President Barack Obama’s surrogates are talking up his own impeachment, ginning up his base for the midterms. It can make some wonder if he’s intentionally pushing forward to create a constitutional crisis for political gain later this year and a precedent for imperial presidential powers in future years.
There’s been a lot of misinformation about impeachment. Many of the public debates back and forth about what are impeachable offenses don’t reflect the constitutional reality that impeachment is a political question, not a legal one.
Anyone in the executive branch of the federal government (or the federal judiciary) can be removed if the House and Senate agree to do so. For executive officers, historically this threat of impeachment and removal is effectively only made against a president or vice president, since when anyone else in the executive branch–appointed by the president–becomes so radioactive that Congress is moving toward impeachment, that person typically resigns to draw fire away from the president. If he refuses to resign, the president should fire him.
Article II, Section 4 of the Constitution reads, “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, and other high Crimes and Misdemeanors.” In Article I of the Constitution, Section 2, Clause 5 gives the House power to impeach by majority vote, and Section 3, Clause 6 gives the Senate power to remove an impeached person from office by a two-thirds vote.
The Constitution only specifies two specific crimes for impeachment. One is bribery, which is defined by federal law. The other is treason, which is the only crime defined in the Constitution itself.
Treason has a very narrow definition. Article III, Section 3, Clause 1 of the Constitution specifies that it only includes actually waging war against the United States (meaning military operations, not political “war”), or siding with wartime enemies of the United States by giving them “aid and comfort,” which means giving ammunition, intelligence, supplies, or other such material support.
Aside from that, “high crimes and misdemeanors” means essentially whatever Congress says it means. There is no legal standard for impeachment.
There are three ways to read the impeachment clauses. One is that impeachable crimes are literal crimes, found in Title 18 of the United States Code, or perhaps state crimes as well.
This was actually the case with Bill Clinton, who committed perjury–which is a federal felony. Many people think of only felonies as impeachable crimes, though there’s obviously a hook in the Constitution’s text to say you can impeach for misdemeanors as well.
When speaking in this sense the word “crime” must be strictly defined. It’s not enough to say “crimes against the country” or “crimes against the Constitution.” The ancient phrase nulla poena sine leges is the basic rule in criminal law. It’s translated, “no punishment without law,” and it means you don’t punish someone unless there’s a specific criminal law they are violating.
The second view could be any violation of the law, whether criminal or civil. (Most laws are civil.) Again, the infraction could be federal or state. Under this view, whatever the law requires, if a government official violates it, then Congress is justified in impeaching that officer even if it was a civil offense as opposed to an actual crime.
The third view is a failure to uphold the rule of law. One of the counts against Richard Nixon was based on this general principle. Under that view, any president violating his constitutional duty under Article II’s Take Care Clause that “he shall take care that the laws be faithfully executed” can be removed from office.
As Breitbart News’s Tony Lee reported, (liberal) Prof. Jonathan Turley and (conservative) Andrew McCarthy are both of this view. Presidents can be impeached for “serious misconduct or a violation of public trust,” said Turley, and McCarthy’s book Faithless Executive explores this topic in detail.
Each member of the House gets to decide which of these three views to adopt. At bottom, an impeachable offense is whatever each congressman decides it is. If the House impeaches, then a removable offense is whatever each senator decides it is.
The Framers of the Constitution deliberately left it to the politicians, expecting that they would do whatever the American people want them to do. With current polls showing a majority of voters do not think Obama’s conduct rises to the level of being removed from office, Republicans would pay a steep price if they were to push it. If things would ever get so bad that a large majority of Americans demanded impeachment, then Democrats would pay a steep price if they opposed it.
On the other hand, the Constitution designed the office of the president to answer to the American people, not to Congress. The Framers rejected Britain’s system of parliamentary supremacy.
That means also rejecting the power of Parliament to remove a chief executive through a vote of no confidence. So while “high crimes and misdemeanors” can mean anything Congress wants, it’s not supposed to be just strong disapproval of the president’s performance. The American people gave Obama a second four-year term despite extremely passionate opposition, and polls show increasingly more voters are regretting their vote for him. Nonetheless, his election can only be undone by something more than buyer’s remorse.
That’s why the Senate requires a two-thirds vote to remove. A supermajority of the upper house of Congress must conclude a president is unfit for office before removing him. That’s why in all of American history only two presidents have been impeached, and no president has ever been removed from office. The only president who might have suffered that fate–Nixon–resigned instead.
Right now Obama is violating his duty to enforce immigration law. Coupled with effectively rewriting Obamacare by not enforcing key provisions, and other actions pertaining to LGBT issues and religious liberty, voting rights, and other matters, some national voices like Mark Levin believe Obama is in that third category now.
Next month if Obama issues a broad and illegal executive order granting work permits to perhaps several million illegal aliens, he will be declaring new law without going through Congress. He’ll definitely be in that third category then, and if any aspect of granting work permits affirmatively violates federal law Obama would be in the second category.
Congress also has the ability to change the law to move any particular situation from one category to another. Take for example the border crisis. The bill passed by the House on Aug. 1 limits Obama’s DACA program and his ability to grant benefits that many regard as amnesty. If Congress had the votes to make it law, then Obama certainly would be in that second category if he violated it. In theory, Congress could make it a crime to grant a work permit to anyone illegally in the U.S., in which case Obama would be in the first category of impeachable offenses.
Obama seems to be pursuing a lawless course of action for two reasons. First, the midterm elections. Democrats keep using the words “impeachment” to energize their base and raise money. Also, filling air-time with impeachment distracts from talking about the facts on jobs, EPA regulations, Obamacare, foreign policy, and the border.
Republicans are poised to do very well in November because most voters disapprove of Obama’s performance and direction. So Democrats are trying to get Republicans focused on something that some in the GOP base would like but that moderate voters do not support, hoping to change the national conversation to stave off electoral disaster.
If Republicans take the Senate, Obama will lose Sen. Harry Reid (D-NV), whose unprecedented abuses and tactics as Senate majority leader have kept countless House bills from a vote that would have exposed Obama when he vetoed them. The last two years of Obama’s presidency would become toxic for the Democratic label going into 2016.
But Obama’s cynical, scorched-earth strategy also leaves Obama free to actually push ahead further past the legal line. If he gets away with it, he will have radically expanded presidential power. Future presidents will try the same thing if they conclude that they have the votes in either the House or Senate to avoid being removed from office.
The week before his 2008 election, Obama declared to the nation, “We are five days away from fundamentally transforming the United States of America.” What seemed like grandiose rhetoric at the time now seems like a promise to alter or abolish the Constitution’s systems of federalism, the separation of powers, and checks and balances to replace the presidency found in Article II with an imperial presidency.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.
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