The Paris Climate Accord and Impeachment

Marjorie Cohn, writing for the resistance-focused Truthout, claims that Trump’s withdrawal from the Paris Climate Accord is an impeachable offense. A credentialed, but clearly unprincipled hack, Ms. Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. She claims that Trump’s withdrawal from the Paris Climate Accord is:

  • a High Crime as defined in the Constitution and therefore an impeachable offense
  • an injury to society
  • a crime against humanity, an “inhumane act”

Let’s go back and remember how we got into the Paris Climate Accord in the first place. The United Nations guided the negotiation of the agreement, which has thus far been signed by 195 countries. President Obama signed for the United States, claiming that the Accord was just an executive agreement, not a treaty, and therefore did not need ratification by the Senate. Departing from his beloved “international norms”, Obama sought no approval from anyone but himself. Most other countries who ratified the agreement did it via legislative processes, including France, Denmark, Germany, United Kingdom, Italy, Japan, South Korea, South Africa, and dozens of others.

The Paris Accord allows for voluntary and nationally determined targets. There are no legal mitigation or finance terms associated with these targets, the only thing legally binding is the reporting requirements. However, Article 7 of the Accord states “adaptation action should follow a country-driven, gender-responsive, participatory and fully transparent approach”. Obama’s unilateral action hardly seems country-driven or participatory.

In addition Article 9 requires that “Developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation”. The Constitution requires that all funds spent be authorized by the Congress. Obama committed $3 billion, and paid $1 billion of that before he left office. Article 28 prevents signatories from withdrawing from the Accord for three years after signature, which also makes it seems less like an executive agreement and more like a treaty.

To understand whether withdrawing from the Paris Accord is an impeachable offense, we must decide the weight of our nation’s commitment to the accord. If President Obama was correct that the accord is merely an executive agreement because the commitments are voluntary and nationally determined, then Trump can easily withdraw by executive agreement. Likewise, changing those commitments are hardly crimes against humanity or an injury to society as Ms. Cohn claims.

If the financial commitments and limitations on withdrawal mean that the United States commitment to the Paris Accords is an act of treaty making and therefore must be ratified by the Senate, then absent legislative ratification, the commitments have not been made. Trump’s act of withdrawal therefore means exactly nothing, and hardly constitutes High Crimes.

Ms. Cohn, you do not deserve the credentials you have.