Impeachment proceedings would be an act of public service
Since the release of Barr’s first finding that Mueller didn’t find sufficient evidence to indict, Democrats have backed away from impeachment. Speaker Pelosi made it clear there’s no point in impeachment if the Senate won’t remove Trump from office. In response, the GOP called on Democrats to impeach or subpoena Mueller.
I understand Pelosi’s concerns. I’ve considered impeachment a fool’s quest from the first call. It would only further polarize the debate and Senate Republicans would refuse to remove him no matter how damning the evidence. I realize now that I was wrong. Not only because a decision to impeach should never be based on political calculations, but because access to information is in the public interest. Open impeachment hearings would bring that evidence to light, evidence that may extend beyond the Mueller investigation.
Barr’s held a pre-release press conference the day before Easter weekend, and his conclusions make impeachment even less likely. During that conference he excused Trump for any behavior that might raise voter concerns. “As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.”
Not only was Barr’s sentence garbled, he equated the obvious with the exculpatory. Anyone under FBI scrutiny would be rattled, angry and upset. Why does this excuse Trump? Both Clinton and his wife were under scrutiny while he sought to fulfill his responsibilities. (For six years, not two. The investigation into Hillary never ended.) Nixon, by all reports, was enraged.
The preferential treatment of Trump is just one of the many questions that will fuel debate over impeachment, but the most important question is this: Should Congress initiate impeachment hearings even if members know he will remain in office?
What would impeachment accomplish?
The tug-of-war over impeachment is driven by the assumption that impeachment serves one purpose — to oust the President. In Trump’s case, this assumption is misguided. Impeachment hearings might be the only way to make public information the White House would otherwise deny voters. This includes:
- Questions about Trump’s cooperation with Russia — even if it doesn’t rise to the level of criminality,
- Questions of corruption and obstruction raised by the second volume of the report, and
- Questions that exceed the scope of Mueller’s investigation — Trump’s business dealings, family finances and abuses of power.
Impeachment hearings may be the only way to make public information that the White House believes Americans shouldn’t see. This would include information that exceeds the scope of Mueller’s investigation — his business dealings, family finances and abuses of power.
Many Democrats, most importantly Nancy Pelosi, have argued that this information could be produced during committee hearings and she would be right. In fact, until recently I felt the same. What this calculation overlooks is that impeachment proceedings would raise public awareness far more than a committee hearing.
Impeachment hearings are not the same as impeachment, any more than impanelling a grand jury is the same as indictment. Impeachment hearings are the first step in deciding whether impeachment is warranted. Articles of impeachment are drafted and the House votes on each one. The house can hold hearing without calling for a vote.
Collusion: Raising the barr after it’s been cleared
On the surface, the Mueller report satisfies the question of collusion by claiming conspiracy with the Russians couldn’t be proven. The Department of Justice set a high bar for conspiracy charges. Conspiracy charges must prove beyond a reasonable doubt the existence of a written or oral agreement with the Russians. But I learned during three months of grand jury service that there are two legal definitions of conspiracy.
A conspiracy can consist of an agreement to act, but it need be no more than “the act of conspiring together to an unlawful end.” In other words, if two or more parties act together to break the law, it doesn’t matter whether they agreed to commit the crime in advance. It only matters that they broke the law.
Even if we are to believe that the Russians and Trump campaign didn’t act together (which is difficult since we know Manaforte delivered polling data to Russian officials), the Mueller Report overlooks a second crime, aiding and abetting, for which their own evidence presents a compelling case.
Aiding and abetting is “helping, encouraging, or supporting someone in the commission of a crime.” The Trump campaign knew the Russians were sabotaging Clinton, encouraged them to hack databases, shared data and expected to benefit from the results. These facts are laid out clearly in the report. It doesn’t matter if the campaign conspired with the Russians, they encouraged and supported their efforts.
Barr’s redactions make it more difficult to know how far the campaign went to aid the Russians. His justification to deny the full report to members of Congress with security clearance seems doubly specious considering that previous counsels released complete reports. In Clinton’s case with graphic (and gratuitous) detail. To deny Congress the full report because “members might leak” perpetuates the obstruction, of which Mueller found plenty.
Obstruction of Justice (If it Tweets like a Trump)
Barr’s initial four-page finding claimed that Trump’s actions would merit prosecution only if they rise to the standard of reasonable doubt. He prefaced the report’s release with the same claim despite hundreds of accounts of behavior for which they would have charged anyone else. The reasonable doubt standard confuses the questions raised by Trump’s behavior. The standard for federal indictment isn’t reasonable doubt, but a preponderance of evidence (a much lower threshold).
It’s up to a jury to decide reasonable doubt.
Or, in Trump’s case, the voters.
Not the Attorney General.
Barr relies on more than the reasonable doubt standard to muddy the question of obstruction. He suggests a consistent pattern of obstructive behavior isn’t enough to indict. Each questionable act should be judged on its own merit and “would need to be proven beyond a reasonable doubt to establish an obstruction-of- justice offense.” It isn’t enough for Trump to fire Comey, tell the Russians he did it to stop the investigation, promise pardons to conspirators under indictment, harass and malign the investigators, and lie routinely to the public. If one inappropriate or legally questionable action doesn’t rise to the level of obstruction, Barr believes none of them do.
Once again, Barr departed from the standard Nixon’s Attorney General applied, which was a pattern of corrupt behavior. Ken Starr didn’t even need a pattern of corrupt behavior, one lie under oath was enough.
If you find this distinction esoteric or outright confusing, then Barr has served the President well. Few Americans understand burden of proof, or the differences between criminal law and the ethical conduct of office. Congress has an inherent right to question the misconduct of any President or appointee, even if it doesn’t rise to the level of a felony offense.
The reasonable doubt standard confuses the questions raised by Trump’s behavior and the investigation. The standard for federal indictment isn’t reasonable doubt, but a preponderance of evidence.
Bribery: Trump and the Emoluments clause
Mueller was never tasked with investigation possible violations of the emoluments clause. Yet many observers, including prominent Republicans, have questioned whether foreign official’s use of Trump hotels while conducting public business with the White House crosses that line. Of all the questions raised by Trump’s business dealings (including fraudulent reporting), this is the most disturbing, and a charge with the most clear cut Constitutional authority.
Questions waiting for answers
Congress isn’t bound by reasonable doubt. Centuries of jurisprudence grant Congress the right to decide if the law is being enforced. (The Supreme Court upheld this principle more than once.) Congress can explore any question related to the President’s willingness to uphold the law, including:
- Why did Mueller end the investigation before submitting the evidence of corruption and obstruction to a grand jury? (Within weeks of Barr’s confirmation?)
- If Trump’s people weren’t colluding with Russia, what were they doing? Who directed a “senior campaign official” to liaise with Roger Stone regarding the Wiki-Leaks dumps? Why did Paul Manafort offer to brief oligarch Oleg Deripaska, and share polling data with known Russian intelligence officer Konstantin Kilimnik while serving as campaign manager?
- Why did Trump negotiate business deals with Russian officials during his Presidential campaign, negotiations that involved his daughter and son-in-law?
- Why did Trump encourage his staff to obstruct justice? We might be willing accept the excuse that he was just joking if only he would let people know he’s joking before his comments blow up in his face. Nor has he stopped encouraging Federal officials to break the law, even after it has been made clear to him that he shouldn’t do so (joking or not). Most recently he ordered customs officials to break sanctuary laws, flood cities that vote Democratic with the same immigrants he labels ‘murderers and rapists,’ and offered to pardon to any official who did so.”
- To what extent did Trump’s attempts to buy the silence of Playboy models and porn stars violate election laws? In the past politicians have lost their careers simply for having affairs. Buying their silence is so much worse.
- And, most importantly, why was Trump listed as “Individual 1” in Michael Cohen’s sentencing memo? Shouldn’t being named in a felony conviction rise to the level of a high crime or misdemeanor?
Unfortunately, the Constitution doesn’t define “high crimes and misdemeanors.” However, by adding the “misdemeanor” standard, the founders suggested Congress could remove the President for immoral but otherwise legal conduct. If Trump’s behavior falls within those guidelines, Americans deserve to see the proof.
Centuries of jurisprudence grant Congress the right to decide if the law is being enforced. Congress can explore any question related to the President’s willingness to uphold the law.
Impeachment proceedings would not only make that information public but make the public aware of its importance. Whether the House votes to impeach, or the Senate removes Trump from office is not the issue. Voters deserve to know why their President raised so many ethical and legal red flags.
Nor do impeachment hearings need to escalate to political warfare. The Democrats could initiate the hearings with the understanding that Republicans must move to vote on the articles of impeachment. Handing the GOP responsibility for the final vote removes charges of politicizing from the hearings.
Pelosi should charge Democratic members to conduct the hearings with respect and integrity, and focus on fact gathering. No jibes, snipes and gratuitous accusations. They could also step aside from the podium and surrender the questions to professional lawyers. Any rule changes to maintain decorum during the hearings are within their purvue.
The burden of proof is not only on the Democratic party to discover whether or not Trump’s actions rise to the level of impeachment, but to prove to his supporters that the proceedings are focused on the law and not on Trump.
Testimony under oath
Partisan bickering can be avoiding if both parties present hearings as an opportunity for Trump to testify in public an under oath— an opportunity he claims to welcome but has so far refused. Should he answer under oath and on the record, partisan noise becomes irrelevant. Voters will be able to compare his answers to the public record. He will no longer be able to claim he was joking or misquoted by “fake news.”
Should he refuse to answer, voters will know he took a route he previously claimed innocent people would refuse.
Democrats must avoid making impeachment the centerpiece of this legislature. They were not elected to remove Trump (even though removal might have motivated some of their voters). They were elected to rebuild health care from the ashes of Trump’s march on coverage and pre-existing conditions. They need to deliver a vote on an infrastructure bill the Republicans never considered when they controlled the Congress. And they need to craft a solution to the immigration crisis.
Passing the bills and shepherding them through a recalcitrant Senate doesn’t matter. They need to bring the bills to a vote, and to make sure Americans know the legislation is their priority, not impeachment.
Stepping past politics
As long as both parties approach impeachment as a question of political calculus, the prospects of impeachment are unlikely. Pelosi is correct to say voters should remove him. In fact, removal by Congress would only turn Trump into a martyr for the Christian and alt-Right.
Voters have pushed their representatives from their position in the past. Anyone who feels Trump should be impeached should tell them. (I’ve never had my Republican Representative respond to my concerns, but there’s always a first time.) Voters could also push for open hearings through the same social media Trump exploits to hide the truth from us. I’m including a meme for any readers who care to share.
Partisan white noise could still drown the news from the hearings. We can count on Trump and his staff to counterspin every revelation. But voters willing to push past the partisan blowback would finally have the opportunity to review evidence and testimony we might never see otherwise. Evidence added to the written record. Evidence to promote a real debate among voters who prefer facts to narratives that promote their parties’ interests.
: A conclusion that ignores Trump’s own comment, “Oh my God. This is terrible. This is the end of my presidency. I’m fucked.”
: Arthur M. Schlesinger, Jr. and Roger Burns (ed), Congress Investigates: A Documented History, 1792–1974 , v.1 (New York: Chelsea House, 1975), xix.
: Impeachment doesn’t occur with a single vote. The Congress must draft individual articles of impeachment and vote upon each one. Only if one or more articles passes, does the House submit the case for removal to the Senate.
: With the caveat that they resist the temptation to channel their inner Clint Eastwood as Judiciary chairman Jerry Nadler did when Attorney General Barr failed to show for hearings.
: A right he invoked 97 times during divorce proceedings with his first wife Ivana, a right that he later bragged saved him from paying a penny more than required by the prenup.
Phillip T. Stephens writes about the influences of metaphor on thought and belief, including a series on scientific and religious metaphors for The International Journal of Religion and Sprituality in Society.