Читать книгу Faithless Execution - Andrew C McCarthy - Страница 10
Оглавление“I don’t think you should be hesitant to say the word in this room.” The room in which Georgetown law school’s Nicholas Rosenkranz was sitting was on Capitol Hill, specifically, the room where the Judiciary Committee of the U.S. House of Representatives conducts its hearings. The word he was referring to is impeachment.
Professor Rosenkranz was mildly chastising Rep. Steve King, an exceptional Republican congressman from Iowa. Unlike most of his colleagues, Congressman King has exerted himself mightily in search of practical ways to combat the Obama administration’s lawlessness. Yet he was tongue-tied at the prospect of uttering, let alone seriously discussing, the Framers’ carefully tailored solution for incorrigible presidents.
Professor Rosenkranz must have thought he had already broken the spell. Earlier in the session, a hearing on the president’s constitutional duty to execute the laws faithfully, he had been unrestrained: “The ultimate check on presidential lawlessness is elections and, in extreme cases, impeachment,” he testified. But his clarity just seemed to spook senior Republican staffers, who winced at each invocation of the i-word.1
The GOP had better get past its angst—either that or be prepared to accept a government that is more a centralized dictatorship than a federalist republic under the rule of law. Congress has only two means of checking presidential lawlessness: the power of the purse and the power to impeach and remove. If the opposition party in Congress finds it inconceivable that these powers should be used, it is effectively abetting and institutionalizing the imperial presidency.2
Elections are also a check on presidential excess, but more so as originally conceived than as they occur today. In the first elections under the Constitution, each state would choose prominent, knowledgeable citizens to sit in the Electoral College (in direct numerical proportion to each state’s congressional delegation), and these electors would vote for the president and vice president. The rise of political parties caused this system to be frayed after only four election cycles, and the historical trend toward popular elections has rendered the Electoral College largely a formality.
The original Electoral College had been modeled on the Centurial Assembly system of the Roman Republic precisely because the Framers were suspicious of the mischief that political parties could make.3 The idea was to conduct elections without parties or national campaigns: have statesmen elect a president invested in preserving the constitutional framework, rather than indulge the spectacle of candidates promising the moon as they barnstorm the country vying for power. The rapid ascent of partisan politics—in which James Madison and several other Philadelphia convention delegates were key figures—illustrates that the Framers’ lofty goal was unrealistic. It does not discredit their suspicions.
The Framers were particularly attuned to the timeless challenge of managing factional strife.4 They feared that ideological factions, through the machinations of political parties, would be intent on acquiring power and imposing their pieties. They would not prioritize preservation of the Constitution’s delicate balance of power. It is this separation of powers—among the branches of the national government, and between that government and the sovereign states—that guards against any single governmental component’s accumulation of tyrannical power. The competition between authorities, their monitoring and checking of one another, ensures freedom by protecting the citizen from oppression.
The modern left proves how prescient the Framers were. The left’s class warfare strategies mean that election campaigns are actually conducted against the Constitution’s safeguards of freedom. Supporters of the Constitution’s federalist framework of limited central government and its protection of liberty and property rights are demagogued as enemies of social justice. Statist candidates construe electoral victories as a mandate to undo constitutional constraints that impede their authority to do “the right thing,” as Obama puts it. Winning office becomes a license for lawlessness.
The power of the purse, too, has been eviscerated as a practical check against an outlaw president. The Constitution presumes that the different branches of government will protect their institutional turf. The Framers reasoned that Congress, faced with a president who usurps legislative prerogatives, would fight back by cutting off money the president would need to carry out the usurpation.5 Even after partisan politics took over, it was assumed that politicians took their constitutional responsibilities seriously, either out of noble statesmanship or in the practical calculation that voters expected the Constitution’s protections of liberty to be honored. A congressman of the president’s party would see himself, first and foremost, as a congressman. Valuing the duties of his office over party loyalty, he would join with other legislators to rein in executive excess.
Today’s Democrats, however, are members not just of a party but, perhaps even more, of the movement left. Their objective, like Obama’s, is fundamental transformation of a society rooted in individual liberty and private property into one modeled on top-down, redistributionist statism. Since statism advances by concentrating governmental power, Democrats—regardless of what governmental branch they happen to inhabit—rally to whatever branch holds the greatest transformative potential. Right now, that is the presidency.
Congressional Democrats want the current president to use the enormous raw power vested in his office by Article II to achieve statist transformation. If he does so, they will support him. They do not insist that he comply with congressional statutes—which must be consistent with the Constitution in order to be valid, and thus may reflect the very constitutional values the left is trying to supplant. Democrats will get back to obsessing over the “rule of law” if and when Republicans win another presidential election.
While Democrats quite intentionally defy the Framers’ design, Republicans frustrate it by aggressive passivity. They incessantly tell supporters that they are impotent to rein in Obama’s excesses because the GOP controls “only one half of one third of the government.”6
This argument ignores the fact that the Constitution divides power by subject matter, not percentage of governmental control. The party that controls the House has full primacy in taxing and spending, every bit as much as the party that controls the executive branch has plenary control over prosecution decisions. Constitutional authorities are not contingent on how much (if any) control the party in question has over the rest of government.7 In theory, then, nothing in government can happen unless the House, with ultimate power over the purse, agrees to fund it. If a corrupt administration uses the IRS as a partisan weapon to audit and harass its detractors, the House can refuse to fund the IRS—or other parts of the executive branch—in order to curb executive overreach.8
Historically, congressional Democrats have used the power of the purse to stop Republican presidents from, say, prosecuting the Vietnam War or aiding the Nicaraguan Contras. Yet when today’s conservatives in the House or the Senate urge fellow Republicans to use their command over the purse to stop Obama’s excesses, the GOP leadership turns on them with a ferocity rarely evident in their dealings with the president.
The late political scientist Aaron B. Wildavsky noted that “the power of the purse is the heart of legislative authority and thus an essential check on the executive branch.” Indeed, he observed, “An executive establishment freed from dependence for funds upon the legislature (and hence the public) would be a law unto itself and ultimately a despotism.”9 Alas, with Democrats energized by Obama’s law breaking and Republicans paralyzed by fear of being blamed for government shutdowns if they use their constitutional muscle, there is no realistic prospect that Congress will starve Obama of funding.
That leaves impeachment as the sole remaining constitutional safeguard against executive imperialism. There is nothing else.
Republicans have talked themselves—petrified themselves—into the canard that the failed Clinton impeachment effort cautions against any conceivable impeachment scenario (just as they construe the mid-nineties budget showdown with Clinton as a caution against any conceivable government shutdown scenario). At the aforementioned hearing on presidential lawlessness, Congressman King steered awkwardly around the elephant in the room. After lumbering through other theoretical checks on the executive that had, as a practical matter, proved impotent against President Obama’s enterprising lawlessness, King finally muttered, “Then the next recourse is, as Mr. Rosenkranz said, the word that we don’t like to say in this committee and that I’m not about to utter here in this particular hearing.”
Well, the word needs uttering. Absent a frank discussion of what impeachment is, what it’s for, when it should apply, and why it is necessary (that is, why other remedies are inadequate), we will never know whether political support for impeachment can materialize. Analyzing constitutional remedies for executive lawlessness without discussing impeachment makes as much sense as analyzing Islamic terrorism without discussing Islam—and the fact that the latter is Obama administration policy ought not elevate incoherence into binding precedent. We must not fear the word, Rosenkranz aptly insisted. “A check on executive lawlessness is impeachment,” he said. “And if you find the president is willfully and repeatedly violating the Constitution. . . . I think that would be a clear case for impeachment.”10
A clear legal case, to be sure. Willful and repeated violation of the Constitution is the textbook example of high crimes and misdemeanors. But the legal case is not the half of it when it comes to removing a president.
Unlike the simple majority vote required for the House to approve articles of impeachment, a conviction by a two-thirds supermajority of the Senate is necessary to impose the Constitution’s impeachment penalty: “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”11 Unless the point of the exercise is mere partisan foot stamping, it is not enough to have sufficient legal grounds for impeachment, even lots and lots of grounds. Real impeachment, removing the president from power, requires political support.
On that score, Republicans have vastly overinterpreted the Clinton impeachment episode. They construe it to mean that the societal turmoil inevitably caused by attempting to impeach a president—a cynic might say, the bad press ensured by any effort to impeach a left-wing Democratic president—is so much worse for the country than any offenses the president might be committing that it is simply not worth the effort—cynic again: simply not worth turning the Republican Party into the media’s punching bag. Such thinking results in paralysis, and thus in abdication of Congress’s duty to protect the constitutional framework—a duty just as solemn as the president’s.
This does not mean that Congressman King is wrong when he asserts, “You’ll never get an honest [impeachment] verdict out of the United States Senate if Harry Reid is going to be the majority leader.”12 But someone like Reid will always be the majority leader if the minority party is too craven to make a dynamic stand against unprecedented executive lawlessness. Changing the dynamic requires moving public opinion, which in turn hinges on forcing the president’s myrmidons to defend his high crimes and misdemeanors under an intense spotlight.
The decision whether to remove a president is political. As Senator Cruz said, you need to have the votes. Not just enough votes to win in a squeaker; you need 67 out of 100. As we’ve seen, the Framers did not want impeachment to be a power play. The assent of an overwhelming majority of senators is mandatory because impeachment must be tantamount to a proclamation of overwhelming public sentiment. It must reflect the desire of the American people that the president be removed.
At the moment, there are effectively 55 Democrats in the Senate: 53 party members plus two ostensible “independents” who caucus with them. Besides being extraordinarily partisan, they are a very disciplined voting bloc. Even if all 45 Republicans were persuaded to convict the president of high crimes and misdemeanors, 22 Democrats would have to break ranks and join with them for the president to be removed. And if the current crop of GOP senators were to engage in their familiar parliamentary gamesmanship, you might not even get 45 Republicans voting to convict—unless they were sure the president would prevail and that their futile votes could be good campaign fodder in their particular election races.13
Right now, conviction in the Senate is a pipedream, and therefore one cannot reasonably expect the House to file articles of impeachment. The process of impeachment will always be an ordeal, regardless of how necessary it is. Americans may be convincible regarding the need to oust a lawless president, but they will never be happy about it. Nor should they be. Even the president’s most zealous detractors should prefer that he mend his outlaw ways and finish his term than that the country be put through an impeachment process that would be painful in the best of times. And these are not the best of times: today, the pain would be exacerbated by the vulgar propensity of the left and the media to demagogue concern for the nation’s well-being as racism. Consequently, impeachment entails substantial political risk for the protagonists, even if they are clearly right to seek it. House members have no incentive to push for impeachment charges unless conviction in the Senate is within the realm of possibility.
Of course it matters that the president has patently and routinely violated his solemn oath to preserve, protect and defend the Constitution. And of course it matters that the president has willfully betrayed his constitutional duty to take care that the laws be faithfully executed. Still, the real significance of these facts lies not in their legal qualification as impeachable offenses but in their solidity as the foundation of a compelling political case for presidential removal.
The legal aspect of the case is the easy part. That impeachable offenses have been committed is manifest once one grasps the concept of “high crimes and misdemeanors”—which are offenses against the governing fabric by those sworn to uphold it; fraud on the public and its representatives by those entrusted with the highest fiduciary duty. In fact, given that the point of impeachment is to preserve the United States of America, and that the point of the Obama presidency is, as he boldly promised supporters, to “fundamentally transform the United States of America,”14 how surprised can we really be that the president and the Constitution have been on an impeachment collision course?
Proving “high crimes and misdemeanors” is necessary to make the case for presidential removal, but it is not sufficient. The politics takes precedence: The public must reach the conclusion that the constitutionally subversive nature of the impeachable offenses renders it intolerable to permit the president to continue in power; and the public must make its representatives understand that failing to act on that conclusion will shorten their cherished Washington careers.
That is the true lesson of the Bill Clinton impeachment controversy. The error to avoid is not the endeavor to remove a rogue president; it is the endeavor to remove a rogue president without first having convinced the public that his removal is warranted—that the punishment fits the crime.
On December 19, 1998, the House approved two articles of impeachment against President Clinton, involving misconduct that, while criminal and cringe-inducing, reflected more on his deep character flaws than on his execution of the presidency’s core responsibilities.
Earlier, a grand jury had been convened to investigate allegations of corruption. Much of this involved the “Whitewater” real estate venture in Arkansas, which occurred before Clinton became president. Some of it, while certainly within the ambit of his presidential duties, was not central to them—for example, cronyism in the firing of White House travel office personnel. In the course of the investigation, it emerged that the president had conducted a sexual liaison with Monica Lewinsky, a young White House intern. Clinton had also pressured Ms. Lewinsky to lie about the affair to investigators, and had lied about previously perjuring himself in a deposition when another woman, Paula Jones, sued him for sexual harassment.15
The two impeachment articles charged President Clinton with perjury and obstruction of justice.16 The charges satisfied the “high crimes and misdemeanors” threshold, for it is perfectly reasonable to conclude that a president who corruptly impedes the administration of justice is not fit for office. After all, his responsibilities include ensuring the administration of justice and otherwise faithfully executing the laws. Clinton, moreover, was clearly guilty.
Nevertheless, the American people obviously did not want him removed over the charges. Opinion polls illustrated that a majority of the public, while troubled by Clinton’s character, approved of his overall job performance; and with impeachment proceedings under way, “approval” was effectively a proxy for rejecting the effort to oust him.17 In addition, on the eve of the House decision to vote articles of impeachment, the public handed Republicans a historically significant loss in the 1998 midterm elections. With Clinton’s misconduct front-and-center in the campaign, Republicans gained no Senate seats and actually lost four seats in the House. That may sound marginal, but it marked the first time in over sixty years that a president’s opposition party failed to gain seats in a midterm election, and the first time since 1822 that this happened in the midterm elections of a president’s second term.18 With the public clearly disfavoring impeachment, neither article against Clinton garnered majority support, much less the 67 votes needed for conviction, despite the Republicans’ 55-to-45 majority in the Senate.19
Lawmakers who have determined that presidential malfeasance merits impeachment have an obligation to try to persuade Americans that this is so. Making the effort is not indecorous partisanship; it is the imperative of preserving the Constitution to the best of one’s abilities. Nevertheless, lawmakers must also accept that impeachment is innately political. It is not the final link in a rigorous chain of legal logic. High crimes and misdemeanors do not equal impeachment and removal the way, say, stealing your company’s money equals embezzlement.
Law is obliged to be logical; politics is not. Law is about faithfully applying settled principles to current controversies—reason shorn of passion. Politics is about compromise and social cohesion—the art of the possible, not of the rigorously rational. If, after extensively scrutinizing the evidence, Americans decide that their president is a creep but his personal creepiness does not materially compromise his job performance, that is a decision they get to make. Members of Congress should respect that decision even if they believe it is wrong—as long as they have had a full and fair opportunity to make the case that the president should be removed.
Obamacare provides a useful analogy. What so enraged Americans about the health-care overhaul that they subjected Democrats throughout the nation, at both the federal and state levels, to a historic “shellacking” in the 2010 elections?20 Remember, this was before the fraud that pervaded Obamacare’s enactment was well understood, before much of the lawlessness that has attended its implementation, and before the havoc it is now wreaking on American families and businesses. The public’s anger was inspired by the arrogance exhibited by Democrats in unilaterally ramming the “Affordable” Care Act through despite the full-throated opposition of a strong majority of Americans. It is extremely foolish for politicians to press ahead with highly volatile measures against the will of the American people.
To gauge the strength of the political case for impeachment, the sensibilities of the public to whom the case must be made are just as important as the gravity of the president’s malfeasance. You can have a hundred readily provable articles of impeachment; what really counts, though, is what Americans think of their president. The question is not whether the president has done wrong—that will rarely be in dispute. The question is how convinced the public is that a president’s continued hold on power profoundly threatens their safety, prosperity, and sense of what kind of country we should be. Clinton’s episodes of illegality did not approach this dimension of threat; by contrast, Obama’s systematic lawlessness is the classic case—it is, indeed, a self-proclaimed attempt to remake the country fundamentally.
But even classic cases have to be made. It is prudent for Republicans to take from the Clinton impeachment the lesson that the House should not proceed with impeachment articles unless there is such strong public support for removing the president that the Senate would be under great pressure to convict—that senators who protected the president against the weight of the evidence would draw the public’s ire. But that does not mean Republicans should refrain from arguing that impeachment is the Constitution’s answer to presidential lawlessness.
Republicans, as well as Democrats committed to our constitutional framework, should fearlessly marshal the administration’s frauds, obstructions, and violations of law. They should demand transparency and accountability for the lies, the broken oaths, the betrayal of the rule of law, and the damage wrought—including lives not only devastated but lost due to the administration’s recklessness. They should forcefully condemn the president’s imperial designs. They should unapologetically persuade Americans that the accumulated wreckage coupled with the president’s stubborn determination to continue on his course—indeed, to increase the pace and scope of his diktats—cries out for serious consideration of his removal from office. They should make presidential lawlessness the central issue in the upcoming election cycle. Lawlessness, faithless execution, is the theme that illuminates Obamacare, the IRS scandal, the Benghazi massacre, Fast and Furious, the campaign to erode our constitutional liberties, and the growing instability that threatens our prosperity and security.
Of course, the ability to prove grave impeachable offenses that threaten the constitutional framework will not count for much unless the American people are actually invested in preserving the limitations on presidential authority that safeguard their liberties. Do Americans still broadly believe that a president’s gradual assumption of dictatorial power must be halted? That the constitutional equilibrium of divided authorities balancing and checking each other must be preserved? That their liberty hinges on the separation of powers? That their liberty is what defines and empowers them?
President Obama has not just “pushed the legal envelope,” opined Tom McClintock, a Republican congressman from California, but has “shredded the legal envelope.” Yet this does not seem to trouble many younger Americans, he lamented, and with Obama having been reelected despite violating the laws, Representative McClintock could not see impeachment on the horizon. “Ultimately,” he concluded, “it will come down to whether the owners of the Constitution insist that it be enforced with the votes they cast at the ballot box. So far this generation has been rather lax.”21 True enough. But these same young Americans are now coming of age and beginning to experience the wages of lawlessness in very personal and painful ways. To borrow an ironic refrain from a president who doesn’t seem to learn much, perhaps we have arrived at “a teachable moment.”
All presidential lawlessness is not the same, and thus all impeachable offenses are not created equal. Real impeachment will never happen unless the people are convinced, by the nature of the president’s lawlessness, that it must be stopped and that it will not be stopped unless he is removed from office. Are we talking about a Clintonesque episode that casts grave doubt on the fitness and judgment of the incumbent but, on balance, does not appear to threaten our governing framework and thus our freedom and security? Or is it a systematic, remorseless attack on that governing framework with the precise purpose of supplanting it—not because the president is necessarily a badly flawed character, but because he has a different vision of the just society and an ideological fervor to impose it?
President Obama’s lawlessness falls into the latter category, and therefore the political case for impeachment should by all means be made. The objective must be removal, not just formal articles of impeachment—to purge the lawlessness, not merely document it. Historians may catalogue Obama’s derelictions of duty; Congress’s job is to check those derelictions effectively.
