Will the Release of the Mueller Report Make Impeachment More Likely?

The occupant of the White House hopes that tomorrow’s Easter-week release of the Mueller report will complete his immaculate resurrection after two years as a target, but the day will more likely be remembered instead as the start of impeachment hearings.

But for who?

The Mueller report may force the House to begin impeachment hearings against Trump for obstruction of justice. It’s being reported tonight that Mueller could not reach a conclusion on this charge because he couldn’t determine Trump’s motive. (Which is, without an explanation from Mueller, infuriating, given that Mueller never even tried to compel Trump to testify.) The motive piece is important for a prosecutor like Mueller whose sole context is a legal one,  but not for Congress in the middle of the decidedly political milieu of impeachment. The biggest question about the obstruction of justice impasse is who Mueller considered as the audience for his report—Barr or Congress. If it is revealed that, like previous prosecutors, Mueller thought that his job was to lay out a case for Congress, not Barr, to decide and the report makes a strong non-legal case for obstruction, then Nadler and the House Judiciary Committee will feel compelled to start impeachment hearings against Trump. “What else are we here for?”, they would justifiably ask.

I’ve always felt that impeachment hearings against Trump would be a colossal mistake. Such hearings would not change the minds of many voters. (Trump’s poll have been insanely consistent because nearly everyone has already made up their minds about him, one way or the other.) They would be a huge and potentially fatal distraction for the Democratic Party, which will have to focus relentlessly and totally on the 2020 campaign in order to beat Trump. Impeachment hearings would fire up Trump’s base to vote and to contribute money to his campaign. Most important of all, Trump will never be convicted and removed by the current Republican Senate. And that’s how it should be. We need to beat Trump at the polls in 2016, not ask the politicians to remove him for us.

But if it turns out that Mueller was making a case that he wanted Congress and not Barr to decide, then the Democrats would have a solid rationale for impeaching the Attorney General.

They could argue that Barr’s appointment was illegal, given his behavior before and since his confirmation. Barr blatantly auditioned for the Attorney General job ten months before he got was nominated by sending an unsolicited letter to the Department of Justice and Trump’s lawyers championing the notion that a sitting President could not be indicted. It’s entirely possible that an arrangement was made. Barr has certainly done everything he could since his confirmation to live up to the promises he made in his tryout.

They could charge Barr with lying to Congress if he releases a heavily redacted version of Mueller’s report, given that he told the Judiciary Committee that he would publish as much of the report as possible. They may have more evidence of this after Barr and Mueller both testify before Congress.

If Mueller’s report makes a strong case for obstruction, Congress could charge Barr himself with obstruction of justice for clearing Trump of that charge before Congress could see the evidence, giving Trump’s lawyers advance briefings on the Mueller report to help them prepare a rebuttal, coordinating with the White House on the timing and process behind the report’s release, and claiming that the Department of Justice spied on the Trump campaign in 2016 without providing any evidence.

Another potential impeachable offense by Barr would be the withholding of critical information from Congress and, by extension, the public. Barr provided his own four-page summary of the Mueller report and then, unlike previous prosecutors, withheld the release of the report for several weeks. He is not allowing Mueller or his team to participate in his press conference tomorrow, thus depriving Congress or the press the ability to question the special prosecutor.

In addition, Barr took an oath to uphold the Constitution by ensuring a non-partisan Department of Justice. Instead he preemptively cleared Trump of collusion and obstruction, briefed the White House on the report before its release, and interfered with Congressional oversight of Trump. Barr is the most partisan Attorney General since John Mitchell. (Barr might want to remind himself of Mitchell’s fate—nineteen months in prison.) Using the Department of Justice to favor one political party would be an impeachable offense.

Barr also swore to uphold the law. Instead he has put his Department of Justice on the side of repealing a lawful act of Congress—the Affordable Care Act—and just this week announced his department’s decision to hold asylum seekers at the border in indefinite detention, which is illegal according to both U.S. and international laws.

There is no chance that William Barr would be convicted and removed by the current Republican Senate, but after tomorrow there will probably be a strong case for Barr’s impeachment, and Congressional Democrats could pursue it without the considerable risks and downsides associated with an attempt to impeach his boss and master.

Nancy Pelosi makes the smart call on impeachment

Nancy Pelosi’s comments yesterday on impeachment were exactly right.

First, here is what she said:

"I'm not for impeachment. This is news. I'm going to give you some news right now because I haven't said this to any press person before. But since you asked, and I've been thinking about this: Impeachment is so divisive to the country that unless there's something so compelling and overwhelming and bipartisan, I don't think we should go down that path, because it divides the country. And he's just not worth it."

My key assumption that the goal is to remove Trump from office as quickly as possible. What is the fastest way to get from Point (where we are today) to Point B (a world in which Trump is no longer President)?

Trump has already committed—in public—the impeachable act of obstructing an investigation of him and his campaign.

Members of the House and Senate took an oath to uphold the Constitution, which says that a President who has committed “high crimes and misdemeanors” can be impeached by a simple majority vote of the House and removed from office by a 2/3 majority vote in the Senate. Many Democratic members of Congress feel, understandably, that no American is above the law and that they would not be upholding their oath of office if they did not file impeachment charges against a President who is clearly a criminal.

Impeachment and removal from office is not a legal process, despite the fact that the final stage in the Senate is called “a trial.” It is a political process. It has nothing to do with criminal charges. If the 2/3 of the Senate votes to convict the President, he or she is removed from office. Whether the President is indicted later on criminal charges is up to the justice system.

The Democratic-controlled House has the justification and the votes today to draw up articles of impeachment, approve them, and send Trump to the Senate for trial.

Given what we know today about Trump’s many crimes, would the filing of impeachment charges in the House and a trial in the Senate get us to our goal—to Point B?

The answer is, absolutely, “no.”

Anyone who thinks that two thirds of the GOP-controlled Senate would convict Trump based on the current, considerable evidence of his crimes has been living on some other planet. TWENTY Republican Senators would have to vote to convict Trump. The GOP senators will only turn against Trump if their base voters in their home state turn against Trump, because they have to survive a Republican primary in order to get reelected. Over 85 percent of Republicans currently support Trump. Conviction in the Senate will not happen.

Given that an impeachment undertaken based on current knowledge will not succeed, what would such an effort accomplish?

• Impeachment would formalize the struggle between Trump partisans and the anti-Trump into an all-out war.

• Impeachment would completely overwhelm the Democratic agenda in Congress. Even though there is no chance of Democratic bills being signed into law during Trump’s term, passing a series a bills in the House is vitally important to retaining Democratic control of that chamber in 2020 because Republicans will be forced to defend their votes during the campaign.

• Democrats in Congress would be able to say that they fulfilled their Constitutional duty.

• Impeachment would be viewed by many in the anti-Trump resistance as a positive move.

• Impeachment would ignite the Trump base, who will feel that the Democrats are trying to overturn the results if the 2016 election.

• Impeachment without conviction would be the ultimate proof that Congress is utterly partisan and irretrievably broken.

• Impeachment without conviction will enable Trump to claim a huge victory against the partisan Democrats and against the investigations into him just before the 2020 election.

• Impeachment without conviction will increase GOP fundraising and voter turnout in the 2020 election, increasing the chances that Trump will be reelected to a second term.

Which brings us to Pelosi’s important caveat—that impeachment would be inevitable if the majority of Americans and Republicans turn against the President. People forget that Nixon was only impeached because he was caught on tape, and the America of 1973 was not as divided on partisan lines as the America of today. I don’t believe that the GOP will ever support Trump’s removal, no matter what he has done or how many guns are smoking.

Pelosi is being very deliberate and smart about her announcement. She made it clear that the door to impeachment is not totally closed. She made her comments prior to the release of the Mueller report to make her preferences clear beforehand. She is right that impeachment without the support if the majority of Americans will hurt the Democratic Party in the 2020 elections. She is taking responsibility as the leader of her caucus for not supporting impeachment at this time in part to allow individual Democratic members of Congress to endorse impeachment if they want to do so. She has the support of Adam Schiff and Gerry Nadler, the Democratic chairmen of the Intelligence and Judiciary committees, who are in the process of uncovering the truth about the Trump family crime organization between now and the election.

The best way to remove Trump is to beat him at the polls next year. An attempt to impeach him would only make him a martyr to his supporters and give a new lease on life to his fascist movement. The hard truth—and it’s a very hard truth indeed—is not only that impeachment is doomed in this Congress, it could help to utterly destroy the American experiment by giving another four-year term to a racist, fascist, anti-American President. The 2020 election is the only way to way to get to Point B, and we won’t be successful in that journey if we try to focus on both that contest and impeachment.

Impeachment: The End of Trump or the Best Thing That Could Happen to Him?

Robert Mueller’s investigation will no doubt conclude before the 2020 election. Many anti-Trumpers assume that Mueller’s report will be the end of Trump, but regardless of its contents we need to be prepared for the likely possibility that its impact on Trump’s future and the 2020 election will not be clear cut or conclusive.

Consider the following possible scenario:

Mueller submits his summary report to Attorney General Barr in the late spring, and Barr releases it to the public. (It’s not at all certain that he will in fact release such a report, but for the purposes of this scenario, let’s assume that he does.) Meuller’s report focuses on collusion between the Trump campaign and the Russians, and the effort to obstruct justice and interfere with Mueller’s investigation.

In the report, Mueller follows Justice Department policy and does not make the case that Trump should be indicted. Neither does he name Trump as an unindicted co-conspirator (as Jaworski did with Nixon). Importantly, Meuller does not map Trump’s actions against the impeachment bar of “high crimes or misdemeanors” in his report, believing that the Constitution clearly gives this task to Congress.

Mueller’s report does, however, include compelling evidence that Trump allowed Russians to launder money by investing in Trump properties prior to the election, that Trump was personally aware of the partnership between his campaign and the Russians to influence the election, that Trump violated campaign-finance and fraud laws in directing that payments be made to former lovers in return for their silence, and that Trump personally took several actions that amounted to obstruction of justice in regards to the Mueller investigation.

In the days following the release of the report, the vast majority of Republicans in Congress, including nearly all the Republicans in the Senate, make it clear that, in their view, the evidence of treason and obstruction of justice is not compelling enough to warrant impeachment. They continue to insist that Mueller’s investigation was tainted by anti-Trump bias in the FBI, that there is no proof that Russian interference actually had an impact on the 2016 election, and that the Democrats are using this contaminated, one-sided investigation to engineer a coup designed to undo the will of the voters as expressed in that election.

The Trump administration, Republican Party leadership, Congressional Republicans, and Fox News—who have already convinced their base that the Mueller investigation is a partisan witch hunt and that news reports about it are fake—successfully whips the GOP base into a frenzy over the prospect of Trump’s possible impeachment by the Democrats. They use this fury to raise enormous sums of money for Trump’s reelection, and support for Trump among Republican voters soars once again.

Within weeks the Democrats face an unprecedented decision.

Given the details of Trump’s crimes in the Mueller report, it is inconceivable to the Democrats that they would not draft a bill of impeachment, pass it, and send it on to the Senate for a trial. To not impeach Trump would be an unconscionable dereliction of their duty and would make a mockery of the Constitution.

Given the reaction of the Senate Republicans, however, the Democrats understand that, if they impeach Trump, he will certainly be acquitted in the Senate.

And given the reaction of Republican voters, the Democrats also understand that if they impeach Trump in the House and he is acquitted in the Senate, that Trump will use his victory in the Senate as a powerful message in his reelection campaign.

“I told you,” he will tell voters, “that it was a total witch hunt cooked up by the deep state and the Democrats. I won fair and square in 2016 and I proved all the experts wrong. They came after me anyway and fought for two years and spent millions of dollars to undo the 2016 election, but once again I have proven the elitist Democrats and the experts wrong. Not only that, I have been found completely innocent, just as I always said I would be. And believe you me, I will prove them wrong A THIRD TIME in 2020.”

So the Democrats also understand that if they do their sworn duty and impeach Trump, they may be helping a treasonous, criminal, and mentally unstable President be reelected in 2020.

This hypothetical scenario is not impossible. Don’t argue with me about the details as I’ve given them. Accept them for the sake of discussion.

What should Democrats do if they found themselves in this situation?