Impeachment Lessons

The Nineties taught us it’s not guilt that matters; it’s political will. 

By Andrew C. McCarthy 

Well whaddya know: The topic of impeachment reared its head at a House Judiciary Committee hearing on Tuesday. 

Jonathan Strong’s report here at NRO noted the wincing consternation of GOP-leadership aides at utterances of the “i-word” during the testimony of prominent legal experts. For the Republican establishment, it seems, history begins and ends in the 1990s: No matter how times have perilously changed, any talk of shutdowns or impeachment is bad, bad, bad. Yes, the Obama “uber-presidency,” as left-of-center law professor Jonathan Turley called it, has enveloped the nation in what he conceded is “the most serious constitutional crisis . . . of my lifetime,” but GOP strategists would just as soon have us chattering about immigration “reform” and bravely balancing the federal budget by, oh, around 2040. 

But as we discussed in this August column — back when the first anniversary of the Benghazi massacre loomed, back when many Americans still believed that if they liked their health-insurance plans, they could keep their health-insurance plans — it is not crazy to talk about impeaching President Obama. And if you’re going to have a congressional hearing about systematic presidential lawlessness, it is only natural that the word “impeachment” gets bandied about. Not only is impeachment the intended constitutional remedy for systematic presidential lawlessness; it is, practically speaking, the only remedy. 

It is beyond cavil that the president is willfully undermining the constitutional system that he swore to preserve, protect, and defend. He presumes to rewrite, and dramatically alter, the laws he vowed to execute faithfully — not once in a blue moon but as a deliberate scheme of governance. 

Before he took office, Obama boldly promised supporters that he would “fundamentally transform the United States of America.” That is just what he is doing. There is fraud in the uber-presidency, but no mystery: Most of Obama’s unconstitutional usurpations are happening in broad daylight. He brags that his “waivers” — i.e., his unilateral amending, repealing, or non-enforcement — of statutory provisions show him to be far-seeing and pragmatic, not lawless. That, of course, is the standard dictatorial self-image. Obama is the answer to Tom Friedman’s China-envying prayers. 

Just as there is no mystery in Obama’s disregard for the Constitution, there is no secret about the Constitution’s answer to executive imperialism. The Framers recognized that presidential abuse of power carried the greatest potential to wreck the republic. Adamant that the presidency they were creating must not become a monarchy, they carried on debates over the Constitution that were consumed with precluding this very real possibility. In the end, the Framers armed Congress with two responsive weapons: the power of the purse and the power of impeachment.

As we have seen through the years, the power of the purse is not a practical check on Obama. In the main, this is because the Framers, notwithstanding their prescient alarm over the problem of factions, did not anticipate the modern Left.

The Constitution assumes that the different branches of government will protect their institutional turf. That is, the Framers calculated that, faced with a Democratic president who usurps legislative prerogatives, a Democratic congressman would see himself, first and foremost, as a congressman. Valuing the duties of his office over party loyalty, he would join with other legislators to rein in executive excess.

Today’s Democrats, however, are less members of a party than of the movement Left. Their objective, like Obama’s, is fundamental transformation of a society rooted in individual liberty and private property to one modeled on top-down, redistributionist statism. Since statism advances by concentrating governmental power, Democrats — regardless of what governmental branch they happen to inhabit — rally to whatever branch holds the greatest transformative potential. Right now, that is the presidency. Thus, congressional Democrats do not insist that the president must comply with congressional statutes. Laws, after all, must be consistent with the Constitution to be valid, and are thus apt to reflect the very constitutional values the Left is trying to supplant. Democrats want the president to use the enormous raw power vested in his office by Article II to achieve statist transformation. If he does so, they will support him. They’ll get back to obsessing over the “rule of law” if, by some misfortune, the Republicans someday win another presidential election.

While Democrats quite intentionally defy the Framers’ design, Republicans frustrate it by aggressive passivity. The Constitution divides power by subject matter, not percentage of governmental control. The party that controls the House has full primacy over taxing and spending, every bit as much as the party that controls the executive branch has plenary control over prosecution decisions. Constitutional authorities are not contingent on how much, if any, control the party in question has over the rest of government. In theory, then, nothing in government can happen unless the House, with ultimate power over the purse, agrees to fund it. If a corrupt administration uses the IRS as a partisan weapon to audit and harass its detractors, the House can refuse to fund the IRS — or other parts of the executive branch — to quell executive overreach.

Nevertheless, Republicans incessantly tell supporters that, since they control only the House (just “one-half of one-third of the government,” as the tired refrain goes), they are impotent to rein in Obama’s excesses. And when conservatives in the House or Senate urge that Republicans use their command over the purse to stop Obama’s excesses — just as congressional Democrats have historically used the power of the purse to stop Republican presidents from prosecuting the Vietnam War and aiding the Nicaraguan Contras — Republican leadership turns on those conservatives with a ferocity rarely evident in their dealings with the president.

With Democrats energized by Obama’s lawbreaking, and Republicans paralyzed by the prospect of government shutdowns, there is no realistic prospect that Congress will starve Obama of funding. That leaves impeachment as the sole remaining constitutional safeguard against executive imperialism.

There is nothing else.

Tuesday’s Judiciary Committee hearing was enlightening. To the extent that members needed educating on impeachment standards, the experts affirmed the principles we outlined in August. “High crimes and misdemeanors,” the Constitution’s standard for impeachment, are the misdeeds of high officials — what Hamilton referred to as abuses of the “public trust,” violations of a “political” nature in the sense that “they relate chiefly to injuries done immediately to the society itself.”

Hamilton’s emphasis on “political” is salient. It is the point that Republican leaders, still licking their wounds 13 years after Bill Clinton left the Oval Office, must grasp if they are ever to take the right lesson from the Nineties.

Impeachment is a political remedy, not a legal one. Thus the quasi-legal component — proving high crimes and misdemeanors — is the easy part. As a practical matter, fundamental transformation cannot occur without high crimes and misdemeanors being committed against the constitutional order that is being transformed. That’s the whole point.

So, as one would expect, President Obama is intentionally and sweepingly violating his oath of office. He is not faithfully executing federal law — he picks, chooses, “waives,” and generally makes up law as he goes along. He has willfully and materially misled the American people — his Obamacare and Benghazi lies being only the most notorious examples. He has been woefully derelict in his duty to protect and defend Americans overseas. His administration trumped up a shameful prosecution (under the guise of a “supervised release violation”) against a filmmaker in order to bolster the “Benghazi massacre was caused by an anti-Muslim video” charade. His administration has used the federal bureaucracy to usurp Congress’s legislative powers and to punish political enemies. Obama has presumed to make recess appointments when Congress was not in recess. His administration intentionally allowed firearms to be transferred to Mexican drug cartels, predictably resulting in numerous violent crimes, including the murder of a Border Patrol agent. His administration — and, in particular, the Justice Department — has routinely stonewalled lawmakers and frustrated their capacity to perform agency oversight, to the point that the attorney general has been held in contempt of Congress. The Obama Justice Department, moreover, has filed vexatious lawsuits against sovereign states over their attempts to vindicate their constitutional authorities (and, indeed, to enforce federal immigration laws), while the Justice Department itself adheres to racially discriminatory enforcement policies in violation of the Constitution and federal civil-rights laws.

This is not an exhaustive list of Obama abuses, but you get the idea. If the only issue were commission of high crimes and misdemeanors, the Constitution requires only one for impeachment — not the Obama pace, which is more like one per week.

But here is the important thing: High crimes and misdemeanors are a subordinate consideration. In an impeachment case, they are necessary but they are not close to being sufficient. Because impeachment is a political remedy, its most essential component is the popular political will to remove a president from power.

The charges against Bill Clinton plainly satisfied the “high crimes and misdemeanors” threshold, and he was clearly guilty of them. But the American people obviously did not want Clinton removed over them. That is the lesson of the Clinton impeachment. It doesn’t matter what can be proved. You can have a hundred articles of impeachment; what counts is what Americans think of their president. The question is not whether the president has done wrong — that will rarely be in dispute. The question is how convinced the public is that a president’s continued hold on power profoundly threatens their safety, prosperity, and sense of what kind of country we should be.

As things now stand, the public is not convinced. There is no political will to remove the president.

Could things change? Of course they could. Richard Nixon won a landslide reelection in 1972 — prevailing by 503 electoral votes and 18 million popular votes — and resigned to avoid certain impeachment and removal less than two years later. Obama, by contrast, won a fairly close reelection (in which his popular-vote tally dropped by about 4 million from his initial election), and his approval ratings are now tanking. Yet, he remains defiant about his agenda — desperately pivoting this week from the Obamacare debacle to that old class-warfare favorite, U.S. “income inequality.” He has signaled every intention to plow ahead for the next three years with unpopular edicts. As he does so, the hard truths about his legacy health-care “reform” will be visited on tens of millions of Americans. Concurrently, his stewardship is making the world an increasingly unstable place. Obama is causing pain, and pain can change people’s minds.

Two things, however, are certain. Absent the political will to remove the president, he will remain president no matter how many high crimes and misdemeanors he stacks up. And absent the removal of the president, the United States will be fundamentally transformed.

SoRo: I am not presently calling for the impeachment of Barack Obama.  I am conflicted on the matter.  On the one hand, it will go nowhere because there are not 67 votes in the Senate to convict and remove the nation's first black President.  Recall that, even when the Republicans controlled the Senate, there were only 45 votes to convict Clinton of perjury and 50 for a conviction of obstruction of justice.  On the other hand, the Office of the Presidency has become increasingly imperial and autocratic.  Barack Obama has just taken it to such an extreme level of lawlessness that it bodes dire consequences for the nation.  It's not just him.  Bush took many actions unilaterally.  Obama has taken Bush's expansion of executive power and put it on steroids. 

Regardless of how one feels about either Bush or Obama, the imperial presidency is anti-American and anti-constitutional.   Some may not be concerned about what their guy does because the ends justify the means, but they should imagine the future.  Their 'guy' will not always be in office and, in modern times, Presidents have a way of building on the excesses of their predecessors.  If Obama is allowed to continue, what will the next President of the United States do?  Or the one after that?

Just consider this:  Obama has, unilaterally and illegally, issued waivers and carve-outs to his clientele.  What if a future President decides to issue an Executive Order directing the Internal Revenue Service not to collect taxes from his cronies on Wall Street or in Silicon Valley?   What if a future President instructs the EPA to enforce laws against one industry, but not another?  What if a future President - say the first Hispanic President of the United States - directs the Department of Justice to only enforce civil rights laws when they favour Latinos?  What if the first Muslim President decides to make it a requirement that companies with governmental contracts refrain from charging interest on the accounts of other customers?  What if the first woman President directs Fannie Mae and Freddie Mac to give interest-free mortgages to women only regardless of means?

In America, all citizens are supposed to be treated equally under the law and the government is supposed to obey the laws that it imposes on everyone else.  Without the rule of law and equal protection under the law, we will become just another corrupt, lawlessness, and bankrupt Banana Republic.

Despite what Richard Nixon said, if it is illegal, when the President does it, it is still unlawful.  Being President (or holding any office) does not put one above the law.  And, ALL citizens should demand that their elected officials obey the laws and eschew corruption and cronyism.  After all, if our leaders don't have to obey the law, why should we?