Impeachment and lawsuits: Party tools of emotional extortion

RANCHO SANTA FE, Ca., August 4, 2014 – In a Nation that favors sound bites over solutions, it should not come as a surprise that the term “political integrity” has become little more than an oxymoron. Ethics be damned: If the Parties can use something to “stimulate the base,” you may rest assured they will pursue it. It is irrelevant whether it makes sense or is morally reprehensible as long as it can be used to extract money and votes. The recent discussion of impeachment and lawsuits are cases in point.

Impeachment is loosely defined under the Disqualification provision of our Constitution in Article II, Section 4. Uninformed individuals, which apparently include most members of Congress as well as the majority of the White House staff, confuse the term “impeachment” with “disqualification.” To use a baseball analogy, they seem to believe that impeachment is synonymous with the fans’ encouragement of an umpire to “throw the bum out.” They are incorrect.

While an umpire can act unilaterally, the House of Representatives cannot. The House can only preside over an impeachment hearing to decide whether a sitting President can be justly accused of having committed an impeachable offense. If the House votes to impeach the President, there are no immediate consequences other than the stigma of impeachment and a subsequent trial in the Senate.

Two former Presidents share the distinction of having been impeached: Andrew Johnson (who violated the Tenure of Office Act) and Bill Clinton (who was impeached for perjury and obstruction of justice). However, both avoided disqualification when the Senate could not raise the necessary votes to convict them in the second step that our system requires.

A President can only be removed from office if he or she has been impeached in the House and convicted by a two-thirds vote in the Senate. Our Founding Fathers recognized that a single Chamber should not have the authority to unilaterally take action against a President. They also recognized the extreme nature of removal and buffered any political manipulation by requiring a two-thirds vote for removal from office.

As an aside: You may wish to reexamine Senate Majority Leader Reid’s exercise of the “nuclear option” that eliminated the two-thirds requirement that formerly was necessary to overcome a filibuster. If that same standard had been revoked with regard to the Senate’s responsibility to conduct impeachment trials, both Andrew Jackson and Bill Clinton would have been summarily dismissed from office and forced to live with that disgrace for the rest of time.

It is important to note that the Senate also created a burdensome precedent in the trial of former President Clinton. While a vast majority of Senators agreed that then-President Clinton had committed perjury and obstructed justice, they refused to convict on the basis that his conduct did not present a danger to the Nation and did not impair his ability to conduct his official duties. That rationale establishes a significant barrier to ever securing a conviction under the nebulous “high Crimes and Misdemeanors” language of Article II, Section 4, and effectively limits that outcome to the clearer elements of “Treason” and “Bribery.”

In today’s hyper-partisan environment, impeachment would be easy to secure against President Obama in the House if Republicans truly wanted it. Conversely, disqualification would be impossible to secure in the Senate. It is a simple matter of math.

Instead, the Parties pretend that “impeachment” is synonymous with “disqualification”… or they simply do not recognize the difference. In the first case, they are intentionally misrepresenting the truth with the intent to inflame emotions and rally their respective bases. In the second case, they are just stupid. Let’s give them the benefit of the doubt and assume they know what they are doing.

In recent weeks, Democratic spokespersons have suggested that Republicans want to impeach President Obama while their Republican counterparts have denied any intent to pursue such action. This was good for fund-raising but bore little resemblance to the truth.

Speaker Boehner offered this statement in defense of the Republican position: “This whole talk about impeachment is coming from the President’s own staff and coming from Democrats on Capitol Hill. We have no plans to impeach the President. We have no future plans.”

However, many Republican leaders have called for, or alluded to the impeachment of President Obama over the past few years including Representatives Bentivolio (R-MI), Burgess (R-TX), Chaffetz (R-UT), and Farenthold (R-TX); former Representatives Tancredo (R-CO) and West (R-FL); and Senators Coburn (R-OK), Inhofe (R-OK.) and Scott (R-SC).

More recently, former Governor and Vice Presidential candidate Palin stirred the pot by calling for the President’s impeachment and chiding Speaker Boehner for his preferred alternative of suing the President. Ms. Palin said, “You don’t bring a lawsuit to a gunfight. There’s no place for lawyers on the front lines.” Apparently, America’s Sweetheart has a “fire in the belly” to impeach the President, or perhaps she was just using the comment to help launch her new television network.

Meanwhile, Democrats played the role of “innocent victim” while fanning the flames of the controversy. They deftly avoided any mention of the fact that they tried to impeach former President George W. Bush in 2008.

Perhaps the most entertaining denial was made by Rep. Sheila Jackson Lee, (D-TX), who gave an impassioned speech on the floor of the House on July 30th in which she stated, “We did not seek an impeachment of President Bush.” In fact, Rep. Jackson was one of the 11 co-sponsors of House Resolution 1258 that did exactly that.

Rep. Jackson’s spokespeople have since tried to distinguish her comment by limiting it to Articles of Impeachment based on the use of Executive Orders that encroach upon authority reserved to the Legislative Branch under Article I. She was, in fact, disputing a motion on the floor to have the House pursue a lawsuit against President Obama for his abuse of power in that regard.

She argued: “(The approval to sue) smacks against the Constitution, which says there are three equal branches of Government. Therefore, the Executive has the right to perform his duties. I ask my colleagues to oppose this resolution for it is, in fact, a veiled attempt for impeachment, and it undermines the law that allows the President to do his job.”

Interestingly enough, Rep. Jackson actually frames the legal basis of the potential lawsuit in the first sentence. It is because the Constitution defines the authority of “three equal branches of Government” that the suit actually has merit.

Given that many members of Congress seem to struggle to understand the difference between impeachment and disqualification, it should not come as a surprise that many also seem to think that having “three equal branches of Government” means that they all have similar authorities. The concept of maintaining a “separation of powers,” as is implicit in the Constitution, seems to be lost on these individuals.

While the potential lawsuit has technical challenges based on standing, it is not frivolous based on facts. President Obama has stretched Executive authority to new limits and well beyond anything this Nation has ever experienced.

There are those who like to emphasize that the President has signed fewer Executive Orders than his predecessor. Unfortunately, the quantity of Executive Orders is irrelevant. It is the degree to which they expand Executive power or trample upon the separation of powers that matters.

For anyone who still wants to track numbers: The Administration has lost 20 cases that dealt with Executive overreach by a vote of 9-0 in the Supreme Court; a Court upon which two of the Justices were appointed by the President. If the House does file suit and secures standing, that number will likely grow to 21.

We need to remember what then-Senator Barack Obama promised in 2008: “The biggest problems we’re facing right now have to do with George Bush trying to bring more and more power into the Executive Branch, and not go through Congress at all. That’s what I intend to reverse when I’m President of the United States of America.” That “change” was totally within his control. He simply has chosen to ignore his promise.

Instead, President Obama has exploited his power and position in a relatively unprecedented way. He has grown comfortable in signing bills into law only to modify them outside of the legislative process. He has also grown comfortable in criticizing his opponents for the same behavior that he and his Party’s leadership also exhibit.

Immediately following the House’s vote to sue the President, the Democratic National Committee began an e-blast campaign to its constituents to gain political leverage. Its chair, Rep. Debbie Wasserman Shultz even sent out a fund-raising e-mail entitled “Let’s give ‘em hell.” In it, she disparaged her Republican colleagues in the House and asked for donations of $10, $20, $50, $100 or $200 to help “send this shutdown/lawsuit crowd packing.”

Similarly, the President gave a speech in Kansas City, Missouri, in which he mocked his opponents: “Stop being mad all the time. Stop just hatin’ all the time. Come on.”

Missing the irony of his rhetoric, he went on to say:

“Think about this: They have announced that they’re going to sue me for taking Executive actions to help people. So, they’re mad because I’m doin’ my job. And, by the way, I’ve told them. I said, ‘I’d be happy to do it with you. So, the only reason I’m doin’ it on my own is because you don’t do anything. But if you want, let’s work together.’

“I mean, everybody recognizes this is a political stunt, but it’s worse than that because every vote they’re takin’ like that means a vote they’re not takin’ to actually help you. When they have taken 50 votes to repeal the Affordable Care Act, that was time that could have been spent workin’ constructively to help you on some things. And, by the way, you know who is payin’ for this suit they’re going to file? You. You’re payin’ for it.”

Mr. President, with all due respect, please consider the following:

  • The House is considering filing a suit, not because you are doing your job… but because there is evidence to suggest that you are trying to do theirs.
  • Telling members of the House that you would be happy to work with them may not be as effective as actually demonstrating a willingness to work with them. Perhaps you would have a stronger argument if you stayed in Washington, D.C., to address our Nation’s foreign and domestic crises rather than traveling around the country to attend fundraising events for your Party.
  • Partisan speeches before partisan crowds, in which only applause lines are delivered rather than constructive solutions, are considered to be “political stunts” by informed members of the electorate.
  • Time spent on fund-raising trips, rounds of golf, and luxurious vacations may also be perceived by some as time that could have been better spent “workin’ constructively… on some things.”
  • We also are acutely aware of who is paying for those activities, and some of us even recognize how much productivity is lost with respect to the People’s business when it is spent doing the Party’s business… or on private indulgences.
    Please consider trying something new such as leading by example.
  • Then, the Republican transgressions that seem to annoy you would become far more pronounced and your anger would seem to be more justifiable. As Secretary Kerry is learning in Israel, someone must agree to a ceasefire before peace can be brokered. It is much the same with respect to the political polarization in our country.

If both Parties continue to engender conflict so it can be exploited to create the fear that drives political donations, turnout on Election Day, and thoughtlessly partisan votes, our Nation will lose. Someone needs to agree to stop the insanity. If one side has the integrity to stop attacking its opponent and the other side continues to fire political rockets, then the world will know who the aggressor is. Otherwise, as the great philosopher Pogo once said, “We have met the enemy and he is us.”


T.J. O’Hara is an internationally recognized author, speaker, and strategic consultant in the private and public sectors. In 2012, he emerged as the leading independent candidate for the Office of President of the United States and the first nominee of the Whig Party in over 150 years.

This article first appeared in T.J. O’Hara’s recurring column, A Civil Assessment, in the Communities Digital News (CDN).