RUTHFULLY YOURS

FP: Andrew C. McCarthy, welcome to Frontpage Interview.

McCarthy: Jamie, it’s a pleasure to speak with you again.

FP: Let’s begin with what inspired you to write this book.

McCarthy: Presidential lawlessness and derelictions of duty. I guess that, in light of my background, it’s not surprising that I’m intrigued by how our Constitution deals with modern challenges—or, more accurately, modern iterations of eternal challenges like abuse of power. President Obama’s lawlessness is unprecedented in its scope, starkness, and purpose to undermine the separation-of-powers. The Framers rightly believed the latter was the key to safeguarding liberty—preventing the accumulation of too much power, and especially the joining of executive and legislative powers, in a single set of hands. Because they so worried about the specter of executive lawlessness and overreach, they gave Congress tools to address it decisively. But there are really only two of them: the power of the purse and impeachment.

So I wrote the book to say, “Look, presidential lawlessness is a significant threat to our liberties and to our aspiration to be a Republic under the rule of law. The system gives us weapons to combat it. If we don’t use them, that is a political choice that can be made, but let’s make it with our eyes open because it has serious consequences. I means we will no longer be the same kind of country.”

FP: What exactly are “high crimes and misdemeanors” and can you give a few brief examples of how has Obama committed them?

McCarthy: Thanks for asking that because it gets to another reason I wanted to write the book. There is mass confusion about what “high crimes and misdemeanors” means, which is somewhat surprising given that the Clinton impeachment happened less than a generation ago. But it does not refer to conventional “crimes” and “misdemeanors” that I prosecuted back when I was a government lawyer. It is a term of art borrowed from British law—in fact, the impeachment trial of Warren Hastings, who was charged in Parliament with “high crimes and misdemeanors” by Edmund Burke, was underway in England while our Constitution was being written, and the Framers were very engaged in such affairs. The phrase, as Hamilton explained, refers to the “political wrongs of public men”—meaning abuses of power and breaches of the public trust reposed in high executive officials. More than penal offenses, it much more resembles concepts found in military justice, e.g., dereliction of duty, failure to honor an oath, etc. The Framers were most concerned about executive maladministration that would undermine our constitutional framework, usurping the powers of the states and the other federal branches.

I recently heard former Attorney General Mukasey give a great example of how an impeachable offense need not be a standard crime or an indictable offense. Presidents have plenary, unreviewable constitutional power to issue pardons and commutations for federal crimes and sentences. If a president suddenly decided to pardon and commute the sentences of every single convict in federal prison and every indicted defendant in a federal case, there would be no crime in that. A president clearly has the constitutional authority to issue such an order. But it would also be a massive abuse of power and he could and, one hopes, surely would be impeached and removed from office for doing it.

FP: You emphasize that making the legal case for impeachment is not enough. Kindly explain.

McCarthy: In their genius, the Framers wanted us to have a clear standard—treason, bribery and high crimes and misdemeanors—defining what misconduct legally suffices to remove a president from power. But recognizing that removing a president would be very disruptive to our society, they wanted it to be hard to accomplish—so it would only be done in worthy cases, not as a result of partisan hackery. So while articles of impeachment (i.e., accusations of high crimes and misdemeanors) may be filed on just a simple majority of the House of Representatives, it requires a two-thirds Senate supermajority to remove the president from power. No matter how many provable impeachable offenses you have, then, a president will not be removed unless there is a broad-based popular will that he should be ousted. So the legal case for impeachment, the establishment of high crimes and misdemeanors, is not as important as the political case that the impeachable offenses truly warrant removal. Impeachment is essentially a political remedy, not a legal one.

FP: As a former prosecutor, you have gained some extra insights on this matter, the differences between a legal case and impeachment?

McCarthy: Yes, I have a chapter in the book that analyzes how different the criminal investigation and trial process is from the substantially political process of impeachment. I don’t mean “political” in a pejorative sense. I mean it in the sense that the Constitution is a division of political power—so I’m talking about the judicial process of ordinary law-enforcement cases versus the process of filing articles of impeachment in the House and conducting a Senate impeachment trial.

FP: The campaigns to impeach Nixon and Clinton involved very different ingredients than why Obama would need to be impeached, right?

McCarthy: The lawlessness in which Nixon and Clinton engaged, while certainly qualifying as “high crimes and misdemeanors,” was different not only in degree but kind from Obama’s. Clinton’s conduct was reprehensible but it did not really touch the core of his presidential duties, much less undermine the constitutional framework. Nixon’s was more severe, but it was largely based on a single transaction and was not a systematic assault on our governing framework—in fact, Nixon obeyed a court order, surrendered the tapes, and ultimately resigned from office rather than stonewalling, destroying the tapes (other than the infamous 18-minute gap), putting the country through an impeachment trial, and otherwise using his enormous power to fight to the bitter end.

FP: You demonstrate that all of this is very much connected to the “fundamental transformation” that Obama promised. Illuminate that for us please.

McCarthy: In marked contrast to Nixon and Clinton, Obama is a committed movement leftist who is using his raw power to make good on his vow to “fundamentally transform the United States of America” under circumstances where he does not have a public mandate and governing majority—most Americans, it turns out, like the country and don’t want it transformed. Of necessity, then, if he’s going to transform us, Obama has to do it outside the bounds of the law and traditional notions of presidential duty. It follows that there’s a slew of lawlessness and derelictions of duty.

Indeed, because Obama is a trained community organizer and steeped in Leftist strategies like Piven-Cloward, it follows that he presses his raw power beyond his legitimate authority as far as he thinks he can afford to go politically and that he overloads the system with crisis—so that by the time you barely wrap your brain around the details of one scandal, he’s two or three scandals down the road. There were lots of Clinton scandals, but they were mostly about his personal failings not a strategic challenge to the constitutional framework.

FP: What would the framers of this country think of Obama?

McCarthy: They’d think he should be impeached and removed, but they’d be more surprised, I imagine, at how drastically the country had changed, and how much the relation between the citizen and the central government had changed. Obama is a known quantity and he’s doing what one who had studied his background and record would expect him to do. And the president’s political opposition in Congress is feckless, but they are not inventing out of whole cloth the possibility of being damaged politically for resisting him. The wild card in the equation is the public. How important to us is it that we are still a republic under the rule of law rather than subjects of presidential whim. That’s hard to say, and that’s what would have surprised the Framers.

FP: The consequences for this nation if the American people do not give their support for their leaders to pursue impeachment?

McCarthy: Well, as I argue in the book, the best thing for the country would not be Obama’s impeachment. It would be to create the political conditions—by emphasizing the issue of presidential lawlessness—under which the president sees his interest as following the law, honoring his oath, and finishing his term that way. But if he is not going to do that—and things seem to be getting worse rather than better—something has to be done about it. The Framers gave Congress two tools: the power of the purse and impeachment. If neither of those remedies is going to be used, we are going to be a very different kind of country.

FP: Final thoughts?

McCarthy: The precedents being set today by Obama’s lawlessness and derelictions of duty are going to be available for exploitation by every future president, regardless of party or ideological bent. This should not be a partisan or a conservative issue. We all have a stake in the president’s not being above the law.

FP: Andrew C. McCarthy, thank you so much for joining Frontpage Interview.

McCarthy: It’s been my pleasure, thanks so much.