Democrats fumbled the Hegseth impeachment. That could be a blessing in disguise

‘A more targeted set of articles against Pete Hegseth in the new Congress might stand a better chance of success.’ Photograph: Kylie Cooper/ReutersView image in fullscreen‘A more targeted set of articles against Pete Hegseth in the new Congress might stand a better chance of success.’ Photograph: Kylie Cooper/ReutersDemocrats fumbled the Hegseth impeachment. That could be a blessing in disguiseClaire FinkelsteinThe failed move could lead to a more robust effort against the defense secretary in the next Congress. Here’s how it could look

A traffic jam, combined with disorganization on the part of Democrats, enabled House Republicans to scuttle the representative Thomas Massie’s articles of impeachment against Pete Hegseth on Wednesday.

While recriminations are now flying among Democrats, the fumble may have been a blessing in disguise. Democrats can now refocus the articles against the defense secretary, possibly to better effect.

The first four of Massie’s articles of impeachment addressed the Iran war, asserting that the Department of Defense overstepped presidential war powers authority. The first three accused Hegseth of failing to respect congressional authority and the War Powers Resolution. And the fourth claimed that that the Pentagon failed to mitigate harm to civilians in its operations, resulting in the tragedy of the US strike on the girls’ school in Minab, Iran.

Read moreInclusion of the first four articles of impeachment, however, might ultimately have backfired in the Senate, and maybe even in the House in the final vote.

The US has a long history of presidents ignoring Congress’s role in decisions to engage in military force. From Nixon’s invasion of Laos and Cambodia, to US-led Nato intervention in Kosovo and Serbia under Bill Clinton, to US military intervention in Libya under Barack Obama, among others, presidents and their secretaries of defense have flouted Congress’s role in authorizing military operations for years.

The same can be said about harm to civilians in US operations. It was mistaken strikes against civilians during the Obama years that inspired Secretary Mattis, followed by Secretary Austin, to establish the now-shuttered Civilian Harm Mitigation and Response program. Dismantling the program was a Hegseth initiative and one of Massie’s concerns.

A more targeted set of articles in the new Congress might stand a better chance of success.

Three causes for impeachment stand out as most likely to garner bipartisan support. The first is one that did not even appear in Massie’s articles: Hegseth’s egregious handling of classified communications in the infamous Signal chat conversation regarding a planned military operation in Yemen, when the editor-in-chief of the Atlantic, Jeffrey Goldberg, was inadvertently included on the thread.

“Signalgate”, as it has been called, identifies one of the worst cases of mishandling classified information ever to occur by a higher-level official in the defense department. A Pentagon report itself suggests that Hegseth put troops in danger in this incident.

Hegseth and other members of the administration continued to exchange classified information on Signal even after the initial revelation by the Atlantic. Hegseth then embarked on extensive internal investigations, using polygraph testing to search for leakers, and ultimately firing Lt Gen Brett Sylvia, a member of the joint staff. Yet the secretary himself, or at least his lax practices, may well have been the source of some of the very leaks he is investigating.

Second, boat strikes directed against civilian vessels in the Caribbean and eastern Pacific stand on a different footing from the articles relating to the Iran war. This use of US military force has been virtually unanimously condemned by legal experts as an indisputable violation of the laws of war, or, more accurately, as murder.

Third, an article of impeachment addressing the vindictive campaign of retribution against the senator Mark Kelly for a controversial video he made with five other members of Congress could well garner support from Republicans, some of whom may rise to the occasion to defend their colleague.

As I made clear in a brief in support of Mark Kelly, the video, which reminded troops they may refuse to follow illegal orders, merely restated textbook training to servicemembers regarding the law of superior orders. The attack on Kelly was not popular with either Democratic or Republican members of Congress.

As I recently wrote about possible impeachment charges against Trump, Congress’s heightened investigatory powers during an impeachment inquiry provide a critical benefit of the process.

A Hegseth impeachment could force release of the Office of Legal Counsel (OLC) memo justifying the boat strikes. OLC lawyers should be called on to testify – presumably behind closed doors – to explain the process by which they came to support the strikes.

An investigation of the OLC is long overdue in any event, and a more general inquiry should be conducted by the House and Senate judiciary committees.

Hegseth’s attack on Pentagon lawyers should also be investigated and should possibly form a fourth article in newly refocused impeachment charges against him.

Starting with the firing of the top Judge Advocate Generals and moving on to incursions into the role played by rank-and-file Jags, Hegseth has sought to undermine fidelity to the rule of law and the role of lawyers in reviewing military operations.

Read moreWhile Congress has heard some testimony on these matters, such as that of Adm Frank Bradley, who took the hit himself for certain of the boat strikes in a likely attempt to protect Hegseth, many questions remain unanswered.

Most critically, impeachment proceedings against Hegseth will provide an opportunity for Congress to strengthen its oversight authority.

Hegseth will likely invoke either presidential “testimonial immunity” or “deliberative privilege”, doctrines made up by the executive branch over time that have rarely been tested in article III courts.

While it is true that presidents need to be able to consult with members of their cabinets confidentially without fear of public revelation, these doctrines have served more to interfere with congressional oversight and block transparency than to further sound presidential decision-making. Congress must work to cut these outsized claims of presidential authority down to size.

There will also likely be assertions that information cannot be shared with Congress due to classification concerns.

Here, too, Congress must stand firm and focus on rebuilding its oversight authority. Members of the two armed services committees have robust classification privileges that make sharing information with Congress behind closed doors entirely legal and appropriate.

Leaders of the 120th Congress will have the opportunity to lead critical impeachment inquiries as well as conduct extensive oversight in the new year, but they must play their cards carefully and keep their eyes on the prize – long-term restoration of democratic norms and the strengthening of checks and balances in the federal government.

Claire Finkelstein, a contributing opinion writer for the Guardian, is the Algernon Biddle professor of law and professor of philosophy at the University of Pennsylvania. She is also the founder and faculty director of Penn’s Center for Ethics and the Rule of Law (CERL). She is a fellow in residence at the Edmond & Lily Safra Center for Ethics at Harvard University during the 2026-27 academic year