Andrew C McCarthy - Faithless Execution: Building the Political Case for Obama’s Impeachment
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- Book:Faithless Execution: Building the Political Case for Obama’s Impeachment
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Faithless Execution: Building the Political Case for Obama’s Impeachment: summary, description and annotation
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The authors of the Constitution saw practical reasons to place awesome powers in a single chief executive, who could act quickly and decisively in times of peril. Yet they well understood that unchecked power in one persons hands posed a serious threat to liberty, the defining American imperative. Much of the debate at the Philadelphia convention therefore centered on how to stop a rogue executive who became a law unto himself.
The Framers vested Congress with two checks on presidential excess: the power of the purse and the power of impeachment. They are potent remedies, and there are no others.
It is a straightforward matter to establish that President Obama has committed high crimes and misdemeanors, a term signifying maladministration and abuses of power by holders of high public trust. But making the legal case is insufficient for successful impeachment, leading to removal from office. Impeachment is a political matter and hinges on public opinion.
In Faithless Execution, McCarthy weighs the political dynamics as he builds a case, assembling a litany of abuses that add up to one overarching offense: the presidents willful violation of his solemn oath to execute the laws faithfully. The fundamental transformation he promised involves concentrating power into his own hands by flouting lawstatutes, judicial rulings, the Constitution itselfand essentially daring the other branches of government to stop him. McCarthy contends that our elected representative are duty-bound to take up the dare.
What are High Crimes and Misdemeanors?
Impeachment is rare in American historyand for good reason. As the ultimate remedy against abuse of executive power, it is politically convulsive. And yet, as the Framers understood, it is a necessary protection if the rule of law is to be maintained.
But what are impeachable offenses? There is widespread confusion among the American people about the answer to this question.
Article II of the Constitution lists treason and bribery, along with other high crimes and misdemeanors as the standard for impeachment. Despite what crimes and misdemeanors connote, the concept has precious little to do with violations of a penal code. Rather, it is about betrayal of the political trust reposed in the president to execute the laws faithfully and preserve, protect and defend our constitutional system, as his oath of office requires.
At the constitutional convention in 1787, the delegates concurred that the high crimes and misdemeanors standard captured the many great and dangerous offenses involving malfeasance, incompetence, and severe derelictions of duty that could undermine the constitutional order.
The Framers were clear that high crimes and misdemeanors involved misconduct that did not necessarily break penal laws; it might not even be considered criminal if committed by a civilian. It would apply strictly to the misconduct of public men or the abuse or violation of public trust, as Alexander Hamilton put it. High crimes and misdemeanors are of a purely political nature as they relate to injuries done immediately to the society itself.
To be clear, high crimes and misdemeanors is not a standard conceived for normal law enforcement. It applies instead to oath, honor, and trustnotions that are more demanding of public officials than the black and white prohibitions of criminal law.
While the standard is high-minded it is not an abstraction. The Framers were very clear: betrayals of the constitutional order, dishonesty in the executives dealing with Congress, and concealment of dealings with foreign powers that could be injurious to the American people were among the most grievous, and impeachable, high crimes and misdemeanors.
Above all, the Framers had in view the presidents oath of allegiance to our system of government, a system in which the presidents highest duty is faithful execution of the laws. The mere attempt to subvert the constitution would be a breach of trust that warranted impeachment and removal.
A free country requires the rule of law. But the rule of law is a sham if lawlessness is rampant among those who govern. This was the deep political truth that the Framers of this country recognized in the providing for the impeachment of an errant executive. It is a truth that we ignore at our peril.
Faithless Execution Author Q&A
You are a well-known conservative commentator how would you answer the accusation that Faithless Execution is just a partisan stunt?
McCarthy: Well, conservative does not mean Republicanin fact, the book is not very flattering when it comes to GOP fecklessness in the face of the presidents lawlessness. But the main point is: Faithless Execution argues against partisan hackery. I analyze the legal case for impeachment as a former prosecutor who would not go to court without a sufficient case. And as far as the politics goes, I argue that, despite the sizable majority Republicans hold in the House, articles of impeachment should not be filed unless and until there is a strong public will to remove the president from powerone that transcends party lines.
Many Republicans say an effort to impeach Barack Obama is political suicide for the Republican Party. How do you respond to this?
McCarthy: The failure to pursue impeachment is likely to be suicide for the country, which is much more important than the political fate of the Republican Party. But, again, making the case for impeachmentwhich would probably help not only Republicans but any elected official who defends our constitutional frameworkis not the same as moving forward with articles of impeachment, which should not happen absent public support.
How does the case for Barack Obamas impeachment compare to the campaigns to impeach Nixon and Clinton?
McCarthy: Obamas presidency is a willful, systematic attack on the constitutional system of separation of powers, an enterprise that aims to bring about a new regime of government by executive decree. This is exactly the kind of subversion the Framers designed the impeachment power to address. The Nixon and Clinton episodes involved misconduct that did not aim to undermine our constitutional framework.
You describe impeachment as a political and not a legal remedy. Whats the distinction?
McCarthy: Legally speaking, a president may be impeached for a single offense that qualifies as high crimes and misdemeanorsa breach of the profound public trust vested in the president, a violation of his constitutional duty to execute the laws faithfully. But real impeachment requires the public will to remove the president from office. You can have a thousand impeachable offenses, but without that political consensus, impeachment is not an appropriate remedy.
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FAITHLESS EXECUTION
2014 by Andrew C. McCarthy
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Encounter Books, 900 Broadway, Suite 601, New York, New York, 10003.
First American edition published in 2014 by Encounter Books, an activity of Encounter for Culture and Education, Inc., a nonprofit, tax exempt corporation.
Encounter Books website address: www.encounterbooks.com
The paper used in this publication meets the minimum requirements of ANSI/NISO Z39.48 1992 (R 1997) (Permanence of Paper).
FIRST AMERICAN EDITION
LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA is available for this title.
ISBN 978-159403-777-1 (ebook)
CONTENTS
Lawlessness in the use of raw power, or direct action, is central to the training and practices of community organizers
The dictatorial potential inherent in the power to enforce or not enforce the law makes impeachment a crucial check on presidential power
Unmoored from the presidents constitutional duty to execute the laws faithfully, law is a weapon in an ideological crusade; the president becomes a ruler, not a public servant
President Obamas policies are deeply unpopular and his imperialism is alarming
A summary of the presidents extensive violations of law and derelictions of duty
There is a worthy case for impeaching the president due not to political or philosophical disagreements but to his violations of law, which threaten our constitutional framework
As a practical matter, impeachment is the only plausible congressional remedy to stop systematic presidential lawlessness
The courts are impotent to stop systematic presidential lawlessness
Impeachment is a political remedy, not a legal one; it is a question of the publics will to remove the president, not a matter of whether impeachable offenses can be proved
The Framers sought to ensure that the presidencys enormous powers would be checked and that presidents would be held accountable for abusing them
The Framers saw impeachment as an indispensable protection against executive lawlessness
The constitutional standard of high crimes and misdemeanorsin addition to treason and briberywas adapted from British law to address profound executive maladministration
High crimes and misdemeanors are not necessarily statutory crimes; they are offenses political in nature that involve the misconduct of public men and subversion of the Constitution
The president is fully responsible for the misdeeds of his subordinates (or coadjutors)
Impeachment is one of three ways the Constitution reins in executive lawlessness; the otherselections and the power of the purseno longer perform this function as originally envisioned
The modern lefts drive to centralize power confirms the Framers fear that factions would endanger the Constitutions framework of divided, competing powers
The aggressive passivity of Republicans also frustrates the Framers constitutional design
The failed Clinton impeachment did not involve willful, systematic subversion of our constitutional framework and is thus not a precedent against impeaching President Obama
True lesson of Clinton impeachment: A principled political case for impeachment should be made, but the House of Representatives should not file articles of impeachment unless there is a reasonable chance of conviction in the Senate
Impeachment is innately political, not a legal process; it has more to do with the publics investment in preserving our system of government than with proving impeachable offenses
The Houses power to impeach does not create a duty to file articles of impeachment if there is no realistic prospect that the Senate will vote to remove the president
Drawing an analogy to the work of a police officer or a grand jury does not support the argument for an immediate impeachment by the House, in part because police do not make an arrest and grand juries do not indict every time a crime is committed
The requirement of a two-thirds Senate supermajority ensures that a president will not be removed in the absence of broad, bipartisan public support for the action
The Senate acquittal of a president who has been impeached before there is public support for his removal would encourage more presidential lawlessness, just as the contempt citation of Attorney General Holder, showing a lack of resolve to remove him, encouraged more executive malfeasance
Impeachment is a political procedure for stripping political power; portraying it as a legal process is insidious because legal gamesmanship vitiates political will and accountability
There are salient differences between criminal justice proceedings, which are essentially legal, and impeachment, which is essentially political
The legal groundsprovable high crimes and misdemeanorsare vital to building a political case for impeachment, but the fundamental question is whether the presidents conduct is so egregious that the public will support his removal
The movement left, though a minority, is united in vigorous support for President Obamas anticonstitutionalism in pursuit of its objectives; whether the remaining vast majority of the public is committed to preserving our constitutional framework is open to question
Under the camouflage of prosecutorial discretion, President Obama has claimed the power to dictate law
A president may decline to execute laws he believes are unconstitutional, but Obama refuses to execute incontestably constitutional laws on policy grounds, and he extorts states to observe his policies rather than federal law
Prosecutorial discretion is a commonsense resource-allocation doctrine related to criminal law enforcement, not a generalized license to ignore congressional statutes
Under the guise of prosecutorial discretion, President Obama delegitimizes and effectively reverses laws he opposes on philosophical grounds
Rebuking the Obama administrations obstruction of the Yucca Mountain nuclear waste project, a federal appeals court explains why prosecutorial discretion is not a rationale for violating the presidents duty to execute the laws faithfully
President Obamas illegal waivers and edicts do not relieve citizens of the duty to comply with congressional statutes; they place citizens in the intolerable dilemma of incurring executive wrath or behaving illegally
To build the political case for impeachment, it is essential to illustrate that high crimes and misdemeanorsthe legal predicate for impeachmentcan be proved
The legal case that President Obama is guilty of high crimes and misdemeanors is overwhelming; it illuminates the systematic threat to our constitutional framework; and it solidly supports the political case for removal
The presidents unilateral amendments of Obamacare legislation (the Patient Protection and Affordable Care Act)
The presidents unilateral amendment, on the eve of the 2012 election, of federal law mandating notification of impending layoffs
The presidents unilateral amendment of the federal law requiring welfare recipients to work
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