After Mueller: A High Crimes and Misdemeanors (But Not Necessarily an Impeachment) Investigation

By Bruce Miller

Prior to becoming a Professor at Western New England University, Bruce Miller worked for the National Senior Citizens Law Center in Los Angeles and also served as an attorney for the U.S. Dept. of Health, Education, and Welfare. He is president of No More Guantanamos, a nonprofit advocacy group, and a member of the Massachusetts Committee for Public Counsel Representation.

In the wake of Special Counsel Mueller’s largely uneventful testimony late last July, no one can envy House Speaker Nancy Pelosi’s impeachment dilemma.  Presented with ample evidence of offenses justifying President Trump’s removal (the appalling violations of immigrants’ human rights are alone sufficient) she also knows that no matter what he has done, or how compelling the evidence offered against him, Mitch McConnell’s Senate will never vote to remove this President from office.

Ms. Pelosi is also rightly loath to do anything that could sabotage the imperative of preventing a second Trump term.  With a very winnable election a year and a quarter away, and with polls showing only a minority of Americans favoring an impeachment trial of Mr. Trump, attempting it may amount to a political death wish.

Finally, an impeachment proceeding against the President seems unlikely even to focus the country’s attention on his misdeeds the way the investigation of President Nixon did forty-five years ago.  In light of Mr. Trump’s so far largely successful obstruction of the House of Representatives’ various oversight efforts to secure the testimony of crucial witnesses and the production of relevant documents, public impeachment hearings may do little more than revisit evidence that, however under appreciated, is already in the public domain.  This scarcely makes for the kind of compelling television that galvanized the nation in 1973 and 1974.

And yet, Mr. Trump’s brief record as President is already the most lawlessly dangerous in our country’s history.  His mistreatment of immigrants is only his most egregious offense.  Special Counsel Mueller’s report details ten instances of obstruction of justice by the President in connection with the Russian election interference investigation, and also provides direct proof of Mr. Trump’s pre-election offers of bribes to women to purchase their silence about his sexual activities.  In addition, evidence of Mr. Trump’s systematic efforts to profit from his presidency continues to accumulate and his posture of total resistance to congressional oversight, an offense for which the House Judiciary Committee voted an Article of Impeachment against President Nixon, becomes more and more intractable.  If Ms. Pelosi decides that this unparalleled array of unconstitutional and criminal misconduct doesn’t merit an impeachment inquiry, she will likely be remembered as the Speaker who effectively surrendered Congress’ constitutional power to protect the country from a lawless and tyrannical President.

Still, Speaker Pelosi does have a way to serve her electoral interests while respecting her constitutional duty.  It lies in the founders’ wise decision to place the impeachment power with the House of Representatives.  In order to impeach a sitting President the House must make two determinations, one legal, and the other political.  The legal predicate for impeachment is a judgment that the President has committed “high crimes and misdemeanors” in the exercise of executive power (or, perhaps also, in the effort to attain that power).  However, this legal conclusion does not compel a decision to impeach.  As a political institution, the House must also ask whether the country would be well served by the impeachment of the President.  Only if the House answers yes to both questions should it trigger the President’s trial and possible removal by the Senate.

In order to make the first of these decisions responsibly, the House must thoroughly investigate what the President has done and then assess the constitutional significance of any misconduct it finds.  Such investigation and assessment are surely long past due in the case of Mr. Trump, and ought to be commenced immediately.  But a resulting determination that the President has likely committed high crimes and misdemeanors is not enough to warrant his trial in the Senate, even if the evidence against him is compelling.  Because the impeachment decision is also political, House members may quite properly take account of popular sentiment, the prospects for conviction of the President in the Senate and the possible impact of an impeachment trial on the upcoming presidential election.  These prudential considerations might lead to a judgment not to impeach or, perhaps more significantly, not to take up the question at all.  Presidential high crimes and misdemeanors are both legally necessary, but also politically insufficient, to justify impeachment.

A House investigation of possible high crimes and misdemeanors by President Trump will be a service to our country even if it does not result in his impeachment and trial.  First, because a high crimes and misdemeanors investigation is an exercise of the House of Representatives’ constitutional impeachment power, it may strengthen the House’s ongoing efforts to enforce its subpoenas of executive branch witnesses and documents in the federal courts.  Second, a high crimes and misdemeanors investigation will give life to the “constitutional processes for addressing presidential misconduct” to which Mr. Mueller deferred in lieu of recommending the President’s criminal indictment.  And third, whatever it may lack in televised drama, a timely high crimes and misdemeanors investigation now will establish the kind of official record of Mr. Trump’s misconduct while in office and during his campaign that Special Counsel Mueller’s Report (and testimony) and other narrower congressional investigations so far have not.  Such a record, established while the evidence is fresh, may prove especially useful if President Trump is reelected and faces democratic majorities in the House and Senate.  The political context for impeachment then may look quite different than it does now.

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