega had been an ally but sometimes alarms. He wasn't in the late eighties. Noriega where La Pena or pimple faced. Because of his pockmark skin was increasingly a problem because because he played both sides sometimes he helped the United States by providing information to its intelligence agencies and sometimes he tipped off drug cartels in nineteen eighty eight to federal courts in the United States indicted Noriega on drug trafficking charges. The general had also cancelled the results. Colts Panamas nineteen eighty-nine presidential election and in December of nineteen eighty nine Panamanian troops shot and killed an unarmed American soldier in Panama animosity. That was it for president. George H W Bush on December twentieth nineteen eighty nine at one in the morning American can troops invaded Panama and overwhelmed the Panamanian Defense Forces twenty-three Americans were killed and where the three hundred were wounded Panamanian. Dan Casualties were high to at least five hundred. Although the number is disputed and Noriega he escaped the initial invasion and showed up four days later at the Vatican embassy in Panama City and thus a standoff started and so did the musical logical warfare the the US army blasted van Halen's Panama from speaker set up in a vacant lot across from the embassy. They also played hits from twisted sister and David David Bowie. It was a non stop onslaught of deafening music. Why partly to make sure that military communications couldn't be intercepted but also because Noriega reportedly hated rock music? He was known to be an opera buff. In fact in his nineteen ninety-seven Memoir Noriega said that the music music blasted at him. During the invasion was scorching diabolical noise a roaring mind-bending did and maybe worked on January third. Nineteen Ninety Noriega surrendered himself to US military authorities within hours. He was on a military transport plane to Florida to face. Federal charges as a criminal. Defendant Noriega would eventually be put on trial convicted and spend decades behind bars. I in the United States than in France and eventually back in Panama Ma where he died in two thousand seventeen President Bush stated publicly. On the day of Noriega surrender that the US used its resources in a manner manner consistent with political diplomatic and moral principles operation just cause had used twenty seven thousand troops against a Panamanian Manian force of about twelve thousand. But was this a legal use of American troops. The United Nations didn't think so and voted to condemn the the American vision of Panama. The UN called it a flagrant violation of international law. And what about America Ma. There's a federal federal law called the war powers resolution. The law expects a role for the president and for Congress whenever American troops are sent abroad and armed conflict. President Bush didn't exactly follow it to the letter but Congress didn't complain either and the invasion of Panama. Ah stands out for this strange silence. In January of twenty twenty president trump made what is probably one of the most significant get foreign policy decisions in his presidency to order the killing of Iran's top military commander Qassim Sulejmani this time Congress. Chris has not been silent so members of the House and the Senate or arguing that trump has broken the law. So has he well stone Divino. ooh This is. What trump can teach us about con an ongoing monthly series of indefinite length? Where we take the tweets of the forty fifth president of the United States and his critics to use them to examine our constitution like we never have before for our music is from doom fi records? Professor and neighbor is Elizabeth. Joe And I'm your fellow student and host Roman Mars. It's January twenty twenty the year two thousand twenty shows up a lot in science fiction. 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The constitution says a couple of very specific things about who is responsible. For what when it comes to waging war. Congress has the power under Article One of the Constitution to declare war and also to organize and pay for the military. The president of the United States is the commander commander in chief of the military. But what the constitution isn't very clear about is what happens when the United States is not at war but the president sends American troops abroad in some situation of armed conflict. The constitution doesn't say anything about that. This has been an important issue ever since the bombing of Pearl Harbor. which is the last time? Congress formerly declared war sometimes Congress and the President may agree. That troops have to be sent abroad in a situation. Asian of Armed Conflict Congress can provide express approval. Probably the most well known example is right after September eleventh. Two Thousand One congress passed what is known as the two thousand and one authorization for the use of military force. It gave President George W Bush the authority to use use all necessary and appropriate force against those nations organizations or persons that he believed were connected to the nine eleven attacks believe even not that authorization remains in effect today and there's general agreement that the president of the United States has the authority to command troops to protect against a sudden attack against the United States. And that makes sense. It would take too much time to ask Congress for formal approval so example. I always give to my students. This is you know. IMAGINE INVADE AMERICA PRESIDENT GETS to defend the United States. That's the idea going to live on. We're going to survive today. We celebrate our Independence Day but there are so many instances that don't fall into these categories after the Vietnam War which itself wasn't a formally formally declared war. Congress decided to address these situations in what's called the war powers resolution. It's called a resolution but it's actually a federal law. In fact it became law over the veto of President Nixon. The war powers resolution contains a lot of different provisions but for our purposes. Here are the important parts. The president of the United States according to the law consent troops abroad in situations of armed conflict when one Congress's declared war two when Congress has given its approval in some other way or three when there's a national emergency the president's also required under the law to consult with Congress in every possible instance before he sends troops even if he doesn't do it beforehand. The president is also supposed to tell Congress within forty eight hours of already. Having sent troops abroad the war powers resolution also says that the president should withdraw the troops after sixty days unless Congress says it's okay for them to stay as you can tell the war powers resolution has at its core the idea that the president and Congress are supposed to work together in the important decision about whether or not to send American forces overseas in situations that the law calls hostilities. Is the war powers solution itself lawful every single president since Nixon has taken the position that the law interferes with the President's constitutional authority but what presidents have also generally complied with the law dozens of times since the war powers resolution became law. A typical thing presidents have done when committing committing troops abroad is to tell Congress. Well I'm telling you because the war powers resolution says so but then they also say but of course. I'm not required to do this. Under the Constitution Congress can put up a fight about these kinds of noncompliance and they sometimes do all of these issues were raised in a very tense week. Take this January and a very trump lakeway. The United States and Iran have had a very complicated and tense relationship over the past. Seventy odd years I don't WanNa want to get too much into it here. But it involves everything from the threat of nuclear power proxy wars to the control of the Middle East. While these tensions have existed for decades. There was a certain escalation. In December of two thousand and nineteen an Iranian backed militia group in Iraq attacked a military base. That attack led to the death of an American contractor and the wounding of other Americans and Iraqis this led to an American counterattack and on December thirty first the the. US Embassy in Baghdad was surrounded by thousands incited by that same iranian-backed militia at the heart of Iran's elite military and intelligence intelligence force was a man named General Qassim Soleimani. Most Americans probably had never heard of him before this but Sola money had important roles in the Syrian civil war. Iran's role in Iraq and intelligence networks across the Middle East Sulejmani was also behind hundreds of American deaths in Iraq on January second two thousand nineteen trump gave the order to how Soleimani killed. Hello in a dramatic escalation of tensions in the Middle East US Air strikes killed. Iran's most important military commander General Qasim was the commander of the could force of Iran's uh-huh elite Revolutionary Guards and at six thirty two that same evening. President trump cryptically tweeted out a picture of an American flag. No words just a low resolution J. PEG of an American flag. Iran's supreme leader Ayatollah. Ali Khamenei responded the next day by tweeting out a call for severe revenge following Souleymane. His killing trump responded to this tweet with a tweet storm of his own the next day January story fourth Iran is talking very boldly about targeting certain USA assets as revenge for ridding the world of their terrorist leader. Who who had just killed an American Iran has been nothing but problems for many years? Let this serve as a warning that if Iran strikes any Americans pickens were American acids we have targeted fifty two Iranian sites some at a very high level and important to Iran and the Iranian Indian culture and those targets in Iran itself will be hit very fast and very hard the USA wants no more threats. This tweet storm amounts to the president of the United States threatening to commit a warcrime the nineteen forty nine Geneva Convention considers attacking attacking the clearly recognized historic monuments works of art or places of worship which constitute the cultural or spiritual heritage of people's as a war a crime. The very state trump kept going with this he told reporters flying with him on your force. One that they're allowed to kill our people they're allowed to torture and maim our people. They're allowed to use roadside bombs and blow up our people and we're not allowed to touch their cultural site doesn't work that way. Trump's own defense secretary Mark Espera clarified two days later that no the United States was not going to strike cultural targets in Iran. Because doing so would in fact be a worker on then on January fifth during already tense week between Iran and the United States trump tweeted these media posts will serve as notification nation to the United States Congress that should Iran strike any US person or target the United States will quickly and fully strike back and perhaps APPs in a disproportionate manner. Such legal notice is not required but as given never the less. What's amazing about this tweet? It's both wrong and threatens to break the law at the same time so first trump threatens to react to any Iranian attack by striking. I'm back in a disproportionate manner. International experts will tell you that if a country takes action in Self-defense. It's supposed to be proportionate proportionate not disproportionate to the threat. It faces second is trump's so-called notification to Congress. He's trying to tell Congress that his tweet amounts wants to complying with the war powers resolution. Remember that the law has a notification requirement to Congress. Well tweeting is not one of the recognized forms of communication between the President and Congress could be it's not trump also says that he's not required to tell Congress anyway so that's not true at least according to the war powers resolution remember. The law says whenever the President sends the military in situations of armed conflict. He's supposed to tell tell Congress within forty eight hours. According to the law the president is supposed to consult with Congress in every possible instance before sending the American military into armed conflict. What actually happened? In the case of killing General Sola money trump did not consult with Congress beforehand in theory the war powers powers resolution contemplates. That congress is supposed to work with the president. Unless there's some really good reason why they can't so maybe you can't consult if there's some emergency agency. Was this such a situation at first. The trump administration said that the strike prevented an imminent attack on American interests. But then those explanations changed secretary of state. Mike Pompeo told Laura Ingraham on January nine. There is no doubt that there were a series of attacks. That were being plotted by Qassem. Soleimani we don't know precisely when and we don't know precisely where but it was real and then on January. Thirteenth trump tweeted the fake news media and their Democrat partners are working hard to determine whether or not the future attack by terrorists Lemani was imminent or not and was my team in agreement. The answer to both is a strong. Yes but it doesn't really matter because of his horrible past so it doesn't really matter matter according to trump whether it was imminent or not but that doesn't help in his noncompliance with the war powers resolution and what about that tweet notification to Congress it turns out that wealth forty eight hours after the drone strike. The White House did Sunday formal notification to Congress as they're supposed to do what did it say. We don't know because the notification was classified and not released to the public. So were we about to go to war with Iran on January very seventh. Iran retaliated against the United States by firing more than a dozen ballistic missiles at two Iraqi airbases where American military forces were located. No Americans were killed of some were reportedly injured and then the world watched foreign relations by tweet. Iran's foreign minister her tweeted Iran took and concluded proportionate measures in self defence. We do not seek esscalation or war but will defend ourselves against inst- any aggression. President trump responded by tweet all is well. Missiles launched from Iran a two military bases located in Iraq Iraq assessment of casualties and damages taking place. Now so far so good. We have the most powerful and well equipped military anywhere in the world. By far I will be making a statement tomorrow morning. The next day trump spoke from the White House told reporters that Iran appears to be standing ending down which is a good thing for all parties concerned and a very good thing for the world. Of course this was a volatile and tragic week in other respects because of these tensions chins Iran also accidentally shot down a Ukrainian Airlines flight on January eighth killing all one hundred seventy six people on board but between the United States and Iran on that for now appears to be that not for Congress though on January ninth. The House voted mostly along party lines to prevent trump from taking additional. Oh military action against Iran it was a non binding resolution however and thus doesn't have much practical effect the Senate will soon be voting on a similar measure measure introduced by senator. Tim Kaine that Bill has the possibility of becoming a federal law because if it is approved by the Senate then would also go to the house potentially but ultimately trump is very likely to veto. It and Congress doesn't have the votes to override that veto these congressional measures along with the various tweets the press conferences and speeches by members of Congress even by some Republicans show a concern that the president of the United States is overstepping his constitutional north already by failing to work with Congress. Well it's a classic trump issue right. Yes and no remember. The Panama Invasion President Bush did not consult with Congress before sending troops to depose an arrest. The leader of another country Bush did tell Congress that he was about to invade Panama Panama. A few hours ahead of time but that was not a consultation and keep in mind that the invasion of Panama was one of the largest deployments of American troops since the enactment of the war powers ars resolution. American soldiers died in the conflict and yet from Congress there was silence on Panama. There have been in many examples since the Vietnam War. When members of Congress introduced resolutions held hearings sent letters even filed lawsuits about presence? They felt were. We're not complying with the provisions of the war powers resolution. So why was Panama Different. Like most things. There's probably not one single reason public opinion and supported removing Noriega so did most of Congress and the major objective of the invasion taking Noriega from power and getting him back to the United States happened within days and it also happened while Congress was on its winter break. When they returned to session? The whole thing was over. There wasn't much to complain about. By contrast congressional reaction to trump's drone strike is more familiar historically congress is pushing back back against the president for ordering military action abroad without complying exactly with what the war powers resolution appears to require but this is trump and the part that is new is trump's brand of presidency the impulsiveness the conflicting rationales the tweeting back and forth. All of this gets mixed him with impeachment to on January ninth trump tweeted. Hope that all House Republicans will vote against crazy. Nancy Pelosi's war powers resolution also remember her speed and Russian. Getting the impeachment hoax voted on and done well. She never sent the articles to the Senate just another Democrat fraud presidential harassment so we have the quiet Panama incidents where we have the slightly more are you know. Like we're GONNA put some resolutions together that condemn this and someway. They've there've been times in between were. This has been tested in different ways. And how did it shake out. Yeah I mean this as I said it's you know what we're saying now with Iran is very familiar because what typically happens is there will be members of Congress who are very upset that the president you know very often of another party but not always has doing something that feels like is a breach of proper division about the war power. And you'll see speeches. You'll see things like this nonbinding resolution where saying now but nothing ever really gets resolved ultimately because number one. The constitution is pretty clear number. Two courts. Just don't WanNa to get involved in what is essentially feels like a political sort of issue what we see is like in the gaps where the Constitution doesn't say anything historically congressman. The prisoner always. It was sort of working something out. We never come to the brink of well then. Congress is going to pull money from the troops so they have to come home because that would be political. The death rate that's sort of their ultimate option so instead you see a lot of speechifying attempts at legislation and then ultimately some kind of compromise occurs and of course you know there's just public opinion can be very strong here in either weighing against what the president does or what Congress does so the short answer is no we've been going through the motions with the war powers resolution ever since it was enacted and literally every president since Nixon has said. I don't really have to comply with this but I'm just going to do it to make you unhappy and sometimes they don't even do that right. This is one of those rare cases in the history of this show in which the conflict between trump and in Congress is kind of typical feels refreshing right. Feels like this is normal. Weird part. Is the twitter part of it and these sort of bold admission of future war-crimes which is probably just related to the fact that he doesn't know what he's talking about that could be but yeah. There's the the twitter part is absolutely the novel part of it. Sort of the changing shifting rationales for what's happening also like the representatives it is of two countries on the brink of war. Potentially tweeting at each other seems bizarre. That's yeah so there's that there's that too but the actual constitutional conflict about whether or not the president has to comply is could be forced to comply with the word partners. Lucien that feels. That's kind of normal fire contract. That's happened a bunch of times on last week. In our view the president the administration conducted a provocative disproportionate airstrike against against Iran which endangered Americans and did so without consulting Congress. So if you want us to all join together let us have a strategy that we work together on. I do not believe in terms of what is in the public domain of that they have made the country safer what they did and that is what our responsibility is without a clear picture of your finances. You can't succeed exceed. That's where net suite by Oracle comes in net. Sweet offers a full picture of your finances all in one place in real time from your phone or desktop suite by Oracle is the number one cloud business system. It's what Syria's entrepreneurs and finance teams use. There's no more guessing or worrying about what could be hurting your company. That's why next week. Customers grow the three times faster than the S. and p. five hundred and you can to schedule your free demo right now and receive your free golf seven key strategies to grow your profits at net sweet dot com slash con law so the Free Demo and get your free guide today at sweet dot com slash con law. That's nets we dot com slash. Gone Law simplisafe home. Security is like getting commercial grade security but for your own home. It's comprehensive production. There's a break in simplisafe uses real video evidence to give police and I witness account of the grime. They also give you the ability to see if people are approaching your home with outdoor cameras in doorbell alerts and simplisafe offers twenty four seven monitoring by lives security professionals. You can set it up yourself. No tools needed or if that sounds daunting they can do it for you. And it's only fifty cents a day with no contracts so you get peace of mind for less than a cup of coffee visit simplisafe saved dot com slash con law. You'll get free shipping a sixty day risk-free trial. You got nothing to lose go now. Embitter SIMPLISAFE DOT COM SLASH CON law. So they know that our show sent do that's simplisave dot com slash con law so let's impeachment update and so today. It is January twenty first Tuesday January twenty first and were in the middle the middle where in the beginning of the Senate trial. That's right having hearing opening arguments today by the house managers and also responses by the president's lawyers. And at this point. There is a lot of of wrangling about Senate procedures about exactly whether or not witnesses will be called and what kinds of documents and evidence will be considered by the Senate Mercer. We're just getting getting started. And so this is a shifting landscape. So we're just going to talk about what we know at this point which may be a little different than when an audience member might be hearing this exact coordinate okay. So in December. The House passed two articles of impeachment against President Trump the first one alleges and abuse of power on the part of the president regarding his attempt to pressure assure Ukraine into opening investigation into Joe Biden and his son in exchange for military aid the second article charges trump trump with obstruction of congress by refusing to help the house in its investigation on January fifteenth. The House voted to send the formal articles of impeachment. Each man to the Senate seven house. Democrats were named as impeachment managers. These are sort of like prosecutors. Were supposed to meet the case against trump in the senate trial. They literally walked across the capital from the House Chamber to deliver two articles of impeachment to the Senate just a few hours before the Senate trial was to begin the the Government Accountability Office. which is a non-partisan agency and the federal government? It issued a report on trump's decision to withhold that almost four hundred million dollars was an aid to Ukraine and some context there's a provision of the constitution known as the take care clause that says the president shall take care that the laws be faithfully executed and according to the GAO report. Faithful execution of the law does not permit the president to substitute his own policy policy priorities. For those Congress has enacted into law the withholding was not a programmatic delay. So that's just a very formal way of saying. It appears at the president it did break the law according to the jail and that was just Thursday morning at five minutes past noon on January sixteenth. The seven house. Manager's arrived at the Senate. The Senate Sergeant at arms declared here ye here he here he. All persons are commanded to keep silent. Can't upon pain of imprisonment. He will say the same thing each day of the Senate trial. Only the third impeachment trial of a president in American history then came more formalities. As the Constitution itself states the chief justice of the Supreme Court presides over the Senate trial the President Chief Justice John Roberts was sworn in by Senator Charles Grassley the Senate president pro temporary if you want a sense of how formal the process is as the chief. Justice was transported to the United States capitol by car as he will every day of the Senate trial. Do you know where the Supreme Court is are. Are you in relation to the capital. It's bright behind it across the street. He's going to travel by car every day cross street. Yep It just gets in the car. It's like Warner brothers cartoon gets in guards anyway Then it was just as Robert Stern to administer the oath to dog senators. This is what the oath which has roots. In the seventeen hundred said do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump president of the United States now pending you will do impartial justice according to the Constitution and laws. So help hope you got. They said this out loud but then they also individually signed an oath book so the senators are now. Jurors will hear evidence arguments presented by the House of Representatives and the White House to decide whether trump should be removed from office. The Senate then moved to issue a summons to President is in trump. That formally notified him of the trial and of the charges against him. On Saturday. January eighteenth the House submitted in one hundred eleven page opening trial brief it begins this way president. Donald J trump used his official powers to pressure or a foreign government to interfere Rene United States election for his personal political gain and then attempted to cover his scheme. By obstructing Congress's investigation into his misconduct. The constitution provides a remedy when the president commits such serious abuses of office impeachment and removal. The White House released a response the same same day. The seven page document begins the articles of impeachment submitted by House. Democrats are a dangerous attack on the right of the American people to freely choose their the president and on January twentieth. The White House formerly responded with its own one hundred ten page brief. The tone of its opening won't surprise you here. It is the articles of impeachment now before the Senate aren't affront to the constitution and to our democratic institutions the articles themselves the rigged process. That brought them here are a brazenly political act by House Democrats and the presence lawyers here have made a striking argument can't even if trump did abuse his powers in office. He can't be impeached because he hasn't been accused of a literal crime. It's a notable argument because most people with some knowledge of constitutional law agree that impeachable offenses don't have to be crimes that idea. He goes all the way back to the drafting of the impeachment. Clauses the convenient part of this argument for trump. It means that you don't have to argue about the facts. All you have to say is that the process is itself illegitimate. There was one call which was perfect and then there was the second call. I guess a couple of months later which was perfect. The president of Ukraine said it was perfect. This was a perfect call. And I think we're doing very well and their one hundred ten page rebuttal the White House's one hundred ten patron bottle when they use a word like raked like the way that trump speaks is the audience for that term term trump like pleasing him or is it really meant to convince congressmens convince the American people. What is it meant wanted do well? He's not going to read the brief. So the briefs for him that to the extent that any of that gets extracted into soundbites and little clips or pieces. The brief that are put on television for ten seconds I think it is meant for trump supporters. Because there's nothing. I don't think they're any serious arguments legal arguments. It's about impeachment. The very process here is rigged their. You know if it's like a trowel they'll be Fox and evidence and as we speak you know. The Senate is serve wrangling about procedure. And what's going to happen next But the rigged argument is of a piece with what trump's rallies are like and his general roll demeanor about institutions and. I think it's meant for an audience. First clips and memes and things like that is the brief like an official legal part the impeachment proceeding or as they were required. The house was required to file a brief and then the presence layers also filed a brief. You'll will then see what looks like you. It's like an approximation of a normal trial except there. A lot of outlying non normal trial like things you know the Senate sitting as a jury but there are also get to stay with the rules. Are they get to decide what the rules are which is of course not at all like a normal trial get to decide what evidence they wanna hear. That's not trial trail like it is not conventionally like trial so there's a lot of misleading things. I mean I think there's already some hope I think American public sometimes attach itself after great public figures. They feel will save the day. I mean Chief Justice Roberts under the terms of the constitution is not actually the judge in a conventional sense in the Senate trial. He's the presiding officer. So we'll see how it actually plays out. But the he'll be able to he'll be called upon to make some decisions but his decisions can also be be Overridden by the majority of the Senate right. So it's not like he gets to say what is going to happen. He might weigh in a little bit and he'll do formal things like you know. Read the senators questions at loud. But that's really doesn't require a huge amount of skill. I think what we should be prepared to see is as much a political spectacle spectacle as a legal one so of the senators. Make the rules and Roberts does happen to want to hold someone in contempt. They can override all right all right. Well I don't know that I don't think it will come to that. I mean I think basically the best way to think about it as you know normal ordinary run of the mill case is a jury just decides facts and the judge decides the law and they have those very clearly delineated roles but in the Senate trial the jury is going going to decide the facts but they also basically decide the law that they're going to apply to their own facts which is quite bizarre. And of course can't help but be part zander political because of Because of the process Your average judge cannot have his rulings overturned by the jury. But that's what you could see here even the opposite like a trial could happen and the judge can nullify the result if they feel like it violates that it's so tipped the balance of law in actual criminal case that yeah I mean. The jury has power new ordinary case to make ultimate factual determinations which can be things like guilt or innocence. Criminal trial but Like I said it's just don't don't put too much faith in in Robert Somehow like you know bringing down the fairness hammer. The present mentor. That way it's like not robust enough to handle a a real talent to it. I mean the the the biggest source of pressure would be public opinion and people weighing in so we shall see how long it takes may be over within a week or two or you take and this show is produced by Lisbeth. Joe Crisper Ruby and me Roman Mars you can find US online. At trump gone law dot com all the music and trump conlon's provided by dune tree records the Midwest hip hop collective. You can find out all about doom CI records get merch and learn about current tours and doom tree dot net. We are proud member of radio. Radio Tokyo from REX supported by listeners. Just like you the radio to X.