With the Mueller report finally finished, all eyes are on Democrats to make their next move.
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What I’m about to say is difficult for me. But, here goes. Nancy Pelosi is a role model. I admire her strength, intelligence, and political savvy. But, I think she’s wrong on impeachment. And, it’s time to speak out.
In addition to solid legal grounds, the House of Representatives has a moral imperative to begin an impeachment inquiry now. Wait for Mueller, everyone said. We did. And it looks like Mueller delivered. Even Attorney General Barr’s rushed-out partisan letter summarizing the actual report makes that clear. Mueller clearly left the door open for impeachment. And, it’s not the only door.
Let me explain.
On Friday, Mueller concluded his investigation into Trump campaign ties with Russia and the president’s alleged obstruction of justice, and delivered a final report to Attorney General William Barr. Then late yesterday afternoon, Barr delivered a brief letter to Congress providing his summary of the report’s chief findings. Quite significantly, when addressing the obstruction part of the investigation, the Special Counsel did not, in Barr’s words, “draw a conclusion—one way or another—as to whether the examined conduct constituted obstruction.” Barr also directly quoted Mueller, writing, “The Special Counsel states ‘while this report does not conclude that the president committed a crime, it also does not exonerate him.’” Instead of leaving that finding as is, Barr determined that it was his job to make his own determination. His conclusion is not surprising, given that he auditioned for his job in the Trump Administration in 2018 by submitting an unsolicited twenty-page legal memo on why the president had not obstructed justice.
So, Mueller has laid out the evidence on potential obstruction. That’s important. Notably, obstruction of justice is not just a federal criminal offense, it is also grounds for impeachment. The U.S. Constitution allows for the removal of the President from office “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The first article of impeachment for Richard Nixon included obstruction of justice.
When it comes to President Trump, obstruction is one of the ten legal grounds for impeachment. With credit to Ron Fein, John Bonifaz, and Ben Clements, the authors of The Constitution Demands it: The Case for the Impeachment of Donald Trump, these “high crimes and misdemeanors” include: (1) Obstruction of justice; (2) Violating the emoluments clauses of the U.S. Constitution; (3) Conspiracy to violate laws forbidding foreign campaign contribution; (4) Advocating violence and giving comfort to white supremacists; (5) Abusing the pardon power; (6) Recklessly threatening nuclear war; (7) Directing law enforcement to investigate his political adversaries; (8) Undermining press freedom; (9) Cruelly and unconstitutionally imprisoning children and their families; and (10) Making and directing illegal payments to affect the 2016 presidential election.
Further, popular interest in the corrupt conduct Trump and team allegedly used to secure the presidency is growing. Nearly 16 million viewers watched the public testimony of the president’s personal lawyer, Michael Cohen. Included in Cohen’s under-oath statements were allegations that while in the White House, the president signed checks to Cohen, to help cover-up a campaign finance felony. In addition, Cohen also testified that while president, Trump gave him clear signals that he should lie in his 2017 statements to congressional committees concerning the timing and duration of the Trump Tower Moscow Project. Further, the House Judiciary Committee just launched an investigation and sent out requests to 81 individuals and entities associated with Trump. More than 7 million Americans have signed Tom Steyer’s “Need to Impeach” petition. We are just getting going.
So, my heart sank two weeks ago when Speaker Pelosi told the Washington Post and then this week USA Today that she would not go down an impeachment path unless first there was bipartisan support. “I’m not for impeachment,” she told Post reporter Joe Heim. “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.”
A week later, she told Eliza Collins of USA Today, “You’re wasting your time, unless the evidence is so conclusive that the Republicans will understand.” She added, “Otherwise, it’s a gift to the president. We take our eye off the ball.”
On the surface, her words are appealing. Look at the numbers. It takes a simple majority for the House of Representatives to impeach (meaning indict). And there are enough Democrats who would support such a vote. Next comes a trial in the Senate, followed by another vote. In order to convict and thus remove the president from office, there must be a supermajority (67 votes). Assuming, for a moment, that all Senate Democrats vote to convict, an additional 19 Republicans would be needed. Some cynics believe that no matter what evidence is put forward during an impeachment trial, it will not be possible to lock down 67 votes.
But we should not treat an impeachment decision as a math problem. In the words tweeted last week by Jennifer Palmieri, former White House Director of Communications and Director of Communications for the Hillary Clinton 2016 presidential campaign, “If Congress just does their job and doesn’t try to game out what is good politics or not, we will all be better off.”
But even if we do the math, history suggests that it is too soon to count the votes. Remember Watergate. When the Judiciary Committee began its inquiry in the fall of 1973, less than 30 percent of the public favored impeachment. Compare that to 36 percent today. Ultimately, Nixon resigned before the full House voted for impeachment. That seems like a successful outcome after an uncertain start.
Also, critics note that with the three total presidential impeachment attempts in U.S. History, not one president was actually convicted. Does that make it a waste of time? No. To begin, many judges have been impeached and removed from the bench. The process can work. In addition, this year, the House has introduced and passed legislation that had absolutely zero chance of Senate approval. Even hopeless legislation reflects our values. We welcome these efforts even if they were doomed in the Senate.
Others assert, contrary to historical evidence, that if Trump were to be only impeached by the House but acquitted by the Senate, he would come out stronger on the other side. Further, they claim that impeachment would help him rally his base and perhaps secure his re-election in 2020. Pelosi said impeachment could be “a gift to the President” and it would be “divisive.”
But, our politics are already divisive. And we cannot fix that by capitulation to corruption and criminality. Living through divisiveness is better than accepting defeat. In her Washington Post interview, Pelosi recognized that Congress is “very divisive because of the person who is in the White House and the enablers that the Republicans in Congress are to him.” She added, “ It was terrible when we were here in the ’90s and [Newt] Gingrich was Speaker and impeached the president, Bill Clinton. There’s no question that that was horrible for the country. It was unnecessary and the rest.”
Even if it is true that the impeachment of Bill Clinton was horrible for the country, it does not follow that it was horrible for the Republican Party. Though Clinton was ultimately acquitted by the Senate, and was able to remain in office to finish out his term, the entire spectacle damaged his reputation and impacted the 2000 election. Recall that Al Gore conceded and lost his campaign for the presidency two days after a Supreme Court decision in early December. Though Gore won the popular vote, he lost the electoral college. Given swing voter distrust of Clinton in the wake of impeachment, Gore did not rely on him to campaign. If Clinton had been able to campaign for him more consistently, Gore might have won.
To be clear, Democrats should not pursue impeachment for partisan ends but instead on solid legal grounds. But, I raise this in response to the position that the legal basis is not enough, but both the impact on the country and the political outcome must be considered.
I believe that pursuing an impeachment inquiry now, passes the tough test set forth by Professor Laurence Tribe and Joshua Matz in their recent book, To End a Presidency: The Power of Impeachment. They assert that “in responsible discussions about ending a presidency, there are three vital questions to ask.” I’d like to respond to each.
“First has the president engaged in conduct that authorizes his removal under the standard set forth in the Constitution?” Yes. See the list of ten legal grounds for impeachment above.
“Second, as a matter of political reality, is the effort to remove the president likely to succeed in the House and then in the Senate?” Given that is too soon to tell whether this will succeed, we should move forward with an inquiry, not a vote on articles of impeachment until we know more.
“And third, is it genuinely necessary to resort to the impeachment power, recognizing that the resulting collateral damage will likely be significant?” The collateral damage of giving Republicans veto power before the inquiry begins is unacceptable. We should move forward with an impeachment inquiry. The facts will speak. Then the House should vote.
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