The conclusions on obstruction are even more incriminating. Contrary to Attorney General William P. Barr’s spin that the special counsel was not able to make up his mind on obstruction of justice, the report suggests that in at least six of the 10 instances that Mueller examined, the president’s conduct meets all of the elements needed to prove obstruction under the law. As Lawfare notes, these are: “Trump’s conduct regarding the investigation into Michael Flynn, his firing of [then-FBI Director James B.] Comey, his efforts to remove Mueller and then to curtail Mueller’s investigation, his campaign to have [then-Attorney General Jeff] Sessions take back control over the investigation and an order he gave to White House Counsel Don McGahn to both lie to the press about Trump’s past attempt to fire Mueller and create a false record ‘for our files.’ ”
Mueller didn’t come out and say the president broke the law — but only, it seems, because he is precluded from doing so by the Justice Department policy that a president can’t be indicted. Bending over backward to be fair, Mueller refused to level charges that Trump would not be able to confront in a court of law anytime soon. But anyone reading the Mueller report would have to conclude that the president is guilty as sin. He violated not only the obstruction-of-justice statute but also the Constitution itself. (Article II: The president “shall take care that the laws be faithfully executed.”)
What to do about this unconscionable misconduct? Mueller points to two possible remedies: impeachment or prosecution after the president leaves office.
Prosecution is unlikely. A Republican administration would not want to indict a former Republican president out of party loyalty, and a Democratic administration would not want to do so because it would not want to be seen as misusing its prosecutorial powers for political purposes. The norm against “political” prosecutions is so strong — and rightly so — that, as Mueller’s report notes, Trump’s own appointees ignored his highly improper directives to launch investigations of Hillary Clinton and other prominent Democrats.
Impeachment is more practical, given that Democrats control the House. After the release of this definitive exposé of presidential misconduct, it would not be hard to muster the votes to pass articles of impeachment in the House. The problem is that it would be impossible to find 67 votes in the Senate to convict Trump and remove him from office. This isn’t because the evidence is weak. It’s because Republicans are more loyal to the rule of Trump than to the rule of law. This is why House Majority Leader Steny H. Hoyer’s (D-Md.) immediate reaction to the Mueller report was to say: “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 later backtracked slightly, saying that “all options ought to remain on the table.”)
Presumably the Democratic leadership is worried about repeating the debacle that was the Clinton impeachment, with Bill Clinton emerging more popular than ever. If there is a popular backlash against an impeachment — if it is seen, in Trump’s favorite phrase, as a political witch hunt — it could help the president win a second term. That would be a worst-case scenario for American democracy, because it would seem to vindicate all of his lying and lawbreaking and encourage future presidents to emulate his tawdry example.
But a failure to impeach could send a similar message of impunity, whereas approving articles of impeachment, even if they do not result in removal, would at least leave a permanent stain on Trump’s presidency. He would become only the third president in U.S. history, after Clinton and Andrew Johnson, to be impeached. (Nixon resigned before the full House voted on articles of impeachment.) Future generations would remember Trump for the scoundrel that he is. His impeachment would be mentioned in the first line of his obituary.
What should the House do? It’s a very close call, and I am honestly torn. But after seeing how adroit House Speaker Nancy Pelosi (D-Calif.) has been in dealing with Trump so far, I have confidence that she will make the right decision. One way or another — through the legal process, the impeachment process or the electoral process — Trump must be held to account for his “high crimes and misdemeanors.”