Magazine | July 7, 2014, Issue

Protecting The Republic

Faithless Execution: Building the Political Case for Obama’s Impeachment, by Andrew C. McCarthy (Encounter, 234 pp., $23.99)

This is a serious book about a serious subject: the abuse of constitutional authority by President Obama and whether he merits impeachment for it. Some, undoubtedly, will try to dismiss it as just politically motivated sour grapes, but Andrew C. McCarthy lays out a detailed case with careful legal arguments.

McCarthy, a policy fellow at the National Review Institute, cannot be easily dismissed. He is a former federal prosecutor known both for his insightful legal analyses and for his prosecution of the Muslim terrorists in the 1993 World Trade Center bombing. McCarthy is not recommending that the House of Representatives act immediately to draw up articles of impeachment. He understands that “impeachment is a political remedy,” not a legal one, and that an impeachment cannot succeed without public support.

Impeachment is not a plausible response to Obama’s serious abuses of power and maladministration “unless the American people become convinced . . . that a governing system they wish to preserve is mortally threatened” by the president’s actions. At the moment, the public does not support impeachment, because “no substantial argument for impeachment” has been made. According to McCarthy, without that argument’s being made convincingly, it would not be rational to demand that the Republican-controlled House impeach Obama when the Democratic-controlled Senate would “surely acquit him.”

His prime example of this political logic is the Clinton impeachment. While Clinton’s perjury and obstruction of justice satisfied the “high crimes and misdemeanors” threshold of the Constitution, Clinton remained popular with the American people. They were never convinced that his behavior, while troubling, affected his ability to carry out his duties as president to such an extent that he should have been removed.

The point of McCarthy’s book is to make the legal case for impeachment in order to start the political debate about whether impeachment is the appropriate remedy for President Obama’s misbehavior. McCarthy argues that the more convincing the legal case, “the more compelling becomes the political case for the president’s removal. And the more realistic is the opportunity to sway the public will.”

This is a relatively short book. The first 87 pages are spent explaining the historical background of the impeachment clause, which the Framers saw “as the appropriate response to presidential corruption, lawlessness, and infidelity to the Constitution.” McCarthy also outlines the salient differences between criminal prosecutions and the impeachment process, and the many actions taken by the president that show why he should be impeached. Then in the second and final part of the book (67 pages), he lays out seven detailed articles of impeachment. “So rampant are President Obama’s violations of law and derelictions of duty,” he writes, “that it has become a chore to summarize them.”

McCarthy’s thesis is that Obama has intentionally concentrated power in the executive branch, undermining the Constitution’s careful balancing of power among the branches of the federal government and between the federal government and the states. While the other branches can influence the executive with congressional oversight, appropriations, and judicial orders, “they cannot compel a president to act or refrain from acting. They cannot force a president to abide by his constitutional obligation to execute the laws faithfully. They have no means of taking enforcement action on their own. The judiciary’s capacity to halt capricious executive action is entirely dependent on the administration’s willingness to honor judicial directives.” If a president is “of dictatorial persuasion” and “coopts the media in his disregard for the system’s checks and balances,” he is almost impossible to contain.

Normally, one would expect that Congress would want to preserve the powers of the legislative branch. But McCarthy observes that “congressional Democrats want the current president to use the enormous raw power vested in his office by Article II to achieve statist transformation.” As long as he does so, they will support his usurpations.

Unfortunately, the House has also shown that it is “unwilling to use its command over the treasury to coerce the president into heeding the limits of his power.” If you are unwilling to defund it, “you have to remove it — or accept it. There is no other course.” McCarthy warns that legislators had better get past their “angst” about impeachment — “either that or be prepared to accept a government that is more a centralized dictatorship than a federalist republic under the rule of law.”

McCarthy’s seven articles of impeachment cover both well-known abuses by President Obama and other abuses that have not received as much public attention. He makes the strongest case in Articles I and V, which cover the “President’s Willful Refusal to Execute” various laws. Prominent among the counts here are Obama’s failure to enforce our immigration laws and his granting of amnesty to illegal aliens through executive edicts and orders. McCarthy also details Obama’s unilateral amendments of Obamacare, the WARN Act (which requires employers to notify employees in advance of plant closings and major layoffs), the welfare work requirement, and the Clean Air Act.

#page#McCarthy’s book is worth getting just to read his careful explanation (using his extensive experience as a federal prosecutor) of why the defense of “prosecutorial discretion” for Obama’s refusal to abide by or enforce the immigration and other laws is a “canard.” As McCarthy says, prosecutorial discretion does not give the president a generalized license to ignore congressional statutes.

McCarthy is also on strong grounds in Article VI, which deals with the lawless Department of Justice. McCarthy’s list of abuses includes Operation Fast & Furious and the subsequent cover-up; DOJ’s racially discriminatory enforcement of federal civil-rights law; the politicization of hiring and enforcement; the investigation of journalists in violation of DOJ guidelines; and the systematic stonewalling of Congress’s oversight responsibility. All of these are serious and substantive examples of the corruption that Obama has engendered in the Justice Department.

In Article II, McCarthy cites the president’s “usurping the constitutional authority” of Congress. That ranges from instigating an undeclared and ultimately disastrous war in Libya, through making unlawful “recess” appointments, to resisting congressional oversight of federal agencies. While many may agree that Obama’s Libya policy has been disastrous, there is considerable disagreement about whether he violated the Constitution or acted within the war powers of the commander-in-chief. We will soon hear what the Supreme Court has to say about Obama’s “recess” appointments, but those appointments illustrate one of the most important problems: the approval by congressional Democrats of the president’s stomping on their “Advice and Consent” role. It is doubtful that any legal arguments, including a judgment against the president by the Supreme Court, would have any persuasive political effect on Senate Democrats.

Article III covers President Obama’s “Dereliction of Duty as President and Commander in Chief.” It cites two examples: Obama’s imposition of “unconscionable” rules of engagement in Afghanistan that have recklessly endangered and killed American troops, and his reckless stationing of personnel in Benghazi under “grossly inadequate security” that resulted in a “foreseeable terrorist attack” that killed four Americans and wounded many others.

While I agree that these are gross derelictions of the president’s duty to protect our troops and diplomatic personnel, one can point to numerous examples of military and national-security decisions made in the past by American presidents that were even worse. President Lyndon Johnson’s micromanagement of the Vietnam War, for example, resulted in some particularly disastrous decisions. It is not clear that the American public could be convinced that these are sufficient grounds to remove the president, even with the anguish he has caused the families of those killed.

In Article IV, McCarthy cites six examples of President Obama’s “Fraud on the American People.” This includes waging the Libyan war under false pretenses; the fraudulent claim about the Benghazi massacre; misrepresentations about Obamacare; the enabling of Iran’s nuclear-weapons program; fraudulent claims about immigration-law enforcement; and the Solyndra fraud. I don’t minimize the perfidy of any of these actions, but again many may question whether they rise to the level of impeachable offenses.

Finally, in Article VII, McCarthy accuses Obama of “Willfully Undermining the Constitutional Rights of the American People.” This section discusses the IRS targeting of political opponents, suppression of information about Islamic terrorism, abridgment of religious rights through the HHS mandate, and infringement of the Second Amendment by signing the U.N. Arms Trade Treaty.

Legal and historical scholars, as well as politicians and elected officials, will no doubt debate the validity of these charges. Many of them are serious violations of the president’s oath to “preserve, protect and defend the Constitution.” Some seem more in the nature of bad policy judgments that don’t fit the standard of “high crimes and misdemeanors.”

McCarthy’s point is that even if some of his charges are not as strong as others, taken all together, they “look overwhelming,” and McCarthy does put his considerable skill as a prosecutor and legal analyst to work in presenting a persuasive case against President Obama. But does his bill of particulars lead to the conclusion that the president should be impeached? Will the legal case lead the public in general to support impeachment? Would it persuade Democratic senators to rethink their support of the president?

I don’t have any answers to these questions, but McCarthy has organized and analyzed the issues cogently and may at least accomplish his primary goal: starting the public debate.

– Mr. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former Justice Department official. He is a co-author, along with John Fund, of the just-released book Obama’s Enforcer: Eric Holder’s Justice Department.

NR Staff — Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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