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Obama and Trump: At What Point Has a President Forfeited the Public Trust?

A lot of Democrats are sure President Trump should be impeached. They just haven’t decided what the charges should be. Amazon still lists half a dozen books published from 2006 to 2008, advocating the impeachment of the second President Bush. A lot of critics said President Obama should be impeached (most, however, were content to vent that opinion online or on talk radio shows).

It’s true that the Constitution authorizes impeachment not only for “high crimes” but for “misdemeanors.” It’s not clear what kinds of acts the latter phrase was meant to cover. When the Senate was actually faced with its first impeachment trial—of Supreme Court Justice Samuel Chase, in 1805—Chase’s defenders insisted that his partisan judgments and abusive jury instructions were no grounds for removal.

At the 1805 Senate trial, Luther Martin, the veteran of the Philadelphia Convention from Maryland, insisted that only an actual criminal offense would be proper grounds for removal. Conduct that was merely unseemly would be insufficient, said Martin. As Henry Adams later characterized him, Martin himself was “rough and coarse in manner and expression, verbose, often ungrammatical, commonly more or less drunk, passionate, vituperative, gross . . . ” The Marylander had started as an Anti-Federalist, then embraced the Federalist Party out of sheer loathing for Jeffersonian sanctimony.

Luther Martin was the sort of person Trump defenders might relish as their champion. But President Clinton’s defenders embraced Martin’s arguments, too. In 1998, all House Democrats and even some House Republicans accepted the argument of Clinton’s lawyers that mere abusive conduct in the Oval Office was not proper grounds for impeachment. Accordingly, the House rejected a proposed impeachment article for “abuse of power” and focused on charges involving perjury.

But the Framers were well aware that Britain’s Parliament had, in the 17th century and for centuries before that, used impeachment to address offenses we might now describe as malfeasance or betrayal of trust. Federalist 66 seems to say that the Senate would be justified in removing a President for “perverting the instructions or contravening the views of the Senate” in a foreign negotiation. And what the Clinton impeachment experience actually shows is that even a crime—Clinton’s lawyers did not deny that he was guilty of perjury—would not be enough, unless it were clear that the incumbent’s behavior had actually forfeited public trust.

So before Robert Mueller’s team has its say, we might do better to reflect on what we regard as unacceptable or untrustworthy presidential conduct. The immediately preceding administration offers the most obvious comparison. A recent book by Louis Fisher, President Obama: Constitutional Aspirations and Executive Actions (2018), is a good place to start. A useful companion volume in this exercise is an earlier book by my colleague at George Mason University, David E. Bernstein. Reviewed in these pages at the time (by Mark Pulliam), and featured on Liberty Law TalkLawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law (2015) is worth another look as an interesting counterpoint to the Fisher volume.

Abuses Pointed Out, But No Calls for Impeachment

Fisher is critical of Obama. He spent four decades working for the Library of Congress, most of it as an analyst for the Congressional Research Service, which provides legal and historical guidance for members of Congress. Indeed he maintains the restrained tone of CRS reports, even as he expresses continual warnings about executive overreach—as he has for decades.

Perhaps Fisher’s most clear-cut complaint is that Obama rewrote immigration law to protect unlawful child migrants and their parents and did so well beyond his own authority, as federal courts subsequently ruled. He also finds fault with Obama for indicating, when signing bills into law, that he reserved the right not to enforce some provisions. That practice had begun under Bush 43, with then-Senator Obama (D-Ill.) protesting it at the time. Similarly, President Obama is faulted for extending the Bush administration’s penchant for secrecy: he urged courts to respect a “state secrets” privilege that had, argues Fisher, at best a very tenuous legal basis. The Obama administration continued the Bush administration’s electronic surveillance of American citizens, and top Obama officials misrepresented the scale of the practice in sworn testimony to Congress.

Lawless discusses a number of abuses that the Fisher book fails to notice. Bernstein protests Obama’s use of leverage from federal bailout funds to replace the management of General Motors with Obama appointees and redirect investment to reward Obama constituencies or priorities. He protests reliance on “czars” who served in the White House without Senate confirmation but were still allowed to impose new policies, as Elizabeth Warren (before she became a U.S. senator) directed the establishment of the new Consumer Financial Protection Bureau. Bernstein protests civil rights agencies’ running roughshod over free speech and religious freedom. As he reports, they were slapped down again and again for that by federal courts.

Yet some things that received a lot of attention at the time, at least among Republican critics, get almost no attention in either book. A Republican-led House of Representatives charged Attorney General Eric Holder with contempt of Congress for concealing evidence of abuse by the Bureau of Alcohol, Tobacco and Firearms (involving the secret distribution of unlawful guns in Mexico). Obama’s Internal Revenue Service denied tax-exempt status to conservative advocacy groups on criteria not applied to others. Then there was Secretary of State Hillary Clinton’s use of private computer servers to send and store email, including classified messages. It seemed important at the time it became known, but not to these authors. They also skip past President Obama’s continual rewriting of the Affordable Care Act, by which the President offered new exemptions and deferrals of obligation, as if the statute were his own personal project rather than binding law for the nation.

Neither Fisher nor Bernstein wrestles with whether Obama should have been a candidate for impeachment. But that’s the point. He was not (with a few exceptions) considered such by the media or the public. Of course, the mainstream media was anxious to protect President Obama, while they tend to be much more hostile toward and suspicious of his successor.

How Much of It Is Partisan?

But I draw some additional lessons from these books.

First, it’s hard to sustain the interest of ordinary citizens in an extended series of legal disputes about governmental conduct, especially when alleged misconduct does not entail distinct criminal offenses. The various charges tend to blur, and when that happens, the accumulation of details and examples undermines the force of any one accusation.

Second, it’s hard to compare one administration with its predecessors because a variety of distinct abuses don’t add up to a quantifiable aggregate of wrongdoing.

Finally, it’s hard to disentangle accusations from the larger context of partisan debate. Fisher, who takes cooperation between Congress and the President as the constitutional norm, criticizes President Obama for speaking dismissively of Republicans in his first years in office (when they were in the minority). The belittling made it that much harder to gain their support later on, when he needed it. But Fisher does not cite a single member of Obama’s Democratic Party urging restraint in real time, when it might have done some good—perhaps inhibiting Obama from saying, for example, that Republicans had “driven the car into the ditch and now ask for the keys back.”

It could be that Obama extended executive authority beyond reasonable bounds, and that he took partisanship too far. But Obama did not ridicule individual opponents. He never raised his voice. And he did not issue inflammatory tweets. President Trump—a “disrupter”—has asked to be judged differently from his predecessors. He will be, whether or not that ultimately provokes his removal from office.

Reader Discussion

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on February 19, 2019 at 09:52:11 am

Another additional lesson: the sheer quantity of Obama's majestic actions is incapable of being contained within even two books on the subject.

And Rabkin's last paragraph confirms my own oft-repeated point that the intensity of Trump hatred is almost entirely an aesthetic reaction. All of the charges of "unfitness" boil down (and that without much boiling) to "I don't like the cut of his jib."

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QET
on February 19, 2019 at 10:33:39 am

"“I don’t like the cut of his jib.”

and not only that, "the damnable plebe would do well to simply shut up and not fire back at his BETTERS!

Unconscionable, sir, unconscionable!!!!!!!!

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gabe
on February 19, 2019 at 16:39:32 pm

The Black Republicans hated Johnson and pushed for his impeachment because he did not 'do enough' and tried to slow some of the punitive actions against the Southern States. The impeachment was not what he did but how he was disliked.

Today we are supposed to recognize the 14th Amendment that was approved at the point of a gun. Many would suggest it was never properly ratified. However, those in power got what they wanted and we are left to deal with the aftermath.

The CLS attorneys and Judges should never have been admitted to the Bar. What sort of framework of law is there if there shall be no framework if I don't like the outcome? Nonetheless, we have Ginsburg being treated as royalty and morons in practice and even teaching (Harvard) who believe they have no duty to adhere to the law but everyone else does. i.e., its a popularity contest (democracy) rather than anything with legal framework.

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Arthur
on February 20, 2019 at 14:42:07 pm

How Much of It Is Partisan?

Virtually all--although "tribal" might be a better term.

[I]t’s hard to disentangle accusations from the larger context of partisan debate. Fisher, who takes cooperation between Congress and the President as the constitutional norm, criticizes President Obama for speaking dismissively of Republicans in his first years in office (when they were in the minority). The belittling made it that much harder to gain their support later on, when he needed it. But Fisher does not cite a single member of Obama’s Democratic Party urging restraint in real time, when it might have done some good—perhaps inhibiting Obama from saying, for example, that Republicans had “driven the car into the ditch and now ask for the keys back.”

What? Obama said THAT? How shocking! I’m clutching my pears with dismay!

I mean, it's almost as if Obama told members of the opposition to go fuck yourself on the floor of the Senate. Or shouted YOU LIE during the State of the Union address. But those would be trivial infractions compared to this!

As far as I can tell, Obama started using that line on May 13, 2010--which is to say, while campaigning before the midterms. How dare Obama use partisan language under such circumstances? This is obviously the source of all the partisanship!

Sure—just like it's obvious that Lincoln drove the Southern states to secede. Ok, true, they succeeded before Lincoln ever took office—but what use do conservatives have for logic?

Likewise, we can safely conclude that Obama caused all the partisanship—and we can safely ignore the copiously documented accounts of Republicans organizing before Obama ever took office to stonewall everything Obama would do. For example, we should ignore the entire first chapter of Michael Grunwald's The New New Deal: The Hidden Story of Change in the Obama Era (2012). But if anyone cared about facts, they could find a lengthy excerpt posted to this web page here.

Still, it provides such comfort to people to imagine that Obama was the source of all this rancor--only that can explain the lengths people will go to seek out false equivalencies. Because, of course, Obama was (and remains) the source of much of the rancor. No, not because of what he did in his first year. Nor even during his campaign. No, it’s something he started doing on August 4, 1961, and for which many people will never forgive him.

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nobody.really
on February 20, 2019 at 16:52:19 pm

Uh, gee! where does "bitter clingers" fit into your chronology?
Oh that's right. The GOP inserted those words into the mouth of the Great and Magnificent Obama.

cut the crap, nobody. The Big Zero was as nasty as the rest of them.

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gabe
on February 20, 2019 at 23:49:27 pm

I’m wondering then what acts justify legitimate impeachment proceedings. Should we rely on the Federalist Papers as a guide, or are there other equally authoritative interpretations that we should consult?

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Kas Zoller
on February 21, 2019 at 09:31:36 am

Shorter nobody.really:

When a Republican Congress prevents a Democratic President from carrying out the will of the people, the Republicans are tribal polarizers.

When a Republican President prevents a Democratic Congress from carrying out the will of the people, the Republicans are tribal polarizers.

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QET
on February 25, 2019 at 02:09:35 am

I have one question to ask is that can corruption be in place of the US government seat? Of cause as human being is concern of the nature.
I would like to say that do not be by slow progress to the process of the impeachment but quickl action must take and start Bush.

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Image of Albert Barfo
Albert Barfo
on April 20, 2019 at 17:49:39 pm

[…] Read more: lawliberty.org […]

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Obama and Trump: At What Point Has a President Forfeited the Public Trust? | Video Agency Studio
on October 03, 2019 at 05:57:51 am

[…] Obama and Trump: At What Point Has a President Forfeited the Public Trust? […]

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Impeachment, Then and Now: Essential Readings from Law & Liberty

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