On Wednesday, Robert Mueller spoke. During a last-minute press conference, the special counsel reiterated the central conclusions of his report into Russian interference in the 2016 election: Russian state operatives acted deliberately to swing the presidential vote away from Hillary Clinton and toward Donald Trump; Mueller found no definitive evidence that the Trump team colluded with the Russians to influence the election; and Trump may or may not have committed a federal crime in obstructing the special counsel’s investigation, but it was not within the power of Mueller’s team to indict a sitting president, with Mueller himself deciding it would be wrong to even accuse Trump of a crime for which he had no outlet to defend himself in the courts.
But Mueller also made the following statement, which some say warrants the opening of an official congressional inquiry into whether the president committed an impeachable offense (emphasis added):
…if we had had evidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.
The introduction to the Volume II of our report explains that decision. It explains that under longstanding department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited. A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider. The department’s written opinion explaining the policy makes several important points that further informed our handling of the obstruction investigation. Those points are summarized in our report, and I will describe two of them for you.
First, the opinion explicitly permits the investigation of a sitting president, because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.
And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing. And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.
(To watch the above remarks, start at 0:25 in the video below.)
The formal process of accusing a sitting president of wrongdoing to which Mueller referred is, clearly, the impeachment process. The House of Representatives has the sole authority to determine whether Trump committed an impeachable offense. Congress’ lower chamber is the only body able to formally accuse the president of a federal crime, and to call for his removal via an impeachment trial in the Senate.
Considering the extent of the evidence collected in Mueller’s report, and the special counsel’s belief that he was unable to make a traditional prosecutorial judgement concerning the president, I believe House members are now morally obligated to begin an impeachment inquiry. The results of that inquiry will determine, conclusively, whether formal impeachment charges are legally permissible. The information in the special counsel’s report clearly warrants further investigation and discussion from the governmental body with the sole ability to bring impeachment charges.
That’s not to say I have decided with 100 percent certainty that bringing formal impeachment charges is the right way to proceed, though it very well may be. I have merely decided there ought to be a formal legal process to determine wether impeachment is warranted, and if so, what precise impeachment charges will be brought. That is what justice demands.
Mueller believed he didn’t have the authority to charge the president with a crime, and he decided it would be unjust to even recommend that the president be charged with a crime or impeached. So Mueller’s findings on the matter are necessarily informational, not prosecutorial. And the circumstances are such that a prosecutorial decision, of yea or nay, is clearly needed to resolve the impeachment question that has engulfed the current administration. That judgement, per the Constitution, can only come from the House of Representatives.
I’m reluctant to make this assessment. Truly, I am. Politically speaking, it’s unclear whether pursuing an impeachment inquiry, or filing impeachment charges, will be good for the country in the short term. Discussion about impeachment is divisive and would become even more so if the debate were no longer hypothetical. This isn’t the time to tear our country further apart. Additionally, it’s incredibly unlikely that impeachment will result in the removal of Trump from office. The House has the sole power to bring impeachment charges, but the Senate has the sole power to judge those charges. A two-thirds majority, which today is 67 senators, is sufficient and necessary to remove a sitting president via an impeachment trial. If every Democrat supports the impeachment charges, removal would still require 20 Republican senators to go against the direct interests of their party. Such an outcome is highly improbable.
Unfortunately, we may have to degrade the United States’ short-term political health to protect its long-term legal stability. Launching an impeachment inquiry will set an informal precedent for what type of presidential activity is impeachment-adjacent, as Trump’s actions clearly are. Foregoing an impeachment inquiry will set the opposite precedent: that Trump’s deeds in possibly obstructing justice, questionable as they are, still do not rise to the level of even being plausibly impeachable. The president would be above investigation, and therefore above the law.
Whether you adore the current president or despise him, I don’t believe that’s the type of country in which any of us want to live. Republicans must be mindful that whatever they allow Trump to get away with today, Democrats may view as license to reciprocate when they reclaim the White House, whenever that might be. We are nearer to that slippery slope than many believe, but we can still save our democracy by refusing to go a single step further. ■