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.
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
