If a president uses that authority to obstruct justice with respect to an investigation of (say) his use of presidential powers to punish political opponents, the constitutional question would be easy; that would be a misdemeanor within the meaning of the impeachment clause. But the Clinton impeachment should not be taken as a precedent for anything, just because the obstruction of justice, in that case, was so wildly far afield from the concerns that animated the impeachment provisions.
Second: Recall that with respect to President Richard Nixon, the House Judiciary Committee voted in favor of (1) an article of impeachment that involved a refusal to respond to duly authorized subpoenas and (2) an article of impeachment that involved a conspiracy to cover up the Watergate break-in. The former article is not directly relevant to the Mueller report. The latter is closer. That article contended that Nixon “has prevented, obstructed, and impeded the administration of justice.” More specifically, Nixon was charged with
making false or misleading statements to lawfully authorized investigative officers and employees of the United States;
withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;
approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;
interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees;
approving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals who participated in such unlawful entry and other illegal activities; . . .
making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct; or
endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.
It’s quite a list. There is no serious question that the House Judiciary Committee was right to conclude that these actions constituted an impeachment offense. Nixon’s obstruction involved a lawful investigation into his campaign’s abuses of the democratic process, through spying on the opposing political party. They were not the worst imaginable abuses, to be sure (and they were far less egregious abuses than those committed by Russia in connection with the 2016 presidential election). But they were abuses nonetheless.
In considering the Nixon precedent, we should note that the special counsel did not conclude that candidate Trump, or the Trump campaign, conspired or cooperated with Russia. It is also important to note that Mueller declined to say that Trump committed obstruction of justice (though for reasons sketched above, he probably thinks that he did). It is both instructive and fair for readers—whatever their political party, and whatever their conclusions—to compare the actions catalogued in volume II of the report with the actions described above.
The Duty of the House of Representatives
In an important statement, House Speaker Nancy Pelosi said, in response to an interview question, “I’m not for impeachment.” Speaking more than a month before the release of the Mueller report, she explained: “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. As the Constitution’s framers and ratifiers were well aware, impeachment should not be a political weapon—a way for political losers to undo the effects of an election. Recall that the term “maladministration” was rejected at the Constitutional Convention, and that the debate over impeachment culminated in a standard that would forbid impeachment because a president’s opponents intensely disliked him or disapproved of his policies. Pelosi’s emphasis on what is “compelling and overwhelming and bipartisan” can be taken to speak for the founding generation.
At the same time, her statement can easily be read in a way that puts it at odds with the Constitution. It’s best to assume that Pelosi did not mean it in that way. But on such a fundamental question, we should get very clear on what the founding document means and requires.
One last time: In the domain of impeachment, it is crucial to embrace a firm commitment to political neutrality. If you like a particular president and agree with his policies, you should assess an alleged basis for impeachment by asking: How would I evaluate that claim if I disliked him and disagreed with his policies? It is at least as important to say that if you dislike a particular president and abhor his policies, you should assess an alleged basis for impeachment by asking: How would I evaluate that claim if I liked him and loved his policies? It is even better to adopt a veil of ignorance and to ask: If I knew nothing at all about a president, would I think that the claim against him made out an impeachable offense?
Suppose that a president commits a clearly impeachable offense—by, say, committing treason or by using the apparatus of government to violate people’s rights and liberties. Suppose, too, that many members of the president’s party remain intensely loyal to him, thinking, “True, he’s horrible in some ways, but he’s good on a lot of other issues, and anyhow, he’s our guy, the captain of our team.” In those circumstances, the Constitution does not license members of the House of Representatives to refrain from impeachment, on the ground that it would not be “bipartisan” and would “divide the country.”
We have seen that the impeachment mechanism was specifically designed as a response to those who feared that by establishing a powerful president, the new Constitution would re-create a kind of monarchy and thus betray the principles for which the Revolution had been fought. Without the impeachment mechanism, the nation would probably have refused to ratify the Constitution. To those who are inclined to take Pelosi’s words at face value, it is worth recalling George Mason’s critical words at the Constitutional Convention:
No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? . . . Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?
In this light, it defies belief to think that the impeachment process is purely “political”—or that the House of Representatives may decline to proceed against a president who has engaged in treason, produced “the most extensive injustice,” or otherwise committed a clearly impeachable offense. If Pelosi meant to say otherwise—to suggest that the House can refrain from acting unless impeachment is “bipartisan” or not “divisive”—she was speaking in patent defiance of the constitutional plan. But it would be possible to understand her words more narrowly.
In some cases, reasonable people might agree on the constitutional standard while disagreeing on the facts. Pelosi might have meant that impeachment is not a good idea unless there is “compelling and overwhelming” evidence that the president actually engaged in actions that would amount to
an impeachable offense. If so, her position is perfectly sensible.
In other cases, reasonable people might agree on the facts but disagree about whether the constitutional standard is met—about whether a president’s actions count as a “high crime and misdemeanor.” It is important to note that in their context, those words are far less ambiguous than they seem. They set out a pretty clear legal standard.
Some cases do fall within a gray area. We have seen that article III of the impeachment articles against President Richard Nixon, pointing to his failure to comply with congressional subpoenas, is an example. It is hardly crazy to insist that if it is not clear whether the president has committed what the Constitution deems to be an impeachable act, the House is entitled to refrain from acting, at least when the nation is sharply divided along political lines.
There is a much larger point here. During the outrage and battles of the moment, the Constitution provides a lodestar, focusing us instead on enduring ideals. In the eighteenth century, a lot of people put their lives on the line for those ideals. In the founding document, they turned one of their ideals into a principle, which deserves to be put in bold letters: 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
The two volumes of the Mueller report run some 448 pages. Much of it makes for riveting reading—especially, perhaps, on Russia’s actions during the 2016 campaign, and also on some of the actions of the president and his staff after the election. 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). With respect to the question of obstruction of justice, however, it is not easy to get clarity on the underlying issues without more details. Some of the most important of them are supplied here. Interested readers are of course invited to consult the entire report.
Executive Summaries and Excerpts from the
Report on the Investigation into Russian Interference in the 2016 Presidential Election
Special Counsel Robert S. Mueller, III
Washington, D.C.
March 2019
N.B.: All footnotes from the full report have been omitted.
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. . .
INTRODUCTION TO VOLUME I
This report is submitted to the Attorney General pursuant to 28 C.F.R. § 600.S(c), which states that, “[a]t the conclusion of the Special Counsel’s work, he . . . shall provide the Attorney General a confidential report explaining the prosecution or declination decisions [the Special Counsel] reached.”
The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion. Evidence of Russian government operations began to surface in mid-2016. In June, the Democratic National Committee and its cyber response team publicly announced that Russian hackers had compromised its computer network. Releases of hacked materials—hacks that public reporting soon attributed to the Russian government—began that same month. Additional releases followed in July through the organization WikiLeaks, with further releases in October and November.
In late July 2016, soon after WikiLeaks’s first release of stolen documents, a foreign government contacted the FBI about a May 2016 encounter with Trump Campaign foreign policy advisor George Papadopoulos. Papadopoulos had suggested to a representative of that foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to Democratic presidential candidate Hillary Clinton. That information prompted the FBI on July 31, 2016, to open an investigation into whether individuals associated with the Trump Campaign were coordinating with the Russian government in its interference activities.
That fall, two federal agencies jointly announced that the Russian government “directed recent compromises of e-mails from US persons and institutions, including US political organizations,” and, “[t]hese thefts and disclosures are intended to interfere with the US election process.” After the election, in late December 2016, the United States imposed sanctions on Russia for having interfered in the election. By early 2017, several congressional committees were examining Russia’s interference in the election.
Within the Executive Branch, these investigatory efforts ultimately led to the May 2017 appointment of Special Counsel Robert S. Mueller, III. The order appointing the Special Counsel authorized him to investigate “the Russian government’s efforts to interfere in the 2016 presidential election,” including any links or coordination between the Russian government and individuals associated with the Trump Campaign.
As set forth in detail in this report, the Special Counsel’s investigation established that Russia interfered in the 2016 presidential election principally through two operations. 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 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.
* * *
* * *
Below we describe the evidentiary considerations underpinning statements about the results of our investigation and the Special Counsel’s charging decisions, and we then provide an overview of the two volumes of our report.
The report describes actions and events that the Special Counsel’s Office found to be supported by the evidence collected in our investigation. In some instances, the report points out the absence of evidence or conflicts in the evidence about a particular fact or event. In other instances, when substantial, credible evidence enabled the Office to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred. A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.
In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation’s scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law. In connection with that analysis, we addressed the factual question whether members of the Trump Campaign “coordinat[ed]”—a term that appears in the appointment order—with Russian election interference activities. Like collusion, “coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests. We applied the term coordination in that sense when stating in the report that the investigation did not establish that the Trump Campaign coord
inated with the Russian government in its election interference activities.
* * *
. . .
EXECUTIVE SUMMARY TO VOLUME I
RUSSIAN SOCIAL MEDIA CAMPAIGN
The Internet Research Agency (IRA) carried out the earliest Russian interference operations identified by the investigation—a social media campaign designed to provoke and amplify political and social discord in the United States. The IRA was based in St. Petersburg, Russia, and received funding from Russian oligarch Yevgeniy Prigozhin and companies he controlled. Prigozhin is widely reported to have ties to Russian President Vladimir Putin, Harm to Ongoing Matter ██ ██████ ███ ████████ ███████ ████ ███████ ████████ █ ███████ █████████ ███ █████████ ██ ██████████ ██
In mid-2014, the IRA sent employees to the United States on an intelligence-gathering mission with instructions █████ ██ Harm to Ongoing Matter ████████ ██████ ██ ███ ███████ ██ ███ ██ █████████ ██████ ███████ ████ ██ ██████ ███████████ ███████ ███ ████████ ███████ ████ █ ███████████ ███████ ████████ ██ ████ █████████ ████ ██ ████
Impeachment- a Citizen's Guide Page 17
