Read the Mueller report, and it’s pretty clear that special counsel Robert S. Mueller III believes President Trump acted inappropriately and maybe even illegally. But the special counsel’s work is descriptive, not prescriptive. He left the work of deciding what should be done to Congress.
That may not prove very effective. The Mueller report raises huge questions of presidential criminality and liability, and Congress is exceptionally ill-equipped to deal with them for a few reasons.
1) Congress is inherently a political body. And this Congress is even more partisan than usual. Congress is reflective of the country, and poll after poll underscores that a voter’s party affiliation is a predictable identifier of how said voter will come down on an issue.
For proof, look no further than how Republicans in Congress have reacted to the Mueller report. There is a case to be made that the president blocked or tried to end the investigation multiple times, and yet Republicans nearly universally declared that because Mueller didn’t recommend charging the president with any crimes, Trump is exonerated, and we should just stop talking about it. (Actually, some key Republicans decided this before the redacted Mueller report was even released Thursday.)
Partisanship exists on both sides, but Republicans’ exceptional intransigence is going to make any honest efforts by Congress to stop Trump-like behavior from happening again extremely difficult. “Historically, these hearings have shown Congress at its greatest power when there is some bipartisan flavor to it,” said Jack Sharman, a former counsel to Congress during the Whitewater investigation in the 1990s. “And lacking that, it tends to die on the vine a little bit.”
2) We are 18 months from an election. Impending elections make all Congresses less effective. Lawmakers are less inclined to take a risky vote or position when their job is on the line a few months later. And this election is especially high-stakes for congressional Democrats. They are trying to keep control of the House of Representatives and battling Republicans for the Senate. And Democratic leaders are wary of doing anything that could compromise their chances of winning the White House. They’ve made clear that that wariness extends to impeachment proceedings.
"He's just not worth it,” House Speaker Nancy Pelosi (D-Calif.) said last month of the political costs of impeaching Trump.
“Very frankly,” House Majority Leader Steny H. Hoyer (D-Md.) told CNN on Thursday, after the Mueller report was released, “there is an election in 18 months, and the American people will make a judgment.”
Not every House Democrat agrees with that sentiment. But there does not seem to be enough groundswell for impeachment to override the establishment’s concerns that taking such a major action on the Mueller report could backfire for Democrats come Election Day. Could they do something else less significant such as maybe censure the president? Sure. But any action against Trump carries with it political risks.
3) Mueller left Congress with really big, even existential, questions concerning presidential authority over independent investigations, the legal definition of corruption, and the historical imperative to make it clear that presidents should not act this way.
The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.
The Mueller report
Those are tough issues for lawmakers on their best days. Meanwhile, other investigations already underway in the House — such as into Trump’s business practices — could be more clear-cut in terms of finding potential criminality on the president’s part.
In tossing to Congress, Mueller was trying to protect his own role as an independent investigator. He didn’t believe his team had the legal authority to recommend indicting a sitting president, and he seemed acutely concerned that a perceived overreach on his part could inhibit future independent investigators.
With respect to whether the president can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a president’s corrupt use of his authority in order to protect the integrity of the administration of justice.
The Mueller report
But in protecting the special counsel’s role in democracy, Mueller may have weakened that of Congress. It’s now up to them to do something with this remarkable, 448-page report detailing episodes of potential obstruction of justice, lies and scheming by the president of the United States — as told by some of his top aides. If lawmakers don’t do anything with this information, what authority will they have ceded for the next time this happens? Despite the imperative to act, it’s a possibility Congress may not.