Posts © 2011-2012 by Gerald G. Day







Saturday, May 18, 2019


May 17, 2019   
     The Mueller report confirmed the obvious; Donald Trump should not be President.  Several hundred former federal prosecutors have declared that, if Trump did not hold that office, which supposedly renders him immune from indictment and prosecution, he would have been indicted for obstruction of justice. That immunity was assumed by the Mueller team, based in part on a Department of Justice opinion which found that “The  indictment  or  criminal  prosecution  of  a  sitting  President  would  unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”[37] 
     Even if the President should be protected from a criminal trial during his term because it would be too disruptive and time consuming, an argument can be made for permitting indictment, which would be less so.  However, the Special Counsel decided otherwise, so the question probably is moot.     The Mueller Report did not make a criminal referral and ended the obstruction section with this weak conclusion: “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.”  Even that suggests evidence of misconduct, but it allowed Trump to claim vindication and Mitch McConnell to declare “case closed.”
     The Mueller report, in addition to accepting and deferring to the DOJ opinion, added this statement of limitations: “we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”  The first part of that sentence essentially restates the DOJ opinion in non-constitutional terms, but the reference to preempting constitutional processes is a not-very-subtle hint that impeachment is the way to deal with Presidential crimes.
     The prosecutors’ letter is as direct as the report is elliptical:
The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:

· The President’s efforts to fire Mueller and to falsify evidence about that effort;
· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and
· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.[38]
The last was later more forcefully expressed as witness tampering and intimidation.
     Should President Trump be impeached?  Certainly he deserves it, and impeachment would be a formal declaration of his crimes.  He would not be convicted by the spineless Senate, so impeachment would have to be justified by its declaration alone.  Persuasive arguments have been made for and against.  My initial reaction was that it would be a bad idea.  It would allow Trump to complain again about how Democrats, jealous of his election, are conspiring to bring him down, to stage a coup. The legal pointlessness of impeachment would feed that narrative.  It would take some time to vote impeachment, especially given the lack of consensus among Democrats.  The election season already is under way, and impeachment might seem a late, desperate, attempt to tip the scale.
     Also, the House does not need an impeachment resolution to investigate Trump’s actions.  Pursuing new avenues and adding evidence to known scandals might doom his chance of reelection, so removal, though delayed, would be by conventional means.  Democrats also need to address, and need to be seen addressing, issues other than Trump’s character.
     However, the point remains: he is unfit for office.  Do we accept that as just one of the facts of contemporary politics?  Do we in effect declare that obstruction, along with Trump’s other disqualifying traits and actions, is acceptable because declaring  otherwise might be politically risky?  Should the House duck its constitutional responsibility and hope that voters do its job?   Caution in the face of menace often doesn’t produce good results.   In addition, Trump and his supporters will accuse the Democrats of all sorts of jealous, divisive misconduct even if they make no move toward impeachment, so the risk may not be as great as it seems.  
     If impeachment were to proceed, what should the articles allege? Obstruction, as detailed in the Mueller report, is obvious, and Republicans would be hard pressed to claim that such a charge is unwarranted, given the obstruction article in the Clinton impeachment, based on trivial underlying issues.  Trump has entered phase two of obstruction, refusing document requests by Congress, interfering with testimony, and suing third parties to prevent cooperation with Congress.  This form of obstruction undermines Congress’ oversight role and threatens the equality of the branches of government.  Trump justifies this interference by arguing that requests for information must be limited to supporting proposed legislation, in effect that Congress has no oversight authority.  The implication is that, in order to investigate, the House must be pursuing impeachment.  It may as well take that hint too.
     Mueller found no conspiracy with Russia, but Trump and his campaign staff clearly welcomed its interference.  There couldn’t be a clearer demonstration of that than Trump’s public appeal to Russia on July 27, 2016 to publish Hillary Clinton’s emails.  That alone may have been a crime and, as election hacking by foreigners clearly is a crime, it it suggested that a President Trump would have little regard for the constitutional duty to take care that the laws be faithfully executed.
     A citizen is said to have asked this of Benjamin Franklin about the work of the Constitutional Convention: “Well, Doctor, what have we got—a republic or a monarchy?” His reply: “A republic, if you can keep it.”  That warning, apocryphal or not, deserves attention.  Trump’s authoritarian aspirations are revealed by his respect for foreign strong men, most recently demonstrated by his hosting Viktor Orb├ín, who knows how to deal with pesky news media.  Trump, due to ego-driven instinct and as a reaction to threats, is giving the imperial presidency a new meaning, emulating a monarch, attempting to rule independent of the first branch.  Congress needs to take action to preserve the Republic.
     Trump is unique among Presidents in the degree to which he puts the country in peril.  That should tip the balance: we can’t afford another term or another Trump.

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37.
https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024- p0222_0.pdf


38.
https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-8ab7691c2aa1