The Congress has only two remedies to rein in a lawless president: the power of the purse and of impeachment.
The lawlessness of Obama’s Taliban-for-Bergdahl swap has renewed calls for his impeachment. Allen West has suggested that it is appropriate and so have many others.
It’s not only the Taliban deal: on Friday Sarah Palin wrote, with respect to the humanitarian crisis on the southern border, that to "encourage and reward lawlessness by refusing to enforce the will of the people as proven by laws passed by our political representatives is the signature of a tyrant." Wayne Rogers, most famous for his role as “Trapper John” in the TV series M*A*S*H, agreed, calling for Obama’s and Holder’s impeachment.
Andrew McCarthy’s new book, Faithless Execution: Building the political case for Obama’s impeachment, is therefore timely. As a former federal prosecutor, McCarthy is very familiar with the law. He approaches the topic not as a wild-eyed partisan but in the rational manner of a prosecutor. He discusses what impeachment is, what it means, why it is in the Constitution, and what has been done with it in the history of the Republic.
Very importantly, a main theme of his book is that impeachment is as much a political act as a legal one and that the legal proceeding cannot be successful until the political case has been made. McCarthy writes that that political case has not been made and so the book is designed to get the discussion going in a rational way.
The book is divided into two parts. After an introduction, Part I describes the issues around impeachment; Part II contains a draft of the Articles of Impeachment.
As evidenced by the Taliban deal and the immigration crisis in just the last two weeks, the Articles are already outdated.
“Unmoored from the president’s constitutional duty to execute the laws faithfully, law is a weapon in an ideological crusade; the president becomes a ruler, not a public servant.”
Article II Section 4 of the Constitution states that “…all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
McCarthy explains why the Framers felt is necessary to include impeachment in the Constitution. For one thing, they felt—and we see it as true today—that the courts would be insufficient guard against executive branch wrongdoing. The Constitution gives the Congress two and only two ways to check a lawless executive: the power of the purse and impeachment.
Congress has been singularly unwilling to use the power of the purse. When the Congress did cut funding for the federal bureaucracy in October 2013, the Obama administration made it as painful as possible for the American people and pointed the finger at Republicans, who proved unable to withstand the political heat.
As a remedy, then, that leaves only impeachment. Suing the administration in court is an ineffective response. Holding Eric Holder in contempt of Congress is equally weak. He, too, can be impeached.
What would be the charges against Obama? Leaving out treason and bribery, the general grounds are “high crimes and misdemeanors.” This phrase, McCarthy tells us, comes from British common law and includes political as well as legal offenses. It is because of the political nature of “high crimes and misdemeanors” that impeachment is a political act.
The point, he says, is not simply impeachment, but removal. In all of our history under the Constitution, only two presidents have been impeached: Andrew Johnson and Bill Clinton. Neither were convicted in the Senate and therefore not removed from office. Richard Nixon resigned from office under the threat of impeachment.
Some say talk of impeachment is reckless because 2/3 of the Senate will never convict Obama. McCarthy says that impeachment should only be attempted after the political will has been built and there is a likelihood that the Senate would vote for conviction.
Would Americans want to see the first African-American president impeached? That is a key political question. Rasmussen polls this week show that only 30% of likely U.S. voters think the country is heading in the right direction and that just 19% think the government today has the consent of the governed. A full 54% now consider the federal government a threat to individual liberty rather than a protector.
Palin also wrote in her Facebook post, "Congress and American voters, how long will you let Team Obama get away with this?"
Given our collective opinions, it is a salient question. Andrew McCarthy’s book provides us the framework for discussion about how to answer it.