A leading conservative legal thinker lays out why Hegseth should be convicted on multiple counts
NA Yesterday, I explained why Secretary of Defense Pete Hegseth merits impeachment and conviction for his involvement in launching an unconstitutional war and for the more than 200 outright murders carried out through the so-called “drug boat” strikes. Today, Representative Thomas Massie of the Republican Party introduced impeachment articles in the House. Even if those charges fail to win approval in the narrowly Republican lame-duck session, they are almost certain to gain traction in the incoming Democratic chamber. At the same time, Andrew McCarthy, a prominent conservative legal commentator, national security law expert, and former federal prosecutor, has published an insightful overview of the allegations in National Review. McCarthy sits far to my right and is substantially more sympathetic to the War on Drugs (an endeavor I personally believe should be ended). Yet it is noteworthy that he and I converge on the point that Hegseth ought to be convicted for his role in the drug boat strikes, which McCarthy describes as “indefensible.” I do not believe there can be a legitimate justification for extrajudicial killings conducted by military force against operators of suspected drug-smuggling boats. Drug trafficking remains a crime, not a state of warfare. Our legal framework addresses it through trial and punishment, not through martial force. The administration has failed to establish that the boats were carrying narcotics, let alone that the drugs were destined for the United States. The president’s designation of Venezuelan criminal gangs as foreign terrorist organizations, besides being legally dubious (drug trafficking is not defined as “terrorist activity” in federal law), does not authorize the use of force; rather, it criminalizes material support to the organization and helps to sever its funding streams. While the unauthorized killings in the Caribbean and eastern Pacific have not drawn the same public uproar as the Iran war, they are indefensible, and Hegseth has stood as their loudest and most abrasive advocate. As I noted in my earlier post, this view aligns with that of John Yoo, the well-known former Bush Administration official and a leading conservative advocate for expansive executive power over national security and foreign policy. McCarthy also contends that Hegseth should be convicted on at least one more count: likewise, I find no defense for Hegseth’s abuse of command authority and violation of constitutional separation-of-powers principles in his attempts to discipline and censor Senator Kelly, a retired Navy captain who remains subject to the Uniform Code of Military Justice. Hegseth’s actions, certainly backed by the president, constituted unlawful command influence. More crucially, they represented an abuse of executive power aimed at suppressing congressional criticism. The aloof Hegseth was playing a dangerous game here; if it has now come back to haunt him, he bears the blame himself. This particular charge is somewhat less within my core expertise than some of the others, but I endorse McCarthy’s conclusions on this point. McCarthy also appears to acknowledge that the Iran War is illegal, yet suggests that Hegseth does not merit impeachment on this basis because he was merely following Trump’s orders and enacting his policy. He also observes (correctly) that previous presidents have managed to initiate wars without congressional authorization. I disagree for reasons I laid out in my prior post: obviously, the ultimate perpetrator of these unlawful actions is not Hegseth, but Trump. The former was acting under the latter’s unlawful orders (though he likely also helped sway Trump to issue those orders in the first place). Nevertheless, prosecuting officials for obeying illegal orders remains a meaningful objective—one of the lessons drawn from the Nuremberg trials. I would add that Hegseth was not simply a lowly subordinate merely executing orders. He has exercised substantial influence over policy and stands among the principal architects of both the Iran War and the drug-boat assaults. Okay, perhaps he could be viewed as a flunky; but not a mere junior operative. He bears far greater responsibility than ordinary frontline servicemembers. As I noted in my earlier post, it is indeed true that past presidents, such as Barack Obama, have managed to get away with initiating illegal wars. Obama deserved impeachment as well. Yet this circumstance makes it all the more essential to uphold this portion of the Constitution with greater rigor. Moreover, the Iran War is far more expansive and has produced far more severe consequences than any other illegal conflict of recent decades. Obama’s illegal wars were significantly smaller by comparison. I will not extensively address McCarthy’s assessment of the other charges, save for the brief focus on the move to remove Venezuelan dictator Nicolas Maduro. McCarthy laments that Trump left a brutal socialist regime in place (minus Maduro), but argues that the intervention might have been legally justified by drawing on the precedent of the 1989 U.S. military action that removed and captured Panamanian strongman Manuel Noriega. I differ for the reasons I outlined here: Defenders of the legality of Trump’s actions point to the 1989 invasion of Panama, undertaken largely to apprehend the Panamanian dictator Noriega; like Maduro, Noriega faced charges related to drug trafficking in the United States. But the 1989 Panama precedent does not, in fact, justify Trump’s actions. On December 15, 1989 (five days before the U.S. invasion), Noriega publicly proclaimed that Panama and the United States were in a “state of war,” thereby creating a conflict that did not exist in the Venezuela case. Additionally, Panamanian forces had killed or wounded two U.S. military personnel in the Panama Canal zone, and had detained other American citizens. Unlike Noriega in 1989, the Maduro regime did not declare war on the United States nor initiate a military confrontation. Consequently, congressional authorization is necessary to render any U.S. military intervention constitutional. That said, I judge the Maduro-related intervention charge to be far weaker than the Iran War and drug-boat charges. The Maduro action occurred on a much smaller scale and has not produced anywhere near the same terrible effects. The charge regarding abusive prosecution is also more compelling than the one centered on Maduro. Congress would be wise to concentrate on the most solid charges and convict Hegseth on those.
