Faithless Execution

by Andrew C. McCarthy
Impeachment is a matter of political will, not high crimes and misdemeanors.

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.  

To borrow a familiar phrase, “Let me be clear”: Faithless Execution is not a call for President Obama’s immediate impeachment and removal. In fact, I contend that the best thing for the country would be for the president to honor his oath, execute the laws faithfully, and finish his term that way.

The Framers of our Constitution understood this, too — understood how divisive the removal of a president could be for our society. Thus, as the book makes very clear, impeachment is a political remedy, not a legal one. You can have a thousand provable impeachable offenses, but before Congress may remove the president from power, there must be strong popular support — a public will that cuts across partisan and ideological lines.

That is to say: Unless there is such public outrage over presidential lawlessness that two-thirds of the Senate can be pressured into voting for the president’s removal, it would be pointless for the House of Representatives to file articles of impeachment. Not just pointless but counterproductive. That is why I spend most of a chapter in the book rebutting arguments from some on the right that, because Republicans control the House, impeachment articles should be filed right now.

By all means, impeachment must be considered. It is the Constitution’s ultimate answer to presidential lawlessness, and the only way to build public support for it is to consider it.

Yet, moving ahead with articles of impeachment without strong public support for the president’s removal would not just guarantee the defeat of impeachment in the Senate. It would be spun as a public endorsement of presidential lawlessness. Ironically, it would guarantee more abuses of power.

Impeachment cases have to be built. Consequently, Faithless Execution tries to show how you would build one against President Obama. I plead seven articles of impeachment, in the manner of a prosecutor structuring an indictment. The articles include the president’s willful refusal to execute the laws faithfully; his usurpation of Congress’s legislative authority and other constitutional powers; his derelictions of duty as commander-in-chief; his fraud on the American people in such debacles as Obamacare, the Benghazi massacre, and the Solyndra farce; the failure to enforce the immigration laws; the Justice Department’s shocking Fast & Furious scandal and its politicization of law-enforcement; and the administration’s willful undermining of our constitutional rights — from the IRS’s targeting of conservatives, to the elevation of sharia blasphemy standards over free speech, to Obamacare’s denial of religious liberty.

The articles are pled, however, with an important caveat: The purpose of illustrating rampant presidential lawlessness is not to show how easy it would be to file articles of impeachment. It is to persuade the public that when a president betrays his basic constitutional obligations, when the laws are not executed faithfully, all of us are threatened.

Why? Because the precedent is then set for this president and all future presidents that even-handed law-enforcement and basic honesty are no longer required. The precedent is set that the law is no longer what the Constitution says, what Congress legislates, or what Courts adjudicate, but what the president decrees. The precedent is set that the vast executive bureaucracy — agencies like the IRS and the Justice Department — can be used as weapons against the president’s political opposition.

When Richard Nixon attempted this sort of thing, on a scale far more modest than what Barack Obama has actually carried out, the public said, “No.”

President Nixon had won reelection in one of the greatest landslides in American history — one that dwarfs President Obama’s comparatively narrow victory in 2012. Yet, this overwhelming political support evaporated in a flash. Once the public focused on presidential lawlessness, all of us — Republicans and Democrats, conservatives and liberals, independents and everyday citizens — became convinced that we could not tolerate an administration that flouted the law and repeatedly lied to the nation.

So Faithless Execution is not a call for immediate impeachment. It is an effort to raise public consciousness about the dangers of executive lawlessness.

If efforts like this do not persuade the public that the president deserves to be removed from office, there would be no upside — and lots of downside — in proceeding with articles of impeachment. But the effort would still not be an exercise in futility. Even if Americans were not alarmed enough to demand the president’s removal, they could become outraged enough to demand that he reverse course and uphold the rule of law.

That is, even if there is insufficient political support for ousting the president, spotlighting the issue of presidential lawlessness is essential if we are to create a drastically different political environment. The point is to give Congress the confidence to do what it is now too skittish to do: use its constitutional muscle to counter the administration’s abuses of power.

There are really only three constitutional ways to stop presidential lawlessness.

The first is the ballot box. But this president will face no more elections. More significantly, the Framers worried that presidents who were inclined to abuse their powers would be most likely to abuse them in order to get reelected — like by pretending a terrorist attack that killed four American officials was caused by a video, rather than a broad failure of policy; or by using the IRS to prevent a president’s political opposition from organizing; or by cooking the VA’s books while our ailing veterans were left to die.

The second check on presidential lawlessness is the power of the purse. The Constitution empowers Congress to deprive the administration of funds. That makes it much harder for the administration to abuse its powers. As Faithless Execution argues, however, just as the president has violated his constitutional obligation to execute the laws faithfully, so, too, has Congress ignored its constitutional duty to guard against presidential lawlessness.

That leaves impeachment as the final, ultimate check.

If these three tools — elections, the power of the purse, and impeachment — are not used, that is a political choice the country can make. Faithless Execution simply argues that we should make it with our eyes open. President Obama’s brand of lawlessness is not like what we saw from President Clinton. It is an attack on the constitutional framework itself. A decision to do nothing about it is not without consequences.

It would mean the separation of powers that is the key to safeguarding our liberties has been permanently eroded. It would mean the president is no longer accountable for the wrongs that he and his subordinates commit. It would mean the United States of America has been fundamentally transformed: from a nation of laws, to a nation ruled by presidential whim.

I really hope we don’t let that happen.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His new book, Faithless Execution: Building the Political Case for Obama’s Impeachment, will be released by Encounter Books on June 3.

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