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]
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 Orbán, 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.
__________________
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
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