The Mueller Report Demands an Impeachment Inquiry

Susan Hennessey, Quinta Jurecic
Saturday, April 20, 2019, 9:06 AM

Here is, as William Barr might call it, “the bottom line”: 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.

A photograph of then-presidential candidate Donald Trump in a residential backyard in Des Moines, Iowa. (Source: Flickr/Tony Webster)

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Here is, as William Barr might call it, “the bottom line”: 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. If it wants to actually confront the substance of the report, it will introduce a resolution to begin an impeachment inquiry.

So far, House members haven’t shown much appetite to do so. Republicans seem prepared to just put this unpleasantness behind them—at least those who aren’t launching crusades to “investigate the investigators.” On the Democratic side, there is a clear reticence in the leadership to initiate impeachment proceedings that might politically backfire. House Majority Leader Steny Hoyer even suggested shortly after the report came out that his party should instead focus on the 2020 election, though he later walked those statements back. There are a few exceptions—for example, Rep. Alexandria Ocasio-Cortez, who said she’d sign onto a previously introduced impeachment resolution. And on the other side of the Hill, 2020 presidential candidate Sen. Elizabeth Warren declared that members of Congress should “do their constitutional duty” in initiating impeachment proceedings. But by and large the response has been muted.

The problem with this approach is that, under the current system, the options for checking a president who abuses his power to the degree that Trump has are functionally impeachment proceedings or nothing.

There are many factors here, but the main culprit is the Office of Legal Counsel (OLC)’s 2000 memo against the indictment of a sitting president—which itself builds on a 1973 OLC memo, drafted during Watergate, which reached the same conclusion.

The 2000 memo played a key role in shaping Mueller’s decision not to reach a traditional prosecutorial judgment on the issue of presidential obstruction of justice. But while it was reasonable for the special counsel’s office to consider itself bound by OLC’s reasoning, it produces a baffling end result: Mueller is barred, as he understands it, from reaching the point in his analysis at which he would make a call as to prosecution or declination of obstruction. Indeed, he will not even say explicitly whether he believes that the president has committed crimes. He is clear, however, that if he could exonerate Trump on the basis of the available evidence, he would do so. And he isn’t doing so. This means that, by Mueller’s read, it is only possible for an investigation to exonerate the president consistent with the OLC memo—he cannot be charged and uncharged crimes must remain unspoken.

Mueller’s solution is to pass the question to Congress. He isn’t especially subtle in doing so. He notes that “a federal criminal accusation against a sitting President would … potentially preempt constitutional processes for addressing presidential misconduct,” then flags in a footnote the Constitution’s clauses on impeachment and the OLC opinion’s discussion of the “relationship between impeachment and criminal prosecution of a sitting president.” In other words, he is saying that while he is not permitted to determine if the president committed a crime, Congress can judge the president’s conduct itself.

The relevant section of the OLC memo reasons that “the constitutionally specified impeachment process ensures that the immunity would not place the President ‘above the law.’” This is worth dwelling on: The Office of Legal Counsel found that ruling out presidential liability for criminal conduct was not a threat to the rule of law because of the availability of impeachment as a remedy. But if impeachment is presumptively off the table in the face of facts as extreme as those the Mueller report contains, then it’s reasonable to ask whether impeachment is truly available at all where members of the president’s party in the Senate comprise a sufficient number to block removal. In other words, does the current situation prove that impeachment is not the capacity of one branch to check another but rather a crude measure of party votes? If so, it would seem that the OLC’s reasoning falls apart—at least in practical, if not theoretical, terms.

Currently, there are bad incentives on both sides of the aisle. Republicans don’t want to touch the matter because the president is a member of their party. His agenda aligns with theirs on many issues, and they fear angering his base in a way that might imperil their own reelection. Democrats, on the other hand, are worried that initiating impeachment proceedings will offer the president a rallying point for his base, and allow Republicans to paint them as fanatics out to get Trump at all costs. Besides, the thinking goes, Democratic base voters want to discuss policy issues that impact their lives, not perseverate on the president’s many sins.

The problem is that impeachment isn’t a purely political matter—though certainly it is political in part. It’s a constitutional expression of the separation of powers, of Congress’s ability to check a chief executive overrunning the bounds of his power. It’s also, under the OLC memo, the only release valve in the constitutional structure for the urgent and mounting pressure of an executive who may have committed serious wrongdoing. To say that the appropriate course is simply to wait for the next presidential election in 18 months, is to offer a judgment that—even in light of his conduct as described by Mueller—Trump is not truly unfit for the office. It is to say he is no different from, say, Vice President Mike Pence, who would take his place, or any other Republican for that matter. It is to say that what matters is winning elections, even if it risks further institutional harms.

There is a danger to this mode of thinking, which is that Democrats should tolerate the institutional harms that would come from not initiating a serious impeachment inquiry because what really matters is winning the 2020 election. When you convince yourself that the best way to safeguard the republic is for your side to win, it gets tempting to tolerate all kinds of intolerable things. It is the precise calculus many congressional Republicans have made in supporting Trump despite his degradations of his office. The Constitution does not mandate that Congress initiate impeachment proceedings each time it is faced with an impeachable offense—but that doesn’t let Congress off the hook in carrying out its constitutional responsibilities, either. Each member swears an oath to defend the Constitution and “well and faithfully” execute the duties of her office.

Though hard questions remain about whether President Trump should be impeached and whether the evidence would be sufficient for the Senate to convict him, these are not questions that need to be answered at this stage. Congress’s responsibility at this point is to begin an impeachment inquiry as a means of finding an answer to them. And Mueller has provided more than enough information to justify initiating an inquiry: The report sets out evidence of possible criminal wrongdoing by the president during his time in office related to abuse of power, which is at the dead center of the “high crimes and misdemeanors” impeachment is designed to check. Though most scholars agree that violating the law is not necessary for impeachment, Congress included allegations of such conduct in articles of impeachment against Andrew Johnson, Richard Nixon and Bill Clinton—all three times the legislature seriously contemplated impeaching the president. In Nixon’s and Clinton’s cases, the articles specifically concerned criminal behavior, including obstruction of justice. What’s more, the Mueller report itself suggests a possible hook for impeachment in indicating that the “corrupt intent” necessary for an obstruction offense would also violate the president’s obligation to “faithfully execute” the laws under the Take Care Clause.

In the face of this evidence, for Congress to not even consider impeachment as a matter of serious inquiry is to declare that the legislature is not interested in carrying out its institutional obligations as a coordinate branch of government.

The House judiciary committee would be charged with the responsibility of overseeing impeachment proceedings. But so far, Chairman Jerry Nadler has focused his energy on issuing subpoenas to the Justice Department in order to obtain the full, unredacted report—requests that the Justice Department is now batting back, and which seem likely to lead to a protracted political fight between the department and Capitol Hill. It’s all well and good for Congress to want to see an unredacted copy of the document Mueller put together. At this point, though, the decision to focus energy on redactions risks distracting from the devastating material already on the table. It’s another variation of Congress’s insistence on delaying any decision on impeachment until Mueller had issued his report—a way of kicking the can down the road and punting the hard decisions to a future date, this time to whenever the committee peels back the report’s remaining redactions.

But Congress cannot forestall the inevitable forever. Eventually it will face the task the Constitution commits to the legislative branch, which is to render a judgment. In the wake of Mueller’s revelations, to not act is to accept the president’s conduct as tolerable—be it for 18 more months or four more years.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.

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