impeachment effort cautions against any conceivable impeachment scenario (just as they construe the mid-nineties budget showdown with Clinton as a caution against any conceivable government shutdown scenario). At the aforementioned hearing on presidential lawlessness, Congressman King steered awkwardly around the elephant in the room. After lumbering through other theoretical checks on the executive that had, as a practical matter, proved impotent against President Obama’s enterprising lawlessness, King finally muttered, “Then the next recourse is, as Mr. Rosenkranz said, 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.”
Well, the word needs uttering. Absent a frank discussion of what impeachment is, what it’s for, when it should apply, and why it is necessary (that is, why other remedies are inadequate), we will never know whether political support for impeachment can materialize. Analyzing constitutional remedies for executive lawlessness without discussing impeachment makes as much sense as analyzing Islamic terrorism without discussing Islam—and the fact that the latter is Obama administration policy ought not elevate incoherence into binding precedent. We must not fear the word, Rosenkranz aptly insisted. “A check on executive lawlessness is impeachment,” he said. “And if you find the president is willfully and repeatedly violating the Constitution. . . . I think that would be a clear case for impeachment.”10
A clear legal case, to be sure. Willful and repeated violation of the Constitution is the textbook example of high crimes and misdemeanors. But the legal case is not the half of it when it comes to removing a president.
Unlike the simple majority vote required for the House to approve articles of impeachment, a conviction by a two-thirds supermajority of the Senate is necessary to impose the Constitution’s impeachment penalty: “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”11 Unless the point of the exercise is mere partisan foot stamping, it is not enough to have sufficient legal grounds for impeachment, even lots and lots of grounds. Real impeachment, removing the president from power, requires political support.
On that score, Republicans have vastly overinterpreted the Clinton impeachment episode. They construe it to mean that the societal turmoil inevitably caused by attempting to impeach a president—a cynic might say, the bad press ensured by any effort to impeach a left-wing Democratic president—is so much worse for the country than any offenses the president might be committing that it is simply not worth the effort—cynic again: simply not worth turning the Republican Party into the media’s punching bag. Such thinking results in paralysis, and thus in abdication of Congress’s duty to protect the constitutional framework—a duty just as solemn as the president’s.
This does not mean that Congressman King is wrong when he asserts, “You’ll never get an honest [impeachment] verdict out of the United States Senate if Harry Reid is going to be the majority leader.”12 But someone like Reid will always be the majority leader if the minority party is too craven to make a dynamic stand against unprecedented executive lawlessness. Changing the dynamic requires moving public opinion, which in turn hinges on forcing the president’s myrmidons to defend his high crimes and misdemeanors under an intense spotlight.
The decision whether to remove a president is political. As Senator Cruz said, you need to have the votes. Not just enough votes to win in a squeaker; you need 67 out of 100. As we’ve seen, the Framers did not want impeachment to be a power play. The assent of an overwhelming majority of senators is mandatory because impeachment must be tantamount to a proclamation of overwhelming public sentiment. It must reflect the desire of the American people that the president be removed.
At the moment, there are effectively 55 Democrats in the Senate: 53 party members plus two ostensible “independents” who caucus with them. Besides being extraordinarily partisan, they are a very disciplined voting bloc. Even if all 45 Republicans were persuaded to convict the president of high crimes and misdemeanors, 22 Democrats would have to break ranks and join with them for the president to be removed. And if the current crop of GOP senators were to engage in their familiar parliamentary gamesmanship, you might not even get 45 Republicans voting to convict—unless they were sure the president would prevail and that their futile votes could be good campaign fodder in their particular election races.13
Right now, conviction in the Senate is a pipedream, and therefore one cannot reasonably expect the House to file articles of impeachment. The process of impeachment will always be an ordeal, regardless of how necessary it is. Americans may be convincible regarding the need to oust a lawless president, but they will never be happy about it. Nor should they be. Even the president’s most zealous detractors should prefer that he mend his outlaw ways and finish his term than that the country be put through an impeachment process that would be painful in the best of times. And these are not the best of times: today, the pain would be exacerbated by the vulgar propensity of the left and the media to demagogue concern for the nation’s well-being as racism. Consequently, impeachment entails substantial political risk for the protagonists, even if they are clearly right to seek it. House members have no incentive to push for impeachment charges unless conviction in the Senate is within the realm of possibility.
Of course it matters that the president has patently and routinely violated his solemn oath to preserve, protect and defend the Constitution. And of course it matters that the president has willfully betrayed his constitutional duty to take care that the laws be faithfully executed. Still, the real significance of these facts lies not in their legal qualification as impeachable offenses but in their solidity as the foundation of a compelling political case for presidential removal.
The legal aspect of the case is the easy part. That impeachable offenses have been committed is manifest once one grasps the concept of “high crimes and misdemeanors”—which are offenses against the governing fabric by those sworn to uphold it; fraud on the public and its representatives by those entrusted with the highest fiduciary duty. In fact, given that the point of impeachment is to preserve the United States of America, and that the point of the Obama presidency is, as he boldly promised supporters, to “fundamentally transform the United States of America,”14 how surprised can we really be that the president and the Constitution have been on an impeachment collision course?
Proving “high crimes and misdemeanors” is necessary to make the case for presidential removal, but it is not sufficient. The politics takes precedence: The public must reach the conclusion that the constitutionally subversive nature of the impeachable offenses renders it intolerable to permit the president to continue in power; and the public must make its representatives understand that failing to act on that conclusion will shorten their cherished Washington careers.
That is the true lesson of the Bill Clinton impeachment controversy. The error to avoid is not the endeavor to remove a rogue president; it is the endeavor to remove a rogue president without first having convinced the public that his removal is warranted—that the punishment fits the crime.
On December 19, 1998, the House approved two articles of impeachment against President Clinton, involving misconduct that, while criminal and cringe-inducing, reflected more on his deep character flaws than on his execution of the presidency’s core responsibilities.
Earlier, a grand jury had been convened to investigate allegations of corruption. Much of this involved the “Whitewater” real estate venture in Arkansas, which occurred before Clinton became president. Some of it, while certainly within the ambit of his presidential duties, was not central to them—for example, cronyism in the firing of White House travel office personnel. In the course of the investigation, it emerged that the president had conducted a sexual liaison with Monica Lewinsky, a young White House intern. Clinton had also pressured Ms. Lewinsky to lie about the affair to investigators, and had lied about previously perjuring himself in a deposition when another woman, Paula Jones, sued him for sexual harassment.15
The two impeachment articles charged President Clinton with perjury and obstruction of justice.16 The charges satisfied the “high crimes and misdemeanors” threshold, for it is perfectly reasonable to conclude that a president who corruptly impedes the administration of justice is not fit for