President Obama’s record of lawlessness is prodigious. There is the assumption of a power to rule by presidential decree — unilaterally amending ObamaCare provisions, immigration statutes, and other enactments in flagrant disregard of Congress’s constitutional power to write the laws.
There is rampant fraud on the American people — think: “If you like your health care plan, you can keep your health care plan, period,” just for a start.
In the Benghazi massacre, we see the arc of administration malfeasance: In the absence of congressional authorization, the president instigated an unprovoked and ultimately disastrous war in Libya, empowering virulently anti-American Islamic supremacists. He then recklessly failed to provide adequate security for US officials who, for reasons that remain mysterious, were dispatched to Benghazi, one of the most dangerous places on the planet for Americans.
Finally, when four Americans including our ambassador were predictably killed in a terrorist attack on September 11, 2012, the president took no action to rescue them during the siege and then led a tireless campaign to blame an anti-Muslim video, rather than his wayward policy of empowering Islamists — even trumping up a prosecution against the video producer in violation of the First Amendment.
Making recess appointments when the Senate is not in recess.
Ignoring court orders.
Refusing to enforce the immigration laws.
A Justice Department run amok: politicized prosecution, racially discriminatory enforcement of the civil rights laws, and Fast & Furious — a program that intentionally transferred thousands of guns to Mexican criminal gangs, resulting in the murder of a US border patrol agent.
The list goes on. In fact, Obama’s behavior would easily satisfy the Constitution’s standard for removing a president from power.
Yet, at this point, impeachment seems farfetched. In their wisdom, the Framers bequeathed us a Constitution that makes impeachment a political remedy, not a legal one. You can prove a thousand impeachable offenses, but absent the public will to remove the president from power, impeachment is a non-starter. The political case for ousting a president must be built. That is a good deal tougher than building the legal case.
As a matter of law, a president is impeachable for “high crimes and misdemeanors.” This is a standard borrowed from British law. Indeed, during the 1787 constitutional convention in Philadelphia, the delegates were following the sensational impeachment trial of Warren Hastings in London, involving abuses of power that Parliament alleged Hastings committed while the empire’s top official in India.
The term does not refer to “crimes” and “misdemeanors” as we commonly understand them — i.e., to ordinary criminal offenses listed in the penal code. Instead, “high crimes and misdemeanors” are what Alexander Hamilton described as “the misconduct of public men, or . . . the abuse or violation of some public trust.”
They are best understood, he elaborated, as “political” wrongs because “they relate chiefly to injuries done immediately to the society itself.”
Ordinary criminal offenses may qualify, but the concept is broader. It comfortably embraces such military-justice offenses as dereliction-of-duty — which is fitting given the president’s role as commander-in-chief of the armed forces.
Duty, in fact, is the critical ingredient. The president’s primary constitutional duties are to execute the laws faithfully and to preserve, protect and defend the Constitution. He is even required to take an oath to that effect.Obama’s behavior would easily satisfy the Constitution’s standard for removing a president from power.
Consequently, a chief executive who undermines our constitutional framework, who usurps the powers of the states or other branches of government, who intentionally misleads Congress and the public, or who obstructs other government officials in the performance of their constitutional responsibilities — such as Congress’s duty to conduct oversight of the departments and agencies it creates and funds with taxpayer dollars — commits high crimes and misdemeanors.
No man could be above the law, the Framers insisted, particularly that public official who, as George Mason put it, was positioned to “commit the most extensive injustice.” The Framers made the president the most powerful single official — reposing in his person all executive power — because they wanted him to be uniquely accountable.
He is responsible not only for his own actions but for those of all administration officials. Misconduct and maladministration — whether it is ostensibly committed by Hillary Clinton, Lois Lerner, Eric Holder, Kathleen Sebelius, Eric Shinseki or some other underling — is the president’s misconduct and maladministration, especially if has encouraged and protected rogue subordinates rather than disciplining and firing them. The buck really does stop at the Oval Office.
The legal grounds for impeachment are therefore easily established. What is quite difficult, by design, is the political decision to remove the president from power. The Framers understood that it might become necessary to oust a chief executive who abuses his authority. To leave in place a president who was incorrigibly lawless or incompetent would be an unacceptable threat to our republic. But they did not underestimate how socially disruptive impeachment could be, and they did not want it to become an exercise in factional or partisan hackery.
Thus, while it takes a simple House majority to file articles of impeachment, it requires an overwhelming two-thirds Senate majority to unseat a president. Real impeachment — the removal of a president from power — requires a broad consensus. Without that, the Senate will not feel the political pressure to convict, regardless of the validity of the House’s impeachment articles.
The liberal media would call the whole thing racist, without considering the actual legal argument.
Is it any wonder that Obama refused to fire Shinseki for the Veteran’s Affairs scandal (Shinseki finally resigned on Friday)? Curious as to why he’s letting illegal immigrants be dropped unceremoniously off at Arizona bus stations? Why he’s changing laws without Congress and having his attorney general ignore rules he doesn’t like?
Because he knows there will be no repercussions. Legally, Obama should be impeached. Politically, he’s a president with impunity.
Andrew C. McCarthy is a policy fellow at National Review Institute and the author of “Faithless Execution: Building the Political Case for Obama’s Impeachment” (Encounter Books), out this week.