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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
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.
