The subject of impeachment is distasteful. It is a political land mine. It is a philosophical and jurisprudential swamp. Sustained attention to it runs entirely counter to the rhythm of our 24/7 social media piranha feed-a-thon. Yet continue to attend to it we must. To paraphrase the Declaration of Independence, it is our right, it is our duty to provide guardrails for our future security. The power of the legislative branch to respond to problematic behavior from the executive branch is one of those guardrails.
In response to special counsel Robert S. Mueller III’s report, however, congressional leadership has established an effective policy of do-nothing-ism. This approach entails having Congress add every possible ancillary procedure and investigation to the conversation while moving forward with all deliberate speed toward no obvious end in particular.
But do-nothing-ism rests on a fallacy. There is no such thing as doing nothing about the report.
The report put a two-part question on Congress’s agenda: Did the president commit a crime — and, if he did, is it a “high crime,” or is it instead a crime that we can overlook (likejoyriding) without damaging the rule of law and the Constitution?
For Congress not to directly answer that question is for it to provide an answer. It is a de facto answer that the president has either not committed a crime or that it is a crime of such minor consequence that we should look the other way. It means Congress does not expect a failure to respond to it to do any damage to the rule of law, the criminal-justice system or the administration of justice generally.
There are only two other possible interpretations of that silence. Both would cast Congress as peopled by irrational actors. (Yes, yes, I know, it’s a tempting thought.) One possible interpretation of silence would be that Congress does indeed believe that the president committed a crime and also believes that the crime has systems-level significance but chooses not to do its constitutional duty to hold the president to account. A second possible interpretation would be that Congress simply can’t decide what it thinks and is choosing not to fulfill its constitutional duty to resolve that intellectual impasse.
But it would almost rise to a form of interpretive insanity to think that Congress wants us to believe that it is unwilling to fulfill its responsibility. Surely, at a minimum, our representatives wish to be seen as responsibly fulfilling their duties.
Therefore, we find ourselves inexorably led to think that in Congress’s view, no response is the right response to the Mueller report precisely because the facts in the report did not justify impeachment.
In other words, continued silence from Congress on the content of the report will ultimately result in one and only one settled and durable interpretation of Congress’s choice to respond with silence: namely, that Congress considers the president not guilty of a high crime.
In response to congressional silence, the public will slowly come to understand the president to have been exonerated.
In short, Congress cannot avoid providing an answer to the question of whether the president is guilty of actions that should bar him from office. Its silence too will be an answer. If through silence our lawmakers choose exoneration, and if they are wrong in this judgment, they will have committed a grave offense against their own powers, as well as the good of the nation. If through silence they choose exoneration, and they are right in this judgment, then they will have done us a service.
Either way, silence will have the practical consequences of exoneration.
If Congress understands its own powers and responsibilities, it will recognize this. This matters not merely for the near-term issue of how we should think about the Mueller report, but also for the larger question of the future health of our democracy. The legislative branch is the people’s voice in government. Its healthy functioning is what makes our political system a genuine and stable example of self-government. Without it, we may have self-government for a time, through a whipsawing direct connection between willful electoral majorities and populist leaders who reset the direction of the country every four or eight years.
But a stable, durable form of self-government will be behind us.