Mueller Has Made It Much Harder For Democrats To Go Slow On Impeachment

The damage inflicted by Trump’s naïveté, egotism, false equivalence, and sympathy for autocrats is difficult to calculate. – John McCain 

Although it is equal parts presumptuous and wishful thinking, I’m going to suggest that the hidden message of Special Counsel Robert Mueller’s farewell soliloquy was that he believes Congress should impeach Donald Trump because the damage cited by the president’s late nemesis — yeah, the guy whose naval namesake was hidden during Trump’s recent Japan misadventure — is immense. 

“If we had confidence that the president clearly did not commit a crime, we would have said so,” Mueller said in the money quote of his nine-minute statement on Wednesday in which he conveyed accurately, if briefly and in achingly institutional terms, the findings of his 448-page report, which unlike Trump or that whitewashing William Barr, is the ultimate authority on the Russia scandal. 

Neither Watergate special prosecutor Leon Jaworski nor Bill Clinton nemesis Ken Starr were coy about speaking to the incriminating nature of their findings.   

Starr, in fact, couldn’t stop blabbing as Clinton’s overtly partisan impeachment sank in the Senate.  We may have to leave it to historians to figure out why Mueller, as devoutly apolitical as he may be, fell back on circumlocution rather than stating the obvious.  And we probably can expect more of the same if he is forced to testify before Congress, leaving the pundits to again parse his comments for hidden meanings.  Me, too. 

Yet the soon-to-be former special counsel was not being obtuse when he answered a question no one asked him since, after all, he refused to take questions: 

If Mueller couldn’t indict Trump because he was a sitting president and did not believe he could even file an indictment under seal for when he left office, why then did he bother to investigate him so vigorously and thoroughly for obstruction of justice? 

Mueller answered this unasked question thusly (emphasis mine):

First . . . because it is important to preserve evidence while memories are fresh and documents are available . . . and second, the opinion [barring indictment]says that the Constitution requires a process other than the criminal-justice system to formally accuse a sitting President of wrongdoing.

That process would be impeachment, and thus the door is now opened wide to finally begin proceedings. 

But barely two hours after Mueller had left the podium at the Justice Department, House Speaker Nancy Pelosi issued a statement in which she said, “Congress will continue to investigate and legislate to protect our elections and secure our democracy,” but nothing about impeachment, while Jerrold Nadler, the chairman of the House Judiciary Committee, which would initiate impeachment proceedings, merely said the option was “on the table” even as the Democratic leadership’s go-slow strategy had just been made harder to sustain by the outgoing special counsel himself.  

Meanwhile, Trump, whose Vietnam era bone spurs must have been acting up, accidentallyacknowledged for the first time that Russia helped “me to get elected” and then retracted the statement in the course of a series of furious diatribes and widely debunked lies involving Mueller.   

This included calling impeachment a “dirty, filthy, disgusting word,” which was something coming from the Potty Mouth in Chief.

Impeachment is indeed a nasty business and Pelosi’s go-slow strategy has had merit since there are numerous cracks in Trump’s dam, any one of which could rupture.  But if the impeachment clause of the Constitution wasn’t written for a president like Trump, asksThe Washington Post‘s Eugene Robinson, then why is it there?  

Indeed, and at this point Democrats have no choice but to begin what is a long and drawn-out process to try to take down Trump that would last well into next year and the heart of the 2020 presidential campaign, which on balance is bad for Trump. 

This is because only impeachment — and the theatrics of televised hearings, with or without Mueller, that would demolish the Trump-Barr narrative — remotely stands a chance of slowing yet alone stopping the president in his authoritarian power grab. 

At this point, the most probable articles of impeachment (there are so many high crimes and misdemeanors to choose from) probably would be obstruction of justice, perjury, violation of the Constitution on emoluments, and possibly campaign finance law violations and tax fraud.  

Impeachment confers on the House Judiciary Committee certain legal powers it otherwise would not have. 

Chief among these is that it gives the committee a right to information otherwise protected by grand jury secrecy rules, which is key because that information, including damning witness testimony before Mueller’s grand jury, was redacted by Barr with one of the swipes of his whitewash brush. 

In a little noticed decision last month, the U.S. Court of Appeals for the District of Columbia ruled that courts may let outsiders, like members of Congress, see grand jury information, in effect upholding a Nixon-era precedent permitting the grand jury investigating the Watergate scandal to share its evidence with the House Judiciary Committee, because such sharing is permitted  when it is needed for “judicial” proceedings, which impeachment is. 

Democratic fears that the Trump administration might try to use lengthy court battles over their subpoenas to run out the clock before the 2020 election may be overstated because an impeachment inquiry is so serious that it could help persuade judges at each stage in the appeals process to expedite their rulings.  That has been the case so farconcerning two sets of subpoenas — one compelling Trump’s accounting firm to turn over its records and another compelling Deutsche Bank and Capitol One to turn over its records on loans to Trump, his elder children and family business. 

Less easy to dismiss is that even if the House were to impeach Trump, which is probable, it is unlikely that enough Republicans in the Senate would be willing to vote to convict him. 

The conventional wisdom is that Clinton was politically strengthened by Republican-led impeachment proceedings, and some Democrats fear that the same would be true if they open proceedings but fail to remove Trump, allowing him to claim they had overreached and that Congress had exonerated him. 

It is notable that the White House recalibrated its claim that Trump did not obstruct justice after Mueller’s statement. 

No longer are the president’s mouthpieces asserting that Mueller himself in his report found no obstruction, which of course was not the case.  They are now pinning that conclusion on Barr, who had said in his initial summary of the report that he and Deputy Attorney General Rod Rosenstein found Mueller’s evidence of obstruction insufficient to act on.   

If there is a wild card in all of this, it is Roger Stone.  (Go figure.)

Republican dirty trickster Stone, Trump’s longest serving political adviser, is scheduled to go on trial in November, and in conjunction with impeachment hearings trial testimony could be hugely damaging to the president because Stone can implicate him directly in Russian election interference, specifically WikiLeaks’ coordination with the Trump campaign of its release of emails damaging to Hillary Clinton.   

Alternately, if Trump pardoned Stone, that action could be criminalized by House Democrats in the form of an article of impeachment on abuse of pardon power. 

Editor’s Note: This essay originally appeared on May 31, 2019 on Kiko’s House, a website featuring commentary by journalist and author, Shaun Mullen.  It was reproduced here with the consent of Mr. Mullen.

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