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Trump may be prevented from removing Marie Jovanovic.



  Marie Jovanovic in a crowd of people.

Former US Ambassador to Ukraine Marie Jovanovic arrives to testify on Capitol Hill on October 11th.

Jonathan Ernst / Reuters

As the Chamber's impeachment investigation continues to come closer to its public phase, several crucial moments have emerged in the case of President Donald Trump and his apparently corrupt actions against Ukraine. One highlight is the abrupt removal of Marie Jovanovic as ambassador to Ukraine in May 2019. Reports indicate that Trump may have fired her because he thought it would thwart his attempts to investigate Ukraine's political opponents. In response, Trump's defenders argue that her removal could not lead to any impeachment investigation, as Secretary of State Mike Pompeo recently said, "ambassadors serve the president's pleasure." Although Pompeo is right that ambassadors like and other high-ranking national security and foreign affairs officials who serve the president at pleasure and can be removed from the office without cause, Pompeo is wrong about what that means in the impeachment investigation. The abuse of power of removal may still be grounds for impeachment, and Congress may find precisely such abuse of power here.

It is true that, at least with regard to some executive officers, the Constitution gives the President the power to remove them at will. As the Supreme Court has said, "there are some 'purely executive' officials who need to be removed from the president at will in order to fulfill their constitutional role." Thus, the president is generally considered to have the power to remove officials who assist him in the exercise of his power under Article II to deal with foreign affairs, such as the Secretary of State and the ambassadors representing the United States abroad. But that fact alone does not mean that Trump is without a problem.

The extent of power to remove the President was discussed as early as 1789, when the First Congress passed a bill establishing the Ministry of Foreign Affairs. As part of the review of this legislation, the House of Representatives is engaged in a lengthy debate on whether the separation of powers means that the president has the power to remove the secretary of foreign affairs without the Senate's consent. In this debate, James Madison, a prominent member of the Constitutional Convention and a signatory to the Constitution, claims that the president cannot be required by the Senate to seek consent to remove the secretary of foreign affairs. As he explained, "Transfer this power to the Senate in conjunction with the President, and you immediately remove that great principle of unity and responsibility in the executive department that was dedicated to the security of liberty and the public good."

This is not the first time Trump has been accused of abusing his removal of power.

Madison's defense of the president's power to remove officers as secretary of foreign affairs, however, comes with important warning. At one point, Madison acknowledged the "danger" that the president would "remove from office a person whose merit he requires to be continued in it." safety valve: impeachment. As he put it, "the senseless removal of honored officers would put [the president] on impeachment and remove his high confidence."

The idea that a president can be arrested and removed for misusing his removal authority is not simply a theoretical question. In 1868, the House impeached President Andrew Johnson on the grounds that it violated federal law that restricted the president's authority to remove certain employees, including the secretary of war. During his trial in the Senate, Johnson argued in part that he should not be convicted because this federal law is unconstitutional, as applied to the secretary of war, whom he said enjoys unlimited power to remove. This argument did not convince one of the members of the Chamber pursuing the removal case – Resp. Thomas Williams – who claims the president can be ousted, even if he enjoys the power to remove the secretary of war, if the cause is wrong.

According to Williams, "[i] seems to have been accepted by [the President’s counsel] throughout … that if they were to succeed in establishing a power of removal in the president, … he could exercise that power by itself." will and pleasure, without cause and without responsibility. "In response to this argument, Williams cites Madison, stating that Framers," who claims the power of removal to be president, never "suggested that exercising it should be simply a matter of whim, or whim, or will. . "Williams claims that Secretary of War Edwin Stanton was certainly a" deserved officer "and there was no" sufficient reason to remove him "and therefore his removal was" reckless "," dishonest "and a reason for Johnson's removal from office. Johnson was eventually justified by one vote in the Senate, but it is remarkable that Williams – like Madison before him – took the position that some exercise of power to remove the president might be grounds for impeachment.

To be sure, the President has a broad discretion to remove executive officers who serve at his pleasure. But even if Williams did over-think that impeachment might be appropriate, simply because there was "not enough reason" to remove the officer, the fact that he considered impeachment to be an appropriate response to some of the president's power-stripping exercises, supports the view that abuses of power to eliminate it – especially corrupt abuses – can justify impeachment. That way, if the House investigation confirms that Jovanovic's removal was part of a corrupt scheme to get Ukraine to investigate the president's political opponents, the removal itself could justify an impeachment member against Trump.

In particular, this is not the first time Trump has been accused of abusing his removal powers. Volume II of Special Report Robert Mueller's report describes the removal of President James Komi as FBI Director as an attempt to disable the investigation into Russian interference in 2016. As James Madison teaches us, though the President may have the authority to remove the Director of the FBI at will, corruption abuse of that body can also be the basis for impeachment.

In short, while Pompeo is correct that Jovanovic served at the pleasure of the president, this omits the question. Although the president has the constitutional authority to fire an ambassador, that authority does not isolate him from being prevented and removed from office if Congress finds that the exercise of that power was an abuse of power. Thus, if Congress finds that the president has eliminated Jovanovic for the corrupt purpose of trying to persuade a foreign power to investigate a political rival, that removal could be another crime that finds its way into impeachment articles filed against Trump.

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