In the aftermath of Robert Mueller’s first and (perhaps) last public remarks on the case of Donald Trump, I want to take a second, perhaps awkward and certainly nerdy stab at a reaction.
Mueller described Justice Department policy, by which he felt bound. He didn’t say whether he agreed with these policies. But acting as an official of the Justice Department, he said he was bound by them. Here’s the key section:
A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider. The department’s written opinion explaining the policy makes several important points that further informed our handling of the obstruction investigation.…
First, the opinion explicitly permits the investigation of a sitting president because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.
And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing. And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.
So that was Justice Department policy. Those were the principles under which we operated. And from them, we concluded that we would not reach a determination one way or the other about whether the president committed a crime. That is the office’s final position and we will not comment on any other conclusions or hypotheticals about the president.
The third of those paragraphs refers to the Constitution, which “requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
Now the historical part.
When the Constitution was written, there were no national parties and no two-party system. The framers had no ability to analyze whether and how the impeachment/trial/two-thirds vote for conviction might work in a two-party system, nor could they foresee the level of partisanship and party loyalty that now obtains. To some degree, that level of partisanship is a fairly recent development.
To date, we have exactly one Republican member of Congress, Rep. Justin Amash of Michigan, who has said that he would vote to impeach Trump. And he’s not in the Senate, which currently has a partisan majority of 53 Republicans, none of whom have expressed any interest in voting to convict and remove Trump. You can say, if you like, that that’s because they haven’t sat through the trial yet, fine. But it would take at least twenty — twenty! — of those 53, combined with 100 percent of the 47 Senate Democrats to get to the two-thirds — 67 votes — need to convict and remove Donald Trump.
At the moment, that is beyond imaginable.
Just for yuks, I decided to re-read one of the Federalist Papers that deal with the matter of impeachment. It was adorable. Also hilarious. Or should I say tragic? You decide.
Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?
I especially love the idea, in 2019, that the Senate would be “sufficiently independent” to render a correct verdict in such cases. What does Hamilton mean by “sufficiently independent?”
When we look at the current situation, we start from the assumption that most or all of the Republicans in the Senate would vote against convicting the current incumbent (who happens to also be the leader of their party) of any impeachable offenses (and that most or all Democrats would vote for conviction and removal). Where’s the independence in that?
Remember, Hamilton/Publius lived in an America with no national political parties. His assumption was that the senators would actually be voting based on the merits of the case.
Another part of the logic, to which Hamilton refers explicitly, is that Senators — dignified and independent — would be able to decide such a matter on its merits, not on political considerations, because Senators (in the original Constitution and until this feature was amended in 1917 by the ratification of the 17th amendment calling for the direct popular election of senators), were chosen by the state Legislatures without a popular vote. They didn’t have to pander to the masses.
As undemocratic as that may strike us today, Hamilton argued that it was a good thing to have Senators judge matters of impeachment because the method of their selection sheltered them from political pressure.
But even as recently as the Nixon impeachment crisis, there was still enough willingness of some members of Congress to set aside strict party loyalty in such matters that a delegation of Republicans, led by Sen. Barry Goldwater, came to the Oval Office and told Nixon that Senate support for him was crumbling, even among Republicans.
As of now, just one Republican in the House (Amash) has indicated any willingness at all to support investigating, impeaching or removing the current incumbent who, coincidentally, is a member of their party. It would take 20 of the 53 Senate Republicans to vote for conviction to assemble the necessary two-thirds majority. At the moment, I count zero.
If you want to make the case that Democrats who favor impeachment are also motivated by partisanship, go ahead. You’re right. It makes the same case, in terms of where we are in the power of partisanship to a level the authors of the Constitution never imagined, in an age before even the existence of national parties.
One last quote from Federalist No. 65, quite relevant to the immediate post-Mueller moment. Mueller was a special prosecutor, working under special appointment to the Justice Department for the purpose of investigating possible crimes in connection with the Russian invasion of the 2016 election. (Crimes, not “treason, bribery or other high crimes and misdemeanors,” which is the rather mysterious language in the Constitution describing impeachable conduct.) In the same essay, Hamilton/Publius asserts clearly that impeachable offenses are not exactly the same as prosecutable criminal offenses. Speaking of the impeachment power, Publius wrote:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.
Read that quote again. It strikes me as quite a different category of offense than those for which you can be prosecuted and put in prison.