Two Cheers for the Articles of Impeachment
There are notable virtues to the two articles impeachment rolled out by the Democrats yesterday.
They are concise and narrowly focused on Donald J. Trump’s abuse of power and obstruction of Congress. As our friends at Lawfare note, “It uses no Latin terms. It has no footnotes. It is written in clear language, without lawyerly turns of phrase or technicalities. It is designed to tell a straightforward story in terms that are easy to understand. It is, in short, a document meant to be readable by Americans, not just by lawyers.”
This is all admirable, but it also reflects the political choices and compromises that produced it.
There is no specific article for “bribery,” because, in the end, the drafters opted to address structural abuses rather than specific criminal statutes. And the Democrats decided to steer clear of the findings of the Mueller Report, although the articles make an oblique reference its findings. The first article notes that Trump’s actions “were consistent with President Trump’s previous invitations of foreign interference in United States elections.” The article on obstruction of Congress, also says “These actions were consistent with President Trump’s previous efforts to undermine United States Government investigations into foreign interference in United States elections.”
Some observers saw an opening there for evidence found by Mueller to be introduced at the Senate trial.
I read this portion of Article II as a reference that permits House managers to introduce evidence of the obstruction of justice set forth in the Mueller Report during the impeachment trial. pic.twitter.com/JJD0Jq6Lga
— Joyce Alene (@JoyceWhiteVance) December 10, 2019
But this is indirect and a far cry from the Mueller Report’s open and rather explicit invitation to Congress to act on its findings: “[W]e concluded that Congress has the authority to prohibit a president’s corrupt use of his authority in order to protect the integrity of the administration of justice,” Mueller wrote.
And in case that was not explicit enough, Mueller continued: “The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
So, like an amputated limb, we can still feel that missing third article.
In the days leading up to the unveiling of the articles, Lawfare’s Susan Hennessey argued that Congress should at least include a specific article on one of the clearest and least ambiguous findings of the Mueller Report: She suggested a single article “describing how the president of the United States obstructed justice by directing White House Counsel Don McGahn to create a false internal record denying that the president had instructed him to have Robert Mueller fired as special counsel.”
Hennessey reminded readers of the details of the story from the Mueller Report:
In June 2017, following press reports that the special counsel was investigating Trump personally, the president ordered McGahn to have Mueller fired. McGahn prepared to resign rather than carry out the order, but he was persuaded to remain. Months later, in January 2018, the New York Times reported that the prior June Trump had directed McGahn to have Mueller fired. The president sought to have McGahn publicly deny this story, but McGahn refused to do so because the story was accurate in significant part. Approximately one week after the initial Times story, Trump told White House Staff Secretary Rob Porter to direct McGahn to create a record “for our files” denying the story and saying McGahn had never been told to fire Mueller. Trump suggested to Porter that if McGahn refused to write such a letter, Trump might fire McGahn. Porter communicated Trump’s request to McGahn, and McGahn refused to create such a record, reiterating that the story was true and that in June 2017 the president had, in fact, told him to have Mueller fired. Finally, the president directly pressured McGahn, in an Oval Office meeting, to refute the story and McGahn again refused.
As Hennessey noted, Mueller had determined that McGahn’s account of events was credible and concluded that Trump’s pressure on McGahn was an effort to “deflect or prevent further scrutiny of [Trump’s] conduct towards the investigation.” All of the elements of a criminal charge of obstruction were there, she Hennessey noted, “an obstructive act, nexus to an investigative proceeding and corrupt intent,” and Mueller “found that evidence supports the conclusion that the president’s conduct met all three.”
But, in the end, the Democrats chose not to specifically address Mueller’s findings. Their decision seems more tactical than substantive. There are still a handful of nervous moderates in swing districts who are squeamish about impeachment and the Democrats made a political decision not to get bogged down in the inevitable GOP relitigation of the Mueller probe. There is a strong case to be for this kind of prudence, especially since some sort of compromise was inevitable.
But it all comes at a price.
Democrats are so concerned about being viewed as motivated by political optics rather than constitutional obligation that they are ignoring the constitutional obligation because it’s better political optics. https://t.co/rOxkJs4Rq7
— Susan Hennessey (@Susan_Hennessey) December 10, 2019
The result are two articles that are notable for what they do not say. As Hennessey and her colleagues at Lawfare note, the article on obstruction “fails to capture how Trump’s actions represent an outright assault on the very notion of legislative oversight. This strategy ignores broader assertions outside the context of impeachment of absolute immunity and the frivolous claims of executive privilege over the testimony of individuals who have never even served in government.”
But, they continue, it is the omission of the Mueller findings that haunts the process:
The articles drafted by the House pay a price in their lack of completeness—which is the flip side of their streamlined simplicity. The trade-off of being able to tell a clean and concise story, after all, is that broad and sweeping narratives are ruled out. By focusing narrowly on Ukraine, the House risks forfeiting the ability to tell the full story of Trump’s efforts to leverage the power of the presidency to target his political opponents. Yes, Trump’s effort to pressure Ukraine to investigate Biden is part of this story—but so too are his private and public attempts to pressure the attorney general to investigate Hillary Clinton and his public demands that individual citizens like James Comey, John Brennan, Peter Strzok, Lisa Page and the family members of Michael Cohen be targeted for investigation. It may be easier to tell the story of how Trump tried to turn Ukrainian law enforcement to his own purposes, but what about his abuses of American law enforcement?
This suggests that even impeachment has fallen victim to the Trump Era, in which we are so awash in scandals and abuses that is hard to keep up or keep track, much less draw distinctions between what is merely annoying and what is truly dangerous.
But that’s Congress’s job. And they need to do it. Even if it’s politically inconvenient.