Originally published in The Atlantic on 5/16/2013.
The odds are that confirmed abuses (by the IRS), debatable ones (in the capture of AP phone records), and drummed up ones (the Benghazi “cover up”) will continue to roil Washington for months to come. Even if one or more of these run out of gas, the Republicans are hard at work to find others. Salon recently listed 14 “scandals” that one or more leading Republicans see as reason for impeaching the president, including the ATF’s Fast and Furious debacle (the botched traps set for gun smugglers) and an alleged violation of the Authorization for Use of Military Force (AUMF) in launching a military intervention in Libya without explicit Congressional approval.
There is little doubt about the side effects of hearings, investigations, and media hoopla to follow: they will eat up much of whatever little political capital exists in Washington for bipartisan deals and constructive action. And they are sure to further delegitimize our political institutions, which the public already holds in unprecedented contempt. Moreover, if the GOP regains control of the Senate in 2014, no one can tell how far their blinded hatred of the President will carry them. Already polls show that about half (between 51 percent and 66 percent, depending on how the question in posed) of Republicans favor impeaching Obama.
I see no way to protect the president and all of us from the second term curse, which fell upon the country all too early. One can hope though — and it takes a considerable measure of optimism to hope in this atmosphere — that we find ways to address serious issues raised by both the true and bogus scandals.
First among those is the threshold for impeachment. It would seem obvious that impeaching any public representative elected by the majority of voters would be allowed only if some very serious abuses occurred. Unfortunately, the text of the Constitution leaves the door wide open to calls for impeachment on much weaker grounds. The text reads, “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.” “Misdemeanors” are generally understood to mean petty, not serious, crimes. No wonder some Republicans call for impeaching the president even if he did not know diddly squat about what the Cincinnati office of the IRS was up to, on the ground that it his administration and he is responsible for everything that happens on his watch. By this criterion, no future president, member of Congress, or Supreme Court judge, can rest assured that they will not be subject the kind of hearings, investigation, and impeachment vote that Clinton was.
The country needs a conclave of legal scholars to develop a much more restrictive interpretation of this clause of the Constitution and their consensus must be translated into a constitutional amendment (a very tall order) or a telling court case so that elected officials will be able to discharge their duties without fearing that any misstep may get them kicked out. ( I told you, I am an incurable optimist).
The AP scandal at first blush may seem very straight forward; at least it seems so to the ACLU and the New York Times. Capturing phone records of reporters threatens the freedom of the press. And, according to the paper’s editorial board, the authorities need not worry about the media publishing sensitive information because “for more than 30 years, the news media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public.” The media has been acting responsibly and publishing only news that — in the judgment of Times editors — is safe to publish. Such claims disregard that more and more the media — including the new online outlets and various blogs — show very few signs of being responsible. To remind: after the Boston bombing CNN and the New York Postpublished names and pictures of alleged bombers that turned out to be innocent people. As we know from the case of Richard Jewell, who was wrongly suspected of setting off a bomb during the 1996 Olympics in Atlanta and whose name was leaked to the media, false reports can cause a great deal of harm even if corrections are later published. In 1975, a newspaper published the names of dozens of active CIA officers, and shortly thereafter, an agent stationed in Athens was shot dead. In 2012, the Associated Press, against the pleas of the White House and CIA, published leaked information about a British agent who successfully embedded himself in Al Qaeda and thwarted a plot to blow up a U.S.-bound airliner. Attorney General Eric Holder stated that by alerting Al Qaeda to the presence of moles in their ranks, the AP’s story “put the American people at risk, and that is not hyperbole.”
Other democracies deal with this matter by a state secrets act that bans not merely state officials from disclosing secrets but also bans the media from publishing them, if they somehow get hold of such sensitive information. As I see it, for the U.S. to adapt such a law is too big of a leap, even if it provided for a defense that would recognize as a defense showing to the court that the government kept information secret not for security reasons but to avoid embarrassment. However, one might be able to agree that the government should be entitled, as it was in these cases and other such, not to prevent the publication of the information (which would be a major infringement of the 1st Amendment) but to find out who leaked it in violation of the law. The civil libertarians claim that such a policy would “chill” future sources from disclosing secret information to the media. Well, this is exactly what is called for, when these are legitimate secrets pertaining to matters of national security, such as the presence of embedded agents in Al Qaeda or the names of CIA agents in the field.
As to IRS, we must of course use all means available, from congressional oversight to adding staff to the Inspector General’s office to expanded audit trails, to ensure that this powerful agency does not discriminate against any political group or any class of people. However, instead of ruling that the IRS should not go after right wing groups that abuse their tax-exempt status, it should be strongly encouraged to go after all such groups. Indeed, Congress should enact a law that limits the lobbying by tax exempt groups and other forms of politicking they are now allowed to carry out. We have way too much money sloshing around in politics, and the last thing we need is for the tax payers to subsidize such special interest meddling, which is exactly what happens when these tax exempt groups engage in partisan politics for the right or the left.