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It’s Not Crazy to Talk about Impeachment

The Framers did not see impeachment as outlandish.

To the legacy media, that shriveling adjunct of the White House press office, the story is not why Americans would think it worth asking whether the president should be impeached. It is, as one would expect, why some prominent Republicans are dignifying the question with serious answers.

Senator Ted Cruz of Texas is in trouble, naturally. Being an unapologetic conservative, tea-party stalwart, and happy warrior has made him the preferred punching bag of the media and other Beltway dinosaurs — their hysteria meter always tells you who worries them most. Asked at a conservative gathering in the Houston suburbs “why don’t we impeach” the president, Cruz respectfully replied that this was a “good question.” He then gave a good answer: “We don’t have the votes.”

Unlike Cruz, who became Texas’s solicitor general after graduating from Harvard Law School, Senator Tom Coburn is a medical doctor, not an accomplished constitutional lawyer. He is also more of a Washington fixture than the rambunctious freshman: After six years in the House, Coburn is now well into his second (and what he says is his last) term in the Senate. It was there that he became chummy with young Senator Barack Obama during the latter’s pit stop on the way to the Oval Office.

The friendship, like the country, is fraying thanks to Obama’s imperious and profligate presidency. At a town-hall meeting this week with some of Coburn’s constituents in Oklahoma, a voter observed that the administration is “lawless” and put this exasperated question to the seasoned lawmaker: “Who is responsible for enforcing [the president’s] constitutional responsibilities?”

That would be Congress. Outside of Cruz and a handful of likeminded upstarts, when the topic involves accountability, congressmen’s default mode is evasion. Nevertheless, Coburn did not duck. He answered: “I don’t have the legal background to know” whether the “serious things” raised by the voter “rise[] to ‘high crimes and misdemeanors.’ But I think you’re getting perilously close.”

On cue, Obama’s media cried foul. And it really is Obama’s media: The main push-back came from David Axelrod, formerly the top Obama White House spinmeister. Through the familiar lefty-political-operative-turns-lefty-media-operative revolving door, Axelrod is now an NBC/MSNBC spinmeister. He belittled Coburn’s “considered legal opinion as an obstetrician” — which is the thanks the self-deprecating Coburn gets for conceding his lack of legal training. He then accused the senator of spreading “a kind of virus that has infected our politics” . . . which, I suppose, is Axelrod’s considered medical opinion as a windbag.

As it happens, both Coburn and Axelrod are wrong. Impeachment is not a legal matter; it is a political remedy. But law is how the Left strangles politics. Alexis de Tocqueville foresaw the enervation of democratic society at the hands of the Left’s vast, hyper-regulatory administrative state. In parallel, the political vitality of a once self-determining culture is suffocated by the ubiquity of the litigator’s trick bag.

There was a time, not so long ago, when we understood that antecedent law cannot predict and control every great public question. We relied, instead, on the discretion of political officials, who would calculate America’s vital interests and act accordingly — not because they were good guys, although we hoped they were, but because they were accountable to voters and to other political actors whose duty it was to check their excesses.

Now, we put our faith in law, not judgment, and it becomes a ready-made excuse for inaction while the lawyers temporize. When Egypt implodes, nothing can be done until the definition of “coup” is settled. Whether a closely scrutinized surveillance program survives now hinges not on whether its data mining saves lives but on whether phone records fit the Patriot Act’s definition of “relevant.” We are back to the September 10th practice of issuing subpoenas in response to terrorist atrocities. Can “it depends on what the definition of ‘is’ is” be far behind?

The Framers did not believe free people needed lawyers to figure out how to govern themselves. The standard they gave us for removal from high public office is so simple that obstetricians and even wind-bags should have no trouble grasping it.

All public officials, including presidents, are sure to err, but comparatively few will prove utterly unfit for high office. Thus impeachment was designed to be neither over- nor under-inclusive. The Framers considered limiting grounds for removal to “treason, bribery and corruption,” but that would fail to account for severe derelictions of duty that could fatally compromise our constitutional order. “Maladministration,” on the other hand, was rejected because it would empower Congress to impeach based on trifling irregularities.

The Framers settled on “high crimes and misdemeanors,” a standard that had been used by the British parliament for centuries. The concept is not rooted in statutory offenses fit for criminal court proceedings. Instead, it involves damage done to the public order by persons in whom great public trust has been reposed. In Federalist No. 65, Hamilton described impeachable offenses as those

which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.

A useful article published by the Constitutional Rights Foundation is more concrete about the Framers’ understanding:

Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.

Jon Roland of the Constitution Society emphasizes the political aspect of impeachment that distinguishes it from technical legal procedures. It was immaterial, he explains, whether the cited offenses “were prohibited by statutes”; what mattered was “the obligations of the offender. . . . The obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.” In that sense, a president is like a soldier, whose duties make him punishable for actions that would not be offenses if committed by a civilian: such things as abuse of authority, dereliction of duty, moral turpitude, conduct unbecoming, and the violation of an oath.

President Obama, of course, has sworn to uphold the Constitution and is bound to “take Care that the Laws be faithfully executed” (Art. II, Sec. 3). In stark contrast, he has usurped the lawmaking power of Congress by unilaterally amending some statutes and expressly refusing to enforce others — not because they are arguably unconstitutional but because he disagrees with them on policy grounds. For years, he has ignored the law requiring the executive branch to propose Medicare reforms when the program’s trustees issue a warning about inadequate funding. He has made recess appointments when Congress was not in recess. He has flouted judicial rulings, including those invalidating the work of illegally appointed officials. His Justice Department openly and notoriously flouts the Constitution by enforcing the civil-rights laws in a racially discriminatory manner. His administration has knowingly transferred firearms to murderous Mexican criminal enterprises, predictably resulting in the killing of at least one federal Border Patrol officer. He has sued sovereign states in order to extort them into acceptance of his gutting of immigration and voter-identification laws.

After willfully empowering jihadists in Libya by instigating an unprovoked, unauthorized war against a regime the United States regarded as an ally and was funding, the president and his State Department were shockingly derelict in failing to protect American personnel they recklessly kept stationed in Benghazi despite repeated attacks. When American installations there were predictably besieged yet again by jihadists on the eleventh anniversary of the 9/11 attacks, the commander-in-chief compounded his default by abandoning Americans who were under lethal attack, failing to take action to attempt to save them. As a result of this serial malfeasance, four American officials, including the United States ambassador to Libya, were killed — a scandal the administration has exacerbated by stonewalling congressional investigations; attempting to defraud the public into believing an obscure anti-Muslim video provoked the siege; and shamefully jailing the video producer in a transparent effort to prop up the fraud and in violation of the producer’s constitutional rights.

The president, moreover, oversees an administration that has turned the IRS loose to harass his political opponents, frustrating their capacity to organize prior to the 2012 election. And Obama has stood behind his attorney general despite the latter’s citation for contempt of Congress and multiple episodes of false congressional testimony — most recently in connection with the investigation of journalists covering the administration.

With a record like this, George W. Bush would long ago have been impeached and removed.

So Ted Cruz is right: The question of why President Obama is not being impeached is a good one, and the answer is what the answer usually is when a drastic political step has not been taken — the votes are not there. It is a bow to reality: Because impeachment is a political remedy, the commission of impeachable offenses is of far less moment than the lack of a political appetite.

Every political choice has consequences. The Framers intended impeachment as the ultimate accountability. Without at least the credible threat of it, there is no realistic checking of a president who seems increasingly disposed to abuse his awesome powers, in fulfillment of a promise to “fundamentally transform” the United States of America. Maybe we are already transformed. The Framers did not see impeachment as outlandish; it was a realistic response to an imperious executive’s seeking to upend our constitutional order — the specter of which gripped the constitutional convention with fear. In today’s America, there is more political peril in engaging the question of impeachment than in doing the things that make the question relevant.

SOURCE: NRO © National Review Online 2013. All Rights Reserved.

Andrew C McCarthy— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.

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