At the core of President Trump’s unfitness and his malfeasance in office is his interaction with the Justice Department and the courts. This goes from the merely verbal denigration of the courts — “a joke,” “a laughingstock,” “so-called judges” — to actual actions such as firing the FBI director, reportedly imploring the FBI director to lay off of former national security adviser Michael T. Flynn, trying to meddle in the prosecution of Joe Arpaio (whom he subsequently pardoned for criminal contempt of court) and, now, directly encouraging the Justice Department to go after a political opponent for spurious, long-ago debunked claims.
In a series of tweets, he called on the Justice Department to go after the Democrats: “Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems … People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!” In remarks to reporters, he continued on in this vein. “I’m really not involved with the Justice Department. I’d like to let it run itself, but honestly, they should be looking at the Democrats. They should be looking at [John] Podesta and all of that dishonesty. They should be looking at a lot of things. And a lot of people are disappointed in the Justice Department, including me.”
There is no president in modern memory who has repeatedly and directly called on the Justice Department to investigate a political opponent in such a manner. A politician, one could imagine, upon new and actual evidence of wrongdoing, might say something like, “The appropriate authorities should look into this.” That’s not what Trump is doing here. He is both assuming guilt and applying pressure to go after an opponent based on scurrilous propaganda that he and his followers have generated. This is the conduct of a Third World dictator, and by any stretch of the imagination, an abuse of presidential power.
Trump’s latest call — following “lock her up” chants at rallies that continued after his election — is not an isolated event, but, as noted before, part of an ongoing pattern of trying to lean on the Justice Department either to pursue or not to pursue criminal proceedings against specific individuals. This certainly clears the bar of abuse of power established in the impeachment of Richard Nixon (who “merely” countenanced using the CIA to shut down the FBI’s investigation of the Watergate break-in) and goes well beyond the discrete action of Bill Clinton in lying under oath in the Paula Jones matter and to the grand jury. Trump’s conduct is pervasive, and if allowed to go unpunished will permanently distort our constitutional system. We simply cannot tolerate presidential meddling in our criminal-justice system to protect friends and persecute enemies.
“There is no bigger abuse of power than the president ordering his Justice Department to investigate his political enemies or back off his political allies, and Trump has done both,” says former Justice Department communications director Matthew Miller. “If he did it in secret, it would be treated as an enormous scandal, but because he does it in public, we have all gotten used to it. But it’s still the worst possible abuse of power, and the kind of thing everyone in Congress should demand end immediately — with the most serious consequences if he doesn’t.”
Republican leadership, however, has entirely abandoned its constitutional obligations and makes no effort to halt such conduct. The leaders are not acting in good faith to uphold their oaths of office — namely to defend the Constitution.
What should a conscientious member of Congress be doing? First, he or she should be condemning the president’s conduct and demanding that it stop. Second, he or she should consider whether the conduct above, if confirmed (e.g. did Trump ask former FBI director James B. Comey to drop the case against Flynn?), would rise to the level of impeachable conduct. In doing so, a member of Congress would want to consider whether, if the conduct were condoned, our system of justice would be damaged henceforth. I would suggest that this is an easy call.
Special counsel Robert S. Mueller III may come to see the president’s behavior to have been in violation of criminal statutes — witness intimidation, obstruction of justice, etc. He may seek indictments against others who he thinks conspired with Trump, for example, in the firing of Comey. It remains to be seen whether Mueller thinks a sitting president can be indicted (the current Justice Department position is that a sitting president cannot), whether he manages to get Trump named (as Leon Jaworski did with Nixon) as an “unindicted co-conspirator,” or whether he makes (again, as Jaworski did) a non-public referral to Congress (e.g. not publicly exposing grand jury testimony but including it for use by Congress for impeachment).
Whatever Mueller decides to do, however, members of Congress cannot — consistent with their oaths — remain silent. In doing so, they demonstrate their unfitness to serve and provide ample reason to replace them with representatives and senators who will defend the Constitution.