Last Thursday the full Special Counsel report on Russian interference in the 2016 election and President Trump’s relationship with the Russian government and the investigation was released. For the most part, the Attorney General’s summary from the start of April, which we reviewed here, was accurate. There was no evidence of actual collusion on the part of anyone in the Trump campaign. However, the question of obstruction of justice remains unsolved. Special Counsel Robert Mueller lays out the evidence, but he does not pass his verdict.
I’ll be upfront, I have not read the report. It is 450 pages long. If you are looking for more complete commentary on the actual report, I’d recommend David French in National Review or Andrew Sullivan for New York magazine. At any rate, the report itself is not what I want to focus on. I want to look at impeachment, which has been thrown around at points during the Trump Presidency and will undoubtedly become a more central question in the weeks to come.
The report flatly dismisses the idea President Trump colluded with the Russian government to win the 2016 election. There was, as President Trump likes to say, “no collusion.” Nothing came of the questionable interactions between people in the Trump orbit and those connected to Russia. As I said earlier this month, this should have been the expected result. I assume that running an international conspiracy requires discipline and subtly. Neither virtue comes to mind when I think of Donald Trump.
Obstruction is a little different. The report presents ten potential instances of obstruction of justice, many of the times President Trump having to be ignored or dissuaded by his subordinates. The worst instance of this probably being when Trump ordered White House Counsel Don McGhan to fire Mueller, which McGhan ignored. However, Mueller’s report declines to make the traditional prosecutorial judgment of guilty versus not guilty. Why? Because Mueller is, as a Department of Justice employee, adhering to Department of Justice guidelines that the sitting President cannot be indicted. As such, Mueller kicks the question of whether to prosecute President Trump to Congress.
On the surface, that might seem absurd. Of course, the President can be charged with crimes. If he breaks the law, he should face punishment just like everyone else. But in actuality, it is slightly more complicated. If he is to be formally prosecuted, someone needs to have authority to do so. The President cannot be prosecuted by the states, as that would give a state control over the head of the Federal Government. The President also cannot be prosecuted by the federal government, as the prosecutors work for him. You’d be asking the executive branch to prosecute itself and expecting the result to be proper justice.
Is the President therefore above the law? Not exactly. His authority, like all government authority, is derived from the people. If the people, acting through their representatives, decide the President has lost their trust, there is a process by which he is deprived of his authority. The President can be impeached.
In the real world, principles have to bend before reality. If a prosecutor had the nerve to indict the President, the subsequent ruling would certainly be up in the air. But we’re still in a legal gray area. What is much clearer is that the President can be impeached and once removed from office he can be prosecuted like anyone else.
Article 2 Section 4 of the Constitution reads “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
Impeachment has to balance two concerns. On the one hand, the people’s representatives need to be able to act as a check on the President. On the other hand, the President needs to be able to do his job independent of the legislator in his business at every second. The crucial phrase is the last one. What exactly does “high crimes and misdemeanors” mean?
The answer lies in understanding that impeachment is a political offense, not technically a legal one. Federalist 65 reads “They (impeachments) are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” As such, the President (or any official or judge) can be impeached without necessarily committing a crime. High crimes and misdemeanors is not shorthand for a list of actual high crimes. It means the legislature has the ability to remove the President when they deem he has stepped out of bounds.
The second point is that the founders intended for this power to be used much more liberally than it has been. James Madison thought the power was “indispensable . . . for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate.” (Again, that’s more than just the President’s criminality.) In Federalist 68, Alexander Hamilton writes that the Presidency is designed to be “filled by characters preeminent for ability and virtue.” While the framers trusted the system of elections to produce that result, many of them were skeptical of the people’s ability to always choose the best leaders, and they would likely to be surprised to find out that 45 Presidents in, none have been convicted in an impeachment trial.
So the question of whether President Trump ought to be impeached because of obstruction of justice laid out in the Mueller report depends on what standard we are operating under. Under the ideal standard, where impeachments were an uncommon but not unheard of punishment for general malpractice and ineptitude, President Trump would be worthy of impeachment. We can debate what the founders meant by virtue and ability, but having to be restrained from firing the man investigating him out of impulsiveness is certainly not either. Some might say “President Trump was acting out of understandable frustration.” That’s true, but when you and I get frustrated, we do not need our underlings to prevent us from potentially breaking the law.
In my takeaway from the Barr report, I said the conclusion of this investigation was a win for President Trump. That is only true if the bar is set so low it is touching the ground. The President did not work with one of our geopolitical foes to win an election and only potentially obstructed justice during the course of an investigation. Congratulations.
While someone might say “collusion was the standard set by the media. They said Trump colluded. Therefore, when a report says Trump didn’t collude, it is a win for Trump.” While I don’t dispute the critique of the media, the collusion accusation was absurd and taking it seriously was absurd.
However, under the standard we have come to dwell under, President Trump is not worthy of impeachment. Clearly, the designed system of impeachment is not what has happened. In all of American history, only 19 people have been impeached and only eight have been convicted. Those eight have all been low level judges. Presidents have committed far worse offenses than Donald Trump and escaped impeachment. While I might like for us to be corrected to the founders’ vision of a more assertive legislature policing the executive, I do not believe ending the Trump presidency would achieve that in any meaningful way.
The impeachment talk is just that, talk. First, impeaching the President would be a politically unwise decision unlikely to accomplish anything anyway. But on a more general level, that in spite of the founders vision, Donald Trump has not, as far as we know, committed an offense worthy of impeachment under the precedent set by American history.