After botching their initial response to the Mueller report, top Democrats are now seriously engaging the debate over whether the shocking scale of corruption, wrongdoing, contempt for our democracy, endless official deception and skirting of criminality that it documented merits — or indeed obligates — an impeachment inquiry.
As Rep. Adam B. Schiff (Calif.) indicated, the “consequential decision” Democrats now face is whether to confine themselves to “oversight hearings by the various committees," or to launch a “formal impeachment inquiry." Failure to do the latter could validate the idea that presidents are above accountability, no matter how corrupt or lawless.
Philip Bobbitt, the constitutional scholar at Columbia University, is among those who have wrestled most deeply with the complex questions raised by impeachment. He is the co-author of “Impeachment: A Handbook,” which republishes the famous commentary on impeachment by Yale law scholar Charles L. Black Jr. and concludes with Bobbitt’s own discourse on the topic.
I spoke to Bobbitt at length about the latest revelations. The upshot: Bobbitt now believes it’s “plausible” that Trump committed impeachable offenses and that the House of Representatives is obligated to proceed from this premise.
This does not necessarily mean launching a formal impeachment inquiry right this moment. But it does mean that the next phase of the House’s response must functionally embody an acknowledgment that Trump’s now-known conduct very well may constitute “high crimes and misdemeanors," ultimately rendering an impeachment inquiry obligatory.
Coming from Bobbitt, this is notable, because he has long maintained that impeachment must be reserved only for the most extraordinary cases and (as his book argues) that we must approach the question of whether conduct is impeachable with extreme caution.
Bobbitt’s book engages deeply on what constitutes “high crimes and misdemeanors.” It concludes that “careful, patient inquiry” must denote a pattern of “wanton constitutional dereliction” and establish acts of misconduct that badly undermine the very “legitimacy” of the government and “seriously threaten the order of political society."
In our conversation, Bobbitt elaborated. He noted that the Constitution reserves impeachment for “treason” and “bribery” or “other high crimes and misdemeanors," and added that we can understand the latter from that juxtaposition:
We’re aided immensely by Alexander Hamilton’s discussion of these matters in The Federalist Papers. He writes that what treason and bribery have in common in the impeachment context is that they are political crimes. They strike at the functioning and legitimacy of the government itself. They are not common crimes. They are “high” crimes.
Thus, Bobbitt argued, in evaluating what we’ve learned of Trump’s conduct:
The initial inquiry is whether the acts of the president have struck at the processes underlying government itself.
In attempting to answer that question, Bobbitt pointed out, both Trump’s obstructive efforts and his response to Russian sabotage of our democracy should raise serious concerns.
On the first, it’s key to understand the situation as a kind of three-legged stool. Special counsel Robert S. Mueller III did not indict, due to Justice Department policy against indicting a sitting president. At the same time, he also declared that presidents are not immune to obstruction statutes if they interfere with law enforcement processes with “corrupt intent.” Finally, Mueller amassed extensive evidence suggesting that Trump did in fact violate those statutes corruptly, while conspicuously declining to exonerate him of those violations — something he could have done if he believed Trump did not commit them.
Taken all together, then, what Mueller told us is that Trump can and very likely did break the law extensively and that he cannot be held legally accountable for it while in office.
In our interview, Bobbitt described the implications of all this for impeachment this way:
Mueller depicts an executive branch that is using the levers of his constitutional power in a corrupt way. It’s not that a president can’t determine whom to prosecute or investigate, or give advice to members of the executive to shape their testimony at legislative hearings. It’s that he can’t do so with the intent to frustrate the investigation of his own culpability. We certainly have ample evidence that suggests this what he was trying to do.
What’s more, this obstructive conduct can be directly tied to the other element of the case against Trump: his response to Russian electoral sabotage. Importantly, Trump did not merely seek to derail an investigation into his campaign’s conspiracy with that Russian sabotage — that is, into his own conduct.
Rather, Trump also sought to derail a full accounting of the Russian attack on our political system, separate and apart from whether his own campaign conspired with it. He did this because acknowledging the sabotage would detract from the greatness of his victory, which also led him to fail to marshal a serious response to the next round of interference.
Bobbitt explained the relevance of those facts to the impeachment question this way:
The real problem isn’t just cooperating with the Russians, or just impeding an investigation into that cooperation. It’s impeding an investigation to stop a determination of what Russia did, why, and how they did it. Because this is not over. It’s going to happen again, not just in our country. In many countries.The exposure of the country to very damaging political intelligence techniques, for the venal reason of not diminishing the status of your victory — would that be a high crime and misdemeanor? It certainly would.
When I asked Bobbitt directly whether it’s plausible that Trump committed impeachable offenses, he replied:
It’s plausible. Because there seems to be such a pattern of widely reported events. The resignations of so many of his own appointed Cabinet officials and White House staff are troubling. They seem to have taken themselves out, or have been taken out, because they would not do what they regard as unlawful things.
Bobbitt, however, is not arguing for a formal impeachment inquiry right at this moment. He told me he’s arguing for “pre-impeachment hearings” that flesh out as much additional information as possible within the framework of what Mueller has now told us:
You can take the Mueller report as an invitation to impeachment. It certainly does not count the other way: It’s not a report that closes the book on impeachment. But I think it would be wise to proceed along several investigative fronts rather than to begin with the bludgeon of an impeachment hearing.A broad-based series of hearings is the next step. But you can’t appear to have made up your mind that we should go forward with impeachment. You have to give the country a chance to come together.
We can debate endlessly whether anything could get the country to come together on any of this, but that approach — both aggressive and sober, as E.J. Dionne Jr. puts it — appears to be the one Democrats are now taking.
That’s a step in the right direction away from their previous posture, which appeared premised on the idea that the pressure to initiate an impeachment inquiry would somehow dissipate. One thing is clear: Democrats now appear to recognize the profound complexity and momentousness of the dilemma they face.