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?
