This month, Washington seems caught in some strange time loop. The President allegedly fighting off an attempt to remove him while Members of Congress are denouncing his “Imperial Presidency” and contempt for constitutional law. It must be enough to give Bob Woodword and Carl Bernstein vertigo.
As one of the legal experts who testified during the Clinton Impeachment and lead defense counsel in the last judicial impeachment trial in the Senate, I have been struck by the replication of a number of misconceptions surrounding impeachment. That led to Sunday’s column on certain myths regarding impeachment. According to a CNN/ORC poll last week, some 33 percent of Americans think the president should be impeached. Over a majority now disapprove of his conduct in office according to other polls. However, that is not enough for impeachment. As many of you know, I am highly troubled about the actions taken by President Obama in violation of the Separation of Powers. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach. Some like the violations of the power of the purse in the shifting of hundreds of millions of dollars raise extremely serious challenges to our system. However, I do not believe that these violations have yet reached the point of impeachable offenses. Ideally, a federal court will review some of these violations and show that the system can work in the maintenance of the lines of separation though the Administration is clearly going to fight hard to block any review of the merits by any federal court. That is where such matters should, in my view, be heard and resolved. In the meantime, the President’s threat to continue to act unilaterally is playing a dangerous game of chicken in our system and, if he goes too far in an act defying clear congressional or judicial authority, he could cross over from interpretive disagreements into impeachable offenses. Yet, the current array of conflicts have divided lower judges on the merits. Such interpretive disagreements are not the thing that impeachments are made off. Having said that, one should not take the lack of impeachable offenses to take away from what some of us view as very serious violations by this President — a usurpation of authority that all citizens should denounce in the interests of our constitutional system.
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Some 40 years after Richard Nixon resigned to avoid his likely impeachment by the House of Representatives, Washington is again talking impeachment. Members of Congress are denouncing the president’s contempt for constitutional law, while the president is raising money to fight the effort to remove him. But this time, the money pouring in would be just as well spent on defense against Bigfoot. Much of the debate has been more mythological than constitutional.
1. An impeachable offense is anything Congress says it is.
People pushing for President Obama’s impeachment have cited rationales ranging from the border crisis to Benghazi to Obamacare to the dismantling of “our constitutional republic, our national security, our electoral system, our economic strength, our rights and liberties.” In other words, anything goes. This echoes the characterization by Gerald Ford, who as House minority leader in 1970 made the ill-considered statement that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” (This interpretation was, not surprisingly, part of a frivolous effort to impeach Supreme Court Justice William O. Douglas, whom Ford denounced for espousing “liberal opinions,” for defending the “filthy” Swedish film “I Am Curious (Yellow)” and for writing a magazine article that “praises the lusty, lurid, and risque along with the social protest of left-wing folk singers.”)
But Congress’s exclusive power to impeach does not license it to abuse that power, any more than the Supreme Court’s final say on laws gives it license to deliver arbitrary rulings. The framers carefully defined the grounds for impeachment as “treason, bribery, or other high crimes and misdemeanors” — language with British legal precedent. They clearly did not want removal of the president subject to congressional whim. Indeed, they rejected the addition of “maladministration” after James Madison cautioned that “so vague a term will be equivalent to a tenure during pleasure of the Senate.”
It is the standard that justifies the power, not the inverse, as Ford saw it. The fact that only two presidents have been impeached, and none have been removed, suggests that most members of Congress take the impeachment standard seriously.
2. An impeachable offense must involve a violation of criminal law.
While there’s a high bar for what constitutes grounds for impeachment, an offense does not have to be indictable. Serious misconduct or a violation of public trust is enough. Madison saw impeachment as “defending the community against the incapacity, negligence or perfidy of the chief magistrate.” And the founders emphasized that impeachments were about what happened in the political arena: involving “political crimes and misdemeanors” and resulting in “political punishments.”
So consider the $454 million Obama shifted out of the Affordable Care Act’s Prevention and Public Health Fund. He wouldn’t have to pocket that money to warrant impeachment. But he’d have to do more than he did: redirect it to another purpose without congressional approval and offer a faulty interpretation of the act. If the president were to openly defy clear federal authority and order unlawful acts, he would move from the realm of using arguable discretion to that of being a danger to the system as a whole.
3. History establishes a clear precedent for impeachable conduct.
Regrettably, this is also untrue. Bill Clinton was impeached primarily for criminal conduct: lying under oath and misleading a federal grand jury about his affair with Monica Lewinsky. Nixon would have been impeached for a wide array of criminal acts, as well as abuses of power.
President Andrew Johnson’s impeachment in 1868 may be the most relevant to the current controversy. Like Obama, Johnson was accused of unconstitutional executive appointments, misuse of federal funds and violating federal law. Most significantly, he replaced Secretary of War Edwin M. Stanton in open defiance of the Tenure of Office Act — a law passed over his veto and later found unconstitutional by the Supreme Court. The feeble merits of his impeachment were captured best in the 10th article, charging Johnson with delivering three speeches that disrespected Congress.
4. Impeaching a president is like recalling a governor.
Many people discuss impeachment as a way to express dissatisfaction or as a mechanism allowing for a change in leadership. “Impeachment is no more or less than the recall of an elected official who isn’t up to the job,” conservative columnists Floyd and Mary Beth Brown wrote. “Obama deserves recall much more than Gov. Gray Davis, and he was replaced by Gov. Arnold Schwarzenegger in a special recall election Oct. 7, 2003, in California.”
In Britain and other parliamentary systems, the legislature can end the term of a head of government early with a no-confidence vote, showing that he or she has lost the support of the country. But the United States rejected that approach in favor of greater stability and the predictability of a four-year presidential term.
It doesn’t matter that polls show more than 50 percent of Americans disapprove of the job Obama is doing. Unpopularity is not an impeachable offense. And impeachment was not designed as relief for voter remorse.
5. Obama is in danger of impeachment.
House Republicans on Wednesday voted to sue Obama for exceeding his constitutional authority when implementing the Affordable Care Act. The idea that the lawsuit is a prelude to impeachment, however, is primarily coming from the White House and its allies as they try to rally the Democratic base ahead of the midterms. House Speaker John Boehner has done everything short of hiring blimps to say that there will be no impeachment.
Obama is as likely to be impeached as he is to be installed as the next pontiff. And I say that as someone who has testified in Congress that this president has violated federal laws, unconstitutionally appointed various executive-branch officers and improperly transferred money. Nevertheless, many of these disputes have divided judges on the merits. Presidents are allowed to challenge Congress in such conflicts without being subject to impeachment. Where they cross the line is when they ignore final judicial rulings in acts of contempt of both courts and Congress. Obama has not done that.
There are, however, serious questions raised by the president’s pledge to go it alone in areas ranging from health care to immigration. And there is a real crisis in how our system is changing with the rise of the uber-presidency. That’s the threat that deserves attention and debate. We can leave this Bigfoot sighting in the constitutional wilderness.
Jonathan Turley, the Shapiro professor of public interest law at George Washington University, has testified in Congress about impeachment and served as lead defense counsel for Judge Thomas Porteous in his Senate impeachment trial.
Washington Post (Sunday) August 3, 2014
http://www.foxnews.com/politics/2014/08/03/gop-rep-king-reignites-impeachment-debate-wh-unconvinced-house-has-dropped/ Looks like John Boehner really does not have control of his caucus as one of them talks about impeachment every other day. And in the end that lack of control may actually lead to it…….
“3. History establishes a clear precedent for impeachable conduct.
Regrettably, this is also untrue. Bill Clinton was impeached primarily for criminal conduct: lying under oath and misleading a federal grand jury about his affair with Monica Lewinsky. Nixon would have been impeached for a wide array of criminal acts, as well as abuses of power.”
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In this case, the historical precedent is a myth but history establishes a clear precedent for requiring that the President have two citizen-parents as a natural born citizen, as all previous Presidents, save one who defrauded, had two citizen-parents.
The requirement for eligibility was raised to the highest semantic form for the highest office, immediately prior to ratification, to preclude foreign allegiances, the potential for which existed in this case as the father was a foreign citizen.
If historical precedent bears heavily on impeachment, it must also bear heavily on eligibility.
Annulment and abrogation to make void this occupation of the office, not impeachment, is the sole overriding, definitive issue.
Ineligibility for the office makes impeachment moot.
When screw ball conservatives like Sarah Palin play the impeachment ball, primarily to get an audience for their new vocal outlets, it backfires. The White House plays this ball game, too and it helps them collect contributions. Thank you Sarah Palin. It took you transfers to five colleges to get a degree in sports broadcasting. Now put that education to work and go fly a kite.
If Jefferson was in office today he’d be up for impeachment as well as Madison….. Just because you don’t like them personally or because of a political point of view, it’s not an impeachable offense.
Just think what it was like before both the president and Vice President ran on the same ticket….. It must have been mayhem…. Just ask Mr. Burr…. Political Rivilarys run deep.
Nick Spinelli
Obama is Commander in Chief. He should have the military take over Congress and put guns to the heads of those traitorous Republicans and tell them to vote, and vote the way Obama wants. Enough of this pussy footing!
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Like in Gaza and the Ukraine.
Hello.
I am unsure if this is the appropriate place to address this question or not. If not, please direct me to the correct source.
Question: Are you familiar with the new guidelines given to AP students by the College Board? If so, what is your opinion? Is it as derelict as I have read regarding the background of American history? If that is true, what can be done about protesting this document?
Thank you for your continuous and unbiased information. We are desperate for it!
Sent from Windows Mail
Angelo Codevilla’s thoughts on how our system of government is changing.
http://www.libertylawsite.org/2014/08/03/impeachment-wont-stop-the-debasement-of-our-government/
Using the Andrew Johnson example, I would have to posit that cause for impeachment is what the House finds it is. Whether that will get you convicted is another matter. Who can forget the Democrats running outside with Bill Clinton to have an ‘usie’ taken with him after they prevented his conviction.
Given the President’s recent statements regarding torture, and his refusal to abide by our own laws and treaties, I believe there does exist a genuine avenue for impeachment. However, to present an impeachment case base upon his knowing refusal to investigate and prosecute war crimes (in fact he went out of his way to stop others from abiding by their legal duties) the Republicans would have to present evidence that their own sacred cows were even more culpable. So, it’s just not going to happen. A gentlemen’s agreement.
Will the Congress regard snooping a cognizable offense and a criminal act? Our country’s reputation has already hit a low in the international community when it was learned that our beloved ‘NSA’ snooped on Germany, one of the most important allies. Now, we are hearing Senate computers are hacked. Watergate Scandal was surely a one of its kind that impeached a President. What are ‘WE’ thinking about the snooping issue? Will we just let it pass by marking it as ‘just another fiasco’?
Obama is Commander in Chief. He should have the military take over Congress and put guns to the heads of those traitorous Republicans and tell them to vote, and vote the way Obama wants. Enough of this pussy footing!
Many Presidents throughout history have held office when one or both houses of Congress opposed him politically. They all muddled through without seizing an imperial presidency. In fact, our political system pits these bodies of government against each other to prevent too much power accumulating in on place.
And for those with no memory, Democrats blocked Bush on each and every issue they could in his 2nd term, even before they had a majority in 2006. So it is not the GOP’s “fault” that Obama has seized an imperial presidency, and lied repeatedly to the American people on important issues. It’s his responsibility alone.
http://washingtonexaminer.com/after-bush-was-re-elected-in-2004-democrats-in-congress-did-not-compromise/article/2512871
While the President’s popularity rating may be low, part of the reason is that he is a centrist and has both ends of the political spectrum angry with him for entirely different reasons, i.e. conditions which at least half the people favor. For some, his skin color is the bottom line. For others, his support of military attacks are the bottom line. There is not a majority who are angry with him for the same reason, as there may have been with Presidents Clinton and Nixon.
I agree with Randyjet. I believe that today the President should call a Special Session which starts in one week to take care of all the unfinished business. Also today he should make a recess appointment of all judicial nominees who have been waiting for Congressional action for more than six months.
While I agree with much of what Prof Turley says in regards to some of Obama’s actions, he makes the mistake of omitting context. The Constitution and the checks and balances are predicated on a loyal opposition and it has worked well when that was the common rule. Now we have a disloyal opposition which seeks to void laws they do not like by subverting the whole functioning of government. What Obama has done was a matter of necessity, and not one of arbitrary desire to rule alone.
The fact that the GOP seeks to void laws, agencies, and even judicial powers by refusing to allow votes on things like appointments to boards that they want abolished. and votes to fill judicial vacancies, and appropriating money to fund legitimate agencies is simply wrong. If the House wants to sue the President for his actions, then I suggest that the President sue the House and GOP Senators for not doing their jobs. What if the House wants to stop funding the 9th Circuit court of Appeals? Think that the President would be exceeding his powers if he took money from one part of the DoJ budget and applied it to the salaries for them? Would he be remiss if he moved some justices from one part of the Judicial bench to another if Congress refused to confirm any judges in one district? We are faced with such a situation and as President he has to ensure the government functions, despite the wish of the GOP that it NOT function except on its own terms.
Frank Sinatra Live – “I Did It My Way” Relax and have a listen.
Good post. Thank you. I spent the weekend with in-laws in a not so remote part of the intermountain west. I read their newspaper over the weekend and over two days there was not one article of national or international news. This on the weekend where our president admitted we committed war crimes but stopped short of saying anyone should be prosecuted, least of all our illustrious NSA director that has perjured himself. So I have little faith that the majority of our citizens has a clue about what our government is really about.
Unfortunately the motto of our countries citizens seems to be “I want it my way, and I want it now, and I know it’s constitutional because I want it.”
I hope SWM reads this post. The WH is trying to salvage the 2014 election the way Clinton did serendipitously in 1998. The Dem base was so angry they won more seats in that off year election, the first time since the 1930’s. They love playing victim and being angry. Two negative dynamics that unfortunately was become the pathology of the once noble Dem party. I’m glad my old man is not alive to see it.
Next there will be fist fights in congress.