- - Monday, August 11, 2014


By Andrew C. McCarthy
Encounter Books, $23.99, 234 pages

As assistant United States attorney for the Southern District of New York, Andrew McCarthy earned a reputation as a well-prepared, effective prosecutor. He is best known for prosecuting — and putting in prison — Sheik Omar Abdel Rahman and 11 others for the 1993 truck bombing of the World Trade Center. He retired in 2003 and is now a senior fellow at the Foundation for the Defense of Democracies.

His latest project is this carefully researched and perceptive book about the possibility of impeaching President Obama.

In recent days, various Democratic fundraising arms have been touting impeachment as a means of arousing their base and raising money. So far, it has worked. At the other end of the spectrum, Sarah Palin has been all over talk radio pushing impeachment. When asked by host Michael Medved where the 67 Senate votes would come from to ensure a conviction, she had no answer other than a lame statement about senators deciding to “do the right thing.” Pressed for names of Senate Democrats who might vote for it, she had none.

Therein lies the problem, according to Mr. McCarthy. He points out that many people consider the process to be an arcane legal one. He says it is true one needs to construct a clear and provable legal case. Nevertheless, he writes, “impeachment is not about what the law allows. Impeachment is a matter of political will.”

You would expect the author, given his background, to construct the legal case, and he does. First, he states his conclusion: “There is no doubt in my mind that President Obama ought to be impeached and removed from office.” Making it happen is another matter. He writes, “The legal case … is very strong. The political case lags far behind — and it is the only case that matters.”

The Constitution offers two methods for curbing presidential overreach: the power of the purse and the impeachment process. In the late years of the Vietnam War, Congress, controlled by Democrats, used the power of the purse to stop funds requested by Republican presidents for the war. Considering the divided nature of the current Congress, this course of action is not available.

Mr. McCarthy points out that it is the president’s duty “to take care that the laws be faithfully executed, which includes those with which he disagrees on policy grounds.” In his oath of office, Mr. Obama vowed, “to best of my ability, to preserve protect and defend the Constitution of the United States” He cites a number of cases in which the president did not “faithfully execute” laws.

Among these are the “waivers” and rewritings by Mr. Obama of Obamacare. Another was his 2012 executive order to grant de facto “amnesty” to illegal aliens who had come to the United States under age 18. While many laud the concept, actively doing it by fiat, in the face of existing law, constitutes a failure to execute the laws of the nation, according to the author. He concludes, “The failure to execute the laws faithfully is a high crime and misdemeanor. Systematic faithlessness in this regard imperils our system and our liberties.”

Impeachment by the House of Representatives is, in effect, a statement of charges. If it is voted for by a majority of members, it then goes to the Senate, where a trial is conducted, with the chief justice of the Supreme Court presiding. In order for the House’s case to prevail and the president removed from office, two-thirds of the members of the Senate — 67 — must vote in favor of it. In the two cases so far, Presidents Andrew Johnson in 1868 and Bill Clinton in 1998, there were not enough votes to convict. That is the case today also, Mr. McCarthy points out.

As Prime Minister Margaret Thatcher once said, “You have to win the argument before you can hope to win the vote.” Mr. McCarthy adds, “An argument cannot be won if it is never made.” He makes it clearly. Nevertheless, 67 votes seems a long way off. Meanwhile, there is an election to be won and a House lawsuit against the president over the Constitution’s separation of powers to be won.

Peter Hannaford’s most recent book is “Presidential Retreats” (Threshold Editions).

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