The Mueller report is more damning for President Trump than Attorney General William P. Barr let on in his summary (or at his news conference Thursday). It turns out House Democrats could make a case to Congress that Trump obstructed justice. Will they consider impeachment? And should they?
It’s a nearly impossible question, with peril on both sides.
When looked at through a legal lens, arguing that Trump obstructed justice seems like an easy case. Mueller shared in great detail how Trump “engaged in a series of targeted efforts to control the investigation,” like trying to fire Mueller even though the president doesn’t have constitutional authority to do so.
But politically, attempting to impeach Trump doesn’t make much sense. Democrats risk looking like sore losers if they undertake impeachment proceedings, especially without any Republican buy-in. (And no one expects the Republican-controlled Senate to hold a trial based on an investigation that ultimately didn’t charge Trump with any crime.) So why stir up a hornet’s nest by considering impeachment when Democrats can just try to defeat Trump in 2020?
Jens David Ohlin, a vice dean of Cornell Law School, argues it’s a matter of historical imperative for Congress to do something on the impeachment front, even if it’s just holding hearings to consider it. Trump just avoided legal repercussions for attempting to fire the special counsel. For the sake of the rule of law, Congress can’t let that go, he said.
Congress could “say this conduct is unacceptable, and there is going to be an asterisk in Trump’s name in history books,” Ohlin said. “He’s not going to be removed from power, but he’s going to be on this very short list of presidents impeached by the House of Representatives.”
Democrats are also getting pressure from their base to seriously consider impeachment. Democratic activist Tom Steyer is a major donor, and on Thursday he said the Mueller report demands Democrats start impeachment proceedings. “He clearly obstructed justice,” Steyer said.
But there’s plenty of evidence that focusing on impeachment could backfire on Democrats as they try to keep control of the House and win the White House and possibly even the Senate in 2020. In a Washington Post-Schar School poll conducted earlier this month, half of U.S. adults said the Mueller report will make no difference in whom they vote for for president.
That poll was taken when Barr’s generous-for-Trump summary was the only publicly available information on the Mueller report. But even with the redacted Mueller report out, Republican lawmakers have calculated they’re on politically safe territory defending the president. In statements Thursday, GOP lawmakers nearly universally repeated Trump’s talking points that the report vindicates him and that all investigations into Trump should be dropped.
Pick a side and defend it like hell. That’s just the way politics goes these days.
“People knew of what they thought of the Mueller report before it came out,” said Jessica Levinson, a law professor at Loyola University.
House Speaker Nancy Pelosi (D-Calif.) had calculated a while ago that impeachment would bring costs to her party she’s not willing to pay. “He’s just not worth it,” she told The Washington Post in March. Instead, she’s urged her vulnerable Democrats to focus on “kitchen-table issues.” “Like a jackhammer: lower health-care costs, bigger paychecks, cleaner government,” she said recently.
On Thursday, Pelosi noted that the Mueller report raises serious questions about obstruction of justice but didn’t add much clarity on what House Democrats should do about it. “As we continue to review the report,” she and Senate Minority Leader Charles E. Schumer (D-N.Y.) said in a joint statement, “one thing is clear: Attorney General Barr presented a conclusion that the president did not obstruct justice while Mueller’s report appears to undercut that finding.”
It’s also going to be very difficult for House Democrats to conduct a thorough impeachment proceeding without any Republican help. Bipartisanship just makes for fairer, more thorough investigations, said Jack Sharman, a former counsel to Congress during the Whitewater investigation in the ’90s: “Historically, these hearings have shown Congress at its greatest power when there is some bipartisan flavor to it, and lacking that, it tends to die on the vine a little bit."
So going it alone could make Democrats look petty and turn off voters who think impeachment is a step too far. But Democrats are also uniquely positioned to slap some kind of consequence onto a president who, by Mueller’s telling, only failed to obstruct justice because people below him failed to carry out his orders. If they look away, do they risk being the lawmakers who helped normalize this behavior for future presidents? If they look closer, do they risk losing what power they have?
It’s an impossible choice that Democrats are going to have to make.
Michael Scherer contributed to this report