Andrew Harnik/AP Photo
President Donald Trump at his Mar-a-Lago estate in Palm Beach, Florida, December 24, 2019
Donald Trump has been thinking about a war against Iran for a long time. He first referred to the possibility in a video about President Barack Obama in November 2011:
Our president will start a war with Iran because he has absolutely no ability to negotiate. He’s weak and he’s ineffective. So the only way he figures that he’s going to get re-elected—and as sure as you’re sitting there—is to start a war with Iran. … I believe in strength. But to start a war in order to get elected—and I believe that’s going to happen—would be an outrage.
As always, Trump was at his best when projecting onto others what he would do himself. While Obama did seriously consider assassinating Qassem Soleimani during his presidency, his advisers convinced him that we were not militarily prepared to fight another war in the Middle East. But this time around, Trump has followed his own playbook and is seeking to use an Iranian war to gain public support when a Senate impeachment trial is threatening his re-election prospects.
He is right to tell us that such a war would be an “outrage.” But in the present context, his Iranian adventure is something far more serious. It is another impeachable offense.
The Constitution grants Congress, not the president, the exclusive power “to declare War.” Moreover, the War Powers Act, passed over Richard Nixon’s veto in 1973, imposes strict limits on unilateral presidential war-making. It requires him “in every possible instance [to] consult with Congress” before intervening in “situations where imminent involvement in hostilities is clearly indicated by the circumstances.”
Nevertheless, Trump refused to tell House Speaker Nancy Pelosi that he was considering his fateful step, even though the act designates her, and the president pro tem of the Senate, as the official recipients of his reports. But since he did take the time to consult his close advisers along with some leading Republicans—making it clear that it was perfectly “possible” to talk to Pelosi—he plainly refused to obey the law. This act of defiance already marks Trump’s assassination of Soleimani as a lawless abuse of power.
Trump’s absolutist pretensions are emphasized further by his response to the act’s demand that he explain the “constitutional and legislative authority” for his intervention “within 48 hours.” His report to Congress fails to provide any such rationale. It only consists of a top-secret account of counterintelligence data describing the threat posed by Soleimani. Speaker Pelosi tells us that this document “raises more questions than it answers.”
Her skepticism is justified. Recall President George W. Bush’s confident assertion that Saddam Hussein possessed weapons of mass destruction that posed an “imminent danger” requiring American intervention in 2003. This tragic blunder was unjustified by the facts, though it was also based on top-secret intelligence. Yet the CIA’s mistaken report on Hussein was generated by a serious, if deeply politicized, fact-finding effort. In contrast, Trump’s current claims about Soleimani, as Jonathan Stevenson points out, have not even been scrutinized by his own National Security Council. If Trump had obeyed the law and consulted with Pelosi before taking action, she would undoubtedly have confronted Trump with the urgent need to probe deeper into the facts if he hoped to avoid a rerun of the Iraq War catastrophe. Many other congressional leaders, including some Republicans, would have shared her concerns.
Not only did Trump play fast and loose with the facts. His report to Congress does not even try to comply with the statutory demand that he provide the requisite “constitutional and legislative authority” for his action. The War Powers Act doesn’t leave it up to the president to decide whether Soleimani was an “imminent danger.” Instead, he must either show that a previous congressional authorization allows him to order the assassination or persuade Congress to pass a new resolution authorizing his dramatic use of force.
And make no mistake: Under international law, the United States is now indeed at war with Iran. Killing a high official of a foreign government is an act of war under international law and the United Nations Charter.
This act of defiance already marks Trump’s assassination of Soleimani as a lawless abuse of power.
Trump’s silence on the crucial question of his legal authority to assassinate Soleimani speaks louder than words. Over the past two decades, top lawyers in every administration have stretched the relevant statutory and constitutional language to rationalize their commander in chief’s war-making powers in a broad range of problematic situations—leading, as in the case of former Bush administration official John Yoo’s notorious torture memos, to widespread condemnation for unprofessional conduct. Given this history of backlash, it apparently seemed safer for Trump’s legal team to say absolutely nothing to back up the president’s tweets threatening Iran with an escalating series of 52 attacks as if he were an omnipotent despot.
The War Powers Act provides Congress with tools to restrain such brazen acts of lawlessness. It contains remarkable provisions enabling a single representative or senator to force a vote on Trump’s Iranian campaign “within three calendar days” after they have forced their privileged motion onto the floor. Senator Tim Kaine has already announced his intention to take this step in the Senate, and Pelosi will be scheduling a floor vote in the House imposing strict limits on the president’s military intervention.
Impeachment, however, provides a new weapon to Congress in its struggle to demonstrate that its exclusive authority “to declare war” represents a real-world check on presidential power, and not merely a meaningless symbolic gesture to the Founding Fathers. While the Constitutional Convention found itself divided on many big issues, delegates were united on one fundamental point. The president could not behave in the manner of King George III and launch the country into war whenever he liked. Until now, however, there has never been an occasion to establish that unilateral presidential war-making represents the paradigmatic “high crimes and misdemeanors” denounced by the framers.
This is precisely the moment at which the House Judiciary Committee should add a third count to its bill of impeachment condemning Trump’s escalating intervention against Iran. Given the president’s blatant defiance of the War Powers Act, there is no need for the committee to hold elaborate hearings before advancing this additional article to the floor for House approval. The president’s utter failure to provide legal arguments for his use of force—together with his allegation of top-secret, but deeply problematic, factoids—suffices to make a compelling case for the abuse of power. If Trump has second thoughts, he should try to convince the Senate of their plausibility.
By suddenly striking out at Iran, the president has vastly increased the sense of constitutional crisis gripping the nation. Adding a third count to the bill will, at the very least, provide a coherent framework for serious discussion on Capitol Hill. The country would be encouraged to view Trump’s activities in Ukraine, and his war against Iran, as symptoms of the same disease: the systematic abuse of presidential power. While the dramatic drone attack on Soleimani will otherwise divert public attention from the impeachment trial, this won’t happen if it becomes a central focus of the trial itself. Indeed, the clear and present danger of a disastrous war in the Middle East might well begin to undermine Republican support for Trump in the Senate.
Even if the president wins an acquittal, the great debate on the Senate floor linking Trump’s war-making with his dealmaking will have constructive consequences over the coming year. It will dramatize Trump’s remorseless effort to put himself above the law, and invite the American people to confront the central question raised by the 2020 election: Will they join together to take a stand against the rise of despotism in the United States?
