Second, Congress chose not to include articles of impeachment based on allegations in the Mueller report. For nearly two years, the special counsel titillated the Beltway with the prospect of potentially impeachable conduct. Robert Mueller’s voluminous report dispelled allegations of Russian collusion, but strongly hinted that President Trump engaged in obstruction of justice—that the President used his official power to stymie the investigation. Attorney General Bill Barr disagreed, and independently concluded that there was no criminal activity worth charging.
Of course, the House could have picked up the mantle and charged the president with obstructing justice. Indeed, Mueller’s report provided what many dubbed a “road map” for impeachment. But an article on impeachment based on obstruction of justice was not included. Why? I suspect the House realized that the president had a legitimate constitutional defense. Many of the alleged obstructive acts, such as firing FBI Director James Comey, are authorized by Article II of the Constitution. No, that provision does not give Trump the “right to do whatever” he wants. But it does allow him to supervise and control his administration. Most articles of impeachment based on obstruction of justice would have gotten bogged down in very difficult constitutional questions. (I wrote a four-part series discussing these issues.) I think at least one of the claims, in which President Trump asked his White House counsel to prepare a false record, could have been viable. Yet, the House left obstruction of justice, and its messy separation of powers issues, on the cutting-room floor.
Soren J. Schmidt: The most dangerous form of bribery
Third, Congress chose not to include articles of impeachment based on bribery. The Constitution specifically lists bribery, as well as treason, as grounds for impeachment. Three of the four law professors who testified before the committee agreed that President Trump solicited a bribe: the benefit from the proposed investigations by Ukraine into the family of presidential candidate Joe Biden would be personally valuable to the president. As the Maynooth University law professor Seth Barrett Tillman and I have written, such an article would be tough to prove; the technical elements of bribery have not been satisfied. The University of Michigan law professor Barbara McQuade, who supports impeachment, recommended dropping the bribery charge. She wrote that the House should avoid “trying to satisfy technical statutory requirements such as ‘quid pro quo,’ and allowing Republicans to quibble over legal definitions.” Once again, the House Judiciary Committee took the path of least resistance, and excluded an article based on bribery.
Why did the House choose to include only abuse of power and obstruction of Congress? These two articles, in theory at least, are very easy to prove. Instead of settling on charges that relate to statutory crimes, with clear, concrete criteria, the Democrats have instead settled on articles in which the misconduct exists largely in the eye of the beholder.