Article II, Section 4 of the United States Constitution states that the President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high crimes and misdemeanors.” Since treason and bribery are off the table, we are left with “other high crimes and misdemeanors.”
There is no set definition for this term, but we can understand it as it was used and understood in the late 18th century. The phrase derives from English parliamentary law and was first used in 1386 against Michael de la Pole, the 1st Earl of Suffolk for basically breaking a promise to Parliament. That is, there was no specific law broken of a criminal nature like bribery, perjury, obstruction of justice or the like. In fact, after the English Restoration, it was used to include negligence and abuse of power while in office.
As far as our Founders were concerned, when they signified a crime as “High,” they meant that the offender engaged in activity or abrogated certain duties by virtue of taking an oath for “higher” office. Thus, a “high” crime can only be committed by someone in a unique position of authority (usually political) who do things to circumvent justice. At the time the Constitution was written, when connected to “and misdemeanors,” it inferred a lesser standard of determining guilt. A “crime” in the criminal sense need not be committed. Historically, the phrase covers a broad range of behaviors by people in unique positions of power. The Founders were uniquely aware of the usage of the phrase and its origin. They were aware of English law and the “crimes” for which officials were impeached. They included: appointing unfit subordinates, misappropriation of funds allocated by Parliament, failure yo prosecute, disobeying an order from Parliament, obtaining warrants without cause and even promoting oneself ahead of a more deserving person. Clearly, none of these actions run afoul of a particular criminal statute and clearly a president can be impeached without violating any criminal statute.
Our Founders were acutely aware that the concentration of power in a single Executive created the increased possibility for abuse of power. Benjamin Franklin himself noted that the a president should be impeached and removed from office when they “rendered themselves obnoxious.” James Madison noted that impeachment was necessary to defend the Nation against “the incapacity, negligence, or perfidy…” of the president. The difficulties placed on Congress in removing an official- especially a president- were designed to ward against the wanton use of congressional power against an unpopular (to Congress) president- the only nationally elected leader. That is why the House is in charge of drafting articles of impeachment in an action akin to a grand jury and indictment and the Senate is charged with trying the case AND requiring a super-majority to remove from office.
With this in mind, this series of articles will articulate a series of actions by Barack Obama and whether they could conceivably be used against him as grounds for impeachment. As will become evident, many of the “charges” involve his selective enforcement of laws and pseudo-legislation through executive orders. That is, Obama is attempting to bypass the legislative process to forward his agenda.
The president can “ignore” duly enacted legislation under but two circumstances. The first is if they believe the legislation violates the United States Constitution which is the ultimate law of the land. The second area is prosecutorial discretion. There are limited resources allocated to any branch of government and the Executive must often prioritize use of those funds. However, the Executive cannot use this discretion to simply turn their back on laws they happen to disagree with.
This, then, is the backdrop for this series of articles mindful of the fact that the violation of a criminal statute need not be required for impeachment. Our Founders created and inculcated the solution of impeachment to deal with elected and appointed officials who neglected to fulfill their duties and their oath of office. It is important to note that every president is required to take an oath of office and its importance is enshrined within the text of the Constitution in Article II. As part of that oath, the president is sworn to “faithfully execute” the laws of the United States. There are no qualifications in that statement. One will not read parenthetically “only those I, the president, choose to faithfully execute.”
The Constitution provides two avenues for any president to “disagree” with a law. One of them is the veto power and the other is the pardon power. However, even under the pardon power, it must be for offenses already committed and for which a person is paying a penalty. His oath commands Obama to faithfully execute the laws and that phrase was included because so many times the king of England simply refused to follow the will of the people as expressed through laws passed by Parliament. Laws that Obama disagrees with may be genuine disagreement. But laws they are nevertheless. He, as president, wields enormous power- expanded over the many years- to force change in the laws and to make his case with the American people in order to effectuate those changes. Because he hasn’t or cannot is no excuse to go around Congress and do as he pleases.
Finally, it should be noted that over the years Congress itself has been quiet in asserting its rightful enumerated powers and has allowed the presidency to assume an almost imperial role, especially in foreign policy. Some of this is understandable, but even more isn’t. But because this president or that president has done things tangentially related to things done by Obama does not excuse the behaviors and actions of the present.
In the the next part, I will discuss possible abuses of presidential powers vis-a-vis our immigration laws in more detail. As will become evident, there will be more “evidence” for impeachment in certain areas than in others. Immigration law is the best place to start.