Sen. Ted Cruz created angst among Democrats when he kicked off the new year saying if Republicans recapture the House, President Joe Biden could be impeached based on the standard Democrats established themselves. “The Democrats weaponized impeachment,” the Texas senator said.
The central warning in “Abuse of Power,” was that applying impeachment without a demonstrable crime, the political equivalent of the death penalty, and nullifying an election should not occur—nor should the attempt thereof even if there is no chance of a Senate conviction.
“The more you weaponize it and turn it into a partisan cudgel, you know, what’s good for the goose is good for the gander,” Cruz said on his podcast, The Verdict. He added, “That's not how impeachment is meant to work. But I think the Democrats crossed that line. I think there'll be enormous pressure on a Republican House to begin impeachment proceedings.”
Democrats certainly lowered the high crimes and misdemeanors bar in its vindictive 2019 impeachment of President Donald Trump over the Ukraine phone call. Unable to figure out even a theoretical criminal charge, Democrats settled on the vague articles of “abuse of power” and “obstruction of Congress,” neither found in statute and both of which almost any president could be accused. The second Trump impeachment, over the Jan. 6 riot, did not suffer the same fatal flaw, as it alleged the crime of incitement.
Cruz said there would be grounds to bring charges against Biden and, “Probably the most compelling is the utter lawlessness of President Biden's refusal to enforce the border.”
The border does pose a somewhat interesting question, as there is a tie-in to an obscure budgetary process law.
After the House Democrats voted to impeach Trump, the Government Accountability Office issued an opinion that said Trump violated the Impoundment Control Act by not releasing the congressionally-appropriated aid to Ukraine sooner. The 1974 law provides the executive branch only narrow and limited discretion in spending money appropriated by Congress and signed into law by the president in the budgetary process.
Here’s why this is relevant to Biden and the border. Last year, 40 Senate Republicans signed a letter asking the GAO to investigate whether Biden violated the same law for halting construction of the southern border wall. The letter included leader Mitch McConnell, conservatives like Cruz, as well as Sens. Susan Collins and Mitt Romney. They didn't broach impeachment. But notably, the only law Trump was ever credibly accused of violating in the Ukraine matter was the impoundment law. Importantly the GAO reviewed the matter and determined Biden didn’t violate this law, but the GAO can only issue opinions, not adjudicate matters—and Republican senators disagreed with the conclusion.
Even if Biden had violated it, as Sen. Mike Lee, a constitutional scholar, said in an interview for my book, “Violation of the Impoundment Control Act is to government operations what accidentally removing a do-not-remove tag from a mattress or failing to signal three seconds before making a turn.”
But under the newly created standard from Democrats, as Cruz noted, this might not matter. If a House majority simply wants to tar the president of another party with the scarlet I, it will do so, even if it’s not for a serious constitutional threat nor there is any chance of removal by the Senate.
As “Abuse of Power” argues, stipulations for impeachment should be: “1) That a president either clearly engaged in criminal conduct; 2) Short of violating a statutory crime, a president committed an act that poses a threat to constitutional government; or 3) A technically legal act that poses no threat to the government but makes a president unfit for the office beyond the pale of what past presidents have done—the most dangerous and arbitrary of the three.”
It might well be that those are in place under a Biden presidency and Republican House at some point. But if not, a revenge impeachment for a petty charge comparable to the Ukraine call would be unfortunate.
I’ve heard a sensible argument that the only way to prevent Democrats from weaponizing impeachment against the next Republican president is to play their game. However, it seems extremely unlikely that would stop them.
Rather, impeachment—a vehicle the founders believed necessary to protect the republic—would be so cheapened that a scarlet I would no longer have any sting, and voters would come to expect it as a ping pong between parties.