What was President Obama’s worst High Crime?

Summary: We had an opportunity to restore the rule of law in America by impeaching an authoritarian president and stopping the out-of-control growth of presidential power. But the Democrats supported Obama then (just as the GOP supports Trump now), because neither party gives allegiance to the Constitution. We will pay dearly for our passivity, allowing this.

“Every nation has the government it deserves.”
— By Joseph de Maistre (lawyer, diplomat, philosopher). From Letter 76 dated 13 August 1811, published in Lettres et Opuscules. We were worthy of America in the past.

"Impeach" sign and American flag

Barack Obama taught constitutional law at the University of Chicago Law School for twelve years, He well understood how he violated core parts of the Constitution. One incident was serious as a precedent. One was of the highest magnitude, and well deserving impeachment.

Welcome fellow Naked Capitalism readers! Congrats to Yves Smith and to “reslic” for referring it to her. Intellectual diversity is a rare thing in modern America. Please answer this question in the comments: how is this post “screechy” (per Webster’s: “strident, intemperate, harsh”)?

(1) When is a Treaty not a Treaty?

When it is enacted by decree of President Obama.

The Left loudly asserts that the Paris Agreement was a major agreement, whose provisions were essential to save the Earth. But they also say it is not a treaty, and so does not require Senate ratification. The former is debatable. The latter is wrong; it clearly contradicts the Constitution. But in this, as in so many things these days, political parties do what they can – ignoring the Constitution.

For another perspective, how have our peers – the other developed nations – ratified the Paris Agreement? They required either approval of the legislature or the Cabinet (a formal executive body in many governments). No other developed nation with some form of democracy allowed one man to make such a commitment (see the list). We are exceptional in this respect, exceptionally stupid. This is bad news and good news. While our Republic appears to be decaying fast (see the sad details), democracy thrives in other lands.

Even many less-developed nations, and even tyrannies, followed the rule of law when approving the Agreement.

(2) Obama erases 800 years of progress

“The demagogue who promised to kill terrorists along with their families is moving his own family into the presidential palace.”
— David Runciman (Prof History at Cambridge) has amnesia. From “Is this how democracy ends?“ in the London Review of Books, 1 December 2016.

Our degradation was clearly visible in our reaction when President Obama’s DoJ produced a “white paper” granting himself powers not seen in Anglo-American history since the Stuart Kings. It took 450 years to limit the English Monarchs’ right of arbitrary arrest and punishment, from Magna Carta (1215) to its final achievement in the English Civil War (1641-1662).  Now, with our complaisance, President Obama erased much of that progress.

Two provisions of Magna Carta are a gift to us from the Barons of 13th century England.

38.  No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purposes.  {This was replaced by improved legislation in 1863}

39.  No freemen shall be taken or imprisoned or disseised {deprived of land} or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.  {This remains in force for the people of Britain, but is no longer true for Americans}

Britain allowed both the Courts and Parliament to determine guilt and order executions. Parliament did so by issuing Bills of Attainder.

The Founders went beyond Magna Carta’s provisions. The Constitution prohibited Bills of Attainder by Congress in Article I, Section 9, and by State governments in Article I, Section 10. It did not occur to them that a President would violate both the Constitution and Magna Carta, and issue his own Bills of Attainder.

See the steps by which America’s opposition to assassination was eroded away, culminating in Obama’s orders to execute Anwar Awlaki and Samir Khan without warrant, trial, or verdict. Both were executed In September 2011 by drone strikes in Yemen.

If this is not a High Crime, then what is? Now that this precedent has been successfully made, future presidents will again use it.

Conclusion

“Sooner or later, everyone sits down to a banquet of consequences.”
— Attributed to Robert Louis Stevenson.

Our ancestors spent oceans of blood, sweat, and tears between that day on a meadow at Runnymede and the Constitutional Convention in 1787 at Philadelphia. The liberties provided by the Constitution were won over 30 generations by peoples from the unruly Saxons and Normans of Medieval England to the Founders. They had in common a high regard of their liberties and willingness to fight for them. Since 9-11 we’ve thoughtlessly thrown away political structures that took centuries to build.

The Constitution is just a “paper bullet of the brain”, with no power except to the degree it lives in our hearts.  That love appears to have died. The ill results might take decades or generations to fully emerge. But we have taken the first essential steps to a new regime. Our descendants will not forgive us.

For more information

Ideas! For some shopping ideas, see my recommended books and films at Amazon.

If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Constitution, about reforming America: steps to political change, and especially these…

  1. Conservatives tell us not to worry about the Constitution’s death.
  2. Origins of what may become the 3rd American Republic (a plutocracy).
  3. “Lawfare” – using the law to undermine the Constitution (a powerful tool in the quiet coup now in progress).
  4. We’ve worked through all 5 stages of grief for the Republic. Now, on to The New America!
  5. ImportantA 4th of July reminder that America is ours to keep – or to lose! We’re losing it.
  6. Alert! Our institutions are hollow because we don’t love them.
  7. Important: A new, dark picture of America’s future.
  8. America isn’t falling like the Roman Empire. It’s worse.
  9. America’s foes reveal themselves. They are many & strong.

A professor explains our post-Constitutional regime – be happy!

The Executive Unbound: After the Madisonian Republic
Available at Amazon.

Eric Posner (Prof Law, U Chicago; bio here) and Adrian Vermeule (Prof Law, Harvard; bio here) have written a book explaining the  Republic had died. Their explains that this is just fine: The Executive Unbound: After the Madisonian Republic. You can download the first chapter at Amazon, which reads like a stage hypnosis act:  it’s necessary, it’s inevitable, it’s necessary, it’s inevitable.

Here is Posner’s brief summary (from the Volokh Conspiracy). Don’t worry. Be happy!

“The book argues that the Madisonian system of separation of powers has eroded beyond recognition and been replaced with a system of executive primacy (which others have called the “imperial presidency”) in which Congress and the courts play only a marginal role. Most scholars who have recognized this development have called for a return to the Madisonian system, but we believe that the rise of the executive has resulted from a recognition among political elites that only a powerful executive can address the economic and security challenges of modern times.”

13 thoughts on “What was President Obama’s worst High Crime?

  1. “This is bad news and good news. While our Republic appears to be decaying fast (see the sad details), democracy thrives in other lands.”

    Even autocrats can find it useful to pretend that they’re governing in a constitutional manner. Augustus, for example. Rulers who don’t even bother with a fig leaf can be overconfident in believing that it can’t happen to them, Caesar being a case in point. But Obama’s confidence that Congress would never bring him to heel appears to have been well founded. I will leave it to others to decide what this says about the current state of the Republic, but it probably isn’t very complimentary.

    Depending on what we find out about Russiagate you may have to amend this list.

    1. The Man,

      “Even autocrats can find it useful to pretend that they’re governing in a constitutional manner.”

      I was referring to the other representative governments in the world.

  2. Obama was a teleprompter reading cypher. Characterizing him as an ‘autocrat’ is to demean the word.

    1. etudiant,

      People, especially leaders, are judged by their deeds – not silly insults given them by their foes. Obama’s assassination program probably was a milestone in American history – to be followed by others. It will be remembered when your schoolyard insults are long forgotten.

      1. I do not doubt the pernicious precedents set by the Obama administration’s actions.
        What I doubt is his actual role as their initiator. That is why my characterization of him as a cypher, rather than as a nullity.

  3. A typo… 1878 for the Constitutional Copnvention was that after the Civil War which started in 2017? Sorry 1865. When the Bills of Attainder were executed, I pointed this out at The Agonist Blog and was derided by a stream of comments by Obama fans including the moderator at the time. I told them to take me off their list.

    1. Albertde,

      Thanks for catching that! Those kind of typos are the most difficult to see.

      How did the people at the Agonist Blog defend Obama’s orders to execute a US citizen without warrant, trial, or verdict?

  4. You leave out the really big crimes of omission:

    Obama not only did not prosecute the war crimes of Bush / Cheney, he promoted the torturers and prosecuted the whistle blowers.
    The immunity Obama granted Wall Street makes Clinton’s pardon for Marc Rich seem a trifling matter. In the previous biggest-ever bank scandal, the Savings and Loans debacle, the Reagan / Bush 41 administrations’ regulators filed 30,000+ referrals for criminal prosecution, and the Justice Dept. prosecuted 1200+ cases with a 90% conviction rate. They got really big fish, too: Michael Milken and Charles Keating among them.

    Fast forward to what is arguably the largest theft in human history–the sub-prime mortgage / derivatives meltdown. In financial terms, it’s 70 times larger than the S&L scandal. So…how many referrals for criminal prosecution from the Obama administration regulators? Answer: zero. The crookedest Attorney General in history, Eric Holder, prosecuted about a dozen cases, all small fish. The template for how the Obama administration treated the big malefactors was that they threatened prosecution, then settled for dimes on the dollar of the loot…with no admission of guilt. That last bit means the civil cases by the victims are harder to prosecute.

    Both of these are evidence of breathtaking corruption, and are, in my view, the worst of Obama’s crimes. I suppose our consolation is that U.S. voters repudiated the Obama legacy, costing the Democrats the presidency and more than 1,000 down ticket races. It’s a sorry consolation prize, but we have to take them where we can…

    1. adameran,

      “You leave out the really big crimes of omission:”

      There is no such thing. The president has total discretion what to do, as District Attorneys (and the Attorney General) have total discretion who to prosecute. You might disagree with Obama’s actions (I do), but that makes him a bad president. But hardly the worst president.

  5. Quite a lot of crimes to choose from, especially if the Supremacy Clause does mean that treaties are the law of the land. But my pick for worst is his complicity in the ongoing Yemen Genocide.

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