RUTHFULLY YOURS

Chairman Bob Goodlatte (R., Va.) took to one of the Sunday shows to demonstrate his cluelessness. After explaining that “the Constitution is very clear as to what constitutes grounds for impeachment of the president of the United States,” he proceeded to mangle that very clear standard, opining that President Obama “has not committed the kind of criminal acts that call for that.”

In point of fact, no “criminal acts” are necessary before a president may be impeached. The very clear standard the Constitution prescribes calls for impeachment upon the commission of treason, bribery, or high crimes and misdemeanors. Treason and bribery are, of course, well known criminal acts. As I illustrate in Faithless Execution, “high crimes and misdemeanors” is a term of art borrowed from British law. It does not refer—at least, not necessarily—to criminal acts that violate the penal code. Instead, it captures what Hamilton, in Federalist No. 65, described as:

the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.

The concept conveyed by “high crimes and misdemeanors” is executive maladministration, whether out of imperiousness, corruption or incompetence. In that sense, it is more redolent of military justice offenses than criminal acts that violate the penal code. Like a soldier, one who owes fiduciary responsibility is liable for acts that would not be considered criminal wrongs if committed by an ordinary civilian. Dereliction of duty, conduct unbecoming, profound deceitfulness, and the failure to honor an oath, to take a few obvious examples, would qualify as high crimes and misdemeanors even if they might not be indictable offenses if committed by one in whom high public trust was not reposed.

As I further relate in Faithless Execution, what the Framers were most concerned about was presidential misconduct that undermined our governing framework, particularly the separation of powers:

[F]ixing on betrayal of the president’s fiduciary duty and oath of allegiance to our system of government, [George] Mason elaborated that “attempts to subvert the Constitution” would be chief among the “many great and dangerous offences” beyond treason and bribery for which removal of the president would be warranted. Given that we here consider President Obama, who has, among other wrongs, actually succeeded in usurping congressional law-writing power – in the sense that he is ubiquitously exercising it with impunity – it is noteworthy that, for the Framers, mere attempts to subvert the constitution were a sufficiently heinous breach of trust to warrant removal by impeachment.

I also quote this useful synopsis of “high crimes and misdemeanors” from the Constitutional Rights Foundation:

Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.

It is this uniquely political aspect of impeachment that distinguishes it from judicial proceedings and technical legal processes. As the Constitution Society’s Jon Roland explains, it was immaterial whether the offenses cited in articles of impeachment “were prohibited by statutes”; what mattered were

the obligations of the offender…. The obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.”

The Framers wanted the legal basis for impeachment to be clear (even if it remains a mystery to the man Republicans have chosen to lead the judiciary committee), but they also wanted real impeachment—meaning removal from office, not just the formal accusation of impeachable offenses—to be difficult to carry out. The requirement of a two-thirds super-majority vote in the Senate to remove the president from power ensures that impeachment can succeed only if there is a public consensus supporting it—a consensus that cuts across partisan and ideological lines.

Consequently, it makes sense that the House is not “drawing up articles of impeachment,” as Rep. Goodlatte took pains to assure George Stephanopoulos. Impeachment is a political remedy involving the stripping of political authority, not the proof of crimes. In that most important of senses, it is a matter of public will.

At the moment, there is not widespread popular support for impeaching President Obama; thus, as I argue in Faithless Execution, it would be counterproductive for the House to file articles of impeachment. If it took such a step—before building political support by focusing the public on the full extent of executive lawlessness and why it is such a threat to our liberties and our system of government—the president would easily prevail in a Senate trial. The administration and the media would spin that outcome as an endorsement of Obama’s imperial presidency. The result: those who had set out trying to rein in presidential lawlessness would inadvertently have encouraged more of it.

Nevertheless, Goodlatte’s assertion that Obama “has not committed” impeachable offenses is not only specious, it is undercut by his simultaneous concession that the president has refused to execute the laws faithfully on immigration and a variety of other issues. Naturally, Goodlatte claims that the more appropriate response to what he acknowledges is Obama’s lawlessness would be House Speaker John Boehner’s proposed lawsuit. It apparently has not dawned on the judiciary committee chairman that the legal basis for concluding that Obama has committed high crimes and misdemeanors is far stronger than the legal basis for concluding that the Congress has standing to sue the president.

Still, Goodlatte’s commentary underscores a central contention of Faithless Execution: Presidential lawlessness should not be a partisan issue. It should offend everyone. The precedents for executive domination that President Obama is setting will be available for exploitation by every future president, regardless of party. Godlatte admits the president does not execute the laws faithfully—the president’s main domestic duty—but does not see that as a ground for impeachment. Got that? He’s not saying, “Look, we don’t have the political support necessary to proceed with impeachment”; he is saying rampant presidential lawlessness does not constitute a legal basis for impeachment.

Translation: Our Washington ruling class does not see itself as bound by our quaint Constitution. When a Republican eventually wins the White House, expect the same rule by decree.