MUELLER DID THE RIGHT THING. WILL DEMOCRATS DO LIKEWISE?
Reduced to essentials, Mueller was faced with a choice among the three branches of government – the Executive, the Legislative and the Judiciary — as the institution to decide whether to remove Trump from office for what was clearly “ wrongdoing” if not provable violations of law. (As former law professor, Elizabeth Warren, succinctly put it: "The Mueller Report lays out facts showing that a hostile foreign government attacked our 2016 election to help Donald Trump and Donald Trump welcomed that help. Once elected, Donald Trump obstructed the investigation into that attack.”)
Had Mueller recommended indictment on criminal charges one of two things would have happened:
Barr, now revealed as acting as the the President’s rather than the People’s advocate, doubtlessly would have refused to prosecute averring that Mueller found “no evidence that a crime had been committed"; in which case, absent impeachment in the House, the issue would be decided by one biased individual within the Executive . This was clearly an unsatisfactory outcome for Mueller and any objective observer. It also happens to be Barr’s preferred outcome, given his taunt: “Mueller could have reached a conclusion as to criminality.” — which would have put the matter squarely to Barr, who as Attorney General has the last word in decisions of whether or not to prosecute. Barr then, would singlehandedly save the President, if the House decided not to impeach, or if it did decide to impeach, Barr would add the DoJ’s weight of “no evidence of crimes committed” and “no obstruction” to a trial in the Senate. Essentially, that’s what Barr attempted to do with his whitewashed summation and benign conclusions (omitting any mention of the dozen or so obstructive actions by Trump) three weeks before releasing the redacted report. Today Mueller quietly rebutted Barr, saying “ there was insufficient evidence to charge a broader conspiracy.” and "after that investigation, if we had confidence that the President clearly did not commit a crime, we would have said that.” In short, no exoneration. And furthermore, following DoJ rules, Mueller said "Charging the President with a crime was therefore not an option we could consider.” That’s a far cry from Trump’s war chant: “No collusion, no crime, no obstruction. Total Exoneration!”
Improbably, Barr could have overridden DoJ policy forbidding the indictment of a sitting president, and followed Mueller’s charge by prosecuting Trump in the courts, throwing the decision to the Judiciary. At trial, Barr’s DoJ, now firmly in the Trump camp, would be prosecuting their own “ client." The issue would then have been initially decided by 12 unelected citizen jurors (imagine the voir dire process of jury selection!).
If the initial verdict exonerated Trump, the conflicted Attorney General, acting both as Trump’s advocate and, halfheartedly, as prosecutor would let the matter rest, without appeal. Trump could then justifiably claim “total exoneration in court.”
More likely, the jury would be unable to reach a unanimous decision, resulting in a mistrial, and the nation would be gripped in an ongoing series of jury trials and hung juries — a unresolvable judicial and political nightmare.
If the jury found the President guilty, as defendant, Trump would certainly appeal ultimately to the Supreme Court where the decision would rest with 9 highly politicized (read, “biased”) justices, two of whom were personally selected by Trump on the basis of favoritism toward the Executive, plus three existing Republican appointees, similarly inclined, constituting a 5:4 majority exonerating Trump. That too would be a miscarriage of justice in the eyes of Mueller and objective observers for whom the evidence of wrongdoing is compelling.
By not recommending indictment, and stating, "the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing,” Mueller clearly intended to put the matter to the 535 duly elected members of Congress, representing the sentiments of the full body politic as the appropriate institution to make one of the most momentous decisions in the country’s history. Accordingly, objective observers (if any are to be found) would agree that Mueller did the right thing, considering the unsatisfactory alternatives previously analyzed implying final decisions made by non-elected individuals. Fortunately, for Mueller, the DoJ's proscriptions against indicting a sitting president gave Special Counsel an easy path to this decision. Now the decision rests with the House and Senate.
The House now faces the decision of whether or not to impeach Donald Trump for “high crimes and misdemeanors” — deliberately ambiguous concepts implying political rather than legal standards of proof. There are two schools of thought:
Don’t impeach: This view is championed by Speaker Nancy Pelosi (D-San Francisco, CA), a skilled political realist mindful of two salient facts: A majority of Americans don’t presently favor impeachment (according to polls) and even if impeached by the House, either Leader McConnell could refuse to bring the matter to the Senate floor, or if a trial were held in the Senate, Trump would be acquitted by 53 Republican senators terrified of alienating Trump’s implacably loyal base. Pelosi and like-minded Democrats agree that impeachment now would not remove Trump from office, given Republican control of the Senate. Moreover, the failure to convict would provide Trump with the opportunity to rally his base with a rain dance punctuated with whoops of “partisan witch hunt” in the House and “total exoneration” in the Senate. The perverse effect of impeachment, the reasoning goes, might be to ensure the re-election of Trump in 2020.
Must impeach (or at least hold impeachment hearings): This imperative, is presently supported by at least 9 Democratic presidential candidates and 50 House Democrats plus a lone Republican (Justin Amash of Michigan). Those favoring impeachment are motivated, they say, by a sense of duty to expose “crimes and misdemeanors” and restrain an out-of-control authoritarian president. Practical political reasoning also suggests that if impeachment hearings are held, the public, few of whom have read the Mueller Report, will become aware of the damning evidence it reveals, building public support for impeachment and also undermine Trump's and congressional Republicans’ chances for re-election. Giuliani is right, that Trump’s fate will ultimately be decided in the court of public opinion. While the majority of public opinion presently does not favor impeachment, just as was the case at this stage of the game for Richard Nixon, a steady stream of relevant witnesses and experts (hopefully including Mueller and members of his team, testifying before Congress parsing the Mueller Report would raise public awareness of Trump’s wrongdoing and turn the tide against Trump, much as occurred during the Watergate hearings. Moreover, failure to impeach might lead to disenchantment within the Democratic base which expects Democrats to act in the face of Trump’s wrongdoing. The clamor for impeachment hearings appears to be gathering momentum among House Democrats, and, after much thought, I’m inclined to agree. However, concurrently Democrats must also remain active in passing legislation popular with a majority of the electorate, which while doubtlessly stymied in the Republican-dominated Senate, would nonetheless offer a preview of coming attractions if Democrats succeed in gaining control of Congress and the Presidency, enhancing their chances of so doing in 2020.
As things now stand in the Senate, Republicans can be counted on to either refuse to take up the House’s Articles of Impeachment, or if a trial is held in the Senate, acquit the President. The Senate is controlled by 53 Republicans, 22 of whose seats are up for re-election (41.5% of the total Republican seats). The minority of 45 Democrats (plus 2 independents who caucus with the Democrats) have only 12 seats up for re-election (25.5% of their total). Accordingly, senate Republicans are far more vulnerable than Democrats. While impeachment hearings would doubtlessly fire up Trump’s base, always suckers for victimhood, they would also tend to sway the undecideds (who will decide the 2020 election), away from Trump and the Republicans who support him, heightening the vulnerability of Trump and many Republican senators up for re-election. So even in the likely event that the Senate would fail to convict, the impeachment hearings would bear fruit for the Democrats.
Summing up: Mueller did the right thing in putting the matter before Congress, rather than the Executive or the Judiciary. The Democrats seem likely to do the right thing and initiate impeachment proceedings. Here’s why: While hearings will doubtlessly fire up Trump’s base, Democrats will figure out that a) these voters are beyond their reach anyway, as mentioned in my previous post and b) hearings revealing the sordid wrongdoings of Trump & Co will sway the critical undecideds away from Trump and Republican senators up for re-election in 2020. Likely Democratic calculus: the political cost of the former would be outweighed by the political benefits of the latter.