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Has Obama committed impeachable offenses?

Ruminations, June 29, 2014

Impeachment? Not yet
“He has, acting personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.” -- Articles of Impeachment adopted by House Judiciary Committee on July 27, 1974.

Those articles were never put into law because President Richard Nixon resigned two weeks later.

Some, citing a whole litany of perceived law violations by President Barack Obama, have suggested that he be impeached. Many of these assertions are overwrought – but maybe not all of them. Representative Lou Barletta (R, PA) has claimed that Obama is “… absolutely ignoring the Constitution” and that articles of impeachment “probably could” pass in the House. Maybe so, but that would be only half the battle: after a president is impeached, he must be tried in the U.S. Senate. Ted Cruz (R, TX) noted that the votes in the Senate are just not there (two-thirds of the Senators need to vote in the affirmative to remove the president from office).

Obama supporters claim that Obama is doing nothing more than his predecessors have done. But, self-professed liberal and constitutional academician Jonathan Turley has said that while that claim may be true, Obama’s actions have reached a “tipping point.” Looking beyond Obama to future presidencies, it becomes necessary to reassert the separation of powers doctrine of the U.S. Constitution to ensure future presidents do not overreach.

But before we get too far down the road of impeachment mechanics and future presidencies, let’s review where the arguments against Obama are today.

IRS abuse. Clear evidence that leads to an article of impeachment regarding the Internal Revenue Service as noted above does not exist – yet. However, there is clear evidence that at least garden variety crimes have occurred. The fact that Lois Lerner received information regarding Senator Chuck Grassley (R, IA) and suggested an audit – which did not take place – seems like a normal course of business. Even if Lerner’s missing and unbacked-up emails were an innocent happenstance, it still represents a violation of the law because IRS failed to report the mishap to the National Archives.

What we know is that there were suspicions aroused when Lois Lerner admitted IRS wrongdoing and then exercised her Fifth Amendment constitutional rights against self-incrimination. It would seem that Lerner is within her constitutional rights when she refuses to testify but Republicans aren’t the only ones not buying it. Harvard law professor Alan Dershowitz supported the Republican rationale when he stated, "You can't simply make statements about a subject and then plead the Fifth in response to questions about the very same subject …once you open the door to an area of inquiry, you have waived your Fifth Amendment right." Maybe Dershowitz is wrong but he nonetheless is an unbiased authority.

Attorney General Eric Holder investigated and found that the IRS investigated conservative groups almost exclusively and concentrated on groups with “Tea Party” in their name, groups that were concerned with excessive government spending, debt and taxes, groups that promoted making “America a better place to live,” and groups that challenged Obamacare.

Last year, Democrats were almost as upset as Republicans. Obama said that he had “no patience with [the IRS actions], I will not tolerate it, and we will make sure that we find out exactly what happened on this." Senator Max Baucus (D, MT) called the IRS actions an “outrageous abuse of power,” Senator Joe Manchin (D, WV) called the IRS’s actions “un-American.” Senator Claire McCaskill (D, MO) said, "We should … go down the line and find every single person who had anything to do with this and make sure that they are removed from the IRS and the word goes out that this is unacceptable." And former executive editor and current columnist of the New York Times, Bill Keller called for a special investigator

But the ground seems to have shifted. Obama now says that there is not one “smidgen” of evidence. Representative Elijah Cummings (D, MD) says that there is no there there and it’s time to move on. Some 76 percent of Americans, if we are to believe recent polls, don’t agree. They think that there is ample cause to believe that there are lots of smidgens of evidence of wrongdoing.

Furthermore, here’s an interesting angle from the Wall Street Journal columnist James Taranto: If the president and his administration are involved in the IRS scandal, we can impeach him and move on. If, on the other hand, the administration is not involved, that means that the IRS a powerful rogue bureaucracy acting on its own – and that’s much scarier. We can’t impeach the IRS.

The fact that the Obama Administration and their supporters seem to be ducking the issue can make one suspicious of their motives. Whether or not Obama had any involvement in the IRS scandal, it needs to be pursued to its conclusion.

Obamacare. Depending on how you measure it, Obama has unilaterally made law on the Patient Protection and Affordable Health Care Act (aka, Obamacare) between 22 and 38 times.

Putting it in perspective, Congress is charged by the Constitution with all legislative powers. Section 7 states: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it …” Obamacare was passed by Congress and signed by the president. Like it or not, it is the law of the land. But, evidently, Obama didn’t like it. He found portions of the law too onerous. The proper procedure would be to ask Congress to change the legislation and then Obama would sign the changed legislation.

But that’s not the case. For example, what was known as the Employer Mandate was to go into effect on January 1, 2014. But employers complained and Obama responded. He didn’t go back to Congress but with his “pen” he revised the law creating several classes of employers, each with its own unique starting date.

The original Act had rules on which coverages private insurance must include. But policyholders complained that they could no longer afford the new coverages, Obama responded. He didn’t go back to Congress but with his “pen” he revised the law reinstating illegal policies.

The original Act had provisions to provide subsidies to plans on the state insurance exchanges only. When individuals complained that the rates on the federal exchanges were too high, Obama responded. He didn’t go back to Congress but with his “pen” he revised the law and provided subsidies to those who sign up through the federal insurance exchange.

The original Act provided that open enrollment would end on March 31, 2014. When individuals complained that they hadn’t time, given the troubled roll-out and subsequent delays. Obama responded. He didn’t go back to Congress but with his “pen” he revised the law and provided unlimited time to enroll – on the honor system.

Given the size and complexity of the new health care laws, it is inevitable that changes be made to make the laws more equitable and effective. The above and additional changes made by Obama may be rational and reasonable. But it is no more within his power to make those changes than it is within your power.

The office of the president is charged with executing laws – not writing them, As such, the president takes an oath to “ … faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” In this, Obama has violated his oath.

The Black Panther case. In 2008, two members of the New Black Panthers, in paramilitary uniforms, one with a night stick, appeared before a Philadelphia polling station and intimidated white voters who were going to vote. They were charged and when the defendants failed to appear in court, the career prosecutors of the Justice Department assumed that they had a default verdict but were instructed to drop the case at the behest of Obama political appointees to the Justice Department.

Failure of Obama to pursue this and resolve the issue seems a violation of the Constitution’s prescriptive behavior to “faithfully execute the office of President.”

Trading with the enemy. Turley, writing in the Washington Post with conservative Senator Ron Johnson (R, WI), cites the failure of Obama, in violation of the law, “to notify Congress 30 days in advance of releasing detainees at Guantanamo Bay,” in the prisoner swap for Army Sergeant Bowe Bergdahl. Whether or not it was an efficacious or moral swap is not the point, Turley and Johnson say. The problem is that Obama violated the law. Well, yes but … While the Administration has posed several rationales for doing so (Bergdahl looked sick, the Taliban told us not to tell anyone, Bergdahl might be tortured), they missed a fundamental argument: The statute requiring notification could be unconstitutional. As commander-in-chief of the armed services, it can be argued, the president has the power to swap foreign military prisoners for American military personnel. For some reason (perhaps to avoid alienating his party’s congressional representatives, perhaps to avoid setting precedent, perhaps to avoid a constitutional confrontation between two branches of government) the president did not want to go there.

While it is clear that Obama violated the law, it is not clear that this is a “high crime” or “misdemeanor” that would rise to the level of an impeachable offense.

Is impeachment on the horizon? Maybe. While there seems to be ample reason for proceeding, Ted Cruz is right: The votes aren’t there in the Senate. It seems ironic that this week there have been bipartisan accolades for the late Howard Baker, former Senator from Tennessee. Baker is known for pursuing a president from his own party who had violated the Constitution. It would be appropriate if the Senate Democrats would reflect on Baker and take action.

Quote without comment
Radosław Sikorski, Foreign Minister of Poland and former Polish presidential candidate, in a taped conversation with Polish Finance Minister, Jacek Rostowski, early this year, as quoted in the Wall Street Journal: “The Polish-American alliance isn’t worth anything … It’s detrimental because it creates a false sense of security for Poland.”