President Donald Trump probably committed impeachable acts by obstructing ― or attempting to obstruct ― the investigation into his 2016 campaign, according to impeachment experts. Congressional Democrats have been debating what to do about it ever since the release of special counsel Robert Mueller’s report.
One bloc of Democrats thinks Congress can’t ignore the president’s actions and must impeach him now. Party leadership initially said that impeachment is off the table, but is now advocating a more cautious approach of working the facts out in open hearings ― and certainly not calling them impeachment hearings.
Impeachment experts believe that this latter course of action is the best way forward to make the case to the American people and enable multifaceted investigations across relevant committees.
The Mueller report revealed 10 separate episodes that it categorized as possible obstruction of justice. Mueller said that there was no evidence of obstruction for a few of these episodes, but, for those where clear evidence existed, declined to pass judgment on whether the president’s actions actually amounted to criminal obstruction of justice. Attorney General William Barr preempted the report’s release by giving Trump a clean bill of health with his own interpretation of obstruction of justice ― a decision that Mueller objected to directly in a letter disclosed on Tuesday. Instead, he kicked the issue to Congress ― the only body that can punish a sitting president.
The House Judiciary Committee has called Mueller and Barr to testify, as well as key figures in the report like former White House counsel Don McGahn. Rep. Jerrold Nadler (D-N.Y.), the committee’s chairman, has also subpoenaed the full unredacted version of Mueller’s report and the underlying grand jury evidence. The Department of Justice is reportedly refusing to allow Mueller to testify and Trump has promised to fight “all the subpoenas.”
“The best next step is a series of investigations by the Senate Intelligence Committee, which has a pretty good bipartisan atmosphere, by [the Oversight Committee] in the House, Intelligence in the House, the Judiciary Committee in the House ― and we just ventilate and bring more transparency to the things that Mueller uncovered,” said Philip Bobbitt, former counsel to the Senate Iran-Contra Committee and the co-author to the latest edition of Charlie Black’s classic legal text “Impeachment: A Handbook.”
But Bobbitt cautioned against moving directly to impeachment hearings because “the Judiciary committee then becomes sort of the only voice” and “that shuts down the other committees.”
Former Democratic New York congresswoman Elizabeth Holtzman, the recent author of a book on impeachment, agrees that it is past time for Congress to bring the president’s aides, lawyers and associates before congressional committees and let the American people see them answer questions about the president’s actions. Holtzman has experience here. She served on the House Judiciary Committee as the committee investigated, debated and drafted the articles of impeachment for President Richard Nixon.
“They ought to be able to see the witnesses firsthand and make their own judgment,” Holtzman said. “That’s what happened in Watergate. It needs to happen now. It should have happened starting January 3rd.”
Polls conducted after the Mueller report’s release show only 37 percent of the public supports beginning impeachment hearings. That’s one of a number of reasons why public investigation into the president’s potentially impeachable acts need not be labeled as impeachment hearings, the experts say.
The key of these hearings would be to provide a public showcase for the people who were directed by the president to commit impeachable offenses or who know of the president’s thought process as he committed impeachable offenses. It could also help explain why the president’s acts are impeachable acts.
Not every offense or crime committed by a president rises to the level of impeachment, according to Bobbitt. The president can be removed through impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors,” the constitution states. There has been a lot of debate over the vague definition of “other high Crimes and Misdemeanors,” but Bobbitt argues that the construction of the clause indicates that these “other Crimes and Misdemeanors” ought to be comparable in degree to “Treason” and “Bribery.”
“You have to find that [the president] has done something that has a deep relationship to treason and bribery,” Bobbitt said. “Something that is an act against the state as opposed to a common crime ― shoplifting ― against a person.”
An act comparable in kind to treason or bribery was defined by Alexander Hamilton in The Federalist Papers as “the abuse or violation of some public trust” that “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself.”
Hearings into the president’s acts as described in the Mueller report could provide a forum to examine which ones most likely rise to this level. Bobbitt cautioned that if impeachment came first, Congress might end up overplaying its hand. “Unless you actually slay the king you’ll do a great deal more damage to yourself.”
The Judiciary Committee has already called McGahn to testify about the president’s demand, which he refused to carry out, to fire special counsel Mueller. The committee could also call Trump’s lawyers, who do not have attorney-client privilege before Congress, to testify about his thinking behind dangling pardons for his former campaign manager Paul Manafort. Former attorney general Jeff Sessions could be asked about the president’s requests to open partisan investigations into his political opponents. All of these acts have precedent in Nixon’s articles of impeachment.
“There may be more [instances] where you have a precedent of the Nixon impeachment, but there may be different things and that we will uncover in this case if Congress does its job,” Holtzman said.