Former federal prosecutor and conservative columnist Andrew McCarthy has published a new piece in National Review warning against the damage that a politically motivated impeachment investigation poses to American governance.
McCarthy, a former assistant U.S. attorney who worked under Rudy Giuliani, has seemingly emerged in right-wing circles as a legal intellectual against the various investigations targeting President Donald Trump. House Republicans brought McCarthy in as an expert witness at a hearing on special counsel Robert Mueller’s report back in June (though McCarthy had not yet read all of Volume II in the report, which laid possible obstruction of justice on Trump’s part). He has also defended the president in his new book released this past August, Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency, laying out an elaborate conspiracy theory about the Obama administration attempting to frame Trump back in 2016.
Yet five years ago, McCarthy published another book, Faithless Execution: Building the Political Case for Obama’s Impeachment, in which he argued that President Barack Obama should have been impeached due to “unconstitutional usurpations” of executive power and faulted Republicans in Congress for not making this political case effectively to persuade the public.
In his new column, “The Trivialization of Impeachment,” McCarthy attempts to differentiate his prior impeachment advocacy during the Obama years from what is going on now with the Ukraine scandal:
In the case of President Trump, Democrats are doing what I suggested should be done with President Obama — building a political case for impeaching a president they deeply oppose. They certainly have the right to do this, yet there is a problem. I may have been right that this revival of impeachment as a credible threat is necessary (in the absence of any other realistic alternative for addressing presidential overreach), but it is also causing serious governance problems. Ignoring them would be irresponsible.
To be sure, the Democrats’ underlying rationale for impeachment is different from mine. Democrats decided Trump was unfit before he ever entered office and have been seeking any ostensibly plausible reason to vindicate this predisposition in articles of impeachment. By contrast, while I was never an Obama fan, my argument was not that he came to office as an impeachment waiting to happen; it was that, for years, he governed in a manner intentionally designed to undermine the Constitution’s structure, and that he had elevated the interests of foreign powers and actors over the interests of the American people and our security.
Those differences aside, however, we can see that relying on impeachment as the go-to response to presidential overreach — real or alleged — has manifest downsides.
As it turns out, McCarthy is not only hypocritical in his attempts to differentiate his calls for Obama’s impeachment and Democrats’ calls for Trump’s impeachment, he has also made preemptive calls in 2016 to impeach Hillary Clinton if she won the White House. As Atlanta-based attorney Andrew Fleischman noted on Twitter about two weeks ago:
In those 2016 columns, McCarthy carefully explained that grounds for impeachment are potentially quite distinct from criminal wrongdoing — when it had to do with Hillary Clinton’s email server. “The test of fitness for an office of public trust is whether an official is trustworthy, not whether she is convictable in a criminal court,” he wrote, explaining that high crimes and misdemeanors for impeachment “need not be violations of the penal code.”
But as Flesichman noted, McCarthy took a completely different line in an appearance on Fox News a month ago. “There’s a lot of feeling around even trying to articulate high crimes and misdemeanors and I think that’s relevant,” McCarthy said, arguing that past impeachments “were all triggered by either actual felony violations or allegations of concrete abuses of power that were egregious and everybody knew what they were investigating when they were launched."
McCarthy also has made contradictory arguments about an impeachment’s chance of succeeding in the removal of a president and whether that is a relevant consideration. In his 2016 column, he wrote: “Of course, when the question of impeachment is raised, congressional Republicans — if you can coax them out from under their desks — rationalize their passivity by arguing that, even if the House could approve articles of impeachment, there is no possibility of conviction by the two-thirds supermajority required in the Senate. This is indubitably so … but so what?”
But in his new column defending Trump, McCarthy discusses the potential long-term ramifications of a failed impeachment, predicting “the Republican-controlled Senate will swiftly reject the House Democrats’ impeachment articles as a partisan stunt — as precisely the abuse of power the Framers feared.”
“Our constitutional system will be damaged because impeachment will be discredited,” he writes. “That will not make it any less indispensable than [James] Madison judged it to be. Yet its invocation will be even less likely in some grievous future instance, when a presidential abuse of power actually does imperil the nation.”
And in another recent column, McCarthy took quite the opposite view of the separation of powers — the very issue for which he had once advocated the impeachment of Barack Obama: “The Framers understood that the two political branches would periodically try to usurp each other’s authorities. Congress often does this by enactments that seek to subject executive power to congressional (or judicial) supervision. Presidential pushback on such laws is not criminal obstruction; it is the Constitution in action.”
McCarthy’s contention that, unlike Trump’s critics now, he did not view Obama as unfit from the get-go can be disproven easily. It also shows McCarthy’s own roots in the fever swamps of right-wing conspiracy theories about the Obama presidency that ought to have put him beyond the pale of any mainstream discourse.
Back in 2009, when National Review published an editorial seeking to disavow the “birther” movement from mainstream conservatism, McCarthy wrote a column along with it — partially dissenting from the decision and speculating that perhaps Obama was not constitutionally eligible for the presidency, due to some alleged “complex dual-citizenship issues.”
“The issue is: What is the true personal history of the man who has been sold to us based on nothing but his personal history?”
Two years later, when Obama arranged to have the state of Hawaii release his full, original birth certificate document, McCarthy only dug in further, writing at National Review: “The constitutional question material to the matter of Obama’s eligibility — and one that is unlikely ever to get serious consideration — is whether Obama is a ‘natural born’ citizen.”
And yet, somehow, McCarthy is still treated as if he were a serious and reputable legal commentator.