On December 20, 1998 the House of Representatives approved a two-article bill of impeachment against President William Jefferson Clinton. In it, Clinton was accused of lying to a grand jury, suborning witnesses’ perjury in a civil case, and other such criminal conduct. What was missing from the Senate trial on that indictment — and from the nation at that time — was the political momentum to remove Clinton from office. So, like the only other president so far to be impeached, Clinton was not convicted in the Senate trial that followed.
Andy McCarthy, a former senior federal prosecutor, has written the new book Faithless Execution, which is both a powerful case for the impeachment of Barack Obama and also a politically savvy explanation of why it will never happen. It’s brilliant and frustrating. Brilliant because of the constitutional analysis of the impeachment mechanism and frustrating because it recognizes that no matter how deserving of it he may be, Barack Obama will never be impeached.
Article II Section 4 of the Constitution says that the President, Vice President, and 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.” Treason and bribery are, of course, crimes prosecutable in federal court. When impeachment is discussed — and it’s not in polite company these days because timorous Republicans are frightened by mere mention of the “i-word” — it’s largely understood to encompass only criminal conduct.
But that’s not what the Framers understood it to mean. The main “go-to” treatise on the Constitution I use is The Heritage Guide to the Constitution published by the Heritage Foundation. It says, “Because ‘High Crimes and Misdemeanors’ was a term of art in English impeachments, a plausible reading supported by many scholars is that the grounds for impeachment can not only be the defined crimes of treason and bribery, but also other criminal or even noncriminal behavior amounting to a serious dereliction of duty.”
McCarthy is one of those scholars, illustrating the point with references to an impeachment that was contemporaneous with the Constitutional Convention and debates among its members. The term “high crimes and misdemeanors,” as McCarthy points out, “…is a concept rooted not on statutory offenses fit for criminal court proceedings, but in damage done to societal order by persons in whom great public trust has been reposed.” One example he gives, the 1786 impeachment of the British governor-general of India, proves the point. William Hastings was impeached not only for the crimes of bribery and extortion, but also abuse of power.
McCarthy’s recitation of the history of the Constitutional Convention’s consideration of impeachment is worth the price of his book. I won’t give it all away, but the quotations from James Madison on the need for Congress to be able to remove the Chief Magistrate for “perfidy,” and the profound influence Blackstone’s Commentaries on the Laws of England had on the convention’s members (it spoke of the maladministration of officers who would be subject to impeachment), are essential to understanding the “high crimes and misdemeanors” standard.
So if a president is guilty of significant malfeasance or misfeasance in office he can be removed by impeachment. But will he be? Only if the nation’s political mood demands it.
The most important lesson Faithless Execution draws from those points is that impeachment is a political mechanism available to a political body — the Congress — that is separate and distinct from the judiciary. It’s not a legal mechanism, and unless the political momentum across the nation is clearly in favor of impeaching a president, it cannot be done.
Impeachment is one of the two tools the Constitution affords Congress for reining in a president’s conduct. The other, because Congress at least supposedly holds the purse strings, is that it can deny a president funding for any action that Congress disagrees with. Obama has, by uncompromising political maneuvers — aided and abetted by Republican leaders who are more afraid of Obama than of any president in living memory — neutered that congressional tool. The only thing left is impeachment.
Both presidents who were impeached, Clinton and Andrew Johnson, escaped conviction in their Senate trials. That’s not to say they weren’t guilty of everything charged. But it does say that the political momentum was in the president’s favor and against impeachment.
Impeachment is a political tool and one that is, by the Framers’ design, very hard to achieve. Every president is elected by gaining a majority of the popular vote (and let’s not quibble about the Electoral College: it’s now just a rubber stamp of that vote.) The House — especially the Boehner-led House — dares not approve or even bring to a vote any impeachment of a popularly elected president unless the majority of Americans are resolved to removing him. As McCarthy writes, the Republicans are so intimidated by Obama, and the media that is still so protective of him, that they’ll never even try to impeach him.
About half of McCarthy’s book is devoted to a draft bill of impeachment against Obama. And this is where McCarthy’s book becomes frustrating. The allegations are so compelling and clearly true that the reader is left to conclude that Congress has no choice but to act, though we know it won’t.
McCarthy’s Bill of Impeachment is drafted principally around conduct that isn’t criminal but is the malfeasance and misfeasance that Obama has undertaken since he became president. It’s stated in dispassionate terms because, as McCarthy writes, a bill of impeachment is like an indictment. It’s not a place for hyperbole, but only for a hardheaded exacting assessment of whether a compelling case can be made. This one includes:
And too much more to catalogue here. As McCarthy writes, the case seems overwhelming.
It’s not just that Obama’s presidency is tantamount to a ritual burning of the Constitution. McCarthy’s book is not the vessel containing our nation’s political salvation. It is, on one hand, a measurement of how far Obama’s malfeasance in office has gone and, on the other, a frank assessment that nothing will be done about it while he remains in office.
Every potential 2016 voter (and candidate) should read this book. It’s a guide to what a president cannot do and shouldn’t attempt, and an outline of what needs to be undone.
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