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Democrats in Congress are debating how to respond to Special Counsel Robert Mueller’s report, which cleared the Trump campaign of criminally conspiring with Russia, but also detailed President Donald Trump’s efforts to restrict and even shut down the probe.
After Mueller declined to draw a legal conclusion about whether Trump’s attempts to interfere were unlawful, Attorney General William Barr and Deputy Attorney General Rod Rosenstein said the president’s conduct was not.
The special counsel’s silence on the obstruction of justice question is now central to lawmakers’ discussion about how to respond.
Some Democrats perceive Mueller’s report as a roadmap for Congress, providing what amounts to a guide for impeachment proceedings. But others say Senate Republicans would likely block Trump’s removal, which could be seen as a political defeat for Democrats.
For now, Democratic leaders have vowed to use their majority power in the House to continue to investigate Trump’s questionable conduct, an interim step that could lead to impeachment.
"If it is what we need to do to honor our responsibility to the Constitution — if that’s the place the facts take us, that’s the place we have to go," House Speaker Nancy Pelosi said on a Democratic conference call in reference to impeachment, according to NBC News, adding, "We don't have to go to articles of impeachment to obtain the facts, the presentation of facts."
For his part, Trump has said he would fight impeachment at the Supreme Court. But the court has affirmed that the Constitution grants that power exclusively to Congress.
The Mueller Report, despite being written by Angry Democrats and Trump Haters, and with unlimited money behind it ($35,000,000), didn’t lay a glove on me. I DID NOTHING WRONG. If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court. Not only......— Donald J. Trump (@realDonaldTrump) April 24, 2019
Here, we’ll take a look at several factors that will shape the impeachment process — or its absence.
Experts we spoke to said Democrats have three options, each of which carries its own mix of advantages and drawbacks.
Perhaps the least severe measure Democrats could take would be to censure Trump. One or both chambers of Congress can issue a censure against a president, which represents a formal rebuke for inappropriate conduct.
Congress since 1800 has introduced resolutions of censure against at least 12 sitting presidents, according to a Congressional Research Service report. It was considered during the tenure of President Bill Clinton as a potential alternative to impeachment. (Liberal activist group MoveOn.org actually got its name from its proposal about Clinton to "censure and move on.")
"Censuring has the advantage of rebuking a president without removal," said Ian Ostrander, a political science professor at Michigan State University. "If this option has an upside for the Democrats, it could be that it weakens Trump while retaining him as the man to beat in 2020."
But censure’s downside may be its blandness — a "slap on the wrist," as one expert said.
A formal expression of disapproval could still placate the base enough to let the party move onto potentially higher-priority issues as the 2020 election ramps up.
"Censure gives House Democrats a formal expression of disapproval that many of them believe is demanded by their constituents," said Steven Smith, a political science professor at Washington University in St. Louis. "The effect will be short-lived, which may be just what the Democratic leadership wants."
Democratic leadership appears more interested in continuing to investigate Trump across several committees headed up by experienced chairs.
"I think most Democrats are in this camp," said Burdett A. Loomis, a political science professor at the University of Kansas. "It allows for continuing investigation without stirring up the emotions that impeachment would."
While continued House probes are likely to have support from the middle-of-the-road voters who could prove crucial to Democrats’ 2020 electoral chances, impeachment proceedings run the risk of alienating the more moderate slice of the electorate.
With Republicans controlling the Senate, it’s also unlikely two-thirds of the chamber would vote to remove Trump.
"There are a lot of former prosecutors in Congress, and they know to think twice about pursuing a case you are unlikely to win," said Mark Osler, a law professor at the University of St. Thomas and former assistant U.S. attorney. "A lot can go wrong on the way to that likely defeat."
This is a trickier question than it would seem on the surface.
Defining the start of the impeachment process "seems more like a political judgment than a legal or constitutional one," Griffin said.
If an impeachment process does get more formally underway, it would be when the House Judiciary Committee takes up, debates, and votes on impeachment articles. The passage by a majority of the House does not immediately lead to a president’s removal. Instead the Senate would then hold an impeachment trial. The president could be removed from office with a two-thirds vote in the Senate.
Obstruction of justice has been a bedrock element of the two 20th-century impeachment processes.
In Watergate, the first article of impeachment was that President Richard Nixon "has prevented, obstructed and impeded the administration of justice." For President Bill Clinton, the third article used the same language. Nixon’s article was approved by the House Judiciary Committee, while Clinton’s passed the full House.
In Watergate, the first article proved convincing to lawmakers, said James D. Robenalt, attorney with the firm Thompson Hine LLP and creator of a continuing legal education class on Watergate.
The committee’s passage of that article by a 27-11 margin "turned the whole tide to get Republicans to reluctantly to vote for it," Robenalt said.
These precedents make the question of obstruction significant in the months ahead, said Josh Chafetz, a Cornell University law professor.
Experts said that the Mueller report’s details on multiple occurrences of obstruction of justice suggest that its authors intended it as a roadmap for potential impeachment proceedings. The report weighs evidence on whether Trump sought to abort an investigation by firing FBI Director James Comey, whether he tried to get Attorney General Jeff Sessions to "unrecuse" himself so that he could fire Mueller, and whether he sought to get McGahn to fire Mueller.
That said, the Mueller report suggests that it might be easier for lawmakers to demonstrate attempted obstruction of justice, since Trump’s "alleged attempts at obstruction were largely blocked by his aides," said University of St. Thomas law professor Mark Osler. Attempted obstruction of justice is still a felony.
It might also be challenging to prove whether Trump’s intent was "corrupt," since he had the authority to fire top Justice Department officials and the FBI director. Trump can argue that he was "trying to fire people to avoid embarrassment or distractions, rather than prevent a criminal investigation," said Vanderbilt law professor Christopher Slobogin.
The Nixon and Clinton impeachment articles did consistently reference the text of the oath of office, so this would hardly be unprecedented. Those articles focused on the president’s responsibility for executing the laws under the Constitution.
"Making the public case that the president has been unfaithful to his oath of office could be a very powerful argument," Chafetz said.
But there are limits to how heavily impeachment can rely on the oath, legal specialists said.
"It resembles impeaching a president simply because you don’t think he’s doing a proper job," said Tulane University law professor Steve Griffin. "Members of the opposing party always appear to think that, which means that standard would justify impeaching every president."
The jurisprudence supporting executive privilege is far from bulletproof — it is certainly weaker than protections under national security guidelines, legal experts said. In fact, executive privilege was weakened by the unanimous Supreme Court ruling that Nixon had to turn over the White House tapes, which hastened his resignation.
Its usefulness is also limited, because the privilege has been waived for anything that has been published in the Mueller report, said Barbara McQuade, former U.S. attorney for the Eastern District of Michigan.
And it can have a bad look, conjuring up images of Nixon, who made the argument often. "Invoking privilege makes it look like the president is trying to hide something," Chafetz said. "If the Democrats managed the hearings skillfully, they could make the invocation of privilege very politically costly for the president."
Still, legal skirmishing over executive privilege has its uses for an embattled White House: It can serve as a delaying tactic, perhaps long enough to run out the clock until the election.
Associated Press, "The articles of impeachment against Nixon," accessed April 25, 2019
Washington Post, "Approved Articles of Impeachment," Dec. 20, 1998
Congressional Research Service, "Resolutions to Censure the President: Procedure and History," Feb. 1, 2018
Congressional Research Service, "Impeachment and Removal," Oct. 29, 2015
Email interview with Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan, April 25, 2019
Email interview with Steve Griffin, Tulane University law professor, April 25, 2019
Email interview with Christopher Slobogin, Vanderbilt law professor, April 25, 2019
Email interview with Mark Osler, University of St. Thomas law professor, April 25, 2019
Email interview with Josh Chafetz, Cornell University law professor, April 25, 2019
Email interview with Stephen B. Presser, emeritus professor at the Northwestern University School of Law, April 25, 2019
Email interview with Malcolm Byrne, deputy director and director of research with the National Security Archive, April 25, 2019
Interview with James D. Robenalt, attorney with the firm Thompson Hine LLP and creator of a continuing legal education class on Watergate, April 25, 2019
Email interview with Ian Ostrander, a political science professor at Michigan State University, April 24, 2019
Email interview with Steven Smith, a political science professor at Washington University in St. Louis, April 23, 2019
Email interview with Burdett A. Loomis, a political science professor at the University of Kansas, April 23, 2019