If Congress Won’t Act, Trump Will
Encouraged by lawmakers’ passivity, the president is taking the same approach to 2020 that he took to 2016.
It took Rudy Giuliani less than a month after the release of the Mueller report to begin colluding. In a buoyant interview with The New York Times on May 9, President Donald Trump’s personal lawyer unveiled his plans to push the incoming Ukrainian government to kick-start an inquiry that, Giuliani hoped, would be politically damaging to the former vice president turned Democratic presidential candidate Joe Biden: “We’re not meddling in an election—we’re meddling in an investigation, which we have a right to do,” Giuliani announced. The next day, President Trump told Politico that “it would be appropriate” for him to ask the Justice Department to investigate the Ukraine matter.
After a volley of criticism, Giuliani canceled his voyage to Kiev. (“They say I was meddling in an election—ridiculous—but that’s their spin,” he told the Times.) But one could be forgiven for feeling a sense of déjà vu. Giuliani’s and Trump’s behavior echoes the conduct described by Special Counsel Robert Mueller in his 448-page report on Russian interference in the 2016 election: The Trump team sought to benefit from the actions of a foreign government that harmed the opposing presidential candidate. The details are different—Ukraine rather than Russia, Biden rather than Clinton, a public announcement of an attempt to coordinate with a foreign power rather than a tacit understanding—but the broad strokes of the story remain the same.
It says a great deal that this kind of conduct from the president and his inner circle is no longer surprising. What is surprising is just how quickly Trump bounced from one scandal focused on his attempts to corrupt the functioning of independent law enforcement straight into another one. But after the Justice Department released Mueller’s account of presidential venality and misconduct, only for Congress to respond with a collective shrug, it was probably just a matter of time.
Volume II of the Mueller report—focused on attempts by the president to derail the investigation into his own conduct—is a portrait of Trump’s skewed vision of the role of state power and, particularly, of law enforcement. Again and again, he expresses his frustration that the Justice Department refuses to investigate his political rivals. He calls then–Attorney General Jeff Sessions at Sessions’s home to insist that the department begin a criminal probe into Hillary Clinton. He compares then–White House Counsel Don McGahn unfavorably to his onetime fixer Roy Cohn.
The report added new and troubling detail to this picture, but the overall sketch is familiar. As Mueller himself noted, many of Trump’s efforts to pressure Sessions into shuttering the Russia investigation took place in public; a great number of footnotes in this section of the report cited tweets from @realDonaldTrump. There is an argument—even a good one—that Trump committed an impeachable offense when he fired FBI Director James Comey in May 2017, and the publicly available evidence that would be stacked against him during any impeachment inquiry has only mounted in the years since then. But it’s one thing to see the president act out his unfitness for office on a daily basis, and another to read a special counsel’s assessment of that unfitness in what arguably amounts to an impeachment referral to Congress.
While the Mueller investigation was ongoing—the “Witch Hunt,” as the president calls it—it was a convenient target for Trump’s rage. Now that the investigation is complete, his public complaints have not ceased, but instead have focused more and more on the probe’s beginnings. Trump recently referred to a New York Times report fleshing out details of the FBI’s investigation into Trump’s foreign-policy adviser George Papadopoulos as “bigger than Watergate.” Attorney General Bill Barr has hinted darkly at wrongdoing on the bureau’s part, though the specifics of his concerns remain unclear.
The merits of Giuliani’s allegations about misconduct by Biden’s son in Ukraine are exactly as substantive as the Trump team’s concerns about misconduct by the FBI—which is to say, not substantive at all. Nevertheless, the gist of the president’s argument on Ukraine is that, as my colleague Susan Hennessey put it, “turnabout is fair play.” Responding to a tweet expressing outrage over Trump’s suggestion of opening an investigation into Biden, Senator Ted Cruz wrote on Twitter, “Irony much? … That describes the exact state of affairs w/ the Obama Admin launching investigations on Trump.”
The irony of Trump’s attitude toward federal law enforcement is that the president fears the FBI is exactly what he wants it to be: a gang of thugs operating on no higher principle than political advantage. His only problem is that they are not his thugs. “You’re telling me that Bobby and Jack [Kennedy] didn’t talk about investigations?” Mueller quotes the president as raging. “Or Obama didn’t tell Eric Holder who to investigate?” The man described in the report is someone so imprisoned in his own consciousness that he seems incapable of understanding that other people might, unlike him, go through the world as something other than scammers or bullies.
This worldview depends on ignoring the post-Watergate reforms designed to prevent the president from using the nation’s intelligence and law-enforcement capabilities as political tools. More than that, it requires pretending that those reforms never existed at all—that Trump’s corruption is not an anomaly, but only an honest recognition of what everyone who’s savvy already knew to be the case. It requires erasing the Nixon impeachment process, and the fact that the House Judiciary Committee included among the high crimes and misdemeanors committed by Richard Nixon that he “repeatedly engaged in conduct … impairing the due and proper administration of justice and the conduct of lawful inquiries.”
That article of impeachment was Congress’s way of drawing a line in the sand, establishing Nixon’s efforts to leverage state power to his own advantage as outside the scope of what is acceptable for a president to do. Today’s Congress, faced with the Mueller report, has the same prerogative.
The Democratic leadership in the House of Representatives remains resistant to impeachment, reportedly out of concern that it could buoy the president’s poll numbers going into an election year. Likewise, it argues, any impeachment would almost certainly run aground in the Republican Senate. But there is more to impeachment than a bare political calculation. It’s also a way of marking a breach, declaring that the presidency should not be what a particular president has tried to shape it into. In the case of Watergate, that statement of protest was more or less successful for decades, at least until it ran headlong into Donald Trump.
The philosopher Immanuel Kant famously argued that, even if a society were to disband entirely, “the last murderer remaining in the prison would first have to be executed … for otherwise the people can be regarded as collaborators in this public violation of justice.” Kant’s argument is, obviously, extreme. And for all Trump’s public embrace of corruption, he has not yet shot anyone on Fifth Avenue. But the point is that, when an injustice is done, we all shoulder some kind of mutual obligation to set right the imbalance in the world or otherwise become complicit in it. For Congress today to look at the conduct described in the Mueller report and decide that it does not merit impeachment is for it to acquiesce to Trump’s effort to establish his own corruption not only as the new norm, but also as the way things have always been. To put it another way, given Congress’s inaction, can you really blame Rudy Giuliani for trying his luck in Ukraine?
In thinking about impeachment these past two years, I’ve returned again and again to the work of the legal scholar Charles Black, who understood an impeachable offense to be an act “against the nation or its governmental and political processes, obviously wrong … to any person of honor.” The definition is cryptic, yet simple. It is almost innocent, this idea that there exists a community of people who could agree on what it means to be a person of honor, in the face of a president who acts as if it doesn’t mean anything at all.