Impeachment, anyone? Influential conservative thinkers are thinking about it

REUTERS/Jonathan Ernst
President Barack Obama is “opposed to and hostile to the Constitution,” said Arkansas Congressman and Senate candidate Tom Cotton.

I do not take seriously the idea that congressional Republicans will attempt to impeach President Obama. It didn’t work for them against President Bill Clinton, who had done far more to deserve it. And perhaps they have figured out by now that it takes a two-thirds vote in the U.S. Senate to convict and remove a president.

On the other hand, I do take legal affairs analyst Jeffrey Toobin seriously, and his latest New Yorker piece made at least a back-handed argument that influential conservatives think Obama has committed impeachable offenses.

What it comes down to is this: Toobin takes the Federalist Society seriously. He knows that many liberals view the Federalists as “a shadowy cabal.” But Toobin knows better. Their programs are intellectually rigorous and, he notes in the key punchline of his short piece: “Where the Federalists lead, Republicans follow.”

So Toobin was struck by the rhetoric at a recent Federalist meeting which didn’t just disagree with Obama’s policies, but made a legal and constitutional case that Obama has regularly violated both the law and the sacred charter. Obama is “opposed to and hostile to the Constitution,” said Arkansas Congressman and Senate candidate Tom Cotton.

One of several examples of Obama’s disrespect for the balance of powers was the postponements he authorized to the deadlines for several provisions in the Affordable Care Act. I have heard this complaint before and have not read a good analysis of where Obama claimed to find the authority to change the implementation schedule. But it is inconceivable to me that he could be impeached and removed over that matter.

Nonetheless, Charles Cooper, described by Toobin as “a longtime stalwart of the Federalist Society,” bespoke himself thus at the meeting:

“Our system of checks and balances has been no match for President Obama,” Cooper said. “He has violated his oath of office comprehensively. He has done what the Constitution forbids him to do, and he has not done that which the Constitution requires him to do.” According to Cooper, the real issue to address was impeachment: “The threshold question is whether President Obama’s serial violations of separations of powers satisfies the constitutional standard for impeachment. Has he committed … ‘high crimes and misdemeanors’? I believe there is little doubt that he has.”

The good news is that when Toobin asked Cooper whether is backing an actual move toward impeachment, Cooper said he isn’t — yet.

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Comments (48)

  1. Submitted by Paul Udstrand on 05/15/2014 - 09:25 am.

    Influential conservatives?

    The Tea Party has demolished such influence for the time being, and if you don’t have the votes, you don’t have the votes. I would welcome the attempt, especially in an election year. It would be beyond a gift from heaven to have Republicans all over the country running on the promise that they make Washington work while the ones already elected clog up the system with yet another pointless debate.

  2. Submitted by Jackson Cage on 05/15/2014 - 09:37 am.

    With 5 little words.

    “Their programs are intellectually rigorous’. And, with 5 carelessly written words, Eric Black squanders years of building credibility through his writing. Well, at least America loves giving people a chance to start over.

    • Submitted by Paul Brandon on 05/15/2014 - 09:43 am.

      ‘intellectually rigorous’

      can simply mean ‘an argument consistent with its assumptions.’ No matter how intellectually rigorous, the rigor is mortis if those assumptions themselves are absurd, as they are in this case.

      • Submitted by richard owens on 05/15/2014 - 05:37 pm.

        The GOP suffers from confirmation bias.

        The very existence of this President defies the core of their beliefs.

        And they are CERTAIN of their beliefs.

        Now all they need to just find the evidence…..

  3. Submitted by Dennis Tester on 05/15/2014 - 09:49 am.

    The case against Richard Nixon

    I’d be interested to hear what the Federalist Society thinks of the accusation against Obama that he used the IRS to punish his enemies. Clearly the IRS, led by partisans within the agency, was used as an arm of the Obama re-election campaign to target people and groups who opposed Obama’s re-election or who otherwise held the “wrong” political beliefs. That’s not right and the American people should not let any politician, especially the president, get away with it.

    Within the second of three articles of impeachment brought against Richard Nixon is this:

    1. He has, acting personally and through his subordinates and agents, endeavoured to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed 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.

    Adopted 28-10 by the Committee on the Judiciary of the House of Representatives.

    • Submitted by Thomas Swift on 05/21/2014 - 08:02 am.

      The absence of the usual pile of bilious responses to one of your posts is noted, and speaks to the truth contained in it, Dennis.

      Maybe we should take that as tacit approval of the tactic and encourage the upcoming GOP majorities to enthusiastically employ it.

  4. Submitted by Paul Udstrand on 05/15/2014 - 10:27 am.


    Intellectual rigor is decidedly NOT a feature of conservative thinkers over the last two or three decades. In fact I have to say they’ve specialized in intellectual dishonesty, they invariably start with conclusions and work backwards. These are the same guys who claimed torture was legal and warrantless wiretapping was constitutional. On a very basic level these guys are just trying to get “even” for what happened to Nixon, it’s that simple.

    • Submitted by Marc Post on 05/15/2014 - 11:42 am.

      Getting even?

      I mostly agree, Paul, but I don’t know about getting “even”. Nixon was never impeached.

      I think it’s simple hatred of anyone who doesn’t agree with them. They will do anything to destroy those who don’t agree with them from Obama to teachers to scientists. No tactic is off the table. This is political mud slinging. They don’t have to win impeachment and they don’t care if they do. It’s the mud they’re after.

      If they can’t win the presidency at the ballot box, they’ll destroy it by all other means available.

      • Submitted by Gerald Abrahamson on 05/16/2014 - 07:45 am.

        Nixon resigned before the impeachment could begin

        The preliminary process of starting an impeachment had already begun and Nixon was told it was coming. It was impossible to deny, so Nixon chose to resign rather than be impeached.

  5. Submitted by elliot rothenberg on 05/15/2014 - 12:15 pm.

    Nixon was way too liberal for the current crew, more liberal than any successor of either party.

  6. Submitted by Ray Schoch on 05/15/2014 - 12:51 pm.

    Sour grapes

    Whether or not the Federalist Society’s arguments are intellectually rigorous, they still, and again, represent little more than slightly more sophisticated whining over the fact that a Democract of mixed race was elected President, and while in office, has tried, largely ineffectually, to make the federal government slightly (I want to emphasize that qualifier) less a proxy for corporate America.

    I confess to numerous lapses of memory with advancing years, but I don’t recall a groundswell among those who like to call themselves “conservative” as Mr. Obama’s predecessor sent hundreds of thousands of American soldiers and sailors overseas to fight in a pair of conflicts (some might argue there are more than just two) for which no constitutionally-mandated declaration of war has ever been agreed to and issued by Congress. The fact that Mr. Obama has continued these wars doesn’t speak well for him, either, but if it’s intellectual “rigor” that lends credence to the Federalist arguments, then that “rigor” should include intellectual consistency,

    I see no evidence of the latter.

  7. Submitted by Neal Rovick on 05/15/2014 - 01:05 pm.

    Go ahead, start the goat circus.

    And make sure to sure to support the 10 million patriot showdown on the Capitol Mall this weekend. They propose to set up a tribunal of “patriots” .

    “Those with the principles of a West, Cruz, Dr. Ben Carson, Lee, DeMint, Paul, Gov Walker, Sessions, Gowdy, Jordan, should comprise a tribunal and assume positions of authority to convene investigations, recommend appropriate charges against politicians and government employees to the new U.S. Attorney General appointed by the new President,”….

    (end quote)

    Can’t win elections, don’t like the elections results, can’t wait for the next election, want to set up an extraordinary process to dismantle democratically elected bodies.

    That how you preserve the constitution.

    By destroying it.


    Goat circus.

  8. Submitted by Hiram Foster on 05/15/2014 - 01:08 pm.

    Let’s ask

    If the issue out there, let’s ask Republican candidates for senator if and under what conditions they would vote for the president’s impeachment.

  9. Submitted by Dan Hintz on 05/15/2014 - 02:09 pm.

    Intellectually Rigorous

    The Federalist Society is far from intellectually rigorous, but not as much as Eric Black’s analysis, which was just lazy. Come on, Eric, you are better than this.

  10. Submitted by E Smith on 05/15/2014 - 02:53 pm.

    mote in someone’s eye

    Before a partisan organization should be called ‘intellectually rigorous’ they should at least treat all political members equally. If they seriously think Obama meets the criteria for impeachment I have to wonder if they applied that rigor equally to GWB. Or, is it just because the current president isn’t in the political party they support?

  11. Submitted by Mike Worcester on 05/15/2014 - 03:13 pm.

    A Little Late to the Party

    I’d be curious to know where the fine, intellectual folk from the Federalist Society were when their hero, Pres. George W. Bush, took the shredder to the Constitution during his eight years in office?

    Oh, wait, that’s right….it was *completely* different then.

    Uh huh…..

  12. Submitted by John Appelen on 05/15/2014 - 11:23 pm.

    National Security

    I guess I don’t know much about this topic, however these comments seem way too one sided.

    Now Bush did have a big advantage. Many of the liberties he took were tied to “National Defense” when people feared Al Qaeda. And since the President is the Commander in Chief, he was given some latitude.

    Whereas Obama seems to using Executive privilege in some places where it may not belong.
    – Letting schools opt out of NCLB
    – Delaying ACA implementation
    – Raising min wage for federal contractors

    It will be interesting to see where this goes. Especially if the GOP takes over Senate control this in January.

    • Submitted by jason myron on 05/16/2014 - 02:27 am.

      Well, let’s see…

      As of January, Obama has issued 168 Executive Orders,compared to George Bush with his 291 in 8 years and Ronald Reagan with 391. By the way, last I heard, Al Queda is still a threat but I guess Obama doesn’t get the same latitude because …oh yeah, he’s a Dem. Thanks for chiming in however and adding nothing to “your side” other than just blind, partisan speculation. I’m sure there’s some poor people you can chastise for their poor life choices coming on another thread real soon. Better warm up your blog…

      • Submitted by John Appelen on 05/16/2014 - 08:09 am.

        Still a Threat

        Yes they are and I am happy Obama has not undone all of the good work that was done to ensure the war on terrorism stayed off US soil. And if his dictates focused around keeping us safe, he would get that benefit. Unfortunately his dictates seem to be about getting around the rules passed or not passed by the Legislative branch.

        By the way, have you started Buying American whenever practical? It is good for American workers, Government revenues, Unions, etc.

        • Submitted by Paul Brandon on 05/16/2014 - 01:21 pm.

          You could buy American food

          but even then it is probably produced using foreign chemicals and machinery.
          just about anything else is ultimately a multinational product.
          For instance, the most ‘American’ car (in terms of percentage of parts made in America) is the Toyota Avalon, while good old Fords are made in Mexico.
          Welcome to the 21st. century.

          • Submitted by John Appelen on 05/16/2014 - 03:41 pm.

            Incorrect Sir

            Maybe if you only include manufacturing content. However that is less than half the price of the car…

            You have to also consider: where is their R and D, corporate headquarters, marketing, manufacturing engineering, logistics, IT, accounting, executives, etc, etc, etc. All of these folks make money and pay taxes. The question is where?

            With that in mind… The Avalon barely makes the top 10… And remember that Toyota and Honda are the most American of the foreign vehicles by a long shot. See below…


            By the way, Fleet Farm and Menards sell quite a few things with the Made in America sticker. If you take the time to look.

            Finally, remember that made in Mexico/Canada isn’t necessarily a bad thing. Since they are neighbors who do buy a lot from us.

            • Submitted by Paul Brandon on 05/16/2014 - 07:52 pm.

              Ford’s R&D is mostly in Germany.

              These are all multinationals.

              And remember that China buys a lot from us too.
              The Kogod index is interesting, but it appears to be based on subjective weighting choices.
              The fact that lumber yards sell a lot of things made in America is basically economics.
              It doesn’t make sense or money to import timber from China.
              However, most of the tools that Menards sells come from the Orient.

    • Submitted by Neal Rovick on 05/16/2014 - 08:55 am.

      Simple response

      Balance of powers–there are two other branches of government that can have meaningful input on the actions of the 3rd.

      Impeachment is the nuclear option, as opposed to following legislative or judicial approaches.

      It says a lot about the fundamental weakness of the right’s arguments if the “only” option is impeachment on run-of-the-mill separation of powers issues. Maximum bang for minimum issues.

      The big advantage for impeachment is that it brings the entire executive branch to a halt–which is apparently the point of the tactic.

      It’s as close to a coup as they can get, and still pretend to be acting within the Constitution.

      • Submitted by John Appelen on 05/16/2014 - 01:56 pm.


        I don’t think anyone will try to impeach him.

        • Submitted by Paul Brandon on 05/17/2014 - 09:49 am.


          Supreme Court justices may also be impeached (on the same grounds as the executive). It’s only happened once (Samuel Chase, and he was acquitted).
          But is does provide a check on an otherwise lifetime appointment.

    • Submitted by RB Holbrook on 05/16/2014 - 09:25 am.

      Taking liberties

      Let us not forget the biggest “liberty” he took; namely, bending the truth about Iraq in order to get congressional approval (yes, yes, yes, including many Democrats) to use force. Has anyone ever been called to account for that? How about the authorization of torture, which, unlike drone strikes (honestly, you people are predictable), is specifically against international law?

      Somehow, those strike me as being a tad worse than the statutorily authorized “[l]etting schools opt out of NCLB.”

      • Submitted by John Appelen on 05/16/2014 - 01:40 pm.

        It Depends

        I personally don’t know if he bent the truth regarding Iraq, or if he wanted to see it so badly that he saw facts where others saw ghosts. One of George’s biggest flaws was that he believed what he believed, and then he took action on it. (for better or worse)

        Apparently the “torture” and drones were gray zones since I don’t think any US citizens were charged with war crimes. Correct?

        Where as relaxing the pressure on NO Child Left Behind, seems to say that our current President is okay with Some Children Being Left Behind… (bummer…)

        • Submitted by RB Holbrook on 05/16/2014 - 03:24 pm.

          Torture and Schools

          Tell me your kids have never made that connection.

          Torture is not a gray area. It is forbidden by the UN Convention Against Torture, signed by President Bush Père in 1988, and ratified by the Senate in 1994. US courts have accepted the idea that torturers are “enemies of mankind.” While I think the use of drones by the current administration is reprehensible, I do not think it is as clearly a violation of the norms of international conduct as torture. No US citizens were charged with war crimes, unless you count the prosecution of enlisted people for maltreatment of prisoners.

          Section 9401 of NCLB allows the Secretary of Education to grant waivers if a state shows that the waiver will improve the quality of education for students.

          I don’t see a distinction between seeing the facts you want to see and bending the truth.

          • Submitted by John Appelen on 05/16/2014 - 06:37 pm.


            The difference is intent. Most people see the facts they want to see. We prove that here every day.

            Bending the truth means one is intentionally deceiving folks. A sign of poor character.

            When you say that Race to the Top “will improve the quality of education for students”… Are you seeing the facts you want or bending the truth?

            How would the reader of the comment know? How would one know if Bush was biased, or intentionally misleading the country.

            • Submitted by RB Holbrook on 05/19/2014 - 09:36 am.


              “The difference is intent.” Well, then, what is the intent behind willful blindness and cherry-picking facts? Or, if you prefer, what was the result? A long war that had an unconscionable cost in human lives, money, and national prestige. What was the motive? Is that important? It happened–there was a reliance on dubious sources of intelligence, and a failure to consider any contradictory facts. The decision to go to war in Iraq was made before the reason was found. That, sir, is a sign of more than “poor character.”

              “When you say that Race to the Top ‘will improve the quality of education for students’… Are you seeing the facts you want or bending the truth?” Neither–I am quoting the statutory criterion for granting a state a waiver from NCLB, my point being that the idea of such waivers are not unilateral creations of the Obama administration. Personally, I don’t think Race to the Top will help students at all. Of course, I’m also not a big fan of NCLB, or of much of what passes for education “reform” these days.

        • Submitted by Paul Brandon on 05/17/2014 - 09:51 am.

          No Child Left Behind

          as written was more a mechanism to transfer public funds to religious schools.

      • Submitted by Karen Sandness on 05/16/2014 - 03:45 pm.

        Reminds me of AM radio fans in Oregon who

        tried to recall then-Governor Barbara Roberts not once but three times. (The third attempt occurred while her husband was in the last stages of terminal cancer, as if she didn’t have enough problems.)

        Now Roberts was only a so-so governor, but I honestly could not think of anything she had done to deserve being recalled, so I approached a table of recall supporters who were gathering signatures and asked them what their grounds for recall were.

        “The cost overruns on the remodeling of the state capitol!” one of them said.

        “That was under (previous governor) Atiyeh,” I reminded them.

        “The logging restrictions!” said another.

        “That’s federal policy.”

        “Property taxes!”

        “That’s local government.”

        And so on and so on. Everything they wanted to recall Barbara Roberts for was either left over from a previous administration, federal policy, or a strictly local matter. Finally I said, “I’m no great fan of hers, but I think you hate her just because she’s a Democratic woman in a high public office.”

        They sat there with their mouths open, but as I walked away, one of them yelled, “Feminazi!”

        I think something similar is going on with the calls to impeach Obama. I know that racists absolutely hate being called racists, but remarks I have heard and seen continually since the 2008 election make me suspect that racism is part of the mix. Otherwise, the whole “birther” fuss makes no sense. The racists know that it’s socially unacceptable to say what they really want to say, so they resort to calling Obama “a Kenyan Muslim.”

        I don’t particularly like Obama except in comparison to his opponents, but at least I criticize him for things he has actually done (continuing some of the worst of Bush’s policies, being too timid on health care, appointing advocates of school privatization and Wall Street insiders to powerful positions, etc.) rather than for his parentage.

        • Submitted by John Appelen on 05/16/2014 - 06:46 pm.

          State of the Union

          Saying during the State of the Union that he would use Executive Powers to work around the obstructionist Congress probably did not make him too many GOP friends.

          Personally I think the GOP would have been just as frustrated with Obama and the DFL Senate even if Obama had been White. Especially after the DFL used their 2 years in control to pass ACA.

          • Submitted by Karen Sandness on 05/17/2014 - 09:35 am.

            Congress hasn’t been obstructionist?

            Rejecting more appointees than for any other president?
            Dozens of attempts to repeal the ACA instead of working on the country’s business?

        • Submitted by Dennis Tester on 05/16/2014 - 08:49 pm.

          And what about

          black conservatives and other conservatives of color who oppose him and his leftist ideology? Are they racists too?

          You people need to put down the worn-out shield you’ve been using to protect this empty suit and admit that the real racists in this society are those who voted for an inexperienced and incompetent politician BECAUSE he was black.

          Then read the articles of impeachment against Richard Nixon. You might find a few charges that sound familiar.

          • Submitted by Karen Sandness on 05/17/2014 - 09:57 am.

            The only reason I voted for Obama in 2008 was

            that I didn’t want an airhead like Sarah Palin to be one heartbeat away from the presidency.

            The only reason I voted for him in 2012 was that I didn’t want the Republicans to have free rein to take this country back to the nineteenth century era of robber barons.

            I’m tired of having to choose between Bad and Worse, but that’s what we’re stuck with, as long as Big Money controls who gets nominated in both parties.

            And Dennis, anyone who accuses Obama of “leftist ideology,” has just proved to me that he or she has no idea what leftist ideology really is. Read some REAL leftist journals like The Nation or Mother Jones or FAIR (not yuppie leftist publications like The New York Times), and you will see that Obama gets as much flak from the left as from the right.

            They criticize this purported “leftist” for being buddy-buddy with Wall Street types, for appointing advocates of school privatization to the Department of Education, for keeping health care in the private sector, for renewing the Patriot Act, for continuing the bogus War on Terror and all the snooping it supposedly justifies, for advocating further “free” trade deals, for even considering cutting Social Security, for drone warfare, and for not standing up to the sore loser bullies in the House. That’s just for starters.

            I happen to know some REAL Socialists, and they most definitely do not think of Obama as a “comrade.” They believe that moderate Republicans left the Republican party (after the economic libertarians and religious zealots took over) to assume positions of power in the Democratic party and that Obama is their man.

            However, they at least criticize him for his actions, not for being a “Kenyan Muslim Socialist.” They have also never called him “uppity” or referred to Michelle Obama as “that ugly ape” or started saying “take our country back” as soon as a man of mixed race moved into the White House.

            (Real leftists have been saying “take our country back” ever since Reagan made his first moves to coddle the corporate pirates and bust unions.)

  13. Submitted by Jon Lord on 05/16/2014 - 08:07 am.

    just wanted to add

    I’ve experienced arguments that have started out on a false premise but were fairly sound based on the false premise ‘if’ that first false premise might have been true. Once an argument like this starts it’s really difficult to stem because of the circular nature of it’s excitability. It’s going to come around again even if it quiets down for a while. It doesn’t matter if it isn’t true. In polite, and even impolite, society, it’s called gossip.

  14. Submitted by Paul Udstrand on 05/16/2014 - 09:02 am.

    Actually the Federalist Society…

    Is a particularly good example of intellectual dishonesty rather than “rigor”. As the architect of “originalism” they have constructed a science fiction fantasy that pretends to be legitimate legal doctrine.

    “Intent” is one of if not THE most difficult charge to prove in a court of law. I’m not even allowed to testify as what my wife may have “intended” when she did something, and I live with the woman. Yet here we have an entire supposed legal doctrine that assumes that “originalists” have the power to divine not just what one or two men who’ve been dead for over 200 would have thought, but what ALL of founding would conclude collectively. None of these men can be questioned or interviewed, and in most cases none of them ever even wrote anything about the actual issues at hand today i.e. abortion, assault rifles, DNA, school prayer, wiretapping, etc. This is fantasy masquerading as logic, definitely NOT intellectual rigor.

  15. Submitted by Paul Udstrand on 05/16/2014 - 09:39 am.

    For soooooo many reasons

    To begin with… he’s Muslim.

    • Submitted by jason myron on 05/16/2014 - 02:00 pm.


      a secret Muslim, socialist, commie who hates this country. He’s in over his head, but at the same time masterminded a scheme to infiltrate the highest office in the world, allowing him to confiscate all the guns, crush capitalism, Christianity and democracy, all while using the blessed Constitution as his personal bidet. He probably punches George Washington’s portrait every night before retiring and gets up early to personally perform an abortion before starting another day figuring out how to insult Israel. I’m sure I missed some, but Tester will chime in any time now.

  16. Submitted by Jon Lord on 05/18/2014 - 05:42 pm.

    it’s amazing

    how this Tea Party came out of nowhere to start this current and nasty business in politics. They have absolutely no interest in bettering the lives of the vast majority of the American People and are basically made up of special interest groups out to bury Obama and other democrats under tons of assaults against reason. These people still believe in burning witches at the stake. They say disgusting, rude, or insulting things and then make backhanded pretend apologies for saying them. (Are you listening Ilya?)…lol.

    I think they run on a missing third foot platform. After shooting themselves in both feet too many times already, they need another foot to take aim at. It’s pretty easy for them to say racist things then say they don’t mean it the way it’s taken. How about their attacks on Michelle Obama and the #takebackourgirls for being concerned about the children who happen to reside in Africa. Then there’s the Clippers owner Sterling’s racist tinged apology and claim that he’s not a racist. whew…the roadblocks they put in the way of rational thought.

    The so-called Federalist Society has usurped the name behind some of the framers of the constitution without intellectually understanding the times back then versus today. Back then, the Federalists bowed to the anti-federalists and allowed the bill of rights to be included in the constitution and the majority of them were, if somewhat reluctantly at first, finally in agreement with the need for a bill of rights. Which today many of the so called Federalist Society will allude to in glowing patriotic sounding words when it suits their fancy but generally are against by wanting to reduce the roll of government in our lives.

    Some of the founding Federalists actually put forth the idea that we should have a King and many were for an oligarchy back then. However they finally turned away from that position for a number of what should be obvious reasons. We had just forcefully broke away from royalty and the oligarchy. Bad form to return to one.

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