AS THE president’s approval ratings decline, some of his most fervent critics want the House of Representatives to charge him with “high crimes and misdemeanors” and have the Senate vote on removing him from office. Activists stage small but energetic pro-impeachment rallies around the country. State-level political parties are adopting resolutions demanding that the president be impeached. Legal scholars and congressional experts argue that impeachment is a tool the Framers intended to be used when a president threatens American liberties. “There is no remedy short of impeachment to protect us from this president,” writes one former House member, who served on the Judiciary Committee in 1974 when it recommended the impeachment of Richard Nixon.
Is this really what American politics, already so bitter and polarized, has come to in President Obama’s second term? Not exactly. It’s what American politics came to during George W. Bush’s second term.
The movement to impeach the 43rd president culminated in June 2008, when Ohio Representative Dennis Kucinich introduced 35 articles of impeachment charging Bush with a wide assortment of “crimes” in his handling of everything from the Iraq War to Hurricane Katrina. The resolution was referred to the Judiciary Committee, where it died without a hearing. Top Democratic Party leaders wanted nothing to do with trying to impeach Bush; more than two years earlier House speaker Nancy Pelosi declared the idea “off the table.” That didn’t stop liberal activists in the party’s base from clamoring for impeachment. The Massachusetts Democratic Party was one of at least 13 state parties that formally urged Congress to begin impeachment proceedings.
Now much the same thing is happening again, but with the party labels reversed. Once again impeachment talk is in the air, only this time it’s (mostly) Republicans and conservatives contemplating the impeachment of a liberal Democratic president. And once again top leaders in the House have no intention of letting ideological passion at the grassroots push the party into what would almost certainly be a disastrous blunder.
When the Judiciary Committee held a hearing this month on the president’s constitutional obligation to “take care that the laws be faithfully executed,” two conclusions were unmistakable.
One is that there is a principled case to be made that President Obama has repeatedly flouted the rule of law. Time and again he has acted as if legal provisions he finds inconvenient can be unilaterally suspended, changed, or ignored at will — his will. From suspending the employer mandate in the Affordable Care Act to implementing never-enacted changes in immigration law (the DREAM Act) to making recess appointments when the Senate wasn’t in recess, the president has given sober and thoughtful people reason to fear that he refuses to be bound by any constitutional limit on his power if he decides he can get away with it.
The second conclusion, as Dana Milbank wrote in The Washington Post, is that “Republicans in the House know there is no chance of throwing this president from office,” and were consequently deeply unwilling to even bring up the subject. It was one of the committee’s witnesses, Georgetown law professor Nicholas Quinn Rosenkranz, who first mentioned impeachment as an ultimate check on presidential lawlessness. That, remarked Iowa Republican Steve King, “is the word that we don’t like to say in this committee and that I’m not about to utter here in this particular hearing.”
This isn’t incoherence. It reflects the duality of impeachment in the Framers’ constitutional scheme. On the one hand, they provided impeachment as a legal safeguard. It is a means of ensuring, in extreme cases, that a president (or judge) who decides he will not abide by the legal constraints on which our system of constitutional liberty depends can be removed from power.
But you need more than a rock-solid legal case to justify impeachment. You need a compelling political case too. James Wilson, a brilliant jurist who helped draft the Constitution and was later appointed to the Supreme Court by George Washington, explained that impeachment was designed to apply “to political characters, to political crimes and misdemeanors, and to political punishment.”
John Boehner’s House is no more likely to impeach this president than Nancy Pelosi’s House was to impeach the last one. The price Democrats would have had to pay for Bush’s impeachment then was simply too steep. For Republicans now, so badly bruised in the recent shutdown fight, the cost of impeaching Obama would be far, far steeper.