While Democratic members of Congress are still debating whether to begin the impeachment process, people watching the questioning of former special counsel Robert Mueller yesterday could easily have thought they were viewing an impeachment proceeding.
How does Special Counsel Robert Mueller’s public statement change the impeachment question? Not very much. He confirmed what we already knew from his report:
- If he had been confident that President Trump did not commit the crime of obstructing justice, he would have said so.
- He didn’t consider bringing charges against Trump because under longstanding Department of Justice policy, it is unconstitutional to file criminal charges against a sitting President.
- The proper way to hold the Trump accountable for his conduct is either through criminal charges after he leaves office or the impeachment process while he still holds office.
Does the Mueller Report justify impeachment?
Can President Trump shield the redacted portions of the Mueller Report, prevent former White House Counsel Don McGahn from turning over documents, or deny other information to Congress by claiming executive privilege? Like many other legal questions, the devil is in the details.
The Supreme Court has addressed executive privilege, but not to a great extent, and it has established general principles rather than clear rules. A few considerations are important.
Did President Trump obstruct justice? While not all of the conduct that Special Counsel Robert Mueller considered would justify obstruction charges, some easily could. Trump did many things to try to impede investigations by the FBI and Mueller into his activities and those of his campaign. It is not surprising that Mueller declined to exonerate the president. But the more important question is how to hold Trump accountable.
Attorney General William Barr was right to reject obstruction charges, even if not all of his reasons for doing so were persuasive. According to long-standing Department of Justice guidelines, it would be unconstitutional to indict or criminally prosecute a sitting president, and there are strong arguments for that position. The remedies for misconduct by presidents include impeachment, denying them reelection, and prosecution after they leave office.
In other words, as long as Trump is president, the remedies are not legal but political–impeachment or voting him out of office next year. …