Over at NRO this morning is a lengthy, clear-as-a-bell article by Andrew McCarthy on impeachment. A few weeks back in this space I reviewed Andy’s superb book Faithless Execution: Building the Political Case for Obama’s Impeachment.
Amidst a flurry of controversy, with Democrats talking up the “I-word” as successful fundraising bait and Governor Palin recommending it, Andy has become a go-to source on the issue.
Which is exactly why his piece this morning at NRO takes on some real—and calming—importance.
The title of Andy’s article is "Against Premature Impeachment: The point is to revive it as a credible threat — and restrain presidential lawlessness."
That speaks volumes. Writes Andy:
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.
What Andy is saying here—and recall that he is not only a lawyer but a highly successful federal prosecutor who, among other achievements, put away the Blind Sheik (architect of the 1993 World Trade Center bombings)—is that the importance of impeachment demands that one first make the political case that presidential lawlessness is being committed.
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.
Note that sentence: “…the precedents of imperial lawlessness Obama is setting today will be available to every future president, including Republicans.”
To make the point, turn to the recent warnings on this issue from Alabama’s Senator Jeff Sessions, not only a lawyer but a former state attorney general. Sessions is warning that Congress, in passing an immigration bill as it seems on the verge of doing, is in effect marking "this Congress's acquiescence to executive overreach." He emphasized that those who refuse to take simple action to stop what many see as an upcoming Obama executive amnesty will have effectively voted to enable Obama's lawlessness. The president of the United States signs an executive order, and presto! Illegal immigrants are now legal.
To illustrate McCarthy—my example not his—unless there is a real effort to call Obama to account by making the case for lawlessness, the idea that any successor could take the “Obama precedent” and run with it presents serious problems. Liberals seem to think this is no big deal. Really? Imagine for a moment that the next Republican president takes the Obama precedent to heart and wields his pen to sign an executive order that restricts abortion in a way that goes beyond the Roe v. Wade decision.
How fast do you think the Democrats would be filing articles of impeachment? Because if a president overturned a legitimate Supreme Court decision (however wrongly decided in my view), there would and should be constitutional hell to pay.
Says McCarthy: Make the case for lawlessness. Use the power of the purse. “The goal should be to restore a political environment in which presidential lawlessness is reviled and effectively discouraged.”
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