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Opinion The Democrats’ impeachment dilemma awaits

President Trump speaks to reporters on the South Lawn of the White House on Saturday. (Brendan Smialowski/AFP/Getty Images)

The court filings from federal prosecutors in the Southern District of New York and special counsel Robert S. Mueller III represent a turning point in the Russia interference investigation. For the first time, we know of possible crimes that, if committed by the president, would likely fit the definition of “high crimes and misdemeanors.”

If — and, that’s a big if — President Trump is directly implicated in deliberate attempts to hide payments in violation of campaign laws to women in order to avoid scandal(s) that would endanger his election, lies about an ongoing deal intended to create “synergy” between him and the Russian government (a plan that would necessitate the approval of Vladimir Putin, whom Trump consistently defended in the campaign and beyond), knowing receipt of campaign assistance in violation of campaign laws (in the form of the WikiLeaks email dumps or otherwise) and a pattern of obstruction of justice designed to deflect inquiry away from Trump’s ties to Russia, it would be hard for fair-minded people to deny that there are grounds for impeachment.

However, if the only viable charge is a hush money/campaign finance violation or lying about a Moscow Trump Tower deal (which is not illegal), impeachment would be hard to justify. (Republicans' impeachment proceedings against President Bill Clinton for lying under oath about an affair should compel them to purse impeachment if Trump intentionally hid payments and signed false campaign finance documents under penalty of perjury. Republicans nevertheless consistently have shown themselves to be intellectual and ethical hypocrites, so don’t expect them to change.)

If Mueller is able to set forth a pattern of deliberate obstruction akin to President Richard Nixon’s coverup for which he resigned rather than facing impeachment, we are certainly in the realm of impeachable offenses. Sen. Chris Murphy (D-Conn.) seems to think is the direction this is going, as he explained in this exchange with Martha Raddatz on “This Week”:

MURPHY: So, listen, I think you are beyond the stage that led to impeachment proceedings against President Clinton, whether or not you think that was worthy of impeachment or not. I still think it’s important for Congress to get all of the underlying facts and data and evidence that the special counsel has before we make that determination.
RADDATZ: In other words, before Mueller comes out completely, nothing should be done?
MURPHY: No, absolutely. I think we should wait for Mueller's investigation.
But I would also counsel the special investigator to show his cards soon. I mean I think it's important for the special investigator to give Congress what he has sometime early in 2019 so that Congress can make a determination.
If the president did, in fact, collude with the Russians to try to manipulate the election, or engage in multiple felonies with Michael Cohen, it doesn’t really make sense for Congress to get that report from the special investigator in 2020, we need that next year. We need that as soon as possible.

In other words, there are crimes to which Trump associates have pleaded guilty, but how many, if any, involved the president beyond the alleged campaign finance scheme and the nature of those crimes should guide Congress. Both Democrats and Republicans stressed repeatedly on the Sunday talk shows that we don’t have the facts — i.e., the complete Mueller report — so we’re not yet at the point of considering impeachment. That might be seen as an excuse to wriggle out of a direct answer, but in this case they are right to wait, especially from the vantage point of the Senate, which would be the trier of fact in the event of impeachment.

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Mueller will eventually complete his work. What then?

Rep. Jerrold Nadler (D-N.Y.), the incoming House Judiciary Committee chairman, said in essence on CNN’s “State of the Union” that there is a difference between can impeach and should impeach:

NADLER: Well, I think what these indictments and filings show is that the president was at the center of a massive fraud -- several massive frauds against the American people. 
And it's now our job, the job of the Justice Department, the special prosecutor -- the special counsel, and the Congress to get to the bottom of this, to find out exactly what was going on, to find out the extent of the president's involvement, to find out basically what the president knew and when did he know it, so that we can then hold him accountable. 
JAKE TAPPER: If it is proven that the president directed or coordinated with Cohen to commit these felonies, if it’s proven -- and I understand it has not yet been -- it’s been alleged by the prosecutors, but has not been proven. 
If it's proven, is -- are those impeachable offenses? 
NADLER: Well, they would be impeachable offenses.
Whether they are important enough to justify an impeachment is a different question. But, certainly, they would be impeachable offenses, because, even though they were committed before the president became president, they were committed in the service of fraudulently obtaining the office. That would be the -- that would be an impeachable offense. 
But the fact of the matter is that what we see from these indictments and charging statements is a much broader conspiracy against the American people involving these payments, involving an attempt to influence the campaign improperly, with improper payments involving the Russians trying to get influence in the campaign, involving the president lying for an entire year about his ongoing business arrangements, business dealings with the Russians, involving obstruction of justice. . . .
You don’t necessarily launch an impeachment against the president because he committed an impeachable offense. There are several things you have to look at. 
One, were there impeachable offenses committed, how many, et cetera? And, secondly, how important were they? Do they rise to the gravity where you should undertake an impeachment? 
An impeachment is an attempt to, in effect, overturn or change the result of the last election. And you should do it only for very serious situations. So, that's always the question. 

That, I think, is an accurate assessment of impeachment, which is a political tool, and of political realities that come into play when a substantial segment of the country, and nearly the entire GOP, may never accept that Trump has done anything wrong. If that’s the case, he cannot be removed by a two-thirds vote of the Senate.

We therefore have a series of decision points ahead:

  • Will there be compelling evidence Trump committed one or more crimes that rise to the level of an impeachable offense?
  • Will that evidence force Republicans to abandon him? (If so, impeachment/removal or resignation could follow)
  • If  the GOP refuses to acknowledge substantial evidence of criminality, do Democrats attempt to impeach Trump even if removal is impossible?

You can understand why Democrats don’t want to face the third step unless and until it is absolutely necessary. Nadler explained:

We have to find out exactly what was going on. We have to look at these crimes, and what did the president know and when did he know about these crimes? You have to look at the Russian interference with the campaign, and what did the president know about that, and to what extent did he cooperate with that, if he did?
We have to look at his business dealings and his lying about that. We have to look at the fact that he surrounded himself with crooks. His campaign manager, his deputy campaign manager, his national security adviser, all of them, and a host, a bunch of other people, they all were meeting with the Russians. They all expressed interest in meeting again. 
None of them reported it to the proper authorities. They have all been indicted for one crime or another. The president invent -- created his own swamp and brought it to the White House. These are all very serious things. 
And we have to get to the bottom of this, find out what all the facts are, we and the special counsel, and then make decisions.

If we do reach that third step — Trump committed numerous impeachable offenses, but Republicans refuse to accept reality — Democrats are going to face intense pressure from their base and a genuine sense of responsibility to impeach anyway. Under such circumstances, when the president has egregiously violated his oath of office so as to endanger the fundamental structure of our democracy, how could you not impeach?

Much will turn on when all this occurs (can Congress bow out if this dilemma presents itself close to the 2020 election?), how much popular support (as opposed to congressional support) for impeachment and removal exists, and what, if any, additional actions Trump takes along the way. (A pardon for Michael Cohen, Paul Manafort, Jared Kushner or Donald Trump Jr. could well move both parties to proceed with impeachment.)

Finally, Democrats who wisely recognize that impeachment must be a truly bipartisan action might satisfy their base by pointing to the very real possibility of criminal prosecution when Trump leaves office. (If Republicans in turn whip up a plan to then pardon him, they will bear the brunt of popular outrage of the type that followed Watergate. Moreover, no pardon would be available if Trump broke any state laws.)

In sum, we really do need all the facts. We must wait to see if Republicans finally decide to abandon Trump (if not for the good of the country, then at least as a matter of political survival). A strong basis for impeachment and at least some bipartisan support would likely push Democrats in the direction of impeachment. A strong basis for impeachment and no Republican support would pose a real political conundrum for Democrats. But we’re not there yet.

Read more:

Kathleen Clark: The government wants to keep its employees from talking about impeachment. It can’t do that.

Hugh Hewitt: Impeachment? Don’t hold your breath.

Jennifer Rubin: Impeachment talk? Let’s have at it.

David Priess: Even with evidence of ‘high crimes,’ impeaching Trump would probably fail