Thought Must Precede Action

Recently, Mr. J.B. Williams published a commentary on NewsWithViews entitled “Can Obama Be Impeached?” Normally, I would not interject myself into matters other commentators address; but, in this case, Mr. Williams saw fit to refer to me by name, which prompts this response.

Mr. Williams’ contention is “that [Barack] Obama can only be removed from [the] office [of President of the United States] via impeachment”. Mr. Williams concedes that this position is controversial. But then he opines that “[w]ho is right in the debate [about whether Mr. Obama can be impeached] is much less important than reaching an actionable position of agreement. The endless debate on the subject only leaves all concerned citizens paralyzed by confusion and lack of coherent direction in how to solve the crisis.” Confronted by this rather amazing assertion, one is compelled to ask whether “concerned citizens” should ever agree to do what is (or at least may very well be) wrong simply because they experience difficulty in determining what is right? Can what is wrong become right because of some arbitrary agreement induced by sloth? Would not determining what is right terminate “endless debate” and remove the present “confusion and lack of coherent direction in how to solve the crisis”? But these questions answer themselves.

1. The first step in determining what is right in this case is to define the problem accurately. Mr. Williams says that he “agree[s] with the claim that Barack Hussein Obama (aka Barry Soetoro) gained access to the Office of President via massive fraud, including identity fraud, campaign finance fraud, just for starters”. That, however, is not really “the claim” at issue here. The actual charge is that, although Mr. Obama may have succeeded in gaining physical access to the office-space a legitimate President of the United States occupies in the White House, he never acquired legal access to “the Office of President”, because, not being “a natural born Citizen”, he was never constitutionally eligible, and is not now eligible, for that “Office”. For Article II, Section 1, Clause 4 of the Constitution declares (in pertinent part) that “[n]o Person except a natural born Citizen * * * shall be eligible to the Office of President”. If words have any meaning, a “Person” whom the supreme law of the land declares not to be “eligible to the Office of President” can never “gain access to” that “Office” in the sense of legally holding it or asserting any claim to it. The question then becomes, can an individual who is not legally in that “Office” at all, because he is and always has been ineligible for it, be removed by impeachment and conviction from his non- existent position? (I shall leave aside whether Mr. Obama is actually not “a natural born Citizen”. If he were, he could and should establish that fact, which for some unfathomable reason he has so far refused to substantiate in any satisfactory manner. In the absence of proof on that score from the party in the best position to provide such proof, for the purposes of this commentary I shall assume to be valid the assertion that Mr. Obama is not “a natural born Citizen”.)

2. In support of his position, Mr. Williams marshals some quotations from James Madison, Alexander Hamilton, and Joseph Story. These, however, are quite beside the point, because each of them assumes that the party subject to impeachment is in fact and law actually the President or some other officer of the United States. Not one of them addresses the situation in which some individual, although wholly “[in]eligible to the Office of President”, nonetheless pretends to hold that “Office”.

3. Analysis must begin (and, as will become apparent, also end) with the actual pertinent words of the Constitution material to impeachment and related matters:

Plainly enough, the last three of these provisions refer to legal “removal” from a status (“the Office of President”), not physical removal from a place, and therefore apply only to an individual who as a matter of law is actually in that “Office” as “the President”, having first satisfied all of the constitutional prerequisites for that status. These provisions do not say (as they might have said, if Mr. Williams’ position were correct) that “an individual who claims to be the President”, or “an individual whom many people believe to be the President”, “shall be removed from Office”—for the self-evident reason that an individual who is not legitimately in that (or any other) “Office” at the relevant time cannot be removed from it, no matter what his claims or the beliefs of others may be.

An individual who is not “a natural born Citizen”, and therefore is constitutionally ineligible in principle for “the Office of President”, can never assume the status of “President” legally. The most obvious and consequential practical reason is that such an individual cannot possibly take the necessary “Oath or Affirmation” which is a prerequisite to his “enter[ing] on the Execution of [the] Office [of President]”, because he knows that, being ineligible for that “Office”, he cannot possibly “preserve, protect and defend the Constitution”. First, his imposture as “President” itself constitutes an affront to the Constitution—that is, his “tak[ing] the * * * Oath or Affirmation” is in and of itself a violation of the “Oath or Affirmation”. Second, not being eligible for “the Office of President”, he cannot ever legally fulfill the duty of the President, set out in Article II, Section 3 of the Constitution, to “take Care that the Laws be faithfully executed”. Were he legally capable of fulfilling that duty, and desirous of doing so, his very first step would have to be to turn himself in or order his own arrest as an imposter, thus refuting his own prior claim to be “President”.

One might describe this situation as involving “the principle of constitutional noncontradiction”. Both logically and legally the Constitution cannot demand as the condition sine qua non of eligibility for “the Office of President” that an individual be “a natural born Citizen”, on the one hand, but then, on the other hand, license an individual who is not “a natural born Citizen” to “enter on the Execution of [that] Office”. Similarly, both logically and legally the Constitution cannot deny “the Office of President” to an individual who is not “a natural born Citizen”, on the one hand, but then, on the other hand, require that such an individual who merely pretends to be the President must be “removed * * * on Impeachment” from an “Office” he could never possibly hold. Conversely, both logically and legally the Constitution cannot provide for “remov[al] from Office on Impeachment” of an individual who, being ineligible for that “Office” in the first place because he is not “a natural born Citizen”, never entered or could have entered it—for if that individual must be “removed from Office on Impeachment”, he must in some sense be legitimately in that “Office”, which would mean that his putative ineligibility was not an ineligibility at all, but instead a mere irrelevance.

To reduce this matter to “Dick and Jane” terms, assume that Mr. Williams postures as “the President of the United States”. He leases a large mansion, which he names “the White House”, and in which he sets aside a room he calls “the Oval Office”. From there, he issues executive orders, national-security directives, and other Diktats in the name of “the President”. He surrounds himself with a large Praetorian Guard of deluded myrmidons which he calls his “SS” (after the “Secret Service”). These jack-booted thugs then go about the country harassing people who challenge Mr. Williams’ eligibility to be “the President”. For reasons that are not clear, actual public officials in the General Government and in some of the States in significant numbers choose to obey Mr. Williams’ edicts and to treat him as “the President”. And great masses of “true believers” among the general public lend their fanatical support to Mr. Williams, too. Under these conditions, is Mr. Williams “the President”? Obviously not. How can this situation be corrected? Can Mr. Williams be impeached? Must Mr. Williams be impeached before any other remedy, such as arrest and trial, can be had? Well, no one in his right mind—including, I submit, Mr. Williams himself— would contend with a straight face that Mr. Williams was even capable of being impeached, let alone that he had to be impeached in order to suppress his imposture. What is the difference, then, between the real Mr. Obama (as we are assuming him to be arguendo) and the hypothesized Mr. Williams?

That Mr. Obama twice stood for election to an office for which he was constitutionally ineligible? That Mr. Obama received large numbers of votes that had no legal effect, because they were cast for an ineligible candidate? That Mr. Obama twice took an “Oath or Affirmation” of “Office” that he was legally incapable, not merely of fulfilling, but even of taking in the first place? That Mr. Obama now physically resides in the real “White House”? Each of these distinctions between Mr. Obama’s case and Mr. Williams’ simply renders Mr. Obama’s position worse than Mr. Williams’, because the number of counts of fraud in the imposture are multiplied by several orders of magnitude.

Therefore, contrary to Mr. Williams’ conclusion, impeachment is not “the proper remedy to the crisis known as Obama”.

Nonetheless, it is barely possible that, although Mr. Williams is wrong in principle, he may be partially right in practice, in the same way a stopped clock accidentally tells the correct time twice a day. After all, if a bill of impeachment were introduced in the House of Representatives, Mr. Obama’s counsel would have only two choices: (i) to concede that impeachment is a proper remedy for the charge levied against Mr. Obama, while denying that Mr. Obama is in fact not “a natural born Citizen”—in which event that issue would be left wide open to a complete investigation in the House; or (ii) to deny that impeachment is a proper remedy precisely because Mr. Obama’s accusers claim him to be other than “a natural born Citizen”, while hoping that in no other forum could or would that at least tacit admission of his possible ineligibility be used against him. In addition, the intensive legislative debate, and perhaps extensive hearings, that would surely follow in the wake of whichever of these pleas Mr. Obama’s counsel launched would likely generate a tsunami of public interest in the matter. And who can say on what shore that wave would finally break? For Part two click below,