Although Majority Leader Mitch McConnell (Ky.) and Republicans who control the Senate are under no obligation to do so, they have agreed to grant a confirmation vote to Loretta Lynch, President Obama’s nominee to replace Eric Holder as United States Attorney General. Ms. Lynch has testified that she supports and would implement President Obama’s executive action providing de facto amnesty to illegal immigrants. This edict, which blatantly violates Obama’s oath to execute the laws faithfully, also unconstitutionally confers positive legal benefits on illegal aliens, something only Congress has the authority to do.
Yet, five Republican senators have announced that they will vote to confirm Ms. Lynch. Three have already supported her in the Judiciary Committee: Orrin Hatch (Utah), Lindsey Graham (S.C.), and Jeff Flake (Ariz). The two others are Mark Kirk (Ill.) and Susan Collins (Maine). If they follow through in the vote now scheduled for Thursday, Ms. Lynch would almost certainly have the 51 votes needed to be confirmed.
There are six points to be made about this.
1. Violation of the Senatorial Oath of Office
As mandated by the Constitution, every United States senator takes a solemn oath to support the Constitution and to bear it true faith and allegiance.
Ms. Lynch has forthrightly told the Senate, under oath, that she will undermine the Constitution. A senator cannot support and defend the Constitution by voting to confirm — to the highest law-enforcement position in the federal government, no less — a nominee who has announced that she intends to undermine the Constitution. A vote to confirm such a person, therefore, would plainly violate the senator’s oath.
2. Aiding and Abetting Unconstitutional Conduct
All United States senators, especially those who are lawyers with prosecutorial experience, are familiar with the concept of aiding and abetting (see Section 2 of the U.S. penal code, Title 18). It is a staple of federal criminal prosecutions.
To be culpable as an aider and abettor, a person need not approve of the conduct he or she is accused of enabling. Rather, it must simply be shown that the aider and abettor understood the conduct that was planned or being carried out and knowingly took steps to help that conduct succeed. Among the best ways of proving aiding and abetting is to demonstrate that the conduct could not have succeeded in the absence of actions knowingly taken by the alleged aider and abettor.
Under long-settled federal law, an aider and abettor is deemed to be just as culpable as the person who actually carries out the illegal act that has been aided and abetted. (See Section 2: “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”)
A senator who votes to confirm Ms. Lynch would be guilty of aiding and abetting President Obama’s unconstitutional amnesty decree. It does not matter whether the senator claims to oppose the amnesty decree and wishes Ms. Lynch would refuse to carry it out. Ms. Lynch has put everyone on notice that she will carry it out; she cannot carry it out unless she is confirmed by the Senate. A vote to confirm her, therefore, is not only a vote for President Obama’s unconstitutional usurpation; a senator who votes to confirm Ms. Lynch will be just as culpable for the implementation of the president’s unconstitutional decree as Ms. Lynch will be — after all, Ms. Lynch cannot implement the plan unless the senators confirm her.
3. The President Not Entitled to His Choice of Subordinates
There is a prudential guideline that, in the absence of disqualifying circumstances, the Senate should defer to the president’s choice of high executive-branch officials. There is a sound rationale for this guideline: Under the Constitution, all executive power is vested in the president. It is his power and his subordinates wield it only at his pleasure — even if they have been confirmed by the Senate.
A prudential guideline is not, however, a legal rule, much less a constitutional obligation. If a senator treated this prudential guideline as if it were a requirement, this would effectively nullify the Constitution’s advice-and-consent mandate that the Senate provide meaningful review of the president’s nominees — thus violating the senator’s oath to uphold the Constitution.
A president who is violating the Constitution is not owed any deference, much less deference in the selection of a nominee to help him violate the Constitution. A president is not entitled to deference for a nominee who is disqualified — as is a nominee who testifies that, if confirmed, she will undermine the Constitution.
Finally, the Senate’s power to veto nominations is not just a check on the nominee. It is a check on the executive branch. If a president is violating the Constitution, a senator who has taken an oath to support the Constitution has an obligation to use the power over confirmations to pressure the president to comply with the Constitution.
Consequently, President Obama is not entitled to deference, because he is violating the Constitution; and his nominee is not entitled to deference, because she has announced that she will violate the Constitution. Under those circumstances, a senator who rationalizes voting to confirm the nominee on the ground that the president is entitled to his preferred nominee is undermining the Constitution’s advice-and-consent requirement, as well as violating the senator’s oath to uphold the Constitution.
4. It is irrelevant that Ms. Lynch is competent and well-regarded, because the confirmation vote is about the Constitution, not the nominee.
Ms. Lynch has testified that she supports and will implement unconstitutional executive-branch policy. That would be unacceptable coming from any high executive-branch official, but it is anathema coming from a nominee to the highest law-enforcement position in the government — a position that exists only to uphold the Constitution and see that the laws are executed faithfully.
The fact that Ms. Lynch has a track record of competence is thus irrelevant. The Senate’s advice-and-consent role is concerned primarily with upholding the Constitution, not with lauding or casting aspersions against a particular nominee.
A vote against Ms. Lynch’s confirmation is not an assessment that she has performed incompetently or unethically in her prior government positions. It is a vote against the president’s blatantly unconstitutional policy and against Ms. Lynch’s support of that policy. Senators are bound by oath to uphold the Constitution; Ms. Lynch’s prior, laudable record as a federal prosecutor cannot overcome her commitment to violating the Constitution.
5. The Lynch supporters’ strawman rationale: Any lawyer President Obama nominates is going to support his unconstitutional amnesty, so we might as well accept Ms. Lynch because we’re not going to get anyone better.
Again, the vote is not about Ms. Lynch, it is about the Constitution. The senators have taken an oath to uphold the Constitution. Even if they hadn’t taken such an oath, it would still be their principal duty. It is not a justification for enabling nominee A’s violation of the Constitution that nominees B, C, D, et al. would also violate the Constitution. The Senate’s obligation is to bend President Obama into obeying the Constitution, not to allow themselves to be bent into violating the Constitution because the president is obstinately lawless.
On that score, two other important points: First, Republican leadership has forsworn impeaching the president and using the power of the purse to stop the president’s lawless conduct. There is thus nothing left to oppose the president’s lawlessness except leveraging the Senate’s power over confirmations of high officials.
Second, in connection with the appointment of every Republican attorney general, Democrats have made a point of pushing nominees to vow that they believe the attorney general’s job is to be an independent voice defending the laws and the Constitution, not to do the president’s bidding. The attorney general’s duty, Democrats have insisted, is to tell the president when he is wrong and to prod the president to comply with the law.
Notwithstanding Ms. Lynch’s meritorious prior career, she has failed the Democrats’ own test regarding the essential qualifications of an attorney general. It is irrelevant that the next nominee Obama picks would surely be no better than, and probably not as good as, Ms. Lynch. It is disqualifying for a nominee for attorney general to support blatantly unconstitutional government conduct; Ms. Lynch does not become qualified by dint of the fact that some future nominee would also be unqualified.
6. The Fact the Eric Holder Will Probably Remain Attorney General Until a Successor Is Confirmed Is Not a Rationale for Confirming a Disqualified Nominee.
Because Eric Holder’s tenure as attorney general has been disastrous — he is the only AG in history to be held in contempt of Congress – some senators suggest that Ms. Lynch should be confirmed, even if her nomination is constitutionally untenable, because she would be better than Mr. Holder.
This is an ironic argument to be made by Republicans. It was very clear back in January 2009 that Holder was not a worthy candidate for attorney general — as I recounted at the time, he was a key figure in the corrupt pardons of Mark Rich and FALN terrorists; the corrupt pardon procedure he helped devise outside Justice Department guidelines was used to pardon other terrorists and for other corrupt Clinton pardons; and there was abundant evidence that Holder had given misleading congressional testimony. Despite being well aware of all of this, Republicans voted overwhelmingly to confirm Holder as attorney general. In his tenure, he has performed exactly as anyone who studied his pre-confirmation record would have predicted he’d perform. Moreover, he has dutifully carried out President Obama’s lawless agenda.
It makes no sense to say Ms. Lynch should get a pass for violating the Constitution because she would only be carrying out President Obama’s lawless agenda and yet to say that we must now rid ourselves of Mr. Holder because he has carried out President Obama’s lawless agenda.
It is also no more a rationale to confirm Ms. Lynch that her predecessor might be worse than that subsequent nominees might be worse. Ms. Lynch has to be judged based on her own record, and that record includes taking the disqualifying position that an attorney general of the United States should help the president violate the Constitution.
Ms. Lynch’s testimony that she supports President Obama’s unconstitutional immigration amnesty is disqualifying. Any senator who votes to confirm her would be violating his or her oath to support the Constitution. Ms. Lynch has testified that she will help implement President Obama’s unconstitutional immigration amnesty. Any senator who votes to confirm her would be aiding and abetting the implementation of the unconstitutional amnesty. Period.