Saving the Rule of Law

by NR Interview
Executive lawlessness endangers our republic.

Andrew C. McCarthy prosecuted the Blind Sheik after the first terrorist attack on the World Trade Center and is a longtime contributor to National Review Online and a senior fellow at the National Review Institute. An expert in national security and terrorism, McCarthy is author of the new book, Faithless Execution: Building the Political Case for Obama’s Impeachment. In an interview with National Review Online’s Kathryn Jean Lopez, he explains his case.
 

Kathryn Jean Lopez: “American constitutional republicanism has been strong enough to survive over two centuries of self-governance, civil war, world war, terrorism, social upheaval, and periodic economic calamity. But can it survive a Ruler of Law and his trusty pitchforks?” Is it really that bad?

Andrew C. McCarthy: Well, for constitutional republicanism, sure. I am not saying that we are on the cusp of rampant violence and social disorder. I am saying that we are witnessing the death of a republic under the rule of law. When I call the president the ruler of law, I mean that he selectively rather than faithfully executes it. His “pitchforks” — that’s his word, not mine — is the hard left base that he agitates to “direct action,” as he did in his community-organizer days, in order to extort his current targets — whether they are businesses, states, or political opponents — into concessions. A constitutional republic is a nation of laws; we’re becoming subjects of presidential whim.

 

Lopez: Still, just in case the New York Times and Talking Points Memo have read this far: You are not actually campaigning to impeach President Obama?

McCarthy: No, I am campaigning to make executive lawlessness a major issue in our politics. As I say in Faithless Execution, the best thing for the country would be for the president to reverse course, honor his oath, faithfully execute the laws, and finish his term that way. But if he will not — and things seem to be getting worse rather than better — then there either has to be meaningful push back or we must resign ourselves to being a very different kind of country. I want to create a political environment where the president feels real pressure that incentivizes him to follow the law. Impeachment is the ultimate answer to executive lawlessness, and it has to be a real rather than an illusory remedy if you’re going to rein in rogue behavior. But the real goal is to give the president’s opposition — which has been largely supine for five-and-a-half years — the backbone to use its other major tool, the power of the purse. Impeachment is the last resort … but it has to be a real resort.

 

Lopez: You do make the legal case, though. How is this useful when you yourself explain that there is not political will for this?

McCarthy: The political case has to be built, and political will has to be cultivated. Convincing people that there are compelling legal grounds for the conclusion that a president has committed impeachable offenses is vital to developing the public will to do something about it.
 

Lopez: What does it say about the American people that there is not a political will for impeachment despite some of the unprecedented things that are happening? It’s a little bit insane that the Little Sisters of the Poor, a group of religious sisters who serve the elderly poor, have to sue the Department of Health and Human Services because of Obamacare’s abortion-drug/contraception mandate, isn’t it? And yet the president was reelected?

 

McCarthy: I concede in the book that this is the part of the equation on which the jury is still out: us, the public. President Obama is a known quantity and has been a knowable quantity to anyone willing to dig a bit since he first burst on the national scene. He’s doing what you’d expect a movement Leftist to do. The president’s opposition is feckless in many ways, and they don’t fight the way many conservatives would like to see them fight, but let’s not mistake fecklessness for stupidity. When they seem paralyzed to act, it is not just because they lack backbone; it is also because they have surveyed the landscape and concluded there is significant political risk in fighting the president. To be sure, they miscalculate a lot, but I don’t think they are making that up out of whole cloth.

The question is whether a significant majority of the American people still care about individual liberty and having a government that is both limited and bound by the law. That’s why the Sisters have to sue: The administration does not perceive that the public at large cares enough about its own freedom of conscience or the Sisters’ good work to object much. It may be that the country has dramatically changed, that a lot of us don’t mind an intrusive government led by a president who rules by decree. And it may be that many people who do mind have been so beaten down by the relentless expansion of government’s tentacles and the lack of a real opposition to it in Washington that they just feel overwhelmed and powerless.

I don’t put much stock in the fact that Obama was reelected. As I recount in the book, a minority of the delegates at the Philadelphia convention in 1787 suggested that there was no need for an impeachment clause in the Constitution because we would have the ballot box — i.e., if a president did anything egregious enough to warrant removal, he would be voted out of office. This position was rejected because the majority recognized that a president inclined toward corruption would have the greatest incentive to act corruptly in order to hold on to power. Obama is a good example of that wisdom.

The president was reelected on false pretenses: the assurances he made about Obamacare (you can keep your plan, keep your doctor, lower your premiums, etc.) were quite intentional misrepresentations. The “Blame the Video” fraud after the Benghazi Massacre was willfully perpetrated to conceal both the massive failure of his policy of empowering Islamic supremacists and the falsity of his campaign claim to have “decimated” al Qaeda. Even running a dishonest campaign, the president lost millions of votes from his original election haul (an historic feat) and managed only a narrow win against an opponent whose base was, at best, unenthusiastic. If just some of what we now know had been revealed pre-election, Obama would have been defeated. His reelection is not an endorsement of his lawlessness.
 

Lopez: What is the “true lesson” of the Bill Clinton impeachment? Is your book an exercise in learning from it?

McCarthy: It is two-fold. First, not all presidential lawlessness is equal. Clinton’s misconduct, while reprehensible, was not a systematic attack on our constitutional framework, as are Obama’s maladministration and derelictions of duty. Second, it is a mistake to file articles of impeachment if it is clear that the majority of the public does not want the president removed from power. To be clear, it is vital — I think it is an obligation — for the Congress to investigate presidential lawlessness and spotlight it for the public. But if the public, even disapproving of it, does not think it warrants removal, then the House should not file impeachment articles. You have to make the political case on lawlessness and the need for removal before proceeding with the legal case of establishing impeachable offenses.

 

Lopez: Why is the power of the purse so important to democracy and why would you urge Republicans in Congress to rethink how they use it? What would be your pitch to folks who think the political posture of the likes of Ted Cruz is crazy when the talk is defunding and shutdown?

McCarthy: Other than elections, the Framers only provided two real weapons against presidential lawlessness: the power of the purse and impeachment. Presidential lawlessness is not an idle or partisan concern. The separation of powers is what protects our liberties; if the upshot of a president’s lawlessness is to accumulate power, that erodes the separation of powers and makes us subjects of presidential whim, not free citizens under the rule of law. And if the lawlessness is abided, that is a precedent available to every future president, regardless of party or ideological bent. So, particularly if Congress is unwilling to impeach a president, the power of the purse is all that is left to combat the lawlessness. If Congress won’t use that either, we become a very different kind of country.

I supported the efforts of Ted Cruz, Mike Lee, and House conservatives to use the power of the purse to defund Obamacare. As I said at the time, they were the only people who had a serious plan, even if it was an unlikely one, to prevent Obamacare’s implementation. The Republican establishment ridiculed them over it but, by comparison, the establishment had no plan to stop it — they were surrendering and what they resented was conservatives’ calling attention to it. The conservatives have been vindicated. Of course everyone wants to reform healthcare, but the Cruz/Lee position was that the default setting for reform should be the world as it existed the day before Obamacare was signed into law. The GOP position is that the default setting is Obamacare — they are not going to repeal it; they are going to leave it as the foundation and tweak it.

 

Lopez: “If you won’t defund malfeasance, you have to remove it — or accept it.” Is the goal of your book to at least make clear that these are the choices, whether people are consciously making them or not?

McCarthy: Yes. I harbor the hope that, once a choice is made clear, people will not consciously make the wrong one. But it’s only a modest hope. Human nature resists doing the right thing if it is hard and the wrong thing is easy. The way Washington functions, defunding is very hard. The budget is rife with transfer payments and goodies for this and that interest group. To use the power of the purse to defund malfeasance, you have to be ready to be accused of taking food from babies’ mouths, cutting off the subsistence of the elderly, putting invaluable “public servants” out of work, etc. I don’t think many elected officials have the stomach for that — and a lot of them lack the skill to make the counterarguments about what will happen if we don’t stop the malfeasance.

 

Lopez: How has law become “a weapon in an ideological crusade”?

McCarthy: Law is supposed to be a reflection of our principles, forming the framework of order that liberty needs to thrive. In a healthy free society, you don’t need much law — we will want minimal official intrusions on our choices and property, and we will have social mores that discourage behavior that is boorish. In an increasingly authoritarian society, by contrast, law (by statute, rule, order, regulation, decree, etc.) is ubiquitous and therefore largely unknowable. Instead of a consensus framework for good order, it comes to resemble a menu of the authoritarians’ pieties, and its coercive character is used to force conformance. And because there is so much of it, and it is thus selectively enforced, it becomes arbitrary — used to reward the ruler’s friends and punish the ruler’s adversaries. Moreover, the process becomes the punishment: The mere threat of being sued or prosecuted, and the time, expense and anxiety attendant to it, induces people to surrender their freedom.

 

Lopez: We’re seeing this happen in the states too, with attorneys general announcing they will ignore marriage law. Which came first and which is the frontline of the battle now?

McCarthy: The states are following the federal lead. As Faithless Execution recounts, Attorney General Holder recently admonished the state AGs that, like Holder and Obama, they can pick and choose which state laws they will enforce — i.e., that they need not enforce state laws with which Obama disagrees, such as marriage laws adopted by the citizens. I explain in the book that this is a perversion of the “prosecutorial discretion” doctrine; Obama has used it all along and now the administration is trying to foist it on the states — and it will work in blue states. But the pressure to override democratic choices and bourgeois culture comes from Washington. The Left has long realized that by shifting ever more controlling authority to the federal government, one-size-fits-all standards and law-enforcement diktats — or, in the case of immigration law, non-enforcement diktats — can be imposed on the states.

 

Lopez: As a cultural — perhaps anthropological – matter, have we lost the appreciation that the president is not a ruler but a public servant? Some of our campaigns seem to treat politicians as if they can do more than they should, in some ways, don’t they?

McCarthy: Yes. There are several explanations for this. One is the media culture. I write a lot about the Washington soap opera, which is what news coverage has devolved into between the 24/7 cycle and the blurring of lines between news and opinion journalism. You can’t really get much straight news anymore, and the coverage is as much about personalities and political tactics as events — that is, it is not about the facts of, say, Benghazi or the IRS harassment of conservatives, but about how Obama really feels about these matters, how he will be affected by them, what he might do to turn the page from them, etc. Add to this culture a) the appalling lack of civic education about how our constitutional system of separation-of-powers and federalism is supposed to work, and b) the transformation of the legal and journalism professions from pillars of ordered liberty to agents of social change. What you get is a distorted view of the presidency — and more broadly, the federal government — as the place to which we look for all the answers, no matter how disconnected the questions may be from what the Framers had in mind for the limited role of the national government.

 

Lopez: What do you mean when you say “The pitchforks: That’s his public,” about the president?

McCarthy: I am quoting President Obama’s own words back at him. Near the start of his first term, the president presumptuously summoned a bunch of top finance execs from private industry to the White House to lecture them about income inequality. They dutifully showed up and tried to explain to him — a man with no meaningful business experience — why high salaries for corporate officers were necessary if American companies were to compete in a global market. He peremptorily cut them off, saying, “The public isn’t buying that,” and warning them, “My administration is the only thing between you and the pitchforks.” It is the air of extortion around a person, especially a powerful one, who lets you know he is willing to use his raw power outside the bounds of law — whether by bullying, demagoguery, or his capacity to make your life miserable in a variety of different ways. That’s how he operated as a community organizer in the Alinsky mode.

 

Lopez: Why is Saul Alinsky still notable to talk about?

McCarthy: For precisely that reason. Obama is not randomly lawless. He is lawless with a precise purpose to, as he put it, “fundamentally transform the United States of America.” He wants a centrally planned state run by a federal government where power is concentrated in the presidency and the administrative agencies, which will dictate standards down to the grain in all aspects of life, and which will redistribute wealth to accord with their own subjective notions of “fairness” and “social justice” — meaning if you’re a pro athlete, a pop star, a celebrity journalist, a generously compensated left-wing academic, a government employee, a union officer, or a billionaire who lavishes funds on all the right progressive causes (including Democratic party candidates), you’ll be insulated from the crushing burdens the rest of us will have to bear.

 

Lopez: “Today, well beyond the New Deal and the Great Society, the administrative state is socializing health care, micromanaging industry, dictating education solutions, taking over automotive and insurance giants, underwriting mortgages and student loans, borrowing trillions of dollars from itself (i.e. printing trillions of dollars for itself), and even mandating coverage for contraceptives and abortafacients.”

McCarthy: Yes, and the remarkable thing is that we put up with it. I marvel in the book at de Tocqueville’s prescience in warning that democracy could devolve into a comparatively soft tyranny, in which the individual serves an “immense and tutelary” state and its centrally-planned, punctiliously regulated society, enjoying only as much liberty as the government deigns to grant him.

 

Lopez: You write: “True law is the moral and ethical consensus of a civil society, reflecting the conscience of a free and virtuous people.” Do we even know what conscience is anymore?

McCarthy: Well, we have a well-trained politically correct conscience. The Gosnell trial didn’t upset too many people, but Gaia help you if you light up an e-cigarette in an outdoor café!
 

Lopez: You point out that impeachment is not a “high mountain to climb”? How so? Can that possibly be a good thing?

McCarthy: It is a good thing in context. Real impeachment is a two-step process: an accusation of high crimes and misdemeanors (the “articles of impeachment”), and the removal of the president from power. When I said in the book that impeachment is not a “high mountain to climb,” I was referring to the accusation, not the removal.

In their genius, the Framers wanted there to be a clear standard for what kind of misconduct had to be established before a president could be removed, but, realizing that ousting a president would be very disruptive, they wanted removal to be difficult to accomplish so it would only happen in worthy cases, not due to partisan hackery. So they gave us a very straightforward standard: treason, bribery, or “high crimes and misdemeanors.” The latter are not conventional crimes and misdemeanors; the phrase is a term of art borrowed from British law, referring to “political wrongs of public men” as Hamilton put it — abuses of power and betrayals of the great public trust reposed in high executive officials. A president does not have to be indictable to be removable; more than penal offenses, “high crimes and misdemeanors” resemble military justice violations — e.g., dereliction of duty, violation of an oath. What the Framers were most concerned about were failures to execute the laws faithfully and executive misconduct that undermined the constitutional framework, especially the separation of powers on which our liberty depends.

Once you get the standard, you realize that proving high crimes and misdemeanors is straightforward — not a high mountain to climb. Nor should it be: If a president commits grievous misconduct, it should not be hard to establish as such. Doing so is the job of the House of Representatives, and it can be done — i.e., articles can be filed — on a simple majority. But a president cannot be removed unless a Senate supermajority — two-thirds — approves the House’s articles of impeachment. You can never get a two-thirds majority unless there is a strong public will that the president should be removed from power, a public will that cuts across partisan and ideological lines, one that is outraged by the lawlessness, malfeasance, or incompetence. So you can have a thousand provable impeachable offenses, but unless the public broadly wants the president ousted, there will be no impeachment. Knowing this, the House — especially after the Clinton experience — will not vote articles of impeachment unless there is a realistic chance that the Senate will vote to remove. That is, the public will punish at the ballot box a party that impeaches a president as a partisan stunt rather than because the president has done things that warrant removal — but, I think, would also reward statesmen who work to oust a truly corrupt president. The system, as designed, is essentially political, not legal, and it works.
 

Lopez: Could you make a legal case for impeachment on just one of the many Constitutional problems you raise in the book?

McCarthy: Sure. A strong legal case can be made for all seven of the articles I propose (each of which has several subparts). They fall into general, thematic categories of failure to execute the laws faithfully; usurpation of the powers of other branches; derelictions of duty as commander-in-chief (e.g., Benghazi — and more recently, after the book was done, you could add the replenishing of the Taliban in the Bergdahl swap); fraud on the American people (e.g., Obamacare, the “Blame the Video” business in the Benghazi Massacre); abuse of power (e.g., turning the IRS and the Justice Department on the president’s political opposition, the Justice Department’s politicization and reckless Fast and Furious program); the comprehensive failure to enforce immigration law and extort states that try to enforce it (which has led to the recent crisis involving thousands of illegal-immigrant children crossing into border states); and willfully undermining our constitutional rights (freedom of conscience, political speech, gun rights, etc.).

If I were still a prosecutor and the seven articles of impeachment I’ve drafted were, instead, and indictment, I’m confident I could get a guilty verdict on every count. But here’s the thing: After “guilty, guilty, guilty . . . ” there is an interrogatory on the end of our verdict sheet which requires the jury to answer a final question: “And do you want him removed from power?” In impeachment, the “guilty, guilty, guilty . . . ” findings do not compel the conclusion that the president must be removed. The political case first has to be made, and people have to be convinced that presidential lawlessness threatens our liberties and our stature as a nation of laws, not men. That principle still has to be important to them. That’s where the case gets really hard.\

— Kathryn Jean Lopez is editor-at-large of National Review Online.

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