Faithless Execution: Building the Political Case for Obama’s Impeachment” by Andrew C. McCarthy

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“Faithless Execution: Building the Political Case for Obama’s Impeachment” by Andrew C. McCarthy

Thursday, June 5, 2014  |  posted by Hugh Hewitt

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National Review’s Andrew McCarthy joined me and Hillsdale intern Jack Butler Thursday to discuss his new book: “Faithless Execution: Building the Political Case For Obama’s Impeachm
Audio:
06-05hhs-mccarthy
The transcript:
HH: Joined now by my friend, Andrew C. McCarthy. He is of course the top federal prosecutor who helped put the Blind Sheik away forever, or at least I used to think forever. Now after this deal, I never know. He’s also one of the most important voices on national security issues in the United States. He is a policy fellow at the National Review Institute, and contributing editor at National Review, the author of Willful Blindness and The Grand Jihad, and most recently of a brand new book which is linked at www.hughhewitt.com, Faithless Execution: Building The Political Case For Obama’s Impeachment. Faithless Execution is published by Encounter Books. Andrew McCarthy, welcome to the program, it’s great to have you.

AM: Hugh, it’s always great to be with you. How are you?

HH: I’m great, but I’ve put you in a terrible position in two ways. Do you want to know why?

AM: Sure.

HH: Number one, you’re following the replay of Ronald Reagan’s D-Day speech from 30 years ago. Now that’s really tough to follow, Andy.

AM: Yeah, boy, you’re not kidding, so I’m not even going to pretend to be in that class of eloquence.

HH: And number two, I’ve never done this before, and I’ll tell you why I’m doing it, in the studio with me is Jack Butler, a senior at Hillsdale College. He is my summer intern. And the first day he walked in, I gave him a copy of Faithless Execution: Building The Political Case For Obama’s Impeachment, and I told him that he was going to co-interview you with me for this reason, Andrew. I’m a lawyer. I’m at the Department of Justice. I get this stuff. I wanted to know, because you’re making a case that you’re going to have to persuade other than Constitutional people. I mean, Levin and myself, we all get what you’re arguing. But do you see what my method to my madness is here?

AM: I’m sorry?

HH: Do you understand why I would have an intern read the book and join me in interviewing you?

AM: Yeah.

HH: Because I want to know if…

AM: And I think it’s a terrific idea, and you’re absolutely right. This is all about persuasion, and it oughtn’t be, as you know, Hugh, from reading my books, I don’t think we ought to be a country sort of run by lawyers. I think that that was not the framers’ idea, and it’s not my idea, so I’m delighted.

HH: All right, so whenever I cue him, he’s going to have a question for you. But I get, of course, I’m the host, so I get the first question. There are seven proposed articles of impeachment in Faithless Execution. This came out before the Gitmo exchange that was not properly noticed, as the law required. Would that make for an eighth count in your world, Andrew McCarthy?

AM: Well, it would, Hugh, but not because of this 30 day notification requirement, which I think is of dubious Constitutionality. It’s, you know, it’s not my usual thing to defend President Obama, and I think as you hear me out, I won’t be. But as far as this particular statute’s concerned, in the Bush days, we used to say, and I think we need to be consistent, that when Congress tried to narrow a president’s plenary Constitutional powers by statute, that those statutes like the FISA statute were Constitutionally suspect to the extent they did this. I think that the disposition of enemy combatants in wartime is a plenary power of the commander-in-chief. In fact, I would have been much more confident arguing that had not the Supreme Court intervened in 2004 and started giving enemy combatants all sorts of judicial rights. But I still think that in terms of returning enemy combatants and repatriating them, the President can make reprehensible policy judgments, but they are his judgments to make. What I have a big problem with, and what I think is an impeachable offense, actually there are two of them in this transaction. One of them is Jay Carney a year ago on behalf of the President promised that the administration would comply with this statute. And I think if a president is going to protest that a statute is unconstitutional, he’s got an obligation to be forthright with Congress about that. Instead, the President lulled Congress into a false sense of security that he’d comply, and he didn’t. So I’m much more troubled by the lying to Congress than I am about the 30 day compliance. And the second thing is, and far, far more important than the statute, we have a situation where the commander-in-chief, one of whose chief responsibilities is force protection, is replenishing the enemy at a time when the enemy is still conducting violent jihadist operations against our troops in harm’s way. And he’s not just giving them back five low-level terrorists. These are among the most capable, the most experienced, and the most implacably anti-American operatives they have. To me, that’s a shocking dereliction of duty by the commander-in-chief.

HH: You know, this is where I’m surprised. I had this argument with John Eastman yesterday. I do think it is an impeachable offense to clearly break a statute, even an unconstitutional one, but your defense of the charge would be that it was unconstitutional, and that the circumstances justified it. But before I turn the first question over to Jack Butler, what do you think the reaction would have been, Andrew McCarthy, had Ronald Reagan upon being instructed, in an appropriations rider, as the 30 day notification is clearly an appropriations rider, not to send weapons to the Contras, had gone ahead and sent weapons to the Contras, just said screw you, I’m doing it? It’s the same thing, isn’t it?

AM: Well, I actually think this is worse, because what he’s doing in the middle of a hot war against the United States of America is giving the Taliban back its top commanders. So I’m not carrying a brief for the Iran-Contra debacle, which I think was a dumb idea. But I think it’s much worse, I think, by making it worse.

HH: On a policy ground, but a statutory ground, they’re both appropriations riders for which there were arguments that Constitutional authority of the office overrode them. That’s what I was saying. Okay, Jack Butler…

AM: Yeah, I hear what you’re saying, but I just think that you know, in terms of, for example, FISA, where Congress said that look, you can’t just go out and collect foreign intelligence, you need to go to the FISA Court, and Bush said well, no I don’t. And the Court said you know, if the President has this right inherently under Article II, which a lot of judicial decisions said he did, Congress can’t narrow it by a statute. And the president has the right to ignore the statute and collect foreign intelligence. And I agreed with that then, and I agree with it now.

HH: All right, well stated. Jack Butler?

JB: Well, Mr. McCarthy, thank you for coming on today, and thank you for deigning to converse with a lowly intern.

AM: I’m from the Bronx. I’ll converse with anyone.

JB: Well, thank you. So let’s say that this Bergdahl fiasco becomes the straw that breaks the camel’s back and impeachment proceedings start against President Obama. In your book, you detail the hesitance and in some cases downright fear that Republicans have of the I word, or impeachment. How did impeachment, intended by the founders as a more accessible tool, become such a toxic charge proceeding?

AM: Yeah, it’s a great question. I spend about a chapter in the book, as you probably recall, talking about the Clinton impeachment, and the fact that the country has learned the wrong lesson from it. But I think that what happened here is that Republicans are so frightened by what they I think inflate into the disaster of the Clinton impeachment, but actually, I don’t think it was much of a disaster at all, electorally, certainly, but I think that what they have decided is that impeachment’s got to be off the table for all purposes. And the real lesson of the Clinton impeachment is that even if you have high crimes and misdemeanors, and I think what Clinton was charged with certainly qualified as that once you understand what high crimes and misdemeanors are. Impeachment is ultimately a political remedy. And if there is not will in the country that cuts across partisan lines, cuts across factional lines, an overwhelming consensus in the country that the president ought to be removed, or at least open-mindedness that it may be necessary to remove a lawless president, then it’s a mistake to proceed with articles of impeachment. So I think the mistake that’s been made is that we talk about building legal cases. They haven’t tended to be to the real nub of impeachment, which is political will and making the case to the public that you have to remove a lawless president.

—- – – – –

HH: Jack, your turn, go.

JB: So Mr. McCarthy, you argue in your book, and as you just did here, that Republicans took the wrong lessons from the Clinton impeachment. But I think that most of the public still sees impeachment as this kind of quasi-mystical tool. So how, wouldn’t that, the challenge of overcoming the very stigma of the very word itself be an additional challenge to a successful impeachment proceeding?

AM: It certainly would be a challenge. I think as far as the stigma of the word is concerned, it’s actually got a lot less stigma today than it had even three months ago. I mean, it’s tripping off the tongues of all kinds of people. And in fact, I thought it was, it was, I talk about this in the book, it was somewhat surprising, I guess it was five or six months ago, they had a hearing on presidential lawlessness in the House where you had progressive legal scholars like Jonathan Turley talking about this being a major, Obama uber-presidency being a Constitutional crisis, the worst of his life, and he did live through Nixon. You had other law professors there talking about impeachment, and telling Congress you know, look, you can’t be afraid of the word, because if you’re going to talk about presidential lawlessness, impeachment is the Constitution’s ultimate response to that. You can’t have an adult sensible conversation without at least considering it. So you have these progressive thinkers making these points, and you have Republican Congressmen sort of diving under their desks and staffers shrinking and the like. But I do think, to go back to the Clinton business which you raise, and I think it’s important to do it, the Clinton episode is a very useful comparison with Obama, because Clinton’s impeachable offenses, while reprehensible, were not a comprehensive attack on our governing structure. What the framers were most concerned about when they came up with the standard of high crimes and misdemeanors as the standard for what would be necessary to remove a president, they invoke the words crime and misdemeanor, and that I think tends to make people think of penal offenses. But actually what they meant was, as Hamilton put it, the political wrongs of public men. High crimes and misdemeanors is a term of art that really relates more, I think, to the concepts you find in the military justice system than the penal system, ideas like conduct unbecoming, dereliction of duty, violation of an oath. And what the framers were most concerned about was that this very powerful presidency that they were creating was necessary to our defense, but it also had great potential to undo what they were trying to do, which was strike a framework that would protect our liberties. And what they were really concerned about was conduct by a president that would accumulate too much power in the presidency. The whole separation of powers idea is that you can’t accrete too much power in one political actor in the system, because that’s always the road to tyranny. And the reason that Obama is a useful comparison to Clinton is Clinton’s wrongs, while reprehensible, were really an episode that didn’t have anything to do with a major attack on our governing system, whereas what President Obama is up to is a sweeping undermining of our governing framework directly attacking the separation of powers. And I think once people understand the relationship between the separation of powers and our liberties, that becomes a very frightening thing.

JB: Another argument you make in the book is that Republicans aren’t using all the tools available to them to restrain Obama’s potentially unconstitutional actions. But why do you think that, like the power of the purse, for example, but why do you think the Republicans would be likelier to use impeachment, or that impeachment be a better option, if they’re not using some of the more, say, conventional tools available to them like the power of the purse.

HH: Yeah, we’ve got a minute to the break, Andy.

AM: Yeah, basically I think impeachment, I think you actually get done in one fell swoop. So even though it would be very difficult to do, it would be one big thing, yes or no, whereas using the power of the purse is something that has to be sustained. And under our modern politics, with the fact that they get demagogued when they try to use these tools, and the fact that the government is so big that when you try to cut money, you’re always cutting somebody’s transfer payments off, in some ways, it would actually be easier politically to do one big fell swoop impeachment than try to constantly use the power of the purse.

— – – – –

HH: Andy, I hold in my hand, and people who subscribe to the Hughniverse can see right next to Faithless Execution, a wonderful book, brilliant indeed, called The Brief Against Obama: The Rise, Fall And Epic Fail Of The Hope And Change Presidency by none other than me, which makes many of the same arguments you make, though not as eloquently, including chapter 22, the unilateralism and anti-Constitutional president. This came out in 2012. It was well-received and a lot of people bought it. So did The Amateur by Edward Klein. So did David Limbaugh’s wonderful book. My argument against impeachment is everybody knew he was lawless and he won anyway.

AM: Yeah, well, actually, Hugh, that’s interesting, because you make an argument that was the minority position of the framers during the debate in Philadelphia, where some of them argued that we have the ballot box. And if the public speaks and a president gets reelected, that ought to be enough for us to say that he hasn’t done anything that’s so egregious that he should be removed. The reason that ended up being a minority position is, as James Madison and Mason and some of the others who pushed back at it argued, a president who is inclined to abuse his powers would have the greatest incentive to abuse them in order to get himself reelected. And I think there’s a very good argument that that’s precisely what President Obama did here, whether it’s clamping down on Benghazi and the fraud that was committed in that connection, the fraud that was committed in connection with Obamacare, where all of these false promises were made. A lot of that was done precisely for the purpose of getting the president reelected. So your argument, the argument you make, I think, is a very good one, but it’s one I think that was for good reason rejected ultimately by the framers.

HH: Well, the reason I distinguish it from the argument about the framers, which you make, is that some of the stuff in your book, for example, in Article 6, Fast & Furious is part of your indictment for Article 6, racial, discriminatory enforcement of civil rights law, politicization of hiring of investigation and prosecution, investigation of the press, stonewalling Congress, you know, this famous deal…

BO: Here’s a guarantee that I’ve made. If you have insurance that you like, then you will be able to keep that insurance.

HH: All right, everybody knew before they voted that that was on the table. I think Benghazi was not well-understood, and Bergdahl is not well-understood. You can always make a case for other offenses later in time occurring post-election, but you’re not, you want everything on the record. I just want to be clear to the audience.

AM: I’m glad you raise that, because I think there’s a good answer to that as well, and it’s a legal answer and a political answer. I’ll start with the political. Impeachment’s a political remedy. And if you ultimately decided that the President needed to be removed, you would have to martial the entire case against him. You wouldn’t say well, all those things happened yesterday and we didn’t act yesterday, so we can only act beginning today and going prospectively. You wouldn’t do that. And even legally, Hugh, if we were talking about returning an indictment, let’s say you and I investigated a criminal organization, you know, three years ago, and we decided you know, it’s a close call, but we just don’t have enough, we’re not going to bring the charges. If they continue to commit crimes, and you made this same calculus three years later, and you said you know, I think we’re over the top now, we can bring the charges, you wouldn’t deny yourself the ability to bring all the criminal behavior that you had previously decided not to charge.

HH: Well answered. Yeah, best answer. Yeah.

AM: That would legally not make any sense, and it would, you know, in terms of a jury trial, it would be a disaster.

HH: This is why you try not to argue with prosecutors in public as much as possible. Go ahead, Jack Butler.

JB: We’re about a year removed from a period when Obama was dealing with all sorts of scandals, and that any one of which would have taken down a previous administration – IRS, NSA, etc. But here we are, Obama escaped all of them. So why would, and or how, would impeachment work where all the previous fiascos that Obama got himself into, somehow he survived them?

AM: Well, because the political mood changes. And you know, I mean, I talk about Nixon in the book, and in 1972, Nixon won reelection with the second-biggest landslide in American history. Within 20 months, he was gone. And he was gone because the public mood changed, because people were riveted to presidential lawlessness, and he couldn’t survive politically anymore. But can I just make this point? With all these questions about impeachment, what I’m afraid is being lost is the upshot of my book is not a blood-curdling scream for President Obama’s impeachment. I want to be clear about that. My book argues, and I argue that the best thing for the country would be to induce President Obama to become lawful, that to follow his oath, to faithfully execute the laws and to finish his term that way. I don’t want to be in a country where just because you’re ideologically opposed to the president, that means that we need to impeach the guy. And I don’t begrudge the President having a very different vision for America than I have. What I begrudge him is that he’s going about implementing it lawlessly. And presidential lawlessness is something that’s very important not only in terms of protecting our liberties, but it’s not something that’s a partisan, or should be a partisan issue. The precedents that Obama is setting, the erosion of the separation of power that he is laying the groundwork for is going to be a precedent that’s going to be there for every single president. And every president that comes after Obama is not going to be a liberal Democrat.

HH: All right, well said. Let me get a quick call in, Andrew. Ed in Houston, Texas, for Andrew McCarthy about his book, go ahead, Edward.

Edward: Thank you, sir. I am sitting here, I’m more and more confused. The title is a little bit misleading, Mr. McCarthy. Number one, impeachment is a Constitutional remedy, not a political remedy. What we lack is the political will to hold this president accountable under the normal terms of engagement.

HH: Okay, hold that point, because 30 seconds to the break, Andrew. Your response?

AM: The Constitution’s a political document. It’s a document about dividing up political power. I don’t mean politics in any kind of a negative sense. I mean politics in the sense of the policies of the demos.

— – – –

HH: Let me get one more question in for you before we let Jack get the wrap up question. Brett, Huntington Beach, California, you’re on with Andrew McCarthy. Go ahead, Brett.

Brett: Hey, Andrew, just speaking to the impeachment narrative, you know, we listened to Reagan just a moment ago, and the word brave was used in the memorial speech, seemingly, you know, against better-trained, equipped army, that ultimately we prevailed. It seems that as conservatives, Constitutionalists, we have the same duty to preserve the same faith in our Constitution. You know, by your book, by what you’re saying, not making, all the things that he’s done wrong, he hasn’t had to pay for anything. And yet you would hope that he would change as he has only gained steam. He hasn’t relented anything.

HH: Andrew, you’re not really optimistic about that, are you?

AM: I’m optimistic, Hugh, that we can, and this is the reason I want to stress presidential lawlessness more than impeachment. I’m optimistic that we can change the political climate such that we can induce President Obama to be more lawful, and then if he doesn’t, then once we’ve raised that as an issue, then obviously impeachment is the next sensible step. But my goal is to try to make the President more lawful. The Constitution, and the caller is quite right to stress it, but it’s important to know that the Constitution does not rely on the good intentions of the different actors in government. It relies on the incentives created by the competing actors in government to watch each other like hawks. And unfortunately, that part of the system is broken down.

HH: Last question to Jack Butler.

JB: Mr. McCarthy, President Obama’s tenure has shown if nothing else that laws depend a lot on the willingness of people to follow them. So how, when you have someone like President Obama, what steps can you take to stop the lawlessness of someone to whom laws are just maybe impediments to be ignored?

AM: Well, really, there’s only a couple of ways that you can stop presidential lawlessness. The main way is the power of the purse, and I think that would be the one that the framers would have expected the Congress to resort to first and most often. I think unfortunately what’s happened here, and the breakdown here, is that the President’s opposition is deathly afraid of being demagogued. Every time they do anything to resist, their racial motivation and all sorts of other things that usually have nothing to do with anything, get impugned. And the other thing is, unfortunately, is the government gets bigger. Transfer payments become part of almost everything, so that if a Congress tries to use its power of the purse, there’s always some group or another whose benefits are at stake. And that makes, I think, Republicans in particular very leery of going there. We saw what happened when Cruz and Lee tried to stop Obamacare from being funded.

HH: Exactly. Andrew McCarthy, great, great effort to get people to think seriously about lawlessness on the part of President Obama. Faithless Execution is linked at www.hughhewitt.com. It’s in bookstores everywhere.