We are all making the question of impeachment far more complicated than it needs to be. Special counsel Robert S. Mueller III’s report has put exactly two questions on the table for the House and for the nation. First, did the president commit a crime? Second, is it a crime that we can overlook without damaging the rule of law and the Constitution?
Some have suggested that other questions are germane. Is he unfit for office? Did he encourage and benefit from foreign interference in the 2016 election? Is his use of executive power overweening? All of these are important questions for citizens to consider as they weigh their vote. They are important questions for members of the House and Senate to deliberate upon as they conduct their routine legislative and oversight duties. None is relevant to the question of impeachment.
The Constitution established impeachment as the legal mechanism to be used should the need arise to accuse and try a president for illegal activity.
Article II, of course, describes the grounds for impeachment as “treason, bribery, or other high crimes and misdemeanors.” But this is not the only text in the Constitution that provides context for understanding the grounds for impeachment. Two other clauses also provide additional information. Again from Article II, the president has the power to pardon people who have committed “offences against the United States, except in cases of impeachment.” Offences against the United States” are, in other words, another element of the characterization of an impeachable, illegal action.
Finally, in detailing the right to a trial by jury in Article III, the text reads: “The Trial of all crimes, except in cases of impeachment, shall be by Jury.” Of course, in cases of presidential impeachment, the trial of crimes is conducted by the Senate. In pointing to this distinction, this clause suggests an expectation that impeachment will indeed be for crimes. If we put these pieces of the Constitution together, we can say that the grounds for impeachment should be crimes that are considered “high,” in that they are “offences against the United States.”
So what sort of crime would we want to consider unimpeachable? Let’s say the president decided to take a joy ride on Super Bowl Sunday in Los Angeles when the Rams were playing and the freeways of the city in which he found himself were uncharacteristically deserted. He slipped his Secret Service detail, picked up his friend’s Ferrari, and took off on a blistering roadway extravaganza at speeds higher than 100 mph. Something like this could pick up felony or serious misdemeanor charges in both state and federal contexts. But would we consider it an offense against the United States? I think not.
The Mueller report has posed the question of whether President Trump obstructed justice or attempted to obstruct justice. Both actual obstruction and the attempt to do so are crimes,.
There are therefore precisely two and only two questions that matter in our discussions of impeachment: Does Congress think the evidence detailed in the Mueller report, and revealed through supplementary investigations directly related to the report, supports the view that the president committed a crime or attempted to commit a crime? If the answer to that is yes, then a second question follows. Does the crime count as an offense against the United States, in the sense of undermining the rule of law or violating the president’s constitutional duty to execute his powers faithfully? Either of these features of a presidential crime would make it impeachable.
If the answer to that second question is no, then Congress should say so and let matters end there. If the answer is yes, then Congress should fulfill its duty and impeach the president so that the Senate can try him.
It is unfair to the American people to ask us to go into an election season without these questions having been resolved. The questions have been asked. The institution that bears constitutional responsibility for answering them one way or the other, once and for all, is, in the first instance, the House.
The endless series of further congressional investigations is a waste of everyone’s time and money. Congress should face up to its immediate and pressing responsibility and, on the basis of the Mueller report and any immediately available supplemental material, answer the question of whether the president, in its judgment, has committed an impeachable crime. Give us a yes, or give us a no. But give us an answer, Congress. You owe it to us.