Sorry, eager Democrats. It’s just not.
When Charles Blow writes in the New York Times:
“Obstruction of justice is a crime. If Trump committed that crime, he’s a criminal. Are we simply going to allow a criminal to sit in the Oval Office and face no consequence?….[A]n impeachment vote in the House has, to this point, been the strongest rebuke America is willing to give a president. I can think of no president who has earned this rebuke more than the current one. And, once a president is impeached, he is forever marked.”
We agree. (Especially with Trump Tweeting things these days like the Times should apologize to him “on their knees”.)
When Ron Klain, Joe Biden’s former Chief of Staff, writes in the Washington Post:
“Robert S. Mueller III is a distinguished public servant. But his much-anticipated report comes up short in many respects, and Democrats made a mistake to put so much confidence in it as the touchstone of accountability for President Trump and his campaign.”
We agree too. But they did. And that’s why they now don’t have a strong enough foundation for launching an impeachment proceeding.
Trump “won” the Mueller report. Democrats didn’t. It was a narrow “win”, for Trump, and the report proved he did a lot of dirty things, a lot of them which he previously denied, (and some of his “teammates” saved him from doing even worse). But he still “won”. Because Mueller backed away from coming down on one side or the other on obstruction. Issuing instead what’s become probably the most “famous” line in the whole report. (We include it in the context of the whole paragraph, because U.S. Attorney William Barr didn’t when he shared it):
“If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Even though that could fairly be read as a heavy lean in one direction, and Barr clearly left the most damning parts out by focusing on a fragment at the end of the paragraph, it doesn’t change the fact that once Mueller chose not to cross that line, Democrats didn’t get the decisive thrashing of Trump they were expecting him to deliver.
A lot of Liberals are pointing to this other passage in the Mueller report as providing a nudge toward impeachment:
“The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
At the same time, Mueller does, in fact, address the question of impeachment directly. Perhaps the reason this has not been widely reported is it’s in a footnote and people tend to skip over footnotes. In our view, if you’re looking for a “roadmap”, or even a “hint” from Mueller, it’s here:
“A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. l , § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.)”
But all of that sure would’ve been a much clearer path had Mueller definitively weighed in on whether Trump obstructed justice (even if he couldn’t be indicted for it), and recommended to Congress to pursue that further. In other words, that Congress should, not that it can. Without that, it’s not a call to action.
Because without that it’s completely impossible for an impeachment proceeding to look and be anything other than a totally partisan exercise. Yes, it would’ve anyway. But Mueller taking a firmer stance that Trump obstructed would’ve given Democrats a stronger pretext. That it was the fruit of Mueller’s investigation and recommendation, not their obsession.
For Republicans, there’s very little flexibility (except perhaps for Mitt Romney, and he’ll give in in the end anyway, we all know that, and he’s also in the Senate not the House, so it’ll be ages before the issue gets around to him anyhow).
Would many Republicans in Congress have picked up the ball anyway, even if Mueller had made a definitive recommendation to further investigate obstruction? Who knows? But it would’ve given them a lot of cover that they don’t have now. Conversely, if Democrats doggedly pursue impeachment (which they’ll have to if they want to keep whatever pro-impeachment momentum going that’s been reawakened in the wake of the report), they’re just as likely to end up just looking sore, because Trump “won” the report.
Then there’s the matter that Mueller did not compel the President to testify (which Trump is now wearing as a badge of honor). That might prove the biggest shortfall of all in proving obstruction. Because while the Mueller report provides endless testimony from others about Trump’s many lies, threats and diversions, it contains almost nothing from Trump himself, who if he has nothing to hide, should’ve been very willing to talk. Or even if he wasn’t, there was plenty of precedent to compel him to do so: President Clinton did. So did President George W. Bush about his administration’s “outing” of C.I.A. spy Valerie Plame.
As we reported when the redacted report first came out, Mueller expresses deep frustration at the President’s lack of cooperation, and ridiculous written answers to the few questions from Mueller the President did agree to address. Mueller exhibits the President’s lack of cooperation (all as the President was saying publicly he’d be happy to talk to Mueller) by citing 12 separate letters to the President’s attorneys, all petitioning for a face-to-face sit-down, many offering terms to help ensure the President would not be caught off guard. But they were all rebuffed, and Mueller ultimately dropped it. he explains:
“Recognizing that the President would not be interviewed voluntarily, we considered whether to issue a subpoena for his testimony. We viewed the written answers to be inadequate. But at that point, our investigation had made significant progress and had produced substantial evidence for our report. We thus weighed the costs of potentially lengthy constitutional litigation, with resulting delay in finishing our investigation, against the anticipated benefits for our investigation and report.”
So what if it took a little longer? The attacks from Trump couldn’t have gotten any more brutal than they already were? Or was Mueller convinced he would’ve ultimately lost if the President has fought a subpoena in the courts? Either way, Trump’s decision to keep putting it off paid off.
House Speaker Nancy Pelosi has never been, and still isn’t pro-impeachment. Not because—as we keep hearing—it’s a risk and Democrats are too risk-averse. But because it’d look so damn blatantly partisan at this point it’d be foolish. Do Democrats really want to march toward 2020 looking like they’re doing nothing else but desperately trying to drag down the President? Because so much focus would be on impeachment that would be the inevitable result.
As much as we hate polls, they seem to reflect this view right now: according to a new poll by Politico, while Trump’s popularity rating has fallen since the Mueller report came out to its lowest level since Charlottesville: just 37%, only about a third of total respondents said there should be impeachment proceedings. (Quick aside though: just because people despise Trump, doesn’t mean they won’t vote for him. So popularity ratings are never a great barometer with this President).
At the same time, Congress (by which we mean Democrats in the House) should by all means:
- Fight for access to the unredacted Mueller report.
- Get Barr and Mueller and McGahn to testify. (As well as the former Personnel Security Director at the White House, who now appears to be in contempt of Congress. Soon a lot of Trump’s people may be in this position.)
- Investigate other swampy misdeeds by Trump and his cronies.
- And keep trying for those damn tax returns!
Trump will and already is fighting all of that. And while he will argue all Congress’ questions have already been asked and answered, it still makes him look bad. Plus, Trump will continue to threaten to investigate Democrats and intelligence agencies, which is never a good look for him except among his hardcore base.
So we think, for Democrats, that’ll score the same number of points as impeachment proceedings, maybe even more.
And there’s huge precedent for a hard investigation by Democrats. And it was provided by Republicans, who continued to come after Hillary Clinton, and hold hearing after hearing on Benghazi, on her emails, even after government agencies cleared her of gross negligence or criminality. And she wasn’t even President. Of course Trump will argue those same agencies were in cahoots to destroy him, and improperly stood behind Hillary. But whatever. People remember the fervor of the Republican attacks, so Democrats doing the same thing can’t unequivocally be condemned.
Without having to muster all the troops for an impeachment push, and leave the tough stuff to the capable leaders of the House Judiciary, Oversight, and Ways and Means (and maybe a few others), they then might actually have time to work on and promote other party priorities.
Let’s also not forget President Bill Clinton “lost” his report, and was impeached (though not convicted by the Senate). That was courtesy of Independent Counsel Ken Starr. (“Independent” because he was not beholden to the Justice Department as “Special” Counsel Mueller was). Even so, the highly partisan fight backfired on Republicans, mostly because people got so damn sick of it, when there were so many other, far more important issues that Republicans pushed to the back burner so they could grandstand about the President, however appalling his lying may have been. Clinton’s popularity rating actually rose after he was impeached, and though Democrat Al Gore lost the following election to Republican George W. Bush, in highly controversial fashion, Democrats picked up 4 Senate seats, and 1 House seat (although Republicans remained in majority in the House).
Going back to where we started, Charles Blow in that same New York Times column asks:
“Are we simply going to let the next presidential election be the point at which Trump is punished or rewarded?”
And we think the answer to that is yes. And it’s not a bad thing, in fact it’s the best way. People pushing hard for impeachment implicitly believe a public election is too much of a risk because Democrats might screw it up by not being cohesive. So there does need to be a focus on encouraging people to vote, regardless of who the Democratic nominee ends up being. Regardless of whether you like some of Trump’s policies enough to not vote at all if the Democratic candidate rubs you the wrong way. 2020 is not a year for sitting at home because you don’t agree with some little thing (or even some big huge thing) the Democratic candidate is espousing. Yes, keeping Democrats together is sometimes like herding cats, while Trump’s base tends to move as one. That is something to be legitimately concerned about. But the answer to that is the same as it was in 2018: vote in overwhelmingly great number. Between now and then, Congress will and should provide the American public with a lot more insight on Trump. So that voters will be the judge the jury. (At least, as Mueller suggests, until the President is out of office).
