Writing for Lawfare, Susan Hennessey and Quinta Jurecic find themselves coming to the same conclusion I reached after reading the Mueller Report. The Office of Special Counsel reached two conclusions that, when combined, lead inexorably to the conclusion that the House of Representatives has a constitutional duty to hold an impeachment inquiry.
The first conclusion is that the president has committed obstructive acts for which there are no valid or compelling legal or constitutional defenses. The second conclusion is that the president cannot be formally accused of this unless he is afforded some forum in which he can mount a defense. The only forum available, since Department of Justice policy precludes indicting a sitting president, is a House impeachment inquiry followed, if necessary, by a Senate impeachment trial.
“The Mueller Report describes, in excruciating detail and with relatively few redactions, a candidate and a campaign aware of the existence of a plot by a hostile foreign government to criminally interfere in the U.S. election for the purpose of supporting that candidate’s side. It describes a candidate and a campaign who welcomed the efforts and delighted in the assistance. It describes a candidate and a campaign who brazenly and serially lied to the American people about the existence of the foreign conspiracy and their contacts with it. And yet, it does not find evidence to support a charge of criminal conspiracy, which requires not just a shared purpose but a meeting of the minds.”
“Here is the other bottom line: The Mueller Report describes a president who, on numerous occasions, engaged in conduct calculated to hinder a federal investigation. It finds ample evidence that at least a portion of that conduct met all of the statutory elements of criminal obstruction of justice. In some of the instances in which all of the statutory elements of obstruction are met, the report finds no persuasive constitutional or factual defenses. And yet, it declines to render a judgment on whether the president has committed a crime.”
“Now, the House must decide what to do with these facts.”
The House leadership appears reluctant to accept their fate. They’re clearly concerned that an impeachment inquiry will be a self-injurious exercise that leads in the end to an acquittal of clearly criminal behavior by a Republican-majority Senate. They feel that they are currently on track with a solid plan to retain their House majority and set the field up nicely for the eventual Democratic Party presidential nominee. They’re even hopeful that they colleagues in the Senate might be able to retake majority status after the 2020 elections. They could win the trifecta and have total control in Washington DC beginning in January 2021. Why put all of that at risk for something that will not succeed in removing the president from power or adequately hold him accountable?
These are very valid concerns. Good politicians have to think in political terms. But the problem is that they cannot avoid a decision. They “must decide what to do with these facts.” There’s even a sense in which the president deserves to have the benefit of impeachment. To see what I mean, consider the following comments from Rudy Giuliani:
Trump attorney Rudolph W. Giuliani said that since obstruction-of-justice charges were not brought against Trump, Mueller should not have so thoroughly detailed the acts that were under examination, such as the president’s attempts to remove the special counsel and curtail the probe.
“The narrative is written as if it’s all true and somebody proved it. Nobody proved it,” Giuliani said in an interview Friday. “I’m frustrated by the report because in some ways I’d love to have a trial and prove that it’s not true.”
The Office of Special Counsel almost agrees with Giuliani. They refuse to say that Trump is guilty of obstruction of justice because, in the absence of formal charges, he is not able to respond in a judicial proceeding. What they do instead, is provide Congress with the evidence and ask them to provide that forum. Giuliani says that “in some ways” he wants a forum to defend the president, and that is clearly what Mueller believes he should have.
While the Report discusses the unfairness of leveling DOJ accusations against a president who can not hope to clear his name until he is out of office, it also says that Congress can and should exercise its “authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.” They write that Congress “may apply the obstruction laws to the President’s corrupt exercise of the powers of the office,” and that doing so would “accord with our constitutional system of checks and balances and the principle that no person is above the law.” In other words, since the DOJ (by the terms of its own policies) cannot serve as the check on this behavior, the constitutional responsibility for doing so must lie with Congress.
The House leadership cannot escape that responsibility, but it’s also unfair to the president to have the Office of Special Counsel’s accusations hanging over his head without the ability to defend himself, which is why Giuliani is “frustrated.” If the House were to deny Trump the opportunity to defend himself they would in a real sense be denying him his rights.
You might think I am being too cute by half with this argument, but it’s actually a logical result of how our system is designed and how it has been interpreted by the Department of Justice and the Office of Special Counsel.
If the president cannot be accused of a crime without providing him a forum to defend himself, then a forum must be provided when he has been accused of a crime. Otherwise, he simply cannot be accused of crimes, which would place him above the law.
Another logical conclusion we can derive from this is that the decision on whether or not to initiate an impeachment hearing is not a matter of political calculation. Without the inquiry, the whole system of checks and balances breaks. It would almost be equivalent to Congress refusing to appropriate money for the judicial branch of government. No one could be convicted of a crime because there would be no money to pay for their trials.
We should remember, too, that an impeachment inquiry is not the same thing as a decision to impeach the president and take the case to the Senate for trial. It’s just an inquiry, not an indictment. The House has an obligation to take up the obstruction charges, at a minimum, and give the president the opportunity to clear his name. They also have an obligation to, as Muller says, “protect the integrity of the administration of justice” by using their authority to apply “the obstruction laws to the President’s corrupt exercise of the powers of the office.”
On both counts, an impeachment inquiry is logically and constitutionally inescapable in this instance. A failure to meet this challenge might be a safer choice in an electoral sense, but it would leave our system in tatters.
Gradually your perspective is sinking in and spreading.
We all often remind ourselves that history is the best teacher. But there comes a time, and this is probably one, where history just can’t relate to the magnitude of what Trump’s presidency has brought on board.
His responses during the ongoing investigation were beyond the pale and yet he survived them politically; his response to the report that finally arrived has been frightening…9 hours of rants on twitter.
We don’t live in a vacuum with his presidency, we can’t assume that Trump going forward won’t be curtailed by a spot on media and aggravated Dem leadership. No, without putting impeachment on the table soon the damage Trump can do in the meantime will surely be catastrophic.
New Reuters’ poll taken Thurs afternoon through Friday shows a 3 pt drop in Trump polling, down to 37%.
And McConnell isn’t faring well either. 29%. Perhaps when Trump starts to drag the Rep Senators down with him they’ll soften up.
This whole process can keep him in the 30s long term.
All I had to see was the President hiding from the American people behind closed doors in Helsinki with the leader of our greatest adversary, Vladimir Putin. Just like nothin’ happening here.
Maybe wrong of me, but there it is.
No, it absolutely freakin’ Hell is NOT “how our system is designed.” See, according to Constitution and law up till now, the President was not a Monarch. As as “Not A Monarch” he was not entitled to Royal Immunity from any official act, no matter how corrupt illegal and self-serving.
Right wingers in the DOJ just came up with that bull-crap of a theory and now they’re running with it. But, it’s pure B.S. and any honest S.Ct. would immediately find it so. Back in the day the Warren Burger court, 4 of whom had been appointed by Nixon found against him 9-0 and forced him to release the Nixon tapes – effectively ending his Presidency.
What this hyper-reactionary court will do is anybody’s guess. Probably rule that Trump is King and that we all have to bow.
But, we don’t have to put up with this kind of crap. We can all get together and demand that the the Department of Justice do it’s job and reverse its idiot position on Presidential immunity. Trump can and must be prosecuted.
Well, there’s a simple way to ensure that. Congress can pass a bill stating explicitly that the President CAN be indicted for any reason if he breaks the law while he is in office. He has no more immunity than any private citizen, nor does he get to argue that he’s so important that he must be given no interference and distraction while he goes about his business. So, that daily business can be totally corrupt or illegal! What about that one? What are we supposed to do about that?
We need to rebuild the structure of law that Trump and the right wing have destroyed in America. If the Senate won’t consider such a bill, so what? The House must pass it immediately and force the Senate to act.
Then the Democratic nominee for President must campaign explicitly on the promise to introduce and sign such an ethics bill including voting rights and ethics in government portions (lobbying restrictions) as his first official act when elected.
The only argument I have with your otherwise excellent comment is using “his” instead of “her”.
The staffer in the Office of Legal Counsel during the Nixon Administration who wrote the 1974 letter making the case that Nixon should not face Judicial prosecution has written recently that the conclusion he made with the set of facts he had then should not be the last word on the subject, and he never intended his letter to form DOJ policy forever and ever.
That OLC letter is making much needless mischief. A big problem with that letter’s constraint on all DOJ policy in this area is that it’s a completely absurd and unacceptable moral position to hold. Stating that the President’s ability to avoid judicial prosecution is absolute means that the President could walk up to Congressmember Schiff and shoot him deader than dead and avoid prosecution and a jail term.
If we agree that murder deserves a more substantial punishment than removal from office, now we’re just haggling over the circumstances under which a President can face a legal indictment.
Mueller implies as much in his report, though. It is my understanding if he could have proven the underlying conspiracy that he would have indicted Trump. He doesn’t seem to accept the idea that you can never do it, and definitely leaves open possibility of indictment for obstruction after he’s removed.
I think that is the way it is intended. You shoot someone, you are impeached and on the way out the door we put the handcuffs on you. The problem, of course, is impeachment and removal is a political process. It may fail and so the law won’t be enforced until you are out of office. And then who knows if you were acquitted in the impeachment process?
I do not think Mueller implied this at all. I think it is fairly obvious that Mueller accepted this as a constraint from day one. (I have not yet finished part one of the report so I may have to change my view of the matter before I am done.)
I think part one of the report is enough to impeach. There may not be a provable crime in it, but it is scathing nonetheless. Trump knew the Russians were committing a crime, they welcomed it, they lied about it and they benefitted from it.
The Democrats will get around to doing the right thing. Elizabeth Warren – who is proving to be a formidable candidate, IMO – has it exactly right.
Warren.
YES!!!
Thank you.
Please read my most recent post here if you have not already done so..
Elizabeth Warren/Impeachment. ALWAYS the First Dem Out On Morally Correct Issues.
Thanks again…
AG
Arthur’s onanism is so constant, his skin must chafe something awful.
It’s in the obstruction section. He discusses indicting the president under seal. However, he declines for fear that it will leak.
You and Cugel make good points. But are there not high crimes and misdemeanors, like obstruction of justice, that do not explicitly violate a law? I can almost hear Trump and his counsel arguing today that, wait a minute, you don’t have the whole picture and by indicting him for this sort of thing he cannot properly perform his duty. Firing Comey is illegal? He works at the pleasure of the president.
But can the President legally fire the FBI Director, the Attorney General or others in charge of Federal law enforcement with the explicit intent of ending or altering an investigation of his and his family’s actions and behaviors?
It was within President Nixon’s power to, for one of many examples, conduct the Saturday Night Massacre. That, in the end, did not make those actions legal. Lots and lots of people went to jail back then, including two of Nixon’s former Attorneys General.
The intent is what the impeachment inquiry is all about and I am pretty sure we will hear all the reasons why Trump was within his powers to do so.
I tend to look at this as what a company might do if someone say did something improper. Fire him. Then the law will take if from there. Nixon was fired and lots of folks were also in trouble. Same here IMO.
Yes, I think high crimes and misdemeanors can mean whatever the house and senate say they mean, including a broad range of behaviors that aren’t illegal. Andrew Johnson was impeached for firing his secretary of war Edwin Stanton, which was only “illegal”, if you want to call it that, because congress had passed the tenure of office act which was probably unconstitutional anyway.
Really, impeachment is all about politics, not the law. It reminds me of my favorite joke about tenure. Tenure means that professors (and Presidents) can be fired for anything, except incompetence.
As I said, I think of this as firing the bastard. If he committed a crime, then we can put him in cuffs, otherwise he is just fired. Bye bye,
Yeah, I don’t see the point of an impeachment inquiry. There are several house inquiries underway already, and another one will add little new information. Impeach Trump, or don’t. But don’t drag the process out with another inquiry.
And as others have said, pass a bill in the house to overturn that unconstitutional doj memo making presidents above the law.
. . . work (but whadoiknow?): one of the ongoing House investigations (e.g., Schiff’s?), once it has accumulated a critical mass of the evidence underlying Mueller’s report, the unredacted report itself, other evidence it has subpoenaed, and any testimony before the committee . . .
. . . then formally morphs into an “impeachment inquiry”.
Sounds about right.
Ok, if calling Schiffs inquiry an impeachment inquiry helps bring it more attention, shows the dems are taking the charges seriously, and somehow makes that SOBs ouster more likely, i’m all for it.
. . . I doubt anybody’s going to leave that call up to me, though. Just being entirely speculative here on how an “impeachment inquiry” might come to be, if it does. (No question in my mind that it should!)
…it will take until early next year for Democrats in Congress to change their minds and being impeachment proceedings. We’re on essentially the same timeline now that Nixon was in 1973, when his approval fell to low 40s. By early fall of that year, his approval ratings had fallen to 25% (and never recovered). Watergate inquiries continued throughout the summer, fall, and winter that year, but Democrats didn’t begin impeachment proceedings until the following March of 1974.
Does that leave enough time starting next spring for impeachment? I don’t know, but, for a change, I think this question of impeachment is one better left to our golden Democratic leaders of Congress: Pelosi and Hoyer. If Trump’s down to 25% later this year (like Nixon was in 1973) with the election still a year away, I suppose Pelosi’s calculations on impeachment might change, but if Trump holds in the 40% range, it won’t.
A challenge for Congress here is that their subpoena power will be strongest if the subpoenas are issued as part of an official impeachment inquiry. There will be many legal fights to come with the Administration over various subpoenas which have been filed and will be filed. The chance of Congress prevailing in court will be improved if they are filed as part of an impeachment inquiry.
In his post here, BooMan explains that there is a difference between an impeachment inquiry and an impeachment vote in the House.
One of the things revealed in the redacted Mueller Report is that in June and July 2017 the President of the United States told a private citizen to schedule a meeting with the Attorney General. The President told Corey Lewandowski to tell Jeff Sessions that he must unrecuse himself from oversight of the Mueller investigation and direct Mueller that his investigators must end their explorations of possible past crimes. In the President’s discussion with Lewandowski in July, he instructed Corey to tell Sessions that if he did not retake control of the Mueller investigation that the President would fire him.
This is not an acceptable set of actions from any President. I don’t know all the laws which control this area of policy. I just know that this is unacceptable, and if there are no laws which restrict such corrupt actions, Congress needs to pass those laws.
As someone said above this will morph into an inquiry and impeachment, if the evidence is there. I obviously think there is but whatdoIknow. Impeach the bastard. He is hurting us.
I agree it is unseemly and may be dangerous to in effect try him without a trial through competing tv interviews and op-ed pieces.
No impeachment process should be undertaken until the House and Senate have done their full investigation of all the information the special counsel has discovered, however, assuming they have all the same tools to use that an impeachment process would afford. If the president requests an opportunity to meet with a committee to answer any questions, it should be made available to him.
Should it seem imperative to move to impeachment proceedings after learning all the facts, that can be done. In the meantime, it would be helpful for some legislation to be enacted of what would constitute “high crimes or misdemeanors”.
I think that term is deliberately left vague since the president is the highest administrator of the law.
Surely there must be some crime(s) that would apply; murder for instance or any federal crime that merits prison time.
I would surmise that once he is removed he will be charged with murder.
Why do you say that?
Until Congress gets to see the unredacted part of the report they haven’t seen the report. They can imply that Mueller feels obstruction of justice can be proven, but what about the myriad other crimes and criminals who are underneath those blocks of black?
I’ve seen the left calling for some form of impeachment process, but no evidence the general voting public has any stomach for it. The closer we get to election the more likely people will want to settle this at the ballot box. What are the odds this will follow the same trajectory as Watergate? Will the American people ever consider obstruction of justice a high crime or misdemeanor?
In the mean time a series of inquiries and perp walks of Trump people have the potential to keep his favorables in the 30s.
Honestly, who really wants a President Pence? I’m totally okay with the Dems slow-walking this to keep Pence off the top of the ticket. We need the trifecta more than we need to satisfy the Left’s sense of justice. Long term we’ll be better off clobbering the Rs at the ballot box.
I don’t think the public has the stomach for it right now either. That will change. I think it will change big time after Mueller testifies. Most Americans are not reading the Mueller report and while the media coverage is intensive, the import of the big picture is missing. Once that big picture sinks in, I think a substantial majority of Americans will be appalled.
If the Republicans turn it into a partisan exercise, great. Let them defend Trump. I’d happily bet the 2020 election on whether Trump’s behaviour during the 2016 campaign is acceptable and I haven’t even read part II yet.
I disagree completely but it still needs to happen.
Can we please stop pretending that the president is being treated unfairly by our legal system?
He is the only person in the country who has been declared “unindictable” by the Justice Department. He fired Sally Yates, James Comey, Andrew McCabe, Preet Bharara, Jeff Sessions and Peter Strzok, explicitly because they either were uncovering his campaign’s involvement with Russia, or refused to shut those investigations down. He has demanded investigations of everyone in the FBI who pursued evidence of the Russian attack. He has threatened them, the press and his major political rivals with prosecution – successfully pressuring Jeff Sessions to re-open investigations against Hillary Clinton even after she had been cleared.
And he chose an Attorney General who not only acts as his personal lawyer, but also is sympathetic to investigating how the FBI even started the Russian investigation, with the intent that it never happen again.
Trump is not “unable to defend himself”, he’s pulling most of the strings at the moment.
Practically speaking, it probably isn’t going to matter what the house calls investigations into the president- they have the power of oversight and an inherent ability to investigate regardless. I think the question is do they gain any advantage in calling their investigations an “impeachment inquiry” or not? Certainly it would probably focus the public, which is why I think a lot of the old guard/blue dog Democrats want to avoid it as their guiding principle seems to be avoid angering Republicans.
It is my assumption that the investigations that they are undertaking right now (president’s finances, misuse of inauguration funds, emolument clause violations, etc…) are going to probably take some time to play out regardless and I doubt that Democrats will want to actually vote on impeachment until more information from those activities surface. Sorting through his finances alone will probably be a pretty daunting task assuming that there most likely will be deliberate obfuscation of the underlying facts.
I actually think the more pressing problem at the moment is Barr. Oversight of the Attorney General should be Democrats #1 priority right now. There are a large number of redacted referrals in the Mueller report- possibly even including Trump’s family. At a minimum, the Democrats should be calling for an independent prosecutor to conduct those investigations based on Barr’s public statements. But the major fear is Barr destroying the independence of the justice department and turning into a political tool for Trump and his corruption, which most likely would be fatal for our democracy.
What are the chances that some of those redactions for “Harm to Ongoing Matter” refer to Republican Representatives or Senators?
À propos, page 43:
The House must investigate the president; that much is clear. Whether it makes sense to call it an impeachment inquiry is another matter. I think our entire system of justice is in desperate need of reform and this shows it extends to the very top.
It may be that the best way to deal with this excruciating situation is to simply investigate the president between now and election day and drive his approval numbers as low as possible. At least every American willing to consider the truth should be given the chance to hear it, whatever that truth turns out to be.
Busting the president politically may have a larger deterrent effect than impeachment. Busting his whole party hopefully. I don’t know what it’s going to take for Republicans to wake up. Perhaps it’s going to simply be a matter of letting the older folks die off and get replaced by a better educated younger cohort.
I’d love to see the Trump presidency mark the death knell of the radical Republican party as we’ve come to know it. Whatever it takes to make that happen is what I support.
It seems to me that a number of readers here may be misinterpreting the political objectives of the various House “investigations.” The point of those exercises, as far as leadership is concerned, is to give the appearance of oppositional oversight, while actually avoiding assembly of evidence preliminary to possible launch of an impeachment inquiry, even if such an inquiry is warranted. They’ve made clear that they simply want to punt till November 2020, which–they hope–will keep the House in Democratic hands, they really hope will give the presidency to the Democrats and, they really really hope, maybe even the Senate.
If the point were indeed to pursue and assemble evidence, then by now we would have seen a much better focused, coordinated, and more aggressive program of investigation. Leadership, after all, had two months after the election to prepare for it. We also would have seen a vigorous and sustained commitment to bringing information before the public through hearings, in order to persuade the public of the necessity for action, by building a narrative. It’s not as if there’s any shortage of material or bad actors to choose from here. If anything, leadership has completely avoided developing any kind of narrative; instead, they’ve been doing their best to pretend that the clusterfµ¢k of the last two-plus years is all business as usual. Indeed, what has the last fifteen weeks publicly produced from these committees?
I wonder whether leadership may not have thought through carefully the political costs and dangers of their chosen course. Here, for instance, is Jamison Foser:
Here’s Heather Digby Parton:
And as Jamelle Bouie points out,
Implicit in Bouie’s observation: in the hands of skilled, imaginative, and principled political figures, this is the opportunity of a generation, if not a lifetime. So far, leadership has been resolutely determined to dismiss it out of hand.
100% this. Nancy “off the table” Pelosi already sent Hoyer out to take some bullets
Along these lines, Jonathan Alter on MSNBC on Friday evening (the Last Word?)said that the Mueller Report was the novel and now the American Public needs the movie based on it, i.e public hearings in the House to build the impeachment momentum.
If the House does vote to impeach after holding inquiries, and the matter then goes to the Senate, is the Senate obligated to actually hold a trial? Or could they just opt to vote to acquit? I could certainly see McConnell trying to pull a stunt like that.
I don’t know if he can do that but he might try. But isn’t that like saying he is guilty with a capital G.
No, I do not believe the Senate majority can block a presentation of the House’s prosecution. A negotiation regarding the form of that prosecution presentation takes place between the House and Senate, and doubtless there would be room for much mischief by McConnell in those negotiations. However, there will surely be much substantial evidence of malfeasance which would have been discovered and discussed during the House investigation and successful impeachment vote.
I think it would be politically unsustainable for McConnell and Senate Republicans to be impossibly obstructive in their negotiations with House leaders. 22 Senators in McConnell’s Caucus will be up for re-election in 2020. Refusing to consider spectacularly corrupt actions by the President would cause them to hemorrhage support from voters with no party preference. The Republican base has become far too small to survive independents going strong for Democrats. That’s what happened in 2018, and Republicans got clobbered.
exactly. Trump was right. He is f**ked. I was just reading some of Marcy’s threads. Devastating, and Barr is ,what shall I say, a bum.
Been discussed: Can the Senate Decline to Try an Impeachment Case?
Seems to me that the Senate rules require it, and would require nuclear option to change them. So you get majority to change the rules so he Senate doesn’t have to take it up. Link also discusses ways McConnell could scuttle the trial. In other words, if Mitch wanted, he could find ways to not take it up.
Think about the amount of evidence the House would have compiled to get a majority of their members to vote for impeachment.
Do you believe McConnell would be able to hold 50 Senators to deny a hearing of that evidence in the Senate? I don’t know that he would. I think the odds are much better that McConnell would not try to change the rules. Doing so would be likely to badly hurt his Caucus’ ability to stay in the majority.
I do not think it’s politically tenable for McConnell to avoid it, and I think it’d be harmful to his interests if he did, but then again his nihilism has continued to shock me.
McConnell himself is up for reëlection in 2020.
I agree with each of your points. I wouldn’t put it completely past Mitch to want to try to block a Senate trial. I just believe it’s likely that he’ll see trying to do so as something that’s not in his interest.
A factor not entirely in his control will be whether he’d even be close to having 50 Senators who would entertain the idea of changing the rules when faced with the evidence from the House investigations, floor discussion and vote. We sometimes overrate Mitch’s control of his Caucus. In the most consequential Legislative vote of the Trump Presidency, he failed to get 50.
Thanks very much for that link!
I think this is an argument for impeachment. I expect Republicans to try to turn the exercise into a partisan one. To me this is a feature of impeachment, not a bug. The behaviour of the Trump campaign, the Trump administration, and Donald Trump is indefensible.
Let the Republicans try to defend him. I’d much much rather present the prosecution case here. If the Republicans refuse to convict him, the impeachment case will be the central issue in the 2020 elections. Some Democrats seem afraid of that. I think that would be great.
Some hands are just too good to do anything but push all the chips into the middle. Let Mueller present his case to the judiciary committee and the American people. I’m confident that the American people will convict him if the Republicans will not.
I’m willing – I’m happy – to bet the 2020 election on it.
The longer this man is in office, the more danger America is in from other countries and entities who want to destroy America. However, I am of the belief that trump and his supporters want America destroyed, too, if they can’t have everything they want. They are all spoiled little brats who are willing to sell America out to Russia or the highest bidder.