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It’s Not Crazy to Talk about Impeachment
The Framers did not see impeachment as outlandish.

Sen. Tom Coburn (R., Okla.)

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Andrew C. McCarthy

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.”

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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.



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