If Obama were a corporate executive, he'd be prosecuted for fraud

Andrew McCarthy, a former federal prosecutor of distinction, has written an important column for National Review Online, laying out what would happen to a corporate executive who behaved as President Obama has, selling an insurance product. I laid out the case that Obama was guilty of fraud late last month, but McCarthy's expertise and careful explication are of a much higher level.

The entire article deserves to be read in its entirety. But here is a sample:

Fraud is a serious federal felony, usually punishable by up to 20 years' imprisonment - with every repetition of a fraudulent communication chargeable as a separate crime. In computing sentences, federal sentencing guidelines factor in such considerations as the dollar value of the fraud, the number of victims, and the degree to which the offender's treachery breaches any special fiduciary duties he owes. Cases of multi-million-dollar corporate frauds - to say nothing of multi-billion-dollar, Bernie Madoff-level scams that nevertheless pale beside Obamacare's dimensions - often result in terms amounting to decades in the slammer.

Justice Department guidelines, set forth in the U.S. Attorneys Manual, recommend prosecution for fraud in situations involving "any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct." So, for example, if a schemer were intentionally to deceive all Americans, or a class of Americans (e.g., people who had health insurance purchased on the individual market), by repeating numerous times - over the airwaves, in mailings, and in electronic announcements - an assertion the schemer knew to be false and misleading, that would constitute an actionable fraud - particularly if the statements induced the victims to take action to their detriment, or lulled the victims into a false sense of security.

There is no question that government officials are not legally accountable in the way that corporate executives are, and Obama is in no danger at all of getting the sort of perp walk that would greet a private sector counterpart. This itself is an important political issue that conservatives should be discussing. The government, especially unelected bureaucrats, is shockingly unaccountable for misbehavior. See Lois Lerner's six figure, inflation-adjusted pension, for example. The American people understand this pretty well. The arrogance of government officials is a burr under the saddle for the people who bear the burden of taxation and regulatory compliance. There ought to be a growing movement for government accountability, hiol;ding bureaucrats personally liable for misconduct in office.

But, as McCarthy notes, for chief executives, there is political if not legal accountability:

...the remedy for profound presidential corruption is political, not legal. It is impeachment and removal. "High crimes and misdemeanors" - the Constitution's predicate for impeachment - need not be indictable offenses under the criminal code. "They relate chiefly," Hamilton explained in Federalist No. 65, "to injuries done immediately to the society itself." They involve scandalous breaches of the public trust by officials in whom solemn fiduciary duties are reposed - like a president who looks Americans in the eye and declares, repeatedly, that they can keep their health insurance plans . . . even as he studiously orchestrates the regulatory termination of those plans; even as he shifts blame to the insurance companies for his malfeasance - just as he shifted blame to a hapless video producer for his shocking dereliction of duty during the Benghazi massacre. 

It is highly unlikely that Barack Obama will ever be impeached. It is certain that he will never again be trusted. Republicans and sensible Democrats take heed: The nation may not have the stomach to remove a charlatan, but the nation knows he is a charlatan. The American people will not think twice about taking out their frustration and mounting anger on those who collaborate in his schemes.

Exactly correct. There is no way Obama could be successfully impeached and convicted. His status as the first black president, and the bitter taste left over from Bill Clinton's impeachment for actual felonious lying under oath, ensure this. But people don't like being lied to, and when those lies cost them not just money but potentially access to life-saving medical care, the anger will be intense.

The smart course for the GOP is to let the American public understand that they have been defrauded. The comparisons to corporate behavior are important to make, along with the caveat that the law holds government officials less accountable than corporate officials.

As Ken Blackwell  Bob Morrison explain today on these pages, it is time to lay the repeal of Obamacare on the table. Let the Democrats defend it to the American people, and let the voters' decide in 2014 and 2016.