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.
