• Ryan O'Connell

To Impeach Or Not Impeach, That is the Question

April 22, 2019

Democratic leaders face a very difficult dilemma. Special Counsel Robert Mueller and his team have provided a detailed road map for impeaching president Donald Trump. Based on the findings in Mueller’s report, the members of Congress have ample grounds to remove Trump from office—perhaps even a duty to do so--because of the president’s repeated attempts to obstruct justice.

If the Democrats controlled the Senate, Trump’s fate would be sealed. But they don’t….and despite Trump’s unlawful behavior, the Republican majority in the Senate seems unalterably opposed to removing him Trump from office. A move to impeach the president would probably fail, and it could backfire badly for Democrats.

Trump could adopt one of his favorite poses—victim—to attack the Democrats’ “witch hunt” and “treason” and fire up his base. The impeachment proceedings might distract Democrats from focusing on key issues for the 2020 election that should be winners for them: health care, middle-class tax cuts, climate change and reasonable immigration policies.

Firebrands such as Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez promptly called for impeachment proceedings after Mueller released his report. Speaker Nancy Pelosi and Rep. Jerry Nadler, head of the House Judiciary Committee, have been more guarded, though Nadler seems to have become more receptive to the idea after reading the report. The party leaders are acutely aware that most voters don’t list impeachment as a critical issue. So although duty probably calls for the Democrats to launch impeachment proceedings, that might be a quixotic endeavor.

What Does the Mueller Report Really Say?

To understand why Democrats are in such a tough position, let’s clear away the confusion and misconceptions about the Special Counsel’s report. Both the president and Attorney General Bill Barr have grossly distorted Mueller’s findings and conclusions, and right-wing commentators have added to the fog.

Mueller did not exonerate the president on the issue of obstruction of justice; in fact, he specifically said that he could not do that. Instead, Mueller presented a very strong case that Trump abused his office by seeking to obstruct justice in several ways and on numerous occasions. In other words, Trump committed offenses that probably warrant impeachment.

The Special Counsel decided not to bring a criminal indictment on procedural grounds, not on the merits. Under Department of Justice policy, a sitting president cannot be indicted for possible criminal activity during his term of office, on the grounds that such a proceeding would interfere with the performance of his duties. Mueller and his team concluded that it would not be fair for prosecutors to bring criminal charges against Trump, because in the absence of a trial, Trump could not address such charges and clear his name.

However, Mueller emphasized that once a president leaves office, he can be indicted for criminal acts committed during his tenure. The investigators noted that it was important to compile a detailed record to preserve testimony and documents in case such a criminal proceeding were launched in the future. Stripping away the legalese, Mueller’s team was strongly implying that Trump’s acts warrant criminal prosecution on the merits.

One could also interpret the report’s statements about Trump’s nefarious behavior as an implied invitation for Congress to commence impeachment proceedings. After all, the president could address the charges against him in such a forum.

Mueller did not find that Trump had legitimate motives for his attempts to limit or end the Russia investigation. The Attorney General’s comments to that effect during his press conference reflected his opinion, not the conclusions of Mueller’s team.

The investigators concluded that there was substantial evidence Trump was acting with criminal intent. Mueller’s team emphasized that they could draw inferences about Trump’s state of mind from his actions, even though Trump refused to be interviewed, because of various actions that the president took. They noted in particular that the president often lied about key developments and pressured his aides to lie, too, attempting to cover up events.

Obstruction of justice, if done with corrupt motives, is a crime in itself. The Mueller report emphasizes that the policy behind the statutes banning obstruction is to prevent improper interference with the judicial system and legal proceedings, particularly because presidents wield so much power. It’s worth noting in this regard that president Richard Nixon did not know about or authorize the Watergate break-in before it occurred; it was the cover-up that put him in danger of being impeached.

The administration did not “fully cooperate” with the Russia investigation. The Attorney General’s statement on this point is not correct. The Mueller report describes, in excruciating detail, how the president pressured his aides to limit or shut down the Russia investigation, such as when he demanded that they fire Mueller. The president attempted to tamper with the testimony of witnesses like Paul Manafort and Michael Cohen. Trump refused to be interviewed by Mueller’s team, and his written answers to their questions were often vague or incomplete.

There was no “fake news” by mainstream news publications, and James Comey’s version of his encounters with Trump was correct. The Mueller report confirms that the reporting on the key events leading up to the Russia investigation by The New York Times, Washington Post, CNN and other traditional news media was highly accurate. The investigators documented numerous instances in which Trump falsely accused the media of publishing “fake news”, even when he knew that the articles were based on fact. The investigators included this pattern of lying and deceit in their assessment of Trump’s intent as he sought to block or limit the investigation.

The Mueller report concludes that the alleged incidents in the “Steele dossier” did not occur. Right-wing commentators have made quite a fuss over this issue. However, the mainstream press generally took a cautious approach to discussing those allegations. In addition, the FBI launched its Russian investigation for many reasons, including highly suspect behavior by Flynn, Manafort and other Trump officials, not just because of the Steele dossier.

Who Will Protect Me?

The Don Takes Over the White House

The prosecutors devoted over 150 pages of their report to discussing whether Trump sought to obstruct justice by interfering with the Russia investigation. They concluded that in several key instances (though not all), the answer was most likely “yes”. Trump basically acted like a Mafia boss trying to “fix” an investigation, showing utter disdain for telling the truth or complying with the law.

The report analyzes Trump’s behavior in two periods: before and after he fired James Comey, the FBI Director. The investigators were not able to reach firm conclusions about Trump’s motives before the firing. With regard to Michael Flynn, the national security advisor who was fired for lying about his contacts with Russians, they conceded that Trump may have asked Comey to go easy on Flynn out of sympathy. At that point, Trump was not a target of any investigation; in fact, Comey had told him that.

However, in the prosecutors’ view, the situation changed completely after Trump terminated Comey, especially as he said that firing Comey would take the pressure off him from the Russia investigation. From that point on, Trump’s own actions were under scrutiny, and he had powerful motives to protect himself. The investigators found a deeply disturbing pattern in which the president asked aides to commit illegal acts and then asked them to lie about his requests.

Trump Asked Government Lawyers to “Protect” Him

After Trump fired James Comey, the press coverage was overwhelmingly negative, with several reporters questioning whether the president had acted to stop the Russia investigation under way at the FBI. Trump asked Rod Rosenstein, the Assistant Attorney General, to call a press conference and say that it had been Rosenstein’s decision, not the president’s, to terminate Comey. Trump was asking the second-highest official in the Justice Department to lie. Rosenstein refused, saying he would tell the truth if he were forced to hold a press conference.

The president repeatedly demanded, over the course of several months, that Attorney General Jeff Sessions “unrecuse” himself and take over control of the Russia investigation, so he could limit its scope. To his credit, Session refused, even though he knew his job was on the line.

Trump also pressured White House Counsel Don McGahn to order Rosenstein to fire Mueller. McGahn said he would not, and he prepared to resign. Trump backed down, and McGahn remained in his role. But when news stories circulated that Trump had asked McGahn to terminate Mueller, Trump asked the lawyer to deny the reports. McGahn refused to do so, because they were accurate.

Trump was infuriated by his aides’ refusal to follow his orders to interfere with the investigation or to lie on his behalf. The president asked why he could not have lawyers who would “protect” him. Trump lamented that he could not have a “strong” lawyer like his former attorney, Roy Cohn. (Cohn represented mobsters as well as Trump. He was disbarred in New York for dishonest behavior.)

In one troubling episode, Trump asked McGahn why he was taking notes, saying none of his other lawyers had ever done that. McGahn answered, “because I’m a real lawyer”.

Mueller’s team also concluded that it was very likely Trump was trying to influence Paul Manafort and Michael Cohen as they prepared to testify in legal proceedings. They noted Trump’s public statements of support for both men as they faced grand jury investigations and his praising Manafort for staying “strong”—i.e., not talking to prosecutors about his contacts with Russians. Mueller’s team also noted comments from Trump advisers assuring the two men that they would be taken care of, or words to that effect, as well as Trump’s refusal to rule out pardons for them.

The President Finds A Consigliere, At Last

There are certainly dangers in not pursuing impeachment: Trump’s lawless behavior could become even more extreme. Several tough, principled Republican lawyers prevented Trump from successfully obstructing justice, by defying his orders, but they are gone. Instead of Jeff Sessions, Rod Rosenstein (about to retire) and Don McGahn, we have Attorney General Bill Barr.

Trump has finally found his consigliere, a lawyer who will protect him and follow his orders. If there is a conflict between legal principles and Trump’s impulses, we should not expect much help from this A.G. That may have adverse ramifications for immigration procedures, civil rights and regulatory issues.

An Attorney General has to be aware of political realities and the president’s priorities, to be sure. However, Barr has crossed an important line, destroying his credibility. The A.G. has focused on “spinning” the Mueller report, which has led him to misrepresent its findings and conclusions. In his press conference, Barr made several statements that were false.

In one glaring example, the A.G. said,

“As the special counsel’s report acknowledges, there is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents.”

In fact, the prosecutors reached the opposite conclusion: Trump’s motives were highly suspect. Barr was stating his conclusion, not theirs.

When a reporter asked if Mueller had taken into account the DOJ’s policy that a president cannot be indicted while in office in reaching his conclusions, Barr replied that Mueller had not done so. In fact, that was a key factor in Mueller’s decision not to bring criminal charges.

Barr also said that Trump and his administration had “fully cooperated” with Mueller’s team, but as we have seen, Trump took unprecedented steps to try to derail the investigation.

Unfortunately, the pundits got it right this time: Barr did sound like Trump’s defense lawyer during his press conference.

So this is no time for complacency. Yes, the system has worked, but only up to a point. Impeachment would be the appropriate remedy, but this may not be practical, given Republican Senators’ intransigence (and, possibly, their fear of Trump).

If Congress does not impeach the president, for the next two years we will be governed by a leader who thinks he is above the law. With the constraints gone, how much damage will Trump inflict on the rule of law in the next two years? And if Trump is re-elected, his assault on our institutions and the rule of law will continue for yet another four more years. Whether you are a Democrat or a Republican, you should be very worried about that.

If you were Nancy Pelosi, what would you do?

The Wall Street Democrat

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