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Confronting a Difficult Choice

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Frustrated and bitter over President Obama’s riding roughshod over the Constitution with his rampant use of executive power to override or go around Congress in areas designated by the Constitution as congressional prerogatives, many of us have wondered why he hasn’t been impeached for such breaches. Well, strictly speaking it’s because impeachment is in essence a legislative challenge brought in Congress against the president according to Constitutional guidelines and thus largely a political action. And our politics these days have become bitterly partisan and divisive, due in no small part to the actions of this president himself. Impeachment, when it is invoked, must be followed by a trial before Congress which can go either way (as we have seen in our history). Conviction and the subsequent punishment, removal from office, hinges on demonstration to Congress by Congressional “prosecutors” that the president has been guilty of “high crimes and misdemeanors”. What do such infractions consist of?

The Constitution isn’t very specific although treason clearly qualifies: According to Article II of the United States Constitution, Section 4, “The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” So, in fact, the provision on impeachment isn’t all that clear given that “High Crimes and Misdemeanors” are basically a catchall for a great many possible violations that don’t rise to the level of treason or taking bribes. So what counts as “high” enough to warrant Congressional action to remove a top elected official from office (the outcome of impeachment proceedings, voted in the House of Representatives and then tried before the Senate)?

President Obama’s executive orders seem to many to have trod the fine line between what a president may do under the Constitution and what he may not. To the extent he oversteps those bounds, deliberately and willfully, one can argue that this amounts to a Constitutional violation. Since the president is sworn to uphold and defend, not suborn or ignore, that document, doing so must constitute a serious crime. But is it “high” enough? It’s hard to tell, given the inherently disputational nature of the law, itself. President Obama’s numerous executive actions have been subject to many court challenges, which involve a lengthy, time-consuming process which frustrates many who believe a violation of the Constitution is always clearcut and must be stopped. But the Constitution is first and foremost a legal document and while it must not be violated, what counts as a violation is ultimately a matter for dispute by our courts. While all of us may hold opinions on the subject, only the courts, and in the end the Supreme Court, can rule on the matter.

This president’s track record in the courts vis a vis his executive actions thus far hasn’t been perfect but he’s won enough times to make his overreaches at least arguably defensible. More, when he loses he seems to acquiesce to the court’s ruling. Mostly. Arguably, however, in the case in Texas against his executive action to treat illegal aliens differently than the law provides for, his Justice Department seems to have been on thin ice, the presiding judge declaring that Justice Department lawyers deliberately misled the court on material matters of fact which might have affected the rulings. They did so, apparently, in order to be able to continue some of the activities the court’s adverse rulings had seemed to halt. This case, as with most such issues, is still pending, the various legal issues to be addressed, untangled and adjudicated in subsequent court trials. Meanwhile, the president’s executive action is mostly on hold and there’s been no evidence thus far that his administration is attempting to implement it in full contra the court’s current “stay” order. Still, there is the suspicion, given the judge’s citing of material misrepresentation by government lawyers.

If the president were to outright ignore an adverse court ruling, of course, that would certainly be impeachable. But so far there is no indication he has done that. Nothing he has done thus far re: his executive actions seems to be an unquestionably deliberate subversion of the Constitution, the kind of thing which would arguably qualify as a “high crime.” And the president remains on strong political footing vis a vis impeachment risks, given that most of the press is in his corner and in light of his status as our first African-American president which effectively insulates him. But now comes some very troubling news.

If reports have it right, the president authorized and paid Iran $1.7 billion in cash — in connection with achieving his nuclear “deal” — with the monies drawn from an account authorized by Congress for executive use in such cases. However the law, as written, provides for such use to be accomplished only by electronic transfer or by check.

If the facts show the president took those funds and converted them to cash (in various foreign currencies as now appears to be the case) then that would be an outright violation of the law.

All arguments aside as to whether the payment was either wise or appropriate, the manner in which it was made would be illegal if the law specifies modes of payment other than cash and the president paid cash to the Ayatollah’s government. Although this president has only a few months left to go in office, making impeachment moot in his case, violating an explicit provision of law in order to pay an avowed enemy of this country in the amount of 1.7 billion dollars certainly looks like a high enough crime to meet the constitutional standard. If this payment in fact violated a duly legislated provision by Congress, then it was illegal and even presidents may not violate our laws, especially in the clearly intentional way this was done (since it appears that great pains were taken to conceal the withdrawals from the congressionally authorized account).

Congress now owes it to the country to call this president to account — not because it matters for much longer in his case but because it matters in the case of future presidents. A breach of trust on this scale must not go unnoticed or unaddressed.

It may not make any sense to raise the specter of impeachment at this stage, especially given the rancorous nature of the current presidential race, but Congress should act to make clear that a violation of law actually occurred here and that it must not be repeated. Hearings, legislative redress via new legislation to augment what has already been passed, even a resolution (perhaps a “sense of the senate”) must all now be considered. Impeachment may not be politically feasible, even if deserved, but something must be done by Congress to reassert the primacy of our Constitution in American life.

About Stuart W. Mirsky

Stuart W. Mirsky, a former New York City official who last served as Assistant Commissioner for Operations in the New York City Department of Health and Mental Hygiene before retiring in 2002, wrote a column, "The Rockaway Irregular," for The Wave, a south Queens based weekly, for more than a decade (until Hurricane Sandy changed the equation). He is an original founder of the Rockaway Republicans, one of the most active Republican groups in southern Queens, and author of a number of books, including The King of Vinland's Saga, an historical novel of the Norse in 11th century North America, A Raft on the River, a memoir of Holocaust survival, and Choice and Action, a work of contemporary philosophy addressing the implications of relativism and nihilism for our moral beliefs.

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