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April 19, 1775. That was the day of the Battles of Lexington and Concord, which marked the beginning of the Revolutionary War.
One of the original motivations for this book—not the driving force, but still—was to counteract what seemed to me to be reckless and irresponsible arguments for the impeachment of President Trump before his presidency even got started.
My much larger goals were to correct some recurring misunderstandings of the impeachment clause,
If the president has not committed a crime, he cannot be impeached. If the president has committed a crime, he can be impeached. The constitutional phrase “high crimes or misdemeanors” is deliberately open-ended. It is a kind of punt, meant to give broad discretion to the House of Representatives. Impeachment is a political act, unbounded by law. Even if the president has committed a clearly impeachable act, the House of Representatives has discretion to refuse to impeach him.
Mueller’s report offers a detailed account of Russia’s role in the 2016 campaign and its aggressive effort to ensure the election of Donald Trump. The report describes Russia’s interference as “sweeping and systemic.”
Two aspects of volume I are shocking. The first, and the most important for the future, is the sheer scale of Russia’s efforts to interfere with the operations of the democratic process in the United States.
The second is the general receptivity of some people in the Trump campaign to Russian interference and Russian help.
on this count, the report does not identify an impeachable offense.
Then the report adds this crucial sentence: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” But on the basis of the facts and the legal standards, “we are unable to reach that judgment.”
Mueller believed that the president probably did obstruct justice, but because President Trump cannot be indicted, he declined to say that publicly.
he was saying something close to this: “The evidence probably makes out a crime, but because the president cannot be indicted, and because there can’t be a trial, I’m not going to say so.”
In this light, we can see why Mueller’s staff is reported to have been so dissatisfied with Attorney General William Barr’s initial summary of their report. Barr’s conclusion was that under the normal standards, Trump did not commit obstruction of justice. Mueller pointedly refused to reach that conclusion.
Obstruction of justice was not, in that case, an impeachable offense under the founding document, because it did not involve an egregious misuse of distinctly presidential authority.
“Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.” If we take her comment as stating a general proposition about impeachment, it makes a lot of sense.
Pelosi’s emphasis on what is “compelling and overwhelming and bipartisan” can be taken to speak for the founding generation.
If I knew nothing at all about a president, would I think that the claim against him made out an impeachable offense?
If a president has committed a clearly impeachable offense, the House of Representatives is obliged to impeach him—even if the process does not turn out to be “bipartisan,” and even if it is “divisive.”
What follows is an effort to capture the highlights (with all footnotes omitted). In a sense, the authors of the report made that easy, because they included helpful and relatively comprehensive executive summaries (reprinted here in full).
The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.
First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure
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a targeted operation that by early 2016 favored candidate Trump and disparaged candidate Clinton. The IRA’s operation also included the purchase of political advertisements on social media in the names of U.S. persons and entities, as well as the staging of political rallies inside the United States.
The presidential campaign of Donald J. Trump (“Trump Campaign” or “Campaign”) showed interest in WikiLeaks’s releases of documents and welcomed their potential to damage candidate Clinton.
Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
Some of the earliest contacts were made in connection with a Trump Organization real-estate project in Russia known as Trump Tower Moscow.
On January 6, 2017, members of the intelligence community briefed President-Elect Trump on a joint assessment—drafted and coordinated among the Central Intelligence Agency, FBI, and National Security Agency—that concluded with high confidence that Russia had intervened in the election through a variety of means to assist Trump’s candidacy and harm Clinton’s. A declassified version of the assessment was publicly released that same day.
President Trump reacted negatively to the Special Counsel’s appointment. He told advisors that it was the end of his presidency, sought to have Attorney General Jefferson (Jeff) Sessions unrecuse from the Russia investigation and to have the Special Counsel removed, and engaged in efforts to curtail the Special Counsel’s investigation and prevent the disclosure of evidence to it, including through public and private contacts with potential witnesses.
First, the Office determined that Russia’s two principal interference operations in the 2016 U.S. presidential election—the social media campaign and the hacking-and-dumping operations—violated U.S. criminal law.
Second, while the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges.
Third, the investigation established that several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.
And the investigation did not establish that one Campaign official’s efforts to dilute a portion of the Republican Party platform on providing assistance to Ukraine were undertaken at the behest of candidate Trump or Russia.
we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.
The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case.
if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
The President reacted to news that a Special Counsel had been appointed by telling advisors that it was “the end of his presidency” and demanding that Sessions resign. Sessions submitted his resignation, but the President ultimately did not accept it. The President told aides that the Special Counsel had conflicts of interest and suggested that the Special Counsel therefore could not serve. The President’s advisors told him the asserted conflicts were meritless and had already been considered by the Department of Justice.
The term “corruptly” sets a demanding standard. It requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.
no person is above the law.
if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
The act of firing Comey removed the individual overseeing the FBI’s Russia investigation.
The President told senior advisors that the Special Counsel had conflicts of interest, but they responded that those claims were “ridiculous” and posed no obstacle to the Special Counsel’s service. Department of Justice ethics officials similarly cleared the Special Counsel’s service.
According to notes written by Hunt, when Sessions told the President that a Special Counsel had been appointed, the President slumped back in his chair and said, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.”
The President then told Sessions he should resign as Attorney General. Sessions agreed to submit his resignation and left the Oval Office. Hicks saw the President shortly after Sessions departed and described the President as being extremely upset by the Special Counsel’s appointment. Hicks said that she had only seen the President like that one other time, when the Access Hollywood tape came out during the campaign.
while “Trump had received private assurances from then-FBI Director James B. Comey starting in January that he was not personally under investigation,” “[o]fficials say that changed shortly after Comey’s firing.”
the President asked what Christie thought about the President firing the Special Counsel. Christie advised against doing so because there was no substantive basis for the President to fire the Special Counsel, and because the President would lose support from Republicans in Congress if he did so.
The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel’s Office—and McGahn himself—could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts. Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel. And after the media reported on the President’s actions, he denied that he ever ordered McGahn to have the Special Counsel terminated and made repeated
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Founders Online, National Archives,
Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to retain their ground, whereas by secret discussion, no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth and was open to argument.”
A discussion of this article would require an investigation of many details, but insofar as the allegation involves false statements to Congress in the context of the use of force, we are at least in the general ballpark of legitimate grounds for impeachment.
Starr’s own behavior remains a mystery. He is a friend of mine, I like and admire him, and I believe that however mistaken he was, he acted in good faith. He is a person of great integrity, and he has had a distinguished career. I cannot believe that he acted for narrowly partisan reasons. My speculation is that his intense, multiyear focus on President Clinton and on his misconduct ended up distorting his judgment (badly). There is a lesson there for prosecutors and investigators of all kinds.
To qualify as “good faith” as I am understanding the term, an argument must be offered with a subjective belief that it is correct, and it must also be objectively reasonable.
