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The One Episode From the Mueller Report That Democrats Must Include in Impeachment

Susan Hennessey
Monday, December 9, 2019, 9:31 PM

Democrats should focus on the president’s effort to get White House counsel Don McGahn to falsify evidence.

Protestors spell out the word "IMPEACH" on unfurled umbrellas, in Portland, Oregon in 2006. (Flickr/Gary L. Quay, CC BY-NC 2.0)

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Things are moving quickly. Just last week, House Speaker Nancy Pelosi announced that House Democrats would begin drafting articles of impeachment against President Trump. And now, Rep. Eliot Engel has said that an announcement on the articles of impeachment will come Tuesday, Dec. 10, possibly as early as 9 a.m. Politico has since reported, however, that the specific charges and number of articles against Trump are still being debated, “potentially putting this week’s committee schedule in flux.”

Both Engel’s comments this evening and Pelosi’s public remarks last week left open the question of whether the forthcoming articles of impeachment will be focused exclusively on Trump’s conduct regarding Ukraine or if there will be additional articles based on wrongdoing uncovered by the Mueller investigation. Democrats are reportedly divided on the question, with some fearing that including articles of impeachment related to Mueller could politically undermine the larger endeavor. If one were trying to read the tea leaves, the lines of questioning during this morning’s impeachment hearings in the House Judiciary Committee gave little indication that Mueller-related articles are forthcoming.

We’ll find out Tuesday morning if the House got this one right or wrong. Because, to put it bluntly, it would be a huge mistake not to include an article related to Mueller. It would be a mistake substantively and a mistake strategically. And the House Judiciary Committee’s recent hearings on impeachment show why.

The argument here is not that the House should include any and every plausible article based on conduct described in Mueller’s report. To the contrary, it would be unwise to be so overbroad. But there is a single, specific article of impeachment that should be included: one describing how the president of the United States obstructed justice by directing White House Counsel Don McGahn to create a false internal record denying that the president had instructed him to have Robert Mueller fired as special counsel.

It’s worth briefly recapping the facts on this episode, as recounted in the Mueller report. In June 2017, following press reports that the special counsel was investigating Trump personally, the president ordered McGahn to have Mueller fired. McGahn prepared to resign rather than carry out the order, but he was persuaded to remain. Months later, in January 2018, the New York Times reported that the prior June Trump had directed McGahn to have Mueller fired. The president sought to have McGahn publicly deny this story, but McGahn refused to do so because the story was accurate in significant part. Approximately one week after the initial Times story, Trump told White House Staff Secretary Rob Porter to direct McGahn to create a record “for our files” denying the story and saying McGahn had never been told to fire Mueller. Trump suggested to Porter that if McGahn refused to write such a letter, Trump might fire McGahn. Porter communicated Trump’s request to McGahn, and McGahn refused to create such a record, reiterating that the story was true and that in June 2017 the president had, in fact, told him to have Mueller fired. Finally, the president directly pressured McGahn, in an Oval Office meeting, to refute the story and McGahn again refused.

Mueller determined that McGahn’s account of events was credible and that the weight of evidence supports an inference that Trump’s pressure on McGahn was not about countering a news report but, rather, was an effort to “deflect or prevent further scrutiny of [Trump’s] conduct towards the investigation.” Running through the three elements of statutes criminalizing obstruction of justice—an obstructive act, nexus to an investigative proceeding and corrupt intent—Mueller found that evidence supports the conclusion that the president’s conduct met all three. And critically, Mueller determined that there are no available constitutional defenses for the president here. Whatever the scope of Article II, it does not extend to directing the White House counsel to falsify records.

While there are other compelling examples, the McGahn episode is the single strongest episode of obstruction of justice in the entire Mueller report. The facts of what occurred are established by clear evidence and are supported by both documentary records and the testimony of multiple White House officials. It is also an example of obstruction that is unambiguous on the law—it presents a clear criminal violation.

And that’s exactly why the Democrats would be nuts not to include this episode as an article of impeachment.

As a threshold matter, there is the important issue of Congress using its impeachment powers to enforce boundaries in the face of clear presidential criminality. Not including an article of impeachment on obstruction of justice is not a neutral decision, but rather an affirmative decision to tolerate what the president has done. Put simply, if Congress is willing to tolerate what should be intolerable, then that will have significant and negative long-term consequences for the office of the presidency.

Furthermore, focusing on the McGahn episode specifically would allow Congress to set boundaries on presidential criminality without needing to engage the complicated constitutional questions that other events recounted in the Mueller report might. The McGahn episode does not implicate plausible constitutional defenses. Articles related to the president dangling pardons to prevent witness cooperation or firing executive branch officials might implicate Article II, but directing subordinates to lie in internal records does not.

Likewise, the McGahn episode does not implicate questions of executive privilege. While McGahn is currently litigating on the basis of absolute immunity against testifying before Congress, he has already given Mueller a full account of what happened. And in releasing the Mueller report publicly, the Justice Department has effectively waived privilege. Congress also doesn’t face the risk here that it must consider in other litigation over immunity claims: Usually, there is the possibility that Congress might win, only to have the witness subsequently assert executive privilege, requiring additional time-consuming litigation. However, such future claims are unavailable to McGahn, who would only be asked to confirm that his testimony in the public Mueller report was true and accurate. And while additional testimony from McGahn, or Rob Porter, might be useful, it is not necessary in light of the clearly established record.

Notwithstanding the seriousness of the president’s obstructive conduct with respect to McGahn and the absence of additional constitutional complications, some observers argue that including this kind of article of impeachment would risk confusing the Ukraine narrative and compromising the political optics. But far from undermining the Ukraine narrative, the ongoing proceedings demonstrate the importance of including an obstruction article related to McGahn. In fact, the testimony of Jonathan Turley, who was called by Republicans on the House Judiciary Committee to testify on impeachment, offers the strongest case for including an article of impeachment related to McGahn and obstruction—though that probably wasn’t what Republicans intended in asking him to testify.

In the Dec. 4 hearing, Turley offered two key lines of attempted defense for the president—defenses that Republicans quickly seized upon. First, he argued that the record on Ukraine was simply insufficiently developed. Indeed, Turley conceded that it may well be the case that the president had engaged in impeachable conduct with respect to Ukraine; however, he argued, “I’m not saying you can’t build a record, but you can’t do it like this and you can’t impeach a president like this.” He went on to say, “I’m not prejudging what your record would show, but if you rush this impeachment, you’re going to leave half the country behind, and certainly that’s not what the framers wanted. You have to give the time to build a record.” Republicans have adopted this line of defense. Speaking at the House Judiciary Committee’s Dec. 9 hearing, minority counsel Steve Castor quoted Turley’s assertion that when it came to the Ukraine matter, “this is one of the thinnest records ever to go forward on impeachment.” Historically speaking, the record is not actually that thin. But setting aside the inaccuracy of this argument, the point Turley is advancing is that a well-developed record is important before voting to impeach a president.

Turley’s second line of argument related to the nature of the offense of bribery. While Turley conceded that a criminal offense is not strictly necessary for impeachment, he argued that meeting statutory definitions is nevertheless essential. Again, putting aside whether this is the right conclusion as a legal or constitutional matter, Turley’s point was that meeting statutory criminal standards has traditionally been a prerequisite for impeachment. Specifically, he said,

There’s a reason why every past impeachment has established crimes. And it’s obvious. It’s not that you can’t impeach on a non-crime. You can. And in fact, non-crimes have been part of past impeachments. It’s just that they’ve never gone up alone or primarily as the basis of impeachment. That’s the problem here. If you prove a quid pro quo, you might have an impeachable offense. But to go up only on a noncriminal case will be the first time in history. So why is that the case? The reason is that crimes have an established definition and case law. So there’s a concrete independent body of law that assures the public that this is not just political, that this is a president who did something they could not do.

In other words, Turley argues that including a criminal offense as part of impeachment is necessary to legitimacy. And Turley argues Congress must not just cite a criminal offense but also adhere to the controlling judicial interpretation of that offense, rather than offering its own judgment as to the meaning of the laws. In arguing that the current record doesn’t support an assertion that the president has committed a crime, he says,

I’ve gone through all of the crimes mentioned. They do not meet any reasonable interpretation of those crimes and I’m relying on express statements from the federal courts. I understand that the language and the statutes are often broad. That’s not the controlling language. It’s the language of the interpretation of federal courts and I think that all of those decisions stand mightily in the way of these theories. And if you can’t make out those crimes, then don’t call it that crime.

Turley makes this point not just about bribery but also about obstruction: “I’d also caution you about obstruction. Obstruction is a crime also with meaning. It has elements. It has controlling case authority. The record does not establish obstruction in this case.”

It’s fair to question whether Turley is engaged in a good-faith analysis here, as there are plenty of substantive reasons to dispute both his legal conclusions and his claim that the record here is insufficiently developed. Even so, Democrats should address these objections on their merits—and they can do so by including an article of impeachment related to McGahn and obstruction of justice. After all, there is no real argument that the Mueller report was insufficiently developed or rushed. And there is no reasonable argument that the evidence surrounding Trump’s demand that McGahn falsify a record is ambiguous, unreliable or based on supposition.

Perhaps more importantly, the McGahn episode meets all of the elements of criminal obstruction of justice. It is not a “non-crime,” and Trump’s obstructive conduct falls well within the bounds of judicial interpretation of the criminal statutes. In fact, Turley himself acknowledged it represents the strongest evidence against the president. During the Judiciary Committee hearing, Republican Rep. John Ratcliffe asked Turley to address the “fatal flaws” of the obstruction analysis in the Mueller report, and Turley replied, “I’ve been a critic of the obstruction theory behind the Russian investigation because once again, it doesn’t meet what I think are the clear standards for obstruction. There were 10 issues that Mueller addressed. The only one that I think that raised a serious issue, quite frankly, was the matter with Don McGahn. There’s a disagreement about that.”

Turley noted that the attorney general and the deputy attorney general decided the evidence didn’t support a charge of obstruction, but he offered no reason for why either of those people should have the final say on interpretation when it comes to impeachment. What is significant is that even the Republicans’ own witness concedes there is a genuine issue as to whether the president has broken the law, based on a fully developed and largely uncontested factual record.

This is precisely why it is strategically important to include this article of impeachment: The shifting arguments Republicans have made to downplay Trump’s actions toward Ukraine no longer hold when it comes to the McGahn episode. If Republicans argue that the Ukraine record is insufficiently developed, they cannot do so when it comes to an obstruction article based on the Mueller report. Likewise, if they argue that the Ukraine allegations are not of a criminal offense, they cannot do so when it comes to the obstruction article. Instead, they will be left to either dispute the record as false—allowing Democrats to counter by demonstrating the strength of the evidence provided by Trump’s own staff and then further arguing for the importance of McGahn’s testimony—or instead attempt to argue, as Turley does, that somehow that record and the law don’t support the conclusion that the president obstructed justice. That is a debate Democrats should welcome.

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.

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