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CHAPTER FOUR

THE POINT IS REMOVAL

While Republican leaders seem terrified by the mere mention of the “i-word,” conservatives are divided on the subject—which at least means they’re talking about it. David Catron, a writer for the American Spectator whose work I admire, passionately argues for impeachment now, contrary to my assessment that a public case has to be built before the House considers actually filing articles of impeachment. In Catron’s view,

It is the duty of the House of Representatives to impeach Obama. Every member of Congress takes an oath to defend the Constitution and the President has declared war on that foundational document. Barack Obama is systematically destroying the checks and balances the framers put in place to limit the power of the office he holds.¹ [Emphasis in original.]

Mr. Catron reasons that Ted Cruz is “evidently confused” when he observes that there are not enough votes in the Senate for impeachment—as if the senator, a graduate of Princeton and Harvard Law School who has argued several cases before the U.S. Supreme Court as solicitor general of Texas, must have missed class the day they taught the difference between impeachment and removal. According to Catron, the need for a two-thirds Senate majority for removal is “irrelevant” because impeachment, the House allegation of high crimes and misdemeanors, is a “separate step—roughly analogous to an indictment in a criminal court.” As Catron’s theory unfolds, the House morphs from grand jury to street cop:

If a policeman sees a thief picking your pocket, should he stand by and ponder the very real possibility that some clever defense attorney might help the criminal escape justice? Of course not. It’s his job to arrest the pickpocket and make sure that he faces trial for his crime. Then, even if a corrupt judge or a simple-minded jury lets the crook off, at least he has done his job. In the case under discussion here, Obama is the crook and the House of Representatives is the policeman.

On health care, a subject in which he is well versed, Mr. Catron is a stellar analyst.² He appears unfamiliar, though, with the way police and grand juries actually work.

The police do not make an arrest every time they witness a crime. They exercise judgment, which constitutes the investigative side of the prosecutorial-discretion coin. For example, in the disco era of high urban crime, the term “revolving door justice” gained currency, describing a situation where the due process pendulum had swung so far in the direction of the crooks that an arrestee was back out on the street committing more crimes before the cops could finish the paperwork. The police responded rationally, by making fewer arrests.

This was not a dereliction of duty. To the contrary, the cop on the beat understood better than most that a clearly guilty criminal who was cited but not effectively prosecuted—meaning, not convicted and incapacitated by a jail sentence—was emboldened, not chastened. The arrest and its documented description of the charge, which barely slowed down the pace of the arrestee’s serial criminality, stood as a testament to the system’s lack of resolve to confront his lawlessness in a meaningful way. To maintain their own credibility, which was essential to preserve what remained of law and order, the police did their best to discourage crime by their presence on patrol, though of course they could not be everyplace, or even most places. They often intervened in criminal situations without apprehending anyone, reserving their power to arrest and commence the formal criminal-justice process for those offenses that were too serious for the system to ignore. It was not until the political environment changed—until the public demanded a restoration of domestic tranquility and elected responsive public officials—that the legal environment changed, encouraging police to make more arrests because they knew the cases would be prosecuted through to completion.

There are similar flaws in the comparison of impeachment by the House to indictment by a grand jury. Although it is considerably easier to indict than to convict a defendant, prosecutors generally do not indict cases unless a conviction is highly likely.