Faithless Execution. Andrew C McCarthy

the laws. Clinton, moreover, was clearly guilty.

      Nevertheless, the American people obviously did not want him removed over the charges. Opinion polls illustrated that a majority of the public, while troubled by Clinton’s character, approved of his overall job performance; and with impeachment proceedings under way, “approval” was effectively a proxy for rejecting the effort to oust him.¹⁷ In addition, on the eve of the House decision to vote articles of impeachment, the public handed Republicans a historically significant loss in the 1998 midterm elections. With Clinton’s misconduct front-and-center in the campaign, Republicans gained no Senate seats and actually lost four seats in the House. That may sound marginal, but it marked the first time in over sixty years that a president’s opposition party failed to gain seats in a midterm election, and the first time since 1822 that this happened in the midterm elections of a president’s second term.¹⁸ With the public clearly disfavoring impeachment, neither article against Clinton garnered majority support, much less the 67 votes needed for conviction, despite the Republicans’ 55-to-45 majority in the Senate.¹⁹

      Lawmakers who have determined that presidential malfeasance merits impeachment have an obligation to try to persuade Americans that this is so. Making the effort is not indecorous partisanship; it is the imperative of preserving the Constitution to the best of one’s abilities. Nevertheless, lawmakers must also accept that impeachment is innately political. It is not the final link in a rigorous chain of legal logic. High crimes and misdemeanors do not equal impeachment and removal the way, say, stealing your company’s money equals embezzlement.

      Law is obliged to be logical; politics is not. Law is about faithfully applying settled principles to current controversies—reason shorn of passion. Politics is about compromise and social cohesion—the art of the possible, not of the rigorously rational. If, after extensively scrutinizing the evidence, Americans decide that their president is a creep but his personal creepiness does not materially compromise his job performance, that is a decision they get to make. Members of Congress should respect that decision even if they believe it is wrong—as long as they have had a full and fair opportunity to make the case that the president should be removed.

      Obamacare provides a useful analogy. What so enraged Americans about the health-care overhaul that they subjected Democrats throughout the nation, at both the federal and state levels, to a historic “shellacking” in the 2010 elections?²⁰ Remember, this was before the fraud that pervaded Obamacare’s enactment was well understood, before much of the lawlessness that has attended its implementation, and before the havoc it is now wreaking on American families and businesses. The public’s anger was inspired by the arrogance exhibited by Democrats in unilaterally ramming the “Affordable” Care Act through despite the full-throated opposition of a strong majority of Americans. It is extremely foolish for politicians to press ahead with highly volatile measures against the will of the American people.

      To gauge the strength of the political case for impeachment, the sensibilities of the public to whom the case must be made are just as important as the gravity of the president’s malfeasance. You can have a hundred readily provable articles of impeachment; what really counts, though, is what Americans think of their president. The question is not whether the president has done wrong—that will rarely be 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.

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