Forty years ago it was worse. On August 9, 1974, President Nixon, who had just turned himself into merely Richard Nixon, gave his odd little salute and flew off in that green helicopter, the first president in American history to resign in disgrace, or in exasperation. After firing that Watergate special prosecutor, Archibald Cox, in that now famous Saturday Night Massacre, it was all over. There was a new special prosecutor soon enough, Leon Jaworski, who forced Nixon to hand over dozens of tape recordings created by his secret White House taping system. He should have known better. Some things shouldn’t be documented, like authorizing break-ins and burglaries, and then orchestrating cover-ups, and paying bribes to keep certain people silent – and one of those tapes, from just after the Watergate break-in, had that mysterious eighteen-and-a-half minute gap. All the experts said that the gap had been caused by a deliberate erasure, and no was buying that Rose Marie Woods, the secretary, goofed up, stretching for a cup of coffee or whatever. That didn’t help, and the Supreme Court had ruled, in a unanimous decision, that no person, not even the president, was above the law – yeah, they acknowledged that executive privilege permitted presidents to keep certain documents off-limits, but when a court or grand jury directed the president to turn over evidence in a pending criminal case, well, he has to do that – that wasn’t privileged. Maybe so but Nixon still stalled. The House Judiciary Committee, in an oddly bipartisan vote, then adopted three articles of impeachment. Nixon gave up. He left. There would be no impeachment trial. He knew what would happen.
The actual impeachment of President Clinton was another matter, because that was relatively tame. Clinton had lied, under oath, about not “having sex with that woman” – and that was the entire bill of particulars. That was it. The Republicans screamed about high crimes and misdemeanors, but this wasn’t much. Clinton was not thrown out of office and run out of town on a rail. The Republicans just didn’t have the votes for that, and the nation hated them for insisting that this horny middle-aged man, lying about messing around on the side, was the end of our Republic. It wasn’t, and the Republicans lost big in the midterm elections just after sticking it to Clinton, over the sex stuff. That obsession made them look like leering perverts. The president’s sex life was none of their business. Get a life, guys. The Nixon business was the real thing. This wasn’t.
Forty years ago, then, it was the real thing, and in a way, that was seductive. It was high drama. The nation followed every twist and turn, and they certainly got to know all the colorful characters – the good guys, the bad guys, that “plain old country lawyer” from North Carolina, the folks who would resign rather than do the wrong thing, and a few nerds too. Watergate made a lot of people famous, not just Bob Woodward and Carl Bernstein, and John Dean, who are still riding their particular fame from those days. Impeachment creates legends, and there is nothing more appealing to a boring run-of-the-mill politician than the prospect of becoming a legend. Obscurity sucks.
It does, but one must be careful. A nasty guy like Richard Nixon doesn’t pop up very often, and John Boehner knows this. That why there was that full day in the House last week, with his Republicans there debating whether to sue Obama for illegally and unconstitutionally modifying some implementation deadlines in a minor part of Obamacare, and then dramatically voting to sue the bastard – and the nation yawned. Presidents have always done this sort of thing. It’s the president’s job to figure out the best way to administer the laws that Congress passes. It’s in the job description, but everyone knows that Boehner was doing this because he’s afraid to impeach Obama. His younger Tea Party associates, and Sarah Palin, certainly want to do that, but he remembers when the Republicans impeached Bill Clinton. The other old hands in the party remember too. It’s obvious that John Boehner did a cost-benefit analysis. The cost of going forward with this nonsense lawsuit was going to be very high, he’d look like a jerk, but the cost of the Tea Party caucus in the House, and Rush Limbaugh and Glenn Beck, turning on him, would be far higher – and without this absurd lawsuit they’d all be calling for impeachment soon enough, which would be a disaster for the Republicans. He had to do something. He did what he probably didn’t want to do – this – but there was no other choice. He wouldn’t be seduced by the siren song of impeachment
That’s not easy, and the Washington Post’s E. J. Dionne explains it this way:
If you attack the president repeatedly for law-breaking, executive overreach and deceiving the public and Congress, do you have an obligation to impeach him? This is the logical question Republicans are now trying to duck.
There is a reason why impeachment is a big deal in Washington this week. It’s not just because a call to defend President Obama motivates the Democrats’ base, although it surely does. John Boehner is having trouble countering fears that House Republicans will eventually try to oust the president because the speaker’s colleagues have spent years tossing around impeachment threats as a matter of routine.
At issue are not merely the open demands for throwing Obama out from Sarah Palin, Rep. Steve Stockman (R-Tex.) and many others on the right wing. The deeper problem lies in the proliferation of loose impeachment talk linked with one overheated anti-Obama charge after another.
Dionne does his homework about that:
As far back as May 2010, Rep. Darrell Issa (R-Calif.) said the allegation that the White House had offered then-Rep. Joe Sestak (D-Pa.) a job so he wouldn’t oppose Sen. Arlen Specter, a Republican-turned-Democrat, “is in fact a crime and could be impeachable.” (Sestak beat Specter in a primary and then lost to Republican Pat Toomey.)
During a hearing on “Operation Fast and Furious” in December 2011, Rep. Jim Sensenbrenner (R-Wis.) accused the Justice Department of withholding information and said that “if we don’t get to the bottom of this,” Congress might have to resort to the “only one alternative” it had, “and it is called impeachment.” In this case, involving a Bureau of Alcohol, Tobacco, Firearms and Explosives sting operation that went wrong, the impeachment threat was directed at Attorney General Eric Holder. Indeed, 20 House Republicans filed to impeach Holder.
In May 2013, Sen. James Inhofe (R-Okla.) said that, because of allegations of a White House Benghazi cover-up, “people may be starting to use the I-word before too long” about Obama. Also in 2013, Rep. Kerry Bentivolio (R-Mich.) said it would be his “dream come true” to author Articles of Impeachment against the president, while Sen. Tom Coburn (R-Okla.) said the nation was “perilously close” to circumstances that might require impeachment.
There’s much more, but Dionne’s point is that John Boehner is in a tight spot:
Boehner claims that “this whole talk about impeachment is coming from the president’s own staff and coming from Democrats on Capitol Hill trying to rally their people to give money and to show up in this year’s election.”
But if impeachment is a sudden Democratic invention, why did the New York Times’ Jennifer Steinhauer write a detailed news story in August 2013 under the headline: “Ignoring Qualms, Some Republicans Nurture Dreams of Impeaching Obama”? Why did my Washington Post colleague Dana Milbank publish an equally fact-rich column in December 2013 titled: “Republicans see one remedy for Obama – impeachment”?
Boehner’s other difficulty is that, in defending his lawsuit against Obama, which the House approved Wednesday on a near-party-line vote, the speaker has used arguments that could as easily be invoked to justify impeachment.
“In the end, the Constitution makes it clear that the president’s job is to faithfully execute the laws,” Boehner wrote on CNN’s Web site in early July. “And, in my view, the president has not faithfully executed the laws when it comes to a range of issues, including his health care law, energy regulations, foreign policy and education. There must be accountability.”
So what will Boehner do on behalf of “accountability” if the suit fails? Is it any surprise that House Majority Whip Steve Scalise (R-La.), when pressed on Sunday by Fox News’s Chris Wallace, declined to rule out impeachment?
Needless to say, the White House in loving this. The Republicans have backed themselves into a corner with all their talk of noble hero-politicians (them) saving the Republic, just like forty years ago, while it’s more likely, if not certain, that they’ll end up looking like sanctimonious jerks, as with the Clinton impeachment. It all depends on the bill of particulars, the high crimes and misdemeanors specified. What have they got – break-ins, destruction of evidence, bribes paid to buy the silence of those who know too much? They don’t even have a stained blue dress.
What they do have is Obama saying he just might issue a few executive orders to clear up some immigration issues, because on the last day before the August recess, the House Republicans had a total meltdown. They couldn’t even pass their own bill to address the current problem – what to do with those sixty thousand unaccompanied minors from Honduras and such places who showed up and turned themselves in, and essentially asked for asylum. At that point, John Boehner said it might be that Obama will have to issue a few executive orders to deal with that, but that was one day after Boehner announced he was suing Obama for issuing a few executive orders to clear up other matters. Obama mocked him for that, but Boehner kept his folks in town an extra day, and they passed a bill that will die in the Senate, because it was nastier than anything yet. And now Obama is talking about those possible executive orders he might issue, or might not, and kind of daring the Republicans to impeach him.
Andrew Sullivan is not impressed:
Late Friday night, just before heading home for their August recess, House Republicans passed a bill to address the child migrant crisis. To do so they threw an abattoir of red meat to the right flank – pledging less than a fifth of the resources that Obama says he needs and simultaneously reinforcing deportation for the half a million DREAM Act kids. It won’t pass the Senate, of course, but it gives House Republicans a Potemkin vote they can cite when they face their Hannityed constituents this month.
Sullivan also notes Jonathan Chait with this:
A party that began the Congressional term hoping to move left from Mitt Romney’s immigration stance has instead moved toward Michele Bachmann’s. (Bachmann – who, along with Steve King, helped draft the House bill – pronounces herself thrilled.) The party’s new dogma will potentially entangle its next nominee in an even less humane debate than the one that ensnared Romney. At the very least, it has put 216 House Republicans – many of whom will one day seek higher office – on record for a policy most Latino voters consider disqualifying. The aye votes include potential 2016 presidential candidate Paul Ryan, who is not likely to be greeted by friendly mariachi bands any time soon.
It is understandable that the party’s Congressional wing, based mostly in safe, deep-red districts, has failed to craft a national strategy for its 2016 candidate. But the House’s course of action has fallen well below “unhelpful” and instead verges on outright sabotage. How do they think this is going to work out for them?
The Washington Post’s Chris Cillizza adds this:
This is the latest in a string of incidents in which Republicans have been their own worst enemy – often because they simply can’t get out of their own way. Given their dismal approval ratings, the best way for Republicans to handle almost every issue – including this one – is to make as few waves as possible. Stay out of the news. Let President Obama do the heavy lifting on what the funding level ends up as. This issue is a no-win politically – people don’t like the idea of kids being shipped back to dangerous places but also don’t love people coming here illegally or spending billions of dollars that may or may not solve the problem.
And yet, Republicans found a way to make the story all about them in the dying days of this session of Congress. It’s remarkable – and not in a good way.
Not only that, but Obama might issue those executive orders, and dare the hapless Republicans to impeach him, but the younger of the two conservative columnists at the New York Times, Ross Douthat, suggests they really should impeach the guy:
Past presidents have suspended immigration enforcement for select groups, and Obama himself did the same for certain younger immigrants in 2012. A creative White House lawyer – a John Yoo of the left – could rely on those precedents to build a case for the legality of a more sweeping move.
But the precedents would not actually justify the policy, because the scope would be radically different. Beyond a certain point, as the president himself has conceded in the past, selective enforcement of our laws amounts to a de facto repeal of their provisions. And in this case the de facto repeal would aim to effectively settle – not shift, but settle – a major domestic policy controversy on the terms favored by the White House.
This simply does not happen in our politics. Presidents are granted broad powers over foreign policy, and they tend to push the envelope substantially in wartime. But domestic power grabs are usually modest in scope, and executive orders usually work around the margins of hotly contested issues.
So this is the end of the world:
The president may get the occasional rebuke for impeachment-baiting, but what the White House wants to do on immigration is assumed to be reasonable, legitimate, within normal political bounds.
It is not: It would be lawless, reckless, a leap into the antidemocratic dark.
And an American political class that lets this Rubicon be crossed without demurral will deserve to live with the consequences for the republic, in what remains of this presidency and in presidencies yet to come.
That Rubicon is “the president is contemplating – indeed, all but promising – an extraordinary abuse of office: the granting of temporary legal status, by executive fiat, to up to half the country’s population of illegal immigrants.”
Did Obama say he’d do that? No, but that’s what Douthat heard, or imagined, and he thinks the House Republicans should head him off, because Obama might do that. You never know. And that would be an impeachable offense. Don’t even think about it. That might be an impeachable offense too.
Eric Posner isn’t so sure about that:
The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users, although both violate federal law. And so on.
Nearly all of this non-enforcement takes place with implicit congressional acquiescence; once in a while, Congress complains because the president’s priorities are not the same as its own. But the president has no obligation to listen to these complaints.
The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment. This is the separation of powers. People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers; that’s the principle of legislative supremacy, embodied in parliamentary systems like Britain’s, which America’s founders rejected.
Brian Beutler sees it this way:
Democrats correctly regard impeachment as a political box canyon into which many conservatives want to march the Republican Party, and believe that maximal, unilateral action on behalf of immigrants is both an urgent priority and an effective way to exploit the tension between GOP leaders – who want to suppress impeachment talk – and hardliners, who keep resorting to immigration-related impeachment threats.
Conservatives aren’t congratulating Douthat for astutely identifying the Democrats’ political strategy, though, but for begging the question that transforms the Democratic strategy from a savvy exploitation of GOP divisions into a dangerous power play that could backfire against the president. In that regard, his article is an artifact of the current political moment, in which the right has staked so much on the premise that Obama is exceeding his executive authority on a regular basis that fallacious appeals to the legal high ground are becoming commonplace.
Douthat’s thesis rests on the assumption that aggressive executive action on behalf of certain unauthorized immigrants will by definition be “an extraordinary abuse of office…”
These are awfully firm conclusions to draw about a policy that hasn’t been unveiled yet. But the idea is that only “a John Yoo of the left” would be able to draw up a legal justification for action of unprecedented scope, and he thus invites “honorable liberals and evenhanded moderates alike” to join him in beseeching Obama not to cross the Rubicon. Thus the idea that liberals and moderates haven’t examined the legal questions surrounding deportation is central to the fallacy. If liberals and moderates can be made to believe that Obama will be acting lawlessly, then the political strategy identified above will fall apart, because escalating calls for impeachment will no longer seem crazy and partisan.
The problem is that outside of conservative media, where basically anything Obama does without explicit, immediate congressional authorization is presumed to be illegal, reporters have consulted experts on all sides of the issue and discovered that Obama probably has a great deal, though not unlimited, authority to defer deportation of low-priority offenders. He also enjoys unchecked pardon power, which he’s unlikely to use, but which would vastly extend the limits of his ability to draw otherwise law-abiding unauthorized immigrants out of the shadows.
They should know better:
This tendency to assume the legal high ground follows naturally from a political strategy of playing up unilateral executive actions as evidence of presidential lawlessness. It’s tempting and convenient for conservatives to treat these as open and shut cases. But outside the right, it’s best to view their efforts as sophisticated attempts to work the refs rather than as judicious and conclusive interpretations of fact.
At Mother Jones, Kevin Drum adds this:
As it happens, I think the current Republican obsession with presidential overreach is fairly pointless because their examples are so trivial. Extending the employer mandate might very well go beyond Obama’s powers, but who cares? It’s a tiny thing. Alternatively, the mini-DREAM executive action is fairly substantial but also very unlikely to represent any kind of overreach. Ditto for recent EPA actions.
Presidents do things all the time that push the envelope of statutory authority. To be worth any serious outrage, they need to be (a) significant and (b) fairly clearly beyond the scope of the president’s powers. I don’t think Obama has done anything like this yet, but if Republicans want to test that proposition in court, they should go right ahead. That’s what courts are for.
Testing these matters in court won’t satisfy half of that crowd, however, so this impeachment talk will continue, exactly forty years after we had a president who actually did things that that justified impeachment – and he knew it, or eventually knew it. That’s why he resigned. That’s also why Bill Clinton did not resign. High crimes and misdemeanors tend to be amazingly obvious. If you have to argue that they’re obvious, if you turn your head sideways and squint a certain way, on a Tuesday, when the moon is full, then you’ve simply been seduced by the idea of being that noble hero-politician who saves the Republic and rises above the obscurity that you fear is your fate. But there are worse fates. You could go down in history as a real jerk.
John Boehner and the other old hands in the party know this, so they talk about Obama’s law-breaking, and Obama’s executive overreach, and Obama deceiving the public and Congress, but their bill of particulars, their list of high crimes and misdemeanors, is vague and general, or the small stuff, on purpose. That’s for fundraising. Nixon and Watergate was a one-off. Such a thing never happened before, and it won’t happen again. What are Obama’s high crimes and misdemeanors? We won the presidency, twice. That was never an impeachable offense.