ANDREW McCARTHY:The Focus Should Be Lawlessness, Not Impeachment

Against Premature Impeachment

The point is to revive it as a credible threat — and restrain presidential lawlessness.

It has been nearly two months since the publication of my book, Faithless Execution: Building the Political Case for Obama’s Impeachment, helped intensify the national focus on presidential lawlessness — or, if you prefer, infected the nation with “impeachment fever.” The latter is the breathless diagnosis offered by Media Matters in what otherwise is a surprisingly accurate description of what I’ve written. No surprise, then, that I took note of the very interesting question posed by National Review editor Rich Lowry in the title of a recent Corner post: “Does Obama WANT to Get Impeached?”

The context was the president’s plan to proceed with an outrageously lawless, unilaterally decreed amnesty for millions of illegal aliens. Obviously, this kind of massive malfeasance will provoke calls for impeachment — meaning, more calls than we already have. Rich incisively wonders whether that’s exactly what this flailing, cynical White House wants. Obama is brazenly intensifying what progressive law professor Jonathan Turley has acknowledged is “the worst constitutional crisis of [his] lifetime.” With midterm elections on the horizon, is the president calculating that inducing more Republican talk of impeachment will rally the Democratic base and, as Rich puts it, “drive the middle away from the GOP”?

As he decoded the administration’s thinking, Rich inserted a caveat. To me, it is the money line in his analysis: Obama and his advisers are “assuming the politics of impeachment are bad for Republicans.” It is a foolish assumption.

Building the Political Case
When Faithless Execution was released, it was only natural that some commentators homed in on the subtitle’s invocation of “impeachment.” The salient part, however, has always been “building the political case.” The book’s major theme is that impeachment is a political remedy requiring broad public consensus, not a legal one triggered once impeachable offenses are provable.

Contrary to some less than informed opinion, “high crimes and misdemeanors” — the legal standard for impeachment — refers not to indictable criminal offenses but to profound breaches of the public trust by high-ranking officials. Once the standard is understood, it becomes easy to see that the president and his underlings have committed numerous, readily provable impeachable offenses. Yet, even if a president commits a hundred high crimes and misdemeanors, impeachment is a non-starter unless the public is convinced that the president should be removed from power. The real question is political: Are his lawlessness and unfitness so thoroughgoing that we can no longer trust him with the awesome power of the chief executive?

Consequently, Faithless Execution argues that there is a crucial step in between the realization that high crimes and misdemeanors have been committed and the issuance of credible calls for impeachment: The political case must be built that presidential lawlessness threatens our Constitution, our liberties, our security, and our standing as a Republic under the rule of law.

Public commentators are for the most part ignoring this unavoidable step. The omission makes more glaring the void that Faithless Execution endeavors to fill. On the right, both the conservative base and the Republican establishment fail to fill the void even as they battle each other. Some in the base are anxious to forge ahead with an impeachment effort despite the current lack of sufficient public support. Many Beltway Republicans, meanwhile, continue to treat impeachment like a dirty word, undermining efforts to build public support. The duel plays out before a sometimes sneering conservative press that feels competing tugs: sympathy with the Republican-party leadership, a gloomy sense that the GOP establishment is an ineffective opposition, and a perception of the Tea Party as a needed injection of fire and ideological direction mixed with a maddening amateur-hour streak.

The Base Demands Impeachment Now
From the base, Sarah Palin demands that the House immediately file articles of impeachment against Obama. She has been maligned as impetuous by the commentariat, but the accusation is overstated. To her credit, Governor Palin has been cataloguing the president’s lawlessness since 2009. She has also been proven right on many administration outrages that were pooh-poohed by Beltway conservatives and moderates — including by such fixtures as David Brooks, who decided Obama would be “a very good president” upon observing the “perfectly creased pant” leg in his crisp suit . . . yet who would have you believe it’s Palin who’s living in “cloud cuckoo land.”

Still, cataloguing extreme executive excess is not the same thing as marshaling a coherent, compelling political argument that the president should be removed from office. I contend in Faithless Execution that you cannot go from zero to “Let’s impeach the president” in the blink of an eye. In fact, I spend a chapter rebutting a well-meaning but strategically wayward conservative argument similar to Palin’s, to wit: The House should impeach Obama simply because (a) he has committed impeachable offenses and (b) Republicans have the numbers to pass articles of impeachment in the House, where only a simple majority is needed. Personally, I doubt enough House Republicans would vote for impeachment to assure the passage of articles. But let’s indulge that assumption for argument’s sake. It would still be a blunder for the House to impeach before the public has been convinced that — or is at least open-minded about whether — the president should be removed.

Prematurely filed articles of impeachment would trigger a Senate trial that would currently be unwinnable. As a practical matter, the two-thirds super-majority vote required to remove a president means that there must be broad public support for impeachment — enough to pressure 67 senators to approve it. Even if Republicans were not in the minority, and even if every one of them would vote to remove the president (another dubious assumption), you’d still need 15 or more Democrats.

A persuasive case can be built that presidential lawlessness imperils all Americans, regardless of ideological bent. As Faithless Execution points out, the precedents of imperial lawlessness Obama is setting today will be available to every future president, including Republicans. But because public support has not yet been built, Obama’s certain win in the Senate would be spun by the administration and the media as an endorsement of his lawlessness. Inadvertently, those calling for immediate impeachment would end up encouraging more executive overreach — exactly the opposite of what they’re trying to do.

The Establishment Prefers Impeachment Never
Juxtaposed with Governor Palin’s zeal is the phlegmatic GOP establishment. As ever, Beltway Republican leaders are paralyzed by their competing fears of being demagogued by the Obama-media conglomerate and of the conservative base’s growing anger at their passivity while the Constitution is being shredded. They want to be seen as thoughtful but bold, judicious but decisive. And, perhaps for good reason, GOP leaders doubt their competence to drive presidential lawlessness to the front of the national debate without being caricatured as wild-eyed, impeachment-obsessed extremists.

This is especially unfortunate because, as Faithless Execution urges, the ultimate goal should not be Obama’s impeachment. Impeachment should always be a last resort; Republicans have been too petrified to try first resorts. The goal should be to restore a political environment in which presidential lawlessness is reviled and effectively discouraged.

In such an environment — which historically is the norm — the president’s now-supine opponents would have the confidence to use their considerable constitutional muscles to stop a lawless president, the president would see there were real downsides to rogue behavior, and there would be little need to speak of impeachment. Opponents would use the power of the purse aggressively; deny Obama funding for illegal initiatives (thus calling more public attention to the president’s lawlessness); cut funding to, or eliminate, the administrative agencies through which he seeks to rule unilaterally; deny him appointments to the courts and key federal offices; and impeach rogue subordinate officials — officials who do not enjoy the political support of a twice-elected president and who abuse the power of intensely unpopular agencies that Democrats would not want to defend.

The point is not so much to impeach Obama as to revive impeachment as a credible threat — one that the Framers believed was “indispensible,” as Madison put it. A viable impeachment remedy is necessary to preserve a representative government in which the president understands himself to be a servant, not a ruler, of the public. Like a strong military, a credible impeachment remedy would discourage rogue behavior and thus rarely have to be used.

But revitalizing our governing framework would entail making a serious case about presidential lawlessness and how we are imperiled by it. The GOP establishment is afraid to do that. Instead, it adopts two errant positions that further marginalize impeachment as a credible option, thus facilitating presidential lawlessness every bit as much as would prematurely filed articles of impeachment.

The first is to cite the failure of the Clinton impeachment effort as a rationale for taking even mention of impeachment off the table. This grossly misconstrues the Clinton episode. That episode does not teach that impeachment should never be used. It teaches that (a) the more attenuated presidential misconduct is from core presidential duties, the less compelling will be the case for impeachment; and (b) it is a mistake to file articles of impeachment when the public has clearly signaled — in polling and in a midterm election — its strong opposition to the president’s removal from power.

With Obama, we are not dealing with a course of misconduct stemming from character flaws that, though reprehensible, have only marginal effects on presidential job performance. Obama’s high crimes and misdemeanors are a systematic assault on our constitutional order, particularly the separation of powers that is our safeguard against tyranny. His maladministration is beginning to affect tens of millions of Americans personally. Furthermore, while there was an extended, years-long national debate over Clinton’s misconduct and possible impeachment, there has been nothing of the kind in Obama’s much more serious case.

The second GOP-establishment gambit is House speaker John Boehner’s plan to file a lawsuit against Obama. The lawsuit is a cop-out: The House is part of the legislative branch that has real power under Article I to stop presidential lawlessness. Yet, too craven to take accountable action, it pleads with the judiciary to do Congress’s heavy lifting, even though the weaker Article III branch has no power to enforce its judgments without cooperation from . . . yes . . . the president. The lawsuit also proceeds from the remarkable premise that impeachment is not a “proportionate” response to a president’s systematic refusal to execute the laws faithfully, his fundamental constitutional duty.

In other words, we are to conclude that the Constitution’s remedy for incorrigible presidential lawlessness is somehow not designed to deal with incorrigible presidential lawlessness. That would be a farce even if Obama hadn’t already repeatedly exhibited contempt for judicial rulings that attempt to rein in his administration’s overreach; even if there were not significant “legal standing” obstacles to a court’s entertaining the lawsuit; even if a ruling in Obama’s favor were not a very real possibility thanks to the hundreds of progressive activists the president has appointed to the bench with little or no GOP resistance; and even if litigation did not take years to wend its way through the court system.

Moreover, anyone who doubts how counterproductive the lawsuit strategy is need only read Rich’s post. He notes that Obama aide Dan Pfeiffer blames not me, not Sarah Palin, but the Boehner lawsuit for having “opened the door to impeachment” talk. Remember: The lawsuit’s advocates intend it to be seen as the impeachment antidote — the mature, “proportionate” plan that proves GOP leaders are determined to do something (or at least look like they’re doing something) about Obama’s excesses but are not like those crazy tea-party types who actually want to drive the president from office.

After a quarter-century in Washington, did John Boehner really believe the Obama White House and the media would give him credit for this exercise in nuanced futility? As anyone could have predicted, the lawsuit conforms to the Beltway GOP template: Republicans forfeit the benefits of arguing that Obama’s lawlessness is so egregious it merits impeachment consideration; then, they get blamed for the impeachment talk anyway.

The Focus Should Be Lawlessness, Not Impeachment
In all the intramural crossfire on the right, it is easy to miss the significant point: Republicans and conservatives are struggling to find the right response to Obama’s lawlessness because Obama is, in fact, lawless. This is not an allegation fabricated for partisan purposes; we are in a real crisis driven by increasingly contemptuous behavior that demands a response.

That brings us back to the caveat in Rich’s post: the assumption that the politics of impeachment are bad for Republicans. Led by the White House, Democrats have made this assumption. As night follows day, the press is running with it and the Republican establishment is fretting over it.

But what if it isn’t true?

Obama’s approval rating has taken a dive largely because he and his brain trust have repeatedly made flawed assumptions about public sentiment. They thought making children the face of their ruinous immigration policies would make those policies popular — and they have been surprised at the welter of protest. They thought health-insurance subsidies would be so popular governors could be extorted into establishing the state health-care exchanges needed to make Obamacare work — and they have been surprised by the 36 states that said “no,” and by the D.C. Circuit Court ruling that may lead to Obamacare’s collapse. They thought cries for accountability on the Benghazi massacre, the IRS scandal, the VA scandal, and Fast and Furious would by now have faded — and they are surprised to find themselves facing a Benghazi select committee, other congressional committees continuing to uncover evidence of wrongdoing and obstruction, and judges who are now demanding answers. They thought the uproar over executive lawlessness could be marginalized as partisan carping by the “extreme” Right — and they are surprised to find progressive law professors describing Obama as the “uber president” Richard Nixon only dreamed of being.

Talk of impeachment from his opponents could be a winning issue only for a president as to whom it was palpably a crazy idea. In Obama’s case, it most certainly is not. True, it might be “crazy” to suggest that Democrats might stop defending the president’s lawlessness at some point; but Obama’s refusal to execute the laws faithfully is not in doubt. Only the same skewed thinking that has gotten Obama into the mess he’s in could now convince him that even more rampant presidential lawlessness will make the broad middle of the country sympathetic toward him.

This is particularly the case when Obama provokes impeachment talk by taking more stunningly lawless actions on immigration. On no issue other than illegal immigration is there such a cognitive divide between the Beltway ruling class and the vast majority of the country — the latter of which includes middle-class Democrats and independents who are struggling economically and for whom amnesty portends downward wage pressure, overtaxed social services, increased crime, and lousier public schools.

Projection is in the DNA of the smugly arrogant. Obama and his advisers thus see the broad middle of the country as if it were MSNBC’s audience and vastly overestimate how turned off Americans are by the president’s detractors. Many of those detractors come from the actual broad middle. At the moment, independents are a lot more alarmed by Obama and his radical base than by his opponents.

The president’s problem is that impeachment talk has not arisen in a vacuum or been confined to the tea-party fever swamp of his imagination. It has been catalyzed by his flagrant violations of law and derelictions of duty. Disquiet has descended on a society that sees the rule of law devolving into executive caprice. On the world stage, it has become dangerous to be America’s ally — better to be Putin, Hamas, or the Taliban. There is a widening public recognition that the president’s vow to “fundamentally transform the United States of America” was not just campaign rhetoric. He really meant it.

Moreover, the public senses that impeachment is not, as in the Clinton days, being pressed by partisans heedless of public opinion. It is being considered — with patent reluctance — by an increasing number of concerned Americans who are offended by Obama’s aggressive lawlessness and have run out of other ideas for stopping it.

As Faithless Execution posits, that aggressive presidential lawlessness should be our focus. Of course impeachment has to be a part of this consideration. That is how the Constitution is designed. Whether now or in the future, a rogue president will never be deterred absent the realization that impeachment is a serious possibility. The goal, however, is to stop the lawlessness and preserve the constitutional framework that protects our liberties. It may still be possible to do that without impeaching Obama . . . but not unless he is made to understand that he really could be impeached.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book, Faithless Execution: Building the Political Case for Obama’s Impeachment, was released by Encounter Books on June 3.

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