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GOP’s House Judiciary Chairman Clueless on Impeachment

July 14th, 2014 - 10:40 am

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.

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Top Rated Comments   
Of First importance is for the Republicans to take the Senate in November and not do anything stupid
Before then. Any talk of impeachment before then can only rally the Left and probably
Alienate many of the undecided voters. Everything Obama's doing and saying
Now, particularly his clever. & outrageous handling of the southern border
Crisis is calculated to provoke an over-reaction on the right. The Republicans need to be
Very cool right now. If they take the Senate all things may be possible but if they
Lose it.....turn out the lights, America!
11 weeks ago
11 weeks ago Link To Comment
What is so hard to understand about needing 2/3 of the Senate to convict? The Republicans could never get that in a wet dream. Proceeding with impeachment would tear the country apart, and insure nothing else was talked about except racist Republicans trying to commit a coup againt the American people, instead of Obama's lawbreaking and incompetence, which is all the media has to cover now.
11 weeks ago
11 weeks ago Link To Comment
The Palooka Party has put someone in charge whose job is to throw the fight.

Is anyone---anyone at all---surprised?
11 weeks ago
11 weeks ago Link To Comment
All Comments   (53)
All Comments   (53)
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Replacing RINOs is the most important issue in politics for people that care about the country. Look at it this way, if you had an arsonist running around your town setting fires it would be important to put out his fires. However, if your Fire Chief, his Captains and many of the Lieutenants were sympathetic to arson and they didn't bother keeping the fire trucks and firefighting equipment in good order, the first priority would be replacing the inoperative Fire Dept so you could fight the arsonist.

We have played this sucker's game for years of overlooking the failings of the RINOs, electing them, and then pretending the people that we just elected with their obvious faults will then do the right thing. NO. THEY. WON'T.

If you elect a RINO, against all the warnings, you have no right to act frustrated and confused when they do what they always do, make peace with the commie-libs and advance the commie-lib agenda.
10 weeks ago
10 weeks ago Link To Comment
Goodlatte is an establishment tool.
The truth is that there aren't two parties in Washington, D.C. There are one and a half: the statists, and half a party's worth of Constitutionalists.
10 weeks ago
10 weeks ago Link To Comment
Well, one can applaud the earnest sincerity and all that, but here on earth this article comes across as deeply crappy.

Our future will not be determined by lawyers dedicated to special pleading. Article 2.4 actually speaks of 'conviction' not, as the author misleadingly implies, 'commission'.

Yes, there are a myriad possible interpretations, BUT... Put politely, to root around in the footnotes of Federalist papers and mouldy case law in search of a dangling modifier to rehang, or an infinitive to split, or an obsolete comma to expunge, or a conjunction to be read disjunctively not conjunctively (gasp!) is ...well, pathetic. In the real world it all adds up to distinctions without a difference, a colossal waste of time and money. The effect is to preserve the status quo, propping up a decaying society whose defenders dance on pinheads.

The rule of law established by the Founders is now effectively dead, corrupted by unaccountable judges and the rule of lawyers and legalisms. Today's legal profession bellies up to the trough like the rest of the usual suspects, an integral part of our perverse crony culture -- same problem, same smell.

Writers as different as Mark Steyn and Niall Ferguson outsell Andrew C McCarthy by orders of magnitude, for good reason: reality won't go away. The lawyers have done enough damage. Time for direct action, by the people.

BTW, what's wrong with a motion of no confidence, analogous to a 'sense of the Senate' vote? We all know ours is not a parliamentary system (blahblahblah), but so what? Just think of the headline value, and that's just for starters....
11 weeks ago
11 weeks ago Link To Comment
Pointing out ruling class quislings by calling them on their disingenuous performances serves a useful purpose. Outselling? A motion? Headline value? LOL "In the real world it all adds up to distinctions without a difference, a colossal waste of time and money."
11 weeks ago
11 weeks ago Link To Comment
calling them on their disingenuous performances serves a useful purpose.
...which is what, exactly, aside from a chance for you to pose?
If you're not willing to do anything -- and you're not -- then why not go for a headline that will at least attract attention. You're smug, inert and busted and you don't like it. Oh well.
10 weeks ago
10 weeks ago Link To Comment
Win the senate, pass some simple perfectly clear laws that solve some real problems, watch the criminal refuse to enforce them, THEN impeach him.
11 weeks ago
11 weeks ago Link To Comment
LOL The Senate! More and clearer laws!
11 weeks ago
11 weeks ago Link To Comment
Exactly right, Andrew. Of course those of us of a certain age remember going over most of this back in the Clintoon days. And like then history repeats itself: Clintoon should have been impeached and convicted and removed from office for filegate and travelgate, which were each more than sufficient. We need never have heard Monica's name.

And now Obama has already commited half a dozen acts any one of which is more than sufficient for impeachment, conviction, and removal. The IRS scandal, the failure to fess up, the failure of the FBI to investigate and prosecute, are *each* sufficient. The current border situation is more than sufficient *politically* even if, strictly speaking, the law requires some of it - or all of it! One could make a laundry list of other items, including Obamacare waivers, which are as near as daylight corruption as one could ask for. Failure to act on Benghazi is very nearly sufficient. But the laundry list is distracting politically, it should not be presented in any trial.

And what prevents? You know the answer, we all do: Harry Reid.

Which reminds me: the simple failure to submit and pass a budget as required by law, should be sufficient to remove a president as incompetent or traitorous.

--

ps - we have a guy in Congress named Goodlatte? are you sure he was elected, rather than ordered by a majority at Starbucks? OMG.
11 weeks ago
11 weeks ago Link To Comment
Well, with comprehension like yours - i.e., stating that the President should have been impeached and convicted base upon the alleged crimes of the First Lady - we can see that the fans of Andy McCarthy are all on solid Constitutional grounds here.

Sheesh!
11 weeks ago
11 weeks ago Link To Comment
The first lady has no legal standing at all, friend. Whatever abuse of power that occurred is all Bubba's responsibility. Frankly I don't give a rat's end which of the Clintoons was responsible, and have huge trouble believing that both did not know about it, at least.

However you raise additional interesting issues, what IF it's the first lady who is guilty of government malfeasance? Actually let me turn that around, what IF a sitting president abuses government for the benefit of his wife, as Bubba did to get Hildabeast elected to the Senate? I would suggest that further statutory and even constitutional laws might be appropriate, although I'll bet there are long existing federal laws that already forbid it.
10 weeks ago
10 weeks ago Link To Comment
Welll said Mr. McCarthy.
11 weeks ago
11 weeks ago Link To Comment
Lerner should be incarcerated.
Holder should be impeached.
Not need to go after the big fish, if you can't get the employees that do his dirty work.
11 weeks ago
11 weeks ago Link To Comment
The only useful actions are to win elections, and file the House's lawsuit against Presidential lawmaking. Everything else is just political self-abuse.
11 weeks ago
11 weeks ago Link To Comment
Really?
Have you looked at the sort of candidates we're getting from the GOP-E?
11 weeks ago
11 weeks ago Link To Comment
Everything? Come on. Holding someone, somewhere truly accountable for something would be a watershed that could quite conceivably build to a tsunami. The people are dying for it.
11 weeks ago
11 weeks ago Link To Comment
And here we thought the many shovel-ready slush funds went mostly to Democrat cronies. Must've been some left over.
11 weeks ago
11 weeks ago Link To Comment
>>>>Our Washington ruling class does not see itself as bound by our quaint Constitution.<<<<

To be fair, then the subject class is no longer bound, therefore, to obedience to the ruling class. Let the games begin.

Subotai Bahadur
11 weeks ago
11 weeks ago Link To Comment
When were Americans ever so bound?
11 weeks ago
11 weeks ago Link To Comment
"...(Goodlatte) proceeded to mangle that very clear standard, opining that President Obama “has not committed the kind of criminal acts that call for that.”

It's true, what you say. The Chairman of the House Judiciary Committee hasn't a clue as to the meaning of high crimes and misdemeanors.

"[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."

The Constitution...you mean that document Obama referenced (before he clammed up) as a "charter of negative liberties" ?

"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."

Not even a smidgen of doubt about that one and this president.

"(Goodlatte) is 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.

Awash in ignorance wusses, these United States.
11 weeks ago
11 weeks ago Link To Comment
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