President Buchanan, Governor Cuomo, the Failure to Enforce the Law, and Impeachment (Updated)

 

 

            President Buchanan is usually rated the worst or among the very worst of our presidents. That view is not an entirely modern one. He was not well loved by the largest part of northern Unionist sentiment during the American Civil War. Yet, there was no serious move to impeach him while he was president or after Lincoln succeeded to the presidency. (Albeit, one reason for the latter is that the issue of late impeachment always would complicate the analysis.) With the departure of all southern Democrats from the House and all southern Democrats (Senator Andrew Johnson excepted) from the Senate, impeachment by the House should have been a snap, even if securing a Senate conviction would not have been entirely certain. One wonders: Why was Buchanan not impeached?

            What did President Buchanan do wrong? One thing: during secession, he did next to nothing. Buchanan was unwilling to use force—particularly the U.S. Army and Navy—to enforce U.S. law in states which had seceded, to protect federal judges and other U.S. officers in carrying out their lawful duties in states which had seceded, to protect federal enclaves and property in states which had seceded, and to stop the formation of the confederate government in violation of U.S. law.

So why was President Buchanan not impeached for failing to enforce the law, and for failing to defend the country, etc, etc?

• Because at each step, there was the hope that there would be a change of political opinion in the confederate states (albeit, a forlorn hope) …
• Because at each step, there was the fear that moves by the U.S. military to compel obedience to the law would be perceived as an invasion, and consequently push the border states towards secession (which is what happened) …
• Because at each step, there was the view that a civil war would be costly in treasure and lives (resulting, according to modern estimates, in over 600,000 Union dead and wounded, and in over 400,000 confederate dead and wounded) …
• Because at each step, many believed that Union/Northern victory was not assured (and, is there any doubt of that point?) … and,
• Because at each step, it was believed that if disunion came, if it came amicably, then in the future, partial or total, reunification remained a real possibility (and, who can say if this position was an unreasonable one to take?).

I do not suggest that Buchanan was right and that Lincoln was wrong. But one reason we think Lincoln was right is because by 1865, he and the armed might of the United States prevailed. But in 1861, after Fort Sumter—but prior to Gettysburg, prior to Sherman’s taking Atlanta, and prior to the election of 1864—it was hardly clear that the Union would prevail.

Buchanan’s efforts, such as they were, were grounded in a moral vision and policy choice. It may be a policy choice that you and I disagree with. But that sort of choice is part of normal politics—albeit, normal politics (including wartime politics) where the issue on the table is the continued existence of the nation itself.* That is what elections are meant to decide. Buchanan’s inaction violated no statute (nor any other positive law). Buchanan did not take a bribe or act for self-interested ends. Here the President had lawful discretion if and when to use force. He acted in a disinterested manner (i.e., akin to complying with a fiduciary duty of loyalty); he was fully informed (i.e., akin to complying with a fiduciary duty of care). His actions were transparent—albeit, objectionable to many (including me and, maybe, to you too). If a retrospective inquest on a disputed policy matter can convert inactivity into a constitutional “high crime and misdemeanor,” then the latter language is emptied of all substantive content.

Indeed, all law enforcement officers face Buchanan’s choice. In every law enforcement action, there is always a question of if, and when, and how much lawful force should be used, and how long (if at all) enforcement can and should be delayed. It is precisely because that question is always a judgment call (where not guided by statute or other positive law) that we have no history of impeaching officers based upon a retrospective investigation and trial—conducted by subsequently elected officials seeking to vindicate different values and goals—which reaches a different conclusion than that which had been reached by the original officeholder as to what precisely was best policy ab initio.

This is the fundamental danger of all the recent loose discussion about “abuse of office.” It is a vague standard which, when misapplied, converts normal democratic disagreement, where elected officials must make decisions in real-time based upon imperfect information, into trials and then seeks to disqualify political opponents.

Let’s apply this standard to Cuomo.

If Cuomo broke positive law by retaliating against women who had lodged complaints about his behavior, then those retaliation-related allegations (if true) could supply a good basis for impeachment. The COVID19 allegations are entirely different. If Cuomo chose poorly (as we now understand it) in sending elderly patients with COVID19 into nursing homes, but did so acting on the information before him and for disinterested ends (i.e., in the narrow sense of not taking any bribes), then that is a reason for voters (if they so choose) to boot him out of office and not to re-elect him to future office, but it is not a reason for the legislature to impeach. Otherwise, you are converting impeachment into an ongoing legislative vote of no confidence. This might be an arguable possibility under the New York Constitution’s impeachment provision because it lacks any express “high crimes and misdemeanors”-language limiting legislative discretion in the impeachment context. On the other hand, it is precisely for this reason that any such vote of no confidence (masking as an “impeachment” vote) would make no sense under the United States Constitution . . . because under the federal constitution impeachment is limited to “high crimes and misdemeanors.”

Seth Barrett Tillman, President Buchanan, Governor Cuomo, the Failure to Enforce the Law, and Impeachment (Updated), New Reform Club (Aug. 11, 2021, 12:42 PM), <https://reformclub.blogspot.com/2021/08/buchanan-cuomo-failure-to-enforce-law.html>; 

*Consider the United Kingdom’s 2016 Brexit referendum and Scotland’s 2014 independence referendum—both normal democratic politics.