Mueller's slam dunk

In a 400-page partially redacted report released on Thursday, Robert Mueller laid out a comprehensive case for the impeachment of Donald Trump. What is Congress going to do about it?

There are two schools of thought.

The first, articulated by House Majority Leader Steny Hoyer (D-MD) and others in House leadership, is that impeachment is pointless and counterproductive. It’s an argument that hinges mostly on politics. Impeachment in the House is pointless because Senate Republicans will never convict Trump. And it is counterproductive because the process will motivate Trump’s base in 2020.

"Based on what we have seen to date, going forward on impeachment is not worthwhile at this point. Very frankly, there is an election in 18 months, and the American people will make a judgment," Hoyer told CNN shortly after the release of the report.

Hoyer's comments mirrored those of House Speaker Nancy Pelosi (D-CA) last month. "I’m not for impeachment. 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," Pelosi said.

The counter-argument, articulated by Senator and presidential candidate Elizabeth Warren (D-MA), is that Mueller has laid out persuasive evidence of impeachable offenses and there is a constitutional imperative to begin an impeachment inquiry. The failure to do so would empower future presidents to obstruct justice or commit other crimes with impunity. Short term political implications, Warren says, should not be a factor.

"I know people say this is politically charged and we shouldn’t go there, and that there is an election coming up, but there are some things that are bigger than politics," Warren said in New Hampshire on Saturday.

Most presidential candidates -- including Bernie Sanders, Cory Booker, Kamala Harris, Amy Klobuchar, and Pete Buttigieg -- are reserving judgment. They don't explicitly oppose impeachment but argue more investigation is necessary.

So far, the House has been guided by officials that oppose impeachment. But there are signs that anti-impeachment forces are weakening. Shortly after telling CNN that impeachment was "not worth it," Hoyer backtracked on Twitter, saying "all options ought to remain on the table."

Congressman Adam Schiff (D-CA), chairman of the Intelligence Committee, said Sunday that House Democrats "may" undertake impeachment and will decide in the next few weeks.

"Is it the best thing for the country to take up an impeachment proceeding because to do otherwise sends a message that this conduct is somehow compatible with the office? Or is it in the best interest of the country not to take up impeachment that we know will not be successful because the Republican leadership will not do its duty?" Schiff asked.

Things are changing for two reasons. First, the Mueller report provides overwhelming evidence that Trump obstructed justice and explicitly identifies Congress as the appropriate body to act. Second, the politics of an impeachment inquiry are complex. Pursuing impeachment may motivate Trump's base -- but Trump's base is likely to be motivated regardless. The failure to act on Mueller's report could depress the Democratic base, who turned out in droves in 2018 to vote for people who would hold Trump accountable.

Mueller's overwhelming evidence on obstruction

In his March 24 letter summarizing the Mueller report, Attorney General Bill Barr states that, on the obstruction issue, "for each of the relevant actions investigated, the report sets out evidence on both sides of the question." Now that we can read most of the report, it's clear this is not accurate.

The report looks at a variety of obstructive conduct and evaluates them against the three basic elements for an obstruction charge:

1. Was there an obstructive act?

2. Was there a nexus to an ongoing official proceeding?

3. Was there "corrupt" intent?

In at least 4 cases, Mueller reviews conduct that meets all three elements for obstruction of justice and provides no substantial exculpatory evidence. Mueller's analysis was helpfully summarized by Quinta Jurecic, the managing editor of Lawfare blog.

For example, the report examined various efforts Trump undertook to remove Mueller as special counsel, including ordering former White House Counsel Don McGahn to have Mueller removed.

On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed. McGahn was at home and the President was at Camp David. In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.

The report lays out evidence that Trump's actions were:

1. Obstructive. ("[T]he attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.")

2. Connected to an ongoing inquiry. ("Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.")

3. Corrupt. ("There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel's Office -- and McGahn himself -- could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts.")

This goes on for hundreds of pages and numerous examples. It is an exhaustive, overwhelming case based on mountains of evidence and the testimony of Trump's closest aides.

Why Mueller kicked obstruction to Congress

Obstruction of justice is a serious crime that was included in the articles of impeachment drafted against Bill Clinton, who was impeached, and Richard Nixon, who resigned. Mueller does not reach a formal conclusion on whether Trump obstructed justice for lack of evidence but because of the Justice Department policy of not criminally indicting a sitting president.

"Fairness concerns counseled against potentially reaching that judgment when no charges can be brought," Mueller writes. But, Mueller says, "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."

In other words, Mueller doesn't feel comfortable saying Trump obstructed justice in light of the Department of Justice policy prohibiting the indictment of a sitting president. If Mueller can't indict Trump, there will be no trial and no forum for Trump to defend himself.

But Mueller says if he believed Trump didn't obstruct justice he would say so and he is explicitly not saying that. So as a matter of logic and grammar, it's safe to say that Mueller believes that Trump obstructed justice.

Mueller suggests that Congress is the appropriate body to evaluate the evidence through an impeachment inquiry. "Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice," he writes.

An impeachment proceeding would give Trump a forum to defend himself. It would also eliminate any concerns that charges would interfere with the presidency. If Trump is convicted in an impeachment trial, he would no longer be president.

Obstruction without other crimes

A constant refrain from Trump and his allies is that Trump could not have obstructed justice because Mueller did not find that Trump committed an underlying crime. As a matter of law, this is incorrect. Mueller also explains, in detail, that Trump could have had a variety of motives to obstruct justice even if he did not commit an underlying crime.

In this investigation, the evidence does not establish that the president was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the president’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events — such as advance notice of WikiLeaks’ release of hacked information or the June 9, 2016, meeting between senior campaign officials and Russians could be seen as criminal activity by the president, his campaign or his family.

It fell outside the scope of the Mueller report, but the investigation did uncover evidence that Trump committed crimes associated with the campaign. Trump is an unindicted coconspirator in the campaign finance case against Michael Cohen related to unreported six-figure payoff to two women who say they had sex with Trump. Prosecutors say that Trump directed Cohen to commit two felonies.  

In addition to legal liability, Trump may have wanted the investigation ended to avoid the personal embarrassment of his relationships with Stormy Daniels and Karen McDougal exposed.

Let's talk about politics

Warren makes a compelling argument that if Trump committed an impeachable offense, Congress should impeach him, regardless of how it might impact the next election. But the elite consensus that the politics impeachment would politically benefit Trump is also misguided.

The theory is that, if the House forgoes impeachment, the issue will fade to the background and Democrats will be able to focus on health care and other issues where they have a decisive advantage over Republicans. But regardless of what the Democrats do, Trump and his allies plan on keeping the Mueller investigation in the spotlight. Attorney General Bill Barr has already revealed that he is undertaking an inquiry into how the investigation began -- something that Trump has repeatedly demanded. Senate Republicans are likely to hold hearings on similar issues.

So the issue isn't going away regardless. The question is whether the focus will be on Republican conspiracy theories about Robert Mueller (a lifelong Republican appointed by George W. Bush) or the actual contents of the investigation. It's far from certain that Trump aides like former White House counsel Don McGahn, testifying about Trump's efforts to obstruct justice will benefit Trump electorally.

Trump is likely to use any decision not to impeach as proof that the Mueller report "exonerated" him -- even though that is not true.

Finally, pursuing impeachment doesn't foreclose Democrats' ability to talk about health care, or income inequality, or whatever other policy issues Democrats want to highlight. A national campaign is about many things, and the idea that it will either be about impeachment or policy issues is a gross oversimplification.

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