Impeachment- a Citizen's Guide

by Cass R Sunstein

  That’s not a good answer. To say the least, I do not agree with President Trump’s actions with respect to climate change. But they do not amount to a high crime or misdemeanor. 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, which have played a significant role in debates over impeachment at least since the 1990s. Some of those misunderstandings are harmful to any president, including President Trump. Some of the misunderstandings are helpful to any president, including President Trump. In the current period, five of them have been especially prominent. Far too many people believe them.

  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.

  Each of these claims is worse than wrong; it is a betrayal of the constitutional settlement. And each of them is relevant to the discussion of Special Counsel Robert Mueller’s report in 2019, and to debates over the possible impeachment of President Trump. I am going to restrict the discussion here to impeachment questions raised by that report. (Of course, some people argue that there are others.) My hope is that an understanding of the Constitution’s impeachment provisions will help readers to develop their own answers to those questions.

  The report, called Report on the Investigation into Russian Interference in the 2016 Presidential Election, comes in two volumes. The first involves Russia’s actions and the Trump campaign’s connection to those actions. The second involves the possible obstruction of justice on the part of President Trump.

  One of the distinctive features of the report, taken as a whole, is its care and caution. It does not shout. In that respect, it is a remarkable contrast from the most recent historical analogue, which is Judge Kenneth Starr’s lengthy report on the investigation of President Bill Clinton. Judge Starr’s report announces: “There Is Substantial and Credible Information that President Clinton Committed Acts that May Constitute Grounds for an Impeachment.” It lists eleven such grounds, including these:

  “There is substantial and credible information that President Clinton lied under oath as a defendant in Jones v. Clinton regarding his sexual relationship with Monica Lewinsky.”

  “There is substantial and credible information that President Clinton endeavored to obstruct justice by engaging in a pattern of activity to conceal evidence regarding his relationship with Monica Lewinsky from the judicial process in the Jones case.”

  “There is substantial and credible information that President Clinton endeavored to obstruct justice by helping Ms. Lewinsky obtain a job in New York at a time when she would have been an adverse witness against him were she to tell the truth during the Jones case.”

  “There is substantial and credible information that President Clinton endeavored to obstruct justice during the federal grand jury investigation. While refusing to testify for seven months, he simultaneously lied to potential grand jury witnesses knowing that they would relay the falsehoods to the grand jury.”

  By contrast, the Mueller report is nearly silent on the topic of impeachment. Much of it makes for riveting reading, but it is generally focused on recitations of facts and relatively technical analysis of law (as in “The Text of Section 1512(c)(2) Prohibits a Broad Range of Obstructive Acts” and “Congress Has Power to Protect Congressional, Grand Jury, and Judicial Proceedings Against Corrupt Acts from Any Source”).

  Let’s take the two volumes in sequence.

  Russia

  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.” In its words: “The campaign evolved from a generalized program designed in 2014 and 2015 to undermine the U.S. electoral system, to a targeted operation that by early 2016 favored candidate Trump and disparaged candidate Clinton.”

  The first form of the election interference came largely from Russia’s Internet Research Agency (IRA), which conducted extensive disinformation and social media operations in the United States in order to sow internal discord and to influence the outcome of the election. It began by addressing divisive issues of law and politics, with groups and accounts stating, falsely, that they were affiliated with U.S. political organizations or controlled by U.S. activists. For example, one IRA-controlled account, on Twitter, claimed to be connected to the Tennessee Republican Party. Others claimed to be anti-immigration groups, Black Lives Matter protesters, and Tea Party activists.

  By early 2016, IRA operations moved to support candidate Trump and to disparage Hillary Clinton. In March 2016, the IRA bought an advertisement featuring Clinton with a caption reading, “If one day God lets this liar enter the White House as a president—that day would be a real national tragedy.”

  The IRA also bought many advertisements in Trump’s favor, including the Facebook groups “Secured Borders” (with 130,000 followers) and “Being Patriotic” (with 200,000 followers). The report found that the IRA controlled many Facebook groups, Instagram accounts, and Twitter accounts. About 470 Facebook accounts, controlled by the IRA, made 80,000 posts. Ultimately, the IRA was able to reach 126 million people.

  Also in 2016, the Russian government’s Main Intelligence Directorate of the General Staff (GRU) employed a second form of interference: cyber intrusions (hacking) and releases of hacked materials damaging to the Clinton campaign. Two of GRU’s military units undertook intrusions into the Clinton campaign, the Democratic Congressional Campaign Committee, and the Democratic National Committee. The GRU stole tens of thousands of emails. It released stolen materials through two fictitious online personas that it created: “DCLeaks” and “Guccifer 2.0.” Later it did so through the organization WikiLeaks.

  What did the Trump campaign do or think about all that? A lot of the report is redacted, but there is no question that people associated with the campaign were glad. The campaign “showed interest in WikiLeaks’s releases of documents and welcomed their potential to damage candidate Clinton.” There were many “contacts between Trump Campaign officials and individuals with ties to the Russian government.” The investigation found 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.”

  At the same time—and this is important—“the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” The report is careful to note that its focus was on the law of conspiracy and coordination, not on the idea of “collusion,” which “is not a specific offense or theory of liability” under national criminal law. In some important places, the report suggests that its conclusion not to seek a criminal indictment was based on the “beyond a reasonable doubt” standard, which is difficult to meet. For example, “the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction, control, or request—during the relevant time period.”

  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. For present purposes, it does not much matter whether those efforts actually made a difference to the outcome. For Russia to engage in these kinds of actions is not exactly an act of war. But let there be no doubt about it: This was an attack. Russian interference with American democracy is a clear and present danger. It requires sustained attention.

  The second is the general receptivity of some people in the Trump campaign to Russian interference and Russian help. How could that happen? I had a modest role in the Obama campaign in 2008, and from my vantage point, the idea of taking a meeting with Russian officials, in the midst of a presidential campaign, is not even imaginable. If Russian agents seek to meet with people who are working with a campaign, the best step is to decline the meeting and to contact the Federal Bureau of Investigation. The second best step is to decline the meeting and to refuse any further contact.

  With respect to impeachment, two propositions are clear. First: If a successful presidential campaign conspired or coordinated with a foreign government to interfere with the election, a president would be impeachable—at least if he knew about the interference. (See case 7 in chapter 7.) Second: If a foreign government helped a successful campaign, and the campaign did not coordinate or conspire with it in any way, there is no basis for impeachment. It is exceedingly difficult to argue that mere knowledge of what a foreign government did or was doing, without active engagement of some kind, counts as a high crime or misdemeanor.

  It is true that the special counsel found much more than mere knowledge. Members of the Trump campaign had numerous contacts with people connected to the Russian government. But so far as the report found, the candidate himself was not working with Russian agents on the campaign, and he did not order any of his subordinates to do that. To be sure, there were improprieties and worse during the campaign. But on this count, the report does not identify an impeachable offense.

  Obstruction

  Volume II of the report describes numerous actions or sets of actions by President Trump, and asks whether they might count as obstruction of justice. The volume is largely dedicated to a careful description of these actions or sets of actions, followed by an analysis of whether the president did, in fact, obstruct justice.

  While volume I is relatively straightforward, volume II is anything but that. It makes for challenging reading. One reason is inevitable: Obstruction of justice is a complicated subject. A more surprising reason is that it is not easy to figure out what the report is actually saying.

  Much of volume II consists of an exhaustive catalog of false statements by the president and his apparent efforts to interfere with or to derail the Russian investigation. For example, Trump “denied having any business in or connections to Russia, even though as late as June 2016 the Trump Organization had been pursuing a licensing deal for a skyscraper to be built in Russia called Trump Tower Moscow.” His firing of FBI director James Comey appeared to be an effort to remove the pressure coming from the FBI’s investigation of Russia’s role in the 2016 campaign. The day after he fired Comey, he told Russian officials that he faced “great pressure because of Russia,” and that the pressure had been “taken off” as a result of the firing. And after Trump removed Comey, he directed White House Counsel Donald McGahn “to call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed.” He also tried to get McGahn to deny that he had ordered him to have the Special Counsel removed. And there is much more.

  The most puzzling thing about volume II is a single sentence, appearing first in the executive summary and then repeated twice more:

  “While this report does not conclude that the President committed a crime, it also does not exonerate him.”

  That is an opaque sentence. What does it mean? Unraveling the puzzle is a bit like reading a mystery novel.

  A strong clue comes from the report’s brisk outline of the considerations that guided the special counsel’s investigation of the possibility that the president obstructed justice. The first, and perhaps the most critical, is that the special counsel “determined not to make a traditional prosecutorial judgment.” The reason is that as a part of the Department of Justice, the special counsel “accepted” the department’s conclusion that under the Constitution, a president cannot be indicted. (I agree with that conclusion, as stated in chapter 9.) And even if we put the Constitution to one side, “a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” including impeachment. The most important word here is “accusation.” The special counsel was giving a clear signal that a mere “accusation” would burden the president’s ability to do his job—and hence that he would be exceedingly reluctant to make it.

  The report adds that if an indictment could not be brought, it would be uniquely unfair to offer a judgment, in public, that the president committed a crime. The reason is simple: There could be no trial, and so the president could not defend himself and clear his name. “The ordinary means for an individual to respond to an accusation is through a speedy and public trial.” No president could take advantage of that means in this case. Hence “we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”

  That is a tangled sentence. In context, the best reading is that the special counsel decided that it would not offer “a judgment that crimes were committed,” in part because the president could not defend himself in court, and in part because that very judgment could affect his ability to govern.

  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.” The evidence “about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.” Hence the report “does not exonerate him.”

  It would be possible to read the report’s analysis in two different ways. First, Mueller believed that the president probably did obstruct justice, but because President Trump cannot be indicted, he declined to say that publicly. Second, Mueller was just not sure whether the president obstructed justice—the legal and factual issues are difficult—and so he decided merely to lay out the evidence and let readers (including members of Congress) make their own decision.

  The first reading is far more damning, and on reflection, something like it is probably right. Consider again these all-important words: “[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” The report’s emphasis on the president’s immunity from prosecution, and hence the impossibility of having a trial, would make little sense if the special counsel were merely saying: “I don’t know whether the evidence makes out a crime.”

  He was not merely saying that. Instead 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.” That, I think, is the solution to the mystery, and the clue to the meaning of those crucial words: “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

  The best response would point to the report’s statement that “the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.” The reference to “difficult issues” might be taken to support the first reading: Mueller really wasn’t sure whether criminal conduct occurred. Note, however, the context of the statement—n
ot “difficult issues” period, but “difficult issues that prevent us from conclusively determining that no criminal conduct occurred.” With the report’s prefatory words, emphasizing that it would be inappropriate and unfair to say that criminal conduct did occur (even if it did), the reference to “difficult issues” is not best taken as a statement of agnosticism.

  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. Though the question is not free from doubt, the best bet is that he thought otherwise. To put it plainly: The best bet is that Mueller believed that Trump obstructed justice with respect to the investigation into Russia’s interference with the 2016 presidential election.

  That leaves a large question: What is the constitutional duty of the House of Representatives?

  Precedents

  To answer that question, it is natural and fair to look to historical precedents. Two of them are worth considering.

  First: We have seen that President Bill Clinton was impeached in part for obstruction of justice. One of the two articles of impeachment against him charged that he corruptly encouraged a witness (Monica Lewinsky) to give perjurious testimony, and also that he corruptly supported a scheme to conceal evidence that had been subpoenaed in a civil rights action brought against him. As we have also seen, the House of Representatives, in voting for that article, plainly violated its constitutional duty. 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.