author’s Note: This column is adapted from a speech I gave in New York City on May 29, announcing the publication of Faithless Execution: Building the Political Case for Obama’s Impeachment.
Faithless Execution is about presidential lawlessness.
Specifically, my new book, which Encounter Books will release this week, is about how the Framers of our Constitution fully anticipated that a president could fail to honor his core duty to execute the laws faithfully — could fail to meet his basic fiduciary obligations to the American people.
Viewing the Obama presidency through the prism of these constitutional norms, Faithless Execution argues that we are experiencing a different kind of presidential lawlessness than our nation has ever known: a systematic undermining of our governing framework, willfully carried out by a president who made no secret of his intention to “fundamentally transform the United States of America.”
What is the president trying to transform?
Well, the constitutional framework he is undermining enshrines two core principles: separation-of-powers and accountability.
The first is the foundation of a free society. President Obama presumes the power to decree, amend, and repeal laws as he sees fit, effectively claiming all government power as his own. But as James Madison, the principal author of our Constitution, put it, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” And so it is.
Accountability, the second constitutional principle at issue, is how our system holds a president singularly responsible for executive lawlessness. The Constitution vests all executive power in a lone elected official — the president. Not in the broad, dizzying array of executive-branch agencies; in the president himself.
Meaning that if the IRS harasses the president’s political opposition in violation of their First Amendment rights; or if the Justice Department recklessly orchestrates the transfer of thousands of guns to violent Mexican gangs, resulting in the murder of a Border Patrol agent; or if administration officials willfully defraud the American people about the cause of the Benghazi massacre or about being able to keep their health insurance; it is the president whom our Constitution holds responsible. Not Lois Lerner or Susan Rice. Not Hillary Clinton, Eric Holder, Kathleen Sebelius, or Eric Shinseki. The president.
The president does not get to vote “present.” The Constitution does not permit him to be a mere spectator to abuses of power by his subordinates. It holds the president accountable, whether he quietly engineered the administration’s lawlessness or stood idly by while others ran amok.
The subtitle of Faithless Execution — “Building the Political Case for Obama’s Impeachment” — has caused something of a stir. But any serious discussion of these issues has to consider impeachment. As a number of legal scholars testified at a congressional hearing late last year, impeachment was quite intentionally included by the Framers as the ultimate check against presidential lawlessness.
This is where “high crimes and misdemeanors” comes in.
As Faithless Execution recounts, at the time of the constitutional convention in Philadelphia, this standard was well established in British law. The Framers thus borrowed it in order to address not only intentional abuses of power but gross negligence or incompetence.
Contrary to popular belief, the term “high crimes and misdemeanors” does not refer to ordinary crimes. It does not mean a president has to be indictable before he is removable. Instead, high crimes and misdemeanors are the political wrongs of high executive officials in whom great public trust is reposed.
Again, it is all about separation-of-powers and accountability. The idea is that the president is fully responsible: not just for criminal acts, but for abuses of power committed by himself and his subordinates — abuses of power that very much include misleading the public and stonewalling Congress.